B-138383, MARCH 30, 1959, 38 COMP. GEN. 636

B-138383: Mar 30, 1959

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IT MUST BE CONCLUDED THAT THE ITEM WAS NOT AVAILABLE GENERALLY TO PROSPECTIVE BIDDERS FOR PREPARATION OF THE DATA WITHIN THE TIME NECESSARY FOR BID SUBMISSION. IF SPECIFICATIONS WHICH REQUIRED BIDDERS TO FURNISH TECHNICAL DESCRIPTIVE DATA "PREPARED IN ACCORDANCE WITH ACCEPTED PRACTICES OF THE INDUSTRY" AND BASED ON THE SPECIFIC ITEM WHICH IS CALLED FOR IN THE INVITATION. WHICH WAS NOT GENERALLY AVAILABLE AT BID OPENING. IF SPECIFICATIONS WHICH REQUIRED BIDDERS TO FURNISH TECHNICAL DESCRIPTIVE DATA BASED ON A SPECIFIC ITEM WHICH IS CALLED FOR IN THE INVITATION BUT WHICH WAS NOT GENERALLY AVAILABLE AT THE TIME OF BID OPENING COULD BE CONSTRUED BY THE AVERAGE BIDDER AS PERMITTING THE USE OF ANOTHER ITEM SIMILAR TO THAT SPECIFIED AND THE TECHNICAL DATA COULD BE DEVELOPED FROM SUCH SUBSTITUTED ITEM.

B-138383, MARCH 30, 1959, 38 COMP. GEN. 636

CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - ABILITY TO FURNISH WHEN EVIDENCE CLEARLY INDICATES THAT A BIDDER, IMMEDIATELY AFTER RECEIPT OF AN INVITATION, ORDERED FROM THE SOLE SUPPLIER AN ITEM REQUIRED FOR PREPARATION OF DATA TO BE SUBMITTED WITH THE BID BUT, NOTWITHSTANDING THE PROMPT ACTION, DID NOT RECEIVE THE ITEM UNTIL AFTER BID OPENING, IT MUST BE CONCLUDED THAT THE ITEM WAS NOT AVAILABLE GENERALLY TO PROSPECTIVE BIDDERS FOR PREPARATION OF THE DATA WITHIN THE TIME NECESSARY FOR BID SUBMISSION. IF SPECIFICATIONS WHICH REQUIRED BIDDERS TO FURNISH TECHNICAL DESCRIPTIVE DATA "PREPARED IN ACCORDANCE WITH ACCEPTED PRACTICES OF THE INDUSTRY" AND BASED ON THE SPECIFIC ITEM WHICH IS CALLED FOR IN THE INVITATION, BUT WHICH WAS NOT GENERALLY AVAILABLE AT BID OPENING, COULD REASONABLY BE CONSTRUED BY THE AVERAGE BIDDER TO REQUIRE THE USE OF THAT SPECIFIC ITEM AND NO OTHER IN THE PREPARATION OF THE DATA, THE REQUIREMENT MUST BE DEEMED TO BE SO RESTRICTIVE AS TO PREVENT THE FULL AND FREE COMPETITION CONSISTENT WITH THE LEGITIMATE NEEDS OF THE GOVERNMENT CONTEMPLATED BY THE PROCUREMENT STATUTES, AND ALL BIDS RECEIVED UNDER THE INVITATION SHOULD BE REJECTED. IF SPECIFICATIONS WHICH REQUIRED BIDDERS TO FURNISH TECHNICAL DESCRIPTIVE DATA BASED ON A SPECIFIC ITEM WHICH IS CALLED FOR IN THE INVITATION BUT WHICH WAS NOT GENERALLY AVAILABLE AT THE TIME OF BID OPENING COULD BE CONSTRUED BY THE AVERAGE BIDDER AS PERMITTING THE USE OF ANOTHER ITEM SIMILAR TO THAT SPECIFIED AND THE TECHNICAL DATA COULD BE DEVELOPED FROM SUCH SUBSTITUTED ITEM, THE MATTER OF THE RESPONSIVENESS OF THE BIDS SHOULD BE RESUBMITTED TO THE COMPTROLLER GENERAL WITH EVIDENCE IN SUPPORT OF SUCH CONSTRUCTION.

