B-141791, FEBRUARY 19, 1960, 39 COMP. GEN. 595

B-141791: Feb 19, 1960

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WHICH COULD BE REMEDIED BY THE APPLICATION OF GIVEN OR RECOGNIZED FORMULAE TO THE INFORMATION INCLUDED IN THE INVITATION OR BID SO THAT THE BID COULD BE EVALUATED WITHOUT RECOURSE TO EXTRINSIC SOURCES AND THE BIDDER WOULD NOT BE IN A POSITION TO CHOOSE WHAT HE WILL BE OBLIGATED TO FURNISH. WHILE A PROVISION IN AN INVITATION THAT FAILURE TO FURNISH REQUESTED INFORMATION "WILL BE CAUSE FOR" REJECTION OF A BID DOES NOT RESERVE TO THE CONTRACTING OFFICER THE OPTION TO DETERMINE WHETHER FAILURE TO PROVIDE THE DATA IN A GIVEN INSTANCE SHOULD REQUIRE REJECTION OF THE BID. IT IS RECOGNIZED THAT THE AUTOMATIC REJECTION OF A BID BECAUSE OF FAILURE TO CONFORM TO A PURELY TECHNICAL OR OVERLITERAL READING OF STATED REQUIREMENTS MAY BE AS ARBITRARY AS WAIVER OF NONRESPONSIVENESS TO A MATERIAL AND SUBSTANTIAL REQUIREMENT SO THAT IF THE PURPOSE FOR WHICH THE INFORMATION IS REQUIRED IS REASONABLY CLEAR AND APPEARS TO BE SUBSTANTIALLY MET BY THE MATERIAL FURNISHED.

B-141791, FEBRUARY 19, 1960, 39 COMP. GEN. 595

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED OMISSIONS IN THE DESCRIPTIVE DATA SUBMITTED BY A LOW BIDDER, WHICH COULD BE REMEDIED BY THE APPLICATION OF GIVEN OR RECOGNIZED FORMULAE TO THE INFORMATION INCLUDED IN THE INVITATION OR BID SO THAT THE BID COULD BE EVALUATED WITHOUT RECOURSE TO EXTRINSIC SOURCES AND THE BIDDER WOULD NOT BE IN A POSITION TO CHOOSE WHAT HE WILL BE OBLIGATED TO FURNISH, DO NOT REQUIRE REJECTION OF THE BID FOR FAILURE TO COMPLY FULLY WITH THE DESCRIPTIVE DATA REQUIREMENT. WHILE A PROVISION IN AN INVITATION THAT FAILURE TO FURNISH REQUESTED INFORMATION "WILL BE CAUSE FOR" REJECTION OF A BID DOES NOT RESERVE TO THE CONTRACTING OFFICER THE OPTION TO DETERMINE WHETHER FAILURE TO PROVIDE THE DATA IN A GIVEN INSTANCE SHOULD REQUIRE REJECTION OF THE BID, IT IS RECOGNIZED THAT THE AUTOMATIC REJECTION OF A BID BECAUSE OF FAILURE TO CONFORM TO A PURELY TECHNICAL OR OVERLITERAL READING OF STATED REQUIREMENTS MAY BE AS ARBITRARY AS WAIVER OF NONRESPONSIVENESS TO A MATERIAL AND SUBSTANTIAL REQUIREMENT SO THAT IF THE PURPOSE FOR WHICH THE INFORMATION IS REQUIRED IS REASONABLY CLEAR AND APPEARS TO BE SUBSTANTIALLY MET BY THE MATERIAL FURNISHED, NEITHER THE INTERESTS OF THE GOVERNMENT NOR OF COMPETING BIDDERS REQUIRES THAT A BID BE REJECTED BECAUSE OF DEFICIENCIES MERELY OF FORM.

TO THE ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, FEBRUARY 19, 1960:

WE REFER TO A LETTER OF JANUARY 22, 1960, FROM THE ACTING DIRECTOR, PROCUREMENT AND SUPPLY, REQUESTING OUR DECISION WITH RESPECT TO THE ACCEPTABILITY OF THE LOW BID SUBMITTED PURSUANT TO INVITATION NO. L 635, DATED AUGUST 14, 1959.

THE INVITATION SOLICITED BIDS FOR "DESIGNING, FABRICATING, FURNISHING, TESTING, DELIVERING, AND ERECTING," A 5,000 PSIG AIR STORAGE FIELD AND A 6,000 PSIG NATURAL GAS STORAGE FIELD. PAGE 1 OF THE INVITATION CONTAINS THE FOLLOWING NOTE: " BIDDER'S ATTENTION IS INVITED TO PARAGRAPH 1-03 (A) (1) THROUGH (7) AND 1-03 (B) COVERING SUBMITTAL OF DATA WITH BID FOR EVALUATION PURPOSES.' PARAGRAPH 1-03 (A) AS ORIGINALLY ISSUED HAD ONLY SEVEN SUBSECTIONS BUT THIS NUMBER WAS INCREASED TO NINE UNDER THE TERMS OF ADDENDUM NO. 2 DATED OCTOBER 28, 1959. THE QUOTED NOTE WAS NOT CHANGED TO REFLECT THE ADDITION, APPARENTLY BY INADVERTENCE. PARAGRAPH 1-03, AS MODIFIED BY THE ADDENDUM PROVIDED:

1-03. INFORMATION TO BE SUBMITTED WITH BID:

(A) THE CONTRACTOR SHALL SUBMIT THE FOLLOWING DATA WITH HIS BID:

(6) PRESSURE DROP CALCULATIONS.

(8) THEORETICAL HEAT TRANSFER CALCULATIONS TO MEET THE TEMPERATURE PERFORMANCE REQUIREMENTS. THE CALCULATIONS SHALL BE MADE IN A STEP BY- STEP PROCEDURE SHOWING ALL FORMULAS WHICH WERE USED, ASSUMPTIONS WHICH WERE MADE, PLOTTED CURVES, COEFFICIENTS, ETC., WHICH WERE USED, AND THE SOURCES FROM WHICH EACH WAS OBTAINED. IF ANY INFORMATION IS DERIVED FROM PUBLISHED GRAPHS OR OTHER DATA, THEIR SOURCES SHALL BE STATED.

(B) THE INFORMATION REQUIRED BY (A) ABOVE WILL BE USED IN EVALUATING THE BIDS, AND FAILURE TO SUBMIT ANY INFORMATION THEREIN CALLED FOR WILL BE CAUSE FOR REJECTION OF A BID.

ELEVEN BIDS WERE RECEIVED BY DATE OF BID OPENING, DECEMBER 11, 1959. THE FOUR LOWEST WERE AS FOLLOWS:

A. O. SMITH CORPORATION--------------------------------$710,000

GRENCO SERVICES, INC.--------------------------------- 863,000

CHARLES SIMKEN----------------------------------------- 866,540

KIRK REID COMPANY, INC.------------------------------ 890,000

BIDS WERE OPENED AT 3:00 P.M. ALL BIDS WERE READ AND IT WAS ANNOUNCED THAT A. O. SMITH, INC., WAS THE APPARENT LOW BIDDER. THE FIRM'S REPRESENTATIVE WAS ASKED TO REMAIN TO DISCUSS THE BID. THE REPRESENTATIVE STATED THAT HE HAD THE CALCULATIONS AND INFORMATION REQUESTED BUT WAS NOT QUALIFIED AS AN ENGINEER TO DISCUSS THEM. HE THEN OPENED HIS BRIEFCASE AS IF TO WITHDRAW SOME PAPERS. AT THIS POINT, A REPRESENTATIVE OF ANOTHER BIDDER PROTESTED THAT SUCH DATA HAD TO BE SUBMITTED PRIOR TO OPENING OR NOT AT ALL. THE CALCULATIONS REFERRED TO IN THE CITED CONVERSATION RELATED SPECIFICALLY TO ITEMS 6 AND 8 OF SUBSECTION 1-03 (A) QUOTED ABOVE. THE DATA SUBMITTED BY A. O. SMITH, INC., WITH ITS BID WITH RESPECT TO THE REQUIREMENT IMPOSED BY THIS ITEM IS AS FOLLOWS:

(6) WE HAVE MADE THE NECESSARY PRESSURE DROP CALCULATIONS, ON BOTH THE AIR AND GAS MANIFOLDS, USING EQUIVALENT STRAIGHT LENGTHS BY CRANE AND PRESSURE DROP BY FANNING EQUATION, MCADAMS, 3D EDITION, PAGE 156. FULLY GUARANTEE PRESSURE DROP FOR BOTH SYSTEMS, AS CALLED FOR IN L 635, SECTION 41B-03, (I) AND (J).

(8) WE HAVE MADE THE NECESSARY HEAT TRANSFER CALCULATIONS ON THE INTERNAL HEAT TRANSFER SURFACE WE PROPOSE TO FURNISH FOR THE AIR STORAGE SYSTEM. THEY INDICATE THAT THE OUTLET TEMPERATURES OF EACH BOTTLE WILL FALL WITHIN THE TEMPERATURE-TIME ENVELOPE SHOWN IN SKETCH NO. 1, REFERENCED IN L-635, SECTION 41B-12. WE FULLY GUARANTEE TO MEET THE TEMPERATURE PERFORMANCE REQUIREMENTS. NUMERICAL SOLUTIONS TO THE EQUATIONS INVOLVED WERE PERFORMED ON THE IBM 705 COMPUTER. IN THE EVENT WE ARE TO BE CONSIDERED FOR THE AWARD OF THIS CONTRACT, WE WILL PROVIDE THE DETAILED IBM OUTPUT SHEETS, TOGETHER WITH THE HEAT TRANSFER CALCULATIONS WHICH ARE ARRANGED AS SPECIFIED IN THIS PARAGRAPH.

THE QUOTED LANGUAGE OF THE INVITATION AND SPECIFICATIONS PROVIDED IN ESSENCE THAT THE INFORMATION LISTED IN PARAGRAPH 1-03 (A) "SHALL" BE SUBMITTED WITH EACH BID, THAT THE INFORMATION WOULD BE USED TO EVALUATE THE BID AND THAT FAILURE TO SUBMIT THE INFORMATION "WILL BE CAUSE FOR REJECTION" OF THE BID. WE HAVE HELD THAT WHERE THE LANGUAGE OF AN INVITATION IS SUCH AS TO REASONABLY CONVEY TO BIDDERS THE IMPRESSION THAT DESCRIPTIVE DATA OR A SAMPLE MUST ACCOMPANY EACH BID, A BID NOT SO ACCOMPANIED MUST BE REJECTED. 38 COMP. GEN. 45O, 453; 37 COMP. GEN. 845. IN B-141404, JANUARY 11, 1960, WHERE THE INVITATION FOR BID STATED THAT THE CONTRACTOR "WILL" FURNISH A SAMPLE WITH HIS BID, IT WAS HELD THAT THE FAILURE OF THE LOW BIDDER TO SUBMIT SUCH SAMPLE WITH HIS BID RENDERED THE BID NONRESPONSIVE. