B-140169, DEC. 3, 1959

B-140169: Dec 3, 1959

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INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 9. IT IS YOUR CONTENTION. THE PROCURING AGENCY'S ACTION IN REJECTING YOUR BID WAS CONTRARY TO LAW. THE RECORD BEFORE US DISCLOSES THAT YOUR BID WAS REJECTED AS NONRESPONSIVE IN THAT THE EQUIPMENT YOU CONTEMPLATED FURNISHING FAILED TO CONFORM TO REQUIREMENTS STATED IN THE INVITATION IN THREE MATERIAL ASPECTS. THAT SYSTEM DEVIATES FROM THE SPECIFICATIONS IN THAT DIAMETER OF THE SPEAKER IS THREE INCHES RATHER THAN A MINIMUM OF FOUR INCHES. YOU CONTEND THAT SINCE YOUR BID WAS UNQUALIFIED IT CONSTITUTED A BINDING OFFER TO MEET ALL SPECIFICATION REQUIREMENTS AND THE AGENCY'S REFUSAL TO ACCEPT YOUR OFFER WAS ARBITRARY AND ILLEGAL. SUCH CONTENTION IS UNTENABLE.

B-140169, DEC. 3, 1959

TO COASTAL ELECTRONICS AND SOUND CO., INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 9, 1959, AND TO LETTERS OF JULY 17 AND SEPTEMBER 14, 1959 FROM YOUR ATTORNEY, PROTESTING AGAINST THE AWARD OF CONTRACT NO. DA 49-024-MD-859, TO MCGEE AND COMPANY, INC., BY THE WALTER REED ARMY MEDICAL CENTER, COVERING THE PURCHASE OF AN AUDIO VISUAL NURSE CALL SYSTEM. IT IS YOUR CONTENTION, AND THAT OF YOUR ATTORNEY, IN SUBSTANCE, THAT SINCE YOU SUBMITTED THE LOWEST OFFER TO FURNISH AND INSTALL THE ABOVE EQUIPMENT, THE PROCURING AGENCY'S ACTION IN REJECTING YOUR BID WAS CONTRARY TO LAW.

THE RECORD BEFORE US DISCLOSES THAT YOUR BID WAS REJECTED AS NONRESPONSIVE IN THAT THE EQUIPMENT YOU CONTEMPLATED FURNISHING FAILED TO CONFORM TO REQUIREMENTS STATED IN THE INVITATION IN THREE MATERIAL ASPECTS, AS EVIDENCED BY THE BROCHURE OF AUTH ELECTRIC COMPANY, INC., WHOSE STANDARD PRODUCT FORMED THE BASIS OF YOUR BID. THAT SYSTEM DEVIATES FROM THE SPECIFICATIONS IN THAT DIAMETER OF THE SPEAKER IS THREE INCHES RATHER THAN A MINIMUM OF FOUR INCHES; THE KNOB AT THE NURSE CONTROL STATION DOES NOT REGULATE VOLUME AT PATIENTS' BEDSIDE STATIONS; AND THE DEPRESSING OF ONE BUTTON AT THE NURSE CONTROL DOES NOT AUTOMATICALLY RELEASE ANY OTHER BUTTONS PREVIOUSLY DEPRESSED IN THE SAME GROUP.

SPECIFICALLY, YOU CONTEND THAT SINCE YOUR BID WAS UNQUALIFIED IT CONSTITUTED A BINDING OFFER TO MEET ALL SPECIFICATION REQUIREMENTS AND THE AGENCY'S REFUSAL TO ACCEPT YOUR OFFER WAS ARBITRARY AND ILLEGAL. SUCH CONTENTION IS UNTENABLE. THE INVITATION CALLED FOR A SYSTEM EQUAL TO EXECUTONE, AND PROVIDED THAT ALL BIDDERS WERE TO FURNISH BROCHURES, CATALOGUE, OR OTHER LITERATURE WHICH ADEQUATELY DESCRIBED THE EQUIPMENT THEY INTENDED TO SUPPLY IN ORDER THAT, IN THE EVALUATION OF THE BIDS, IT MIGHT BE DETERMINED THAT THE MINIMUM REQUIREMENTS AND SPECIFICATIONS CALLED FOR IN THE INVITATION WERE MET. YOUR BID STATED THAT THE EQUIPMENT OFFERED WAS TO BE MANUFACTURED BY AUTH ELECTRIC COMPANY, INC., AND SINCE YOU DID NOT INDICATE ANY MODIFICATION THEREOF IN YOUR BID, IT PROPERLY WAS CONCLUDED THAT SAID EQUIPMENT WOULD BE IN ACCORDANCE WITH THAT SET FORTH IN THE CATALOGUE WHICH ACCOMPANIED YOUR PROPOSAL, AND WHICH WAS DEFICIENT IN THE THREE RESPECTS PREVIOUSLY STATED. UNDER THE STATED PROVISIONS OF THE INVITATION YOUR OFFER WAS CLEARLY QUALIFIED AND ACCEPTANCE THEREOF WOULD HAVE OBLIGATED YOU TO FURNISH ONLY SUCH ITEMS AS WERE DESCRIBED IN THE MATERIAL FURNISHED.

WITH RESPECT TO YOUR CONTENTION THAT THE STANDARD EQUIPMENT PRODUCED BY AUTH ELECTRIC COMPANY, INC., IS EQUAL TO THAT MANUFACTURED BY EXECUTONE, INC., AND SPECIFIED IN THE INVITATION AS MEETING THE MINIMUM NEEDS OF THE FACILITY, THE RECORD SHOWS THAT EVALUATION THEREOF BY THE SIGNAL OFFICER, THE SUPERINTENDENT, FIELD MAINTENANCE SHOP OF THE CENTER SIGNAL OFFICE, AND THE CONTRACTING OFFICER RESULTED IN FINDINGS WHICH SUPPORT THE OPPOSITE CONCLUSION. THOSE FINDINGS WERE BASED UPON EXAMINATIONS OF AUTH EQUIPMENT INSTALLATIONS IN ACTUAL USE, AND BY A COMPARISON BETWEEN THE REQUIREMENTS OF THE INVITATION AND THE DESCRIPTION OF AUTH PRODUCTS AS SET FORTH IN ITS CATALOGUE.

THE DRAFTING OF SPECIFICATIONS FOR ITEMS TO BE PURCHASED FOR GOVERNMENT USE IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES AND THEIR DETERMINATIONS OF THEIR NEEDS WILL NOT ORDINARILY BE QUESTIONED UNLESS OBVIOUSLY ARBITRARY OR UNREASONABLE. IT HAS LONG BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT THE UNITED STATES IS NOT REQUIRED TO PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT THE LOWEST PRICE WHEN, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, THE ACTUAL NEEDS OF THE GOVERNMENT WOULD NOT BE SERVED THEREBY. AS TO THIS PROCUREMENT WE FIND NO ADEQUATE BASIS IN THE RECORD FOR HOLDING THAT THE REQUIREMENTS STATED WERE NOT BASED UPON A BONA FIDE ADMINISTRATIVE DETERMINATION OF THE NEEDS OF THE GOVERNMENT.

WITH RESPECT TO YOUR COMMENTS ON THE FAILURE OF THE PROCUREMENT OFFICIALS TO PROMPTLY REDUCE TO WRITING THE EVALUATION OF THE BIDS, AND THE MANNER OF EXECUTING THE CERTIFICATION BY THE CONTRACTING OFFICER AS REQUIRED ON STANDARD FORM NO. 1036, WE FIND NO REQUIREMENT THAT SUCH RECORDS BE FURNISHED TO BIDDERS, AND ARE OF THE OPINION THAT SUCH MATTERS ARE PRIMARILY MATTERS OF ADMINISTRATIVE PROCEDURE WHICH DO NOT AFFECT THE VALIDITY OF AWARDS SO FAR AS CONTRACTORS OR OTHER BIDDERS ARE CONCERNED.

IN THE CIRCUMSTANCES IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ACTION TAKEN BY WALTER REED ARMY MEDICAL CENTER. AS TO YOUR ALLEGATIONS OF NON- CONFORMITY OF EQUIPMENT OFFERED BY THE BIDDER TO WHOM AWARD WAS MADE, WE ARE BRINGING THESE MATTERS TO THE ATTENTION OF THE CONTRACTING AGENCY, WHICH WILL BE RESPONSIBLE FOR ENFORCING PERFORMANCE IN ACCORDANCE WITH THE CONTRACT REQUIREMENTS.