B-134784, APR. 2, 1958

B-134784: Apr 2, 1958

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TO HERSHEY MANUFACTURING COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 3. A MERE REPETITION OF THE SPECIFICATIONS IS NEITHER DESIRABLE NOR SATISFACTORY. IF CATALOG OR OTHER NUMBER IS GIVEN TO DESCRIBE PROPOSED UNITS. A PAGE OF THE CATALOG OR OTHER DESCRIPTION WILL BE NECESSARY. THE ACCEPTANCE OF A BID WHICH SPECIFIES A PARTICULAR ASSEMBLY OR COMPONENT SHALL NOT BE CONSTRUED TO MEAN THAT THE ITEM WILL MEET THE INVITATION REQUIREMENTS. SUCH DETERMINATION WILL BE MADE AT THE TIME OF INSPECTION. YOUR BID SUBMITTED IN RESPONSE TO THE INVITATION WAS NOT ACCOMPANIED BY THE DESCRIPTIVE DATA REQUIRED BY PARAGRAPH XVIII AND WAS. IT WAS STATED THAT YOU HAD INADVERTENTLY FAILED TO SUBMIT THE DESCRIPTIVE DATA WITH YOUR BID.

B-134784, APR. 2, 1958

TO HERSHEY MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 3, 1958, PROTESTING THE REJECTION BY THE CIVIL AERONAUTICS ADMINISTRATION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 8-3165B1.

THE INVITATION REQUESTED BIDS TO BE OPENED ON DECEMBER 23, 1957, FOR FURNISHING CONDENSER DISCHARGE RUNWAY IDENTIFIER SETS. PARAGRAPH 1 OF THE "TERMS AND CONDITIONS PERTINENT TO THIS INVITATION" PROVIDED THAT EACH BIDDER MUST "FURNISH THE DESCRIPTIVE DATA AS REQUIRED BY PARAGRAPH XVIII HEREOF, FOR HIS BID TO BE CONSIDERED RESPONSIVE TO THE INVITATION.' PARAGRAPH XVIII PROVIDED:

"DESCRIPTIVE DATA: EACH BIDDER SHALL FURNISH WITH HIS BID A COMPLETE AND DETAILED DESCRIPTION OF THE MAJOR ASSEMBLIES AND COMPONENTS HE PROPOSES TO FURNISH HEREUNDER, INCLUDING PHOTOGRAPHS OR CUTS, DRAWINGS, SCHEMATIC DIAGRAMS AND OTHER DATA NECESSARY FOR A COMPREHENSIVE DESCRIPTION. A MERE REPETITION OF THE SPECIFICATIONS IS NEITHER DESIRABLE NOR SATISFACTORY. IF CATALOG OR OTHER NUMBER IS GIVEN TO DESCRIBE PROPOSED UNITS, A PAGE OF THE CATALOG OR OTHER DESCRIPTION WILL BE NECESSARY. THE ACCEPTANCE OF A BID WHICH SPECIFIES A PARTICULAR ASSEMBLY OR COMPONENT SHALL NOT BE CONSTRUED TO MEAN THAT THE ITEM WILL MEET THE INVITATION REQUIREMENTS. SUCH DETERMINATION WILL BE MADE AT THE TIME OF INSPECTION. IN THE EVENT OF A VARIANCE BETWEEN THE MODEL OFFERED AND THE REQUIREMENTS OF THE INVITATION THE LATTER SHALL BE CONTROLLING.'

YOUR BID SUBMITTED IN RESPONSE TO THE INVITATION WAS NOT ACCOMPANIED BY THE DESCRIPTIVE DATA REQUIRED BY PARAGRAPH XVIII AND WAS, THEREFORE, REJECTED BY THE CIVIL AERONAUTICS ADMINISTRATION AS NOT BEING RESPONSIVE TO THE INVITATION.

IN YOUR TELEGRAM OF PROTEST TO THIS OFFICE DATED JANUARY 3, 1958, IT WAS STATED THAT YOU HAD INADVERTENTLY FAILED TO SUBMIT THE DESCRIPTIVE DATA WITH YOUR BID, THAT THERE WAS NO QUESTION AS TO YOUR TECHNICAL ABILITY TO PERFORM THE REQUIRED WORK AND THAT, THEREFORE, TO REJECT THE BID ON THE BASIS OF A MINOR TECHNICALITY WOULD BE A GRAVE INJUSTICE TO YOU AND THE GOVERNMENT.