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, MARCH 30, 1959:

WE REFER TO YOUR LETTERS OF JANUARY 22 AND FEBRUARY 20, 1959, IN RESPONSE TO OUR LETTERS OF JANUARY 14 AND 28, 1959, RESPECTIVELY, WITH REGARD TO A PROTEST BY THE CROUSE-HINDS COMPANY AGAINST REJECTION OF ITS LOW BID UNDER INVITATION NO. 9-3250B1 FOR FLUSH APPROACH LIGHTS.

THE INVITATION ISSUED BY THE CIVIL AERONAUTICS ADMINISTRATION ON OCTOBER 27, 1958, SOLICITED BIDS FOR:

FLUSH APPROACH LIGHT UNITS, CAA TYPE AL-1 IN COMPLETE ACCORDANCE WITH CAA SPECIFICATION CAA-1199 DATED 9-15-58, COMPLETE, INCLUDING GASKETS FOR MOUNTING TYPE B ADAPTER PLATE (SEE DWG. C-5225) AND WITH CABLE ASSEMBLIES. LAMPS NOT INCLUDED. * * *

THE BIDS WERE OPENED AS SCHEDULED ON NOVEMBER 17, 1958. THE LOW BID, FROM CROUSE-HINDS, WAS REJECTED FOR FAILURE TO FURNISH CERTAIN DATA IN ACCORDANCE WITH THE TERMS OF THE INVITATION, INCLUDING LIGHT OUTPUT CURVES, AND AWARD WAS PROPOSED TO THE SECOND LOW BIDDER, WESTINGHOUSE ELECTRIC CORPORATION.

THE INVITATION AT PARAGRAPH XIV MODIFIED PARAGRAPH 3.8 OF THE SPECIFICATIONS TO PROVIDE IN PART AS FOLLOWS:

DESCRIPTIVE MATERIAL: IN ORDER FOR A BID TO BE CONSIDERED RESPONSIVE TO THE INVITATION FOR BIDS, IT MUST INCLUDE DETAILED DESCRIPTIVE INFORMATION PREPARED BY THE BIDDER OR HIS SUPPLIER SPECIFICALLY FOR THIS REQUIREMENT. THE INFORMATION FURNISHED SHALL BE SUFFICIENTLY COMPREHENSIVE TO PERMIT A DETERMINATION BY THE GOVERNMENT, THAT THE FLUSH APPROACH LIGHT EQUIPMENT THAT IS OFFERED BY THE BIDDER WILL MEET THE REQUIREMENTS OF THE INVITATION AND SPECIFICATIONS.

THE MATERIAL FURNISHED SHALL INCLUDE:

(I) OUTLINE DRAWINGS OF THE EQUIPMENT TO BE FURNISHED

(II) PHOTOGRAPHS OF THE EQUIPMENT OR COMPONENTS THEREOF

(III) LIGHT OUTPUT CURVES PREPARED IN ACCORDANCE WITH ACCEPTED PRACTICES OF THE INDUSTRY * * *

CROUSE-HINDS PROTESTED THE REJECTION OF ITS BID BY LETTERS OF JANUARY 7 AND 8, 1959, CONTENDING THAT THE LIGHT OUTPUT CURVES COULD NOT BE PRODUCED WITHOUT LAMPS WHICH WERE TO BE UTILIZED WITH THE FIXTURES TO BE PROVIDED UNDER THE THE PROCUREMENT, ALTHOUGH SUCH LAMPS WERE NOT TO BE SUPPLIED BY THE BIDDER. THE APPLICABLE SPECIFICATION PROVIDED WITH RESPECT TO THE LAMPS AS FOLLOWS:

3.1.3.2 LAMP.--- THE FLUSH LIGHT SHALL BE DESIGNED FOR THE OPERATION WITH A 20 AMPERE, PARAGRAPH/56, 300 WATT LAMP WITH C-6 FILAMENT, LIGHTLY STIPPLED COVER, AND SCREW TERMINAL BASE. LAMPS WILL NOT BE REQUIRED UNDER THIS SPECIFICATION. THIS LAMP HAS A NOMINAL LIFE OF 100 HOURS.

IT WAS FURTHER STATED IN THE CROUSE-HINDS LETTER OF JANUARY 8, THAT THE PHOTOMETRIC TESTS REQUIRED UNDER THE TERMS OF THE INVITATION COULD NOT BE MADE WITHOUT SUCH LAMPS WHICH, IT WAS ALLEGED, WOULD NOT BE AVAILABLE FOR PURCHASE FROM THE SOLE SUPPLIER'S PRODUCTION UNTIL APPROXIMATELY THE LAST WEEK IN NOVEMBER.