IT IS REPORTED THAT THE CONDENSER DISCHARGE RUNWAY IDENTIFIER SETS COVERED BY THE INVITATION HAVE NEVER BEEN MADE BEFORE; THAT THE SETS, PARTICULARLY THE TRANSFORMERS AND CONTROL COMPONENTS, ARE HIGHLY COMPLEX AND THAT THE SUCCESSFUL BIDDER WILL BE CALLED UPON TO DO A CONSIDERABLE AMOUNT OF DESIGN WORK UNDER WHAT IS ESSENTIALLY A PERFORMANCE SPECIFICATION. FOR THESE REASONS THERE WAS INCLUDED IN THE INVITATION THE REQUIREMENT THAT EACH BIDDER SUBMIT DESCRIPTIVE DATA DESCRIBING IN DETAIL WHAT HE PROPOSED TO FURNISH. THIS WAS REQUIRED AS A BASIS FOR THE FINDING BY THE CONTRACTING OFFICER UNDER PARAGRAPH 1 OF THE "SPECIAL INVITATION CONDITIONS" THAT THE BIDDER HAD THE "TECHNICAL ABILITY * * * AS MAY BE REQUIRED FOR A PROMPT AND SATISFACTORY COMPLETION OF THE CONTRACT IN STRICT ACCORDANCE WITH ITS TERMS.'

IT IS FURTHER REPORTED THAT THE GOVERNMENT'S NEED FOR THIS EQUIPMENT WAS URGENT. IT IS ONE OF THE ESSENTIAL ELEMENTS OF THE AIR NAVIGATION FACILITIES MODERNIZATION PROGRAM WHICH THE CONGRESS HAS DIRECTED THE CIVIL AERONAUTICS ADMINISTRATION TO ACCELERATE. THE AIRPORTS AT WHICH THESE RUNWAY IDENTIFIER SETS ARE SCHEDULED FOR INSTALLATION DO NOT NOW HAVE ANY APPROACH LIGHTING SYSTEMS AND THE INSTALLATION OF THE SYSTEMS WILL SUBSTANTIALLY IMPROVE THE SAFETY AND UTILITY OF THESE AIRPORTS. CONSEQUENTLY, THIS INVITATION WAS WRITTEN TO PROVIDE THE GREATEST POSSIBLE PROTECTION AGAINST DELAY. IN ADDITION TO LIQUIDATED DAMAGES FOR DELAYED PERFORMANCE, THE INVITATION REQUIRED THAT EACH BIDDER SUBMIT WITH HIS BID THE DESCRIPTIVE DATA REQUIRED BY PARAGRAPH XVIII. THIS WAS DONE TO AVOID THE DELAY THAT WOULD INEVITABLY FOLLOW IN MAKING AWARD IF BIDDERS WERE ALLOWED TO AMPLIFY THEIR BIDS AFTER THE OPENING.

IT IS THE PROPER FUNCTION OF ADMINISTRATIVE OFFICERS TO PREPARE SPECIFICATIONS IN ACCORDANCE WITH THE NEEDS OF THE GOVERNMENT AND TO PROVIDE SPECIAL PROVISIONS IN INVITATIONS DUE TO THE COMPLEXITY OF THE EQUIPMENT BEING PURCHASED OR FOR SOME OTHER PARTICULAR REASON.

IN THIS CASE IT DOES NOT APPEAR THAT THE REQUIREMENTS OF PARAGRAPH XVIII WERE UNREASONABLE OR ARBITRARY. SINCE YOU DID NOT SUBMIT WITH YOUR BID THE DATA REQUIRED BY THE INVITATION YOUR BID WAS NOT RESPONSIVE AS SPECIFICALLY PROVIDED IN THE INVITATION. THE SUBMISSION OF DATA HAVING BEEN MADE MANDATORY THERE WOULD BE NO AUTHORITY FOR THE CONTRACTING OFFICER TO SUBSEQUENTLY WAIVE IT. SEE 36 COMP. GEN. 376.

ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO LEGAL BASIS UPON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE SYSTEM TAKEN IN THE MATTER.