WITH REGARD TO THE AVAILABILITY OF AND THE NECESSITY FOR THE LAMPS IN ORDER TO COMPLY WITH THE DESCRIPTIVE LITERATURE REQUIREMENT, IT WAS ALLEGED BY THE WESTINGHOUSE ELECTRIC CORPORATION IN A LETTER OF FEBRUARY 3, 1959, THAT:

WE UNDERSTAND CROUSE-HINDS IN PART BASES ITS FAILURE ON ITS INABILITY TO OBTAIN NECESSARY LAMPS. NOT ONLY WERE WE ABLE TO OBTAIN LAMPS FROM ANOTHER SUPPLIER BUT WE UNDERSTAND FAA HAD LAMPS WHICH WOULD HAVE BEEN MADE AVAILABLE ON REQUEST. FURTHERMORE, THE EXACT LAMPS PRESCRIBED WERE NOT BASICALLY NECESSARY AS DATA COULD BE EXTRAPOLATED FROM A 200 WATT PAR 56/6.6 WHICH IS A STANDARD TYPE READILY PROCURABLE, AND WHICH IS THE SAME SIZE, HAS THE SAME COVER GLASS AND THE SAME LIGHT DISTRIBUTION AS THE 300 WATT SPECIFIED.

IN YOUR LETTER OF FEBRUARY 20, IT WAS STATED THAT THE LAMPS IN QUESTION WERE AVAILABLE TO THE GENERAL PUBLIC PRIOR TO BID OPENING AND WOULD HAVE BEEN MADE AVAILABLE BY THE MANUFACTURER TO BIDDERS INCLUDING CROUSE-HINDS ON REQUEST PRIOR TO THEIR ISSUANCE TO THE GENERAL PUBLIC. (IN THIS CONNECTION, IT SHOULD BE NOTED THAT OUR EXAMINATION OF THE CONTRACT RECORDS MAINTAINED BY FEDERAL AVIATION AGENCY DISCLOSED NO WRITTEN SUBSTANTIATION FOR SUCH STATEMENT.) IT WAS ALSO STATED THAT THE LIGHT OUTPUT CURVES REQUIRED TO BE SUBMITTED WITH THE BID ARE DEPENDENT PRIMARILY, THOUGH NOT SOLELY, ON THE LIGHT OUTPUT OF THE LAMPS. MENTION IS MADE OF THE POSSIBILITY THAT A BIDDER COULD HAVE OBTAINED A LAMP OR LAMPS FROM FAA. WE ASSUME, THEREFORE, THAT THE WESTINGHOUSE UNDERSTANDING IN THIS REGARD IS INACCURATE. IN ANY CASE, IT IS DIFFICULT TO SEE HOW A BIDDER COULD BE CHARGED WITH KNOWLEDGE OF SUCH AVAILABILITY IN THE ABSENCE OF A NOTICE TO THAT EFFECT IN THE INVITATION.

IN AN EFFORT TO RESOLVE THE FACTUAL QUESTION PRESENTED REGARDING THE AVAILABILITY OF THE LAMP TO BIDDERS IN TIME TO DEVELOP THE REQUIRED LIGHT OUTPUT CURVES, WE REQUESTED SUBSTANTIATION OF ITS CONTENTIONS FROM CROUSE- HINDS. IN REPLY, IT WAS STATED IN A LETTER OF MARCH 9 THAT TWO TEST LAMPS WERE ORDERED FOR RUSH DELIVERY FROM THE SOLE SUPPLIER ON OCTOBER 30, 1958, THE DAY AFTER RECEIPT OF THE INVITATION IN THE MAIL AT CROUSE-HINDS' SYRACUSE OFFICE. THERE WAS ENCLOSED WITH THE CROUSE HINDS LETTER A RECEIVING REPORT SHOWING THAT THE LAMPS WERE SHIPPED BY THE MANUFACTURER ON NOVEMBER 17 AND DELIVERED ON NOVEMBER 19, TWO DAYS AFTER BID OPENING. ALSO ENCLOSED WAS A LETTER FROM THE LAMP MANUFACTURER STATING THAT THE LAMP IN QUESTION WAS ORDERED BY CAA ON OCTOBER 14, 958; THAT CROUSE-HINDS HAD ORDERED TWO OF THE LAMPS ON OCTOBER 30; AND THAT THE LAMPS WERE FIRST LISTED IN THE FIRM'S " ADDITIONAL ITEMS TO SPECIAL LARGE LAMPS SCHEDULE" DATED NOVEMBER 21, 1958, AT WHICH TIME THE LAMP WAS AVAILABLE TO THE TRADE.

THE EVIDENCE ADDUCED CLEARLY INDICATES THAT CROUSE-HINDS ORDERED THE LAMPS FROM THE SOLE SUPPLIER IMMEDIATELY AFTER RECEIPT OF THE INVITATION FOR BIDS, BUT, NOTWITHSTANDING PROMPT ACTION ON ITS PART, DID NOT RECEIVE THE LAMPS UNTIL TWO DAYS AFTER BID OPENING. WE MUST CONCLUDE, THEREFORE, FROM THE MANUFACTURER'S STATEMENT AND IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY, THAT THE LAMPS WERE NOT AVAILABLE GENERALLY TO PROSPECTIVE BIDDERS FOR PREPARATION OF LIGHT OUTPUT CURVES WITHIN THE TIME AVAILABLE.

IT IS CONCEDED IN THE LETTER OF FEBRUARY 20 THAT THE LIGHT OUTPUT CURVES ARE, AS INDICATED ABOVE, DEPENDENT PRIMARILY ON LAMP OUTPUT. WE TAKE THIS TO MEAN THAT THE LAMP IN QUESTION WAS REQUIRED IN ORDER TO PREPARE THE OUTPUT CURVES CALLED FOR UNDER THE TERMS OF THE INVITATION. HOWEVER, IN ITS LETTER, THE WESTINGHOUSE CORPORATION, AS PREVIOUSLY NOTED, INDICATES THAT THE CURVES COULD HAVE BEEN DEVELOPED BY EXTRAPOLATION BASED ON THE USE OF A 200 WATT LAMP, OF A TYPE SIMILAR TO THAT SPECIFIED, WHICH WAS READILY AVAILABLE. IF THE INVITATION HAD CONTEMPLATED THAT CURVES DEVELOPED ON THE BASIS OF EXTRAPOLATION WOULD MEET THE STATED REQUIREMENT, IT APPEARS LIKELY THAT OUTPUT CURVES COULD ALSO HAVE BEEN DEVELOPED THEORETICALLY BASED ON STATED CHARACTERISTICS OF THE LAMP, FIXTURE, AND PRISM. IN THAT CASE, HOWEVER, IT WOULD HAVE BEEN MORE LOGICAL AND SIMPLER TO PROVIDE IN THE INVITATION DATA ON THE LAMP WHICH EACH BIDDER COULD APPLY, TOGETHER WITH DATA ON HIS OWN PRODUCT, TO A GIVEN FORMULA.

AS INDICATED ABOVE, THE SPECIFICATION REQUIRES THE PREPARATION OF THE LIGHT OUTPUT CURVES "IN ACCORDANCE WITH ACCEPTED PRACTICES OF THE INDUSTRY.' IF CONFORMANCE TO SUCH REQUIREMENT WOULD REASONABLY BE CONSTRUED, BY THE AVERAGE MANUFACTURER OF THE TYPE OF LIGHT UNIT CALLED FOR UNDER THE INVITATION, TO REQUIRE THE USE OF THE STIPULATED LAMP IN THE PREPARATION OF THE LIGHT OUTPUT CURVES, THE REQUIREMENT FOR SUCH CURVES, WITHOUT THE LAMP BEING GENERALLY AVAILABLE, MUST BE DEEMED TO BE SO RESTRICTIVE AS TO PREVENT THE FULL AND FREE COMPETITION CONSISTENT WITH THE LEGITIMATE NEEDS OF THE GOVERNMENT CONTEMPLATED BY THE PUBLIC PROCUREMENT STATUTES. IN SUCH CASE, ALL BIDS RECEIVED UNDER THE INVITATION SHOULD BE REJECTED. 38 COMP. GEN. 450. IF, HOWEVER, THE LIGHT OUTPUT CURVE REQUIREMENT WOULD BE CONSTRUED BY THE AVERAGE MANUFACTURER TO MEAN THAT ANOTHER LAMP MIGHT BE USED AND THE FINAL CURVE BASED ON EXTRAPOLATION, THE MATTER SHOULD BE RESUBMITTED WITH EVIDENCE IN SUPPORT OF SUCH CONSTRUCTION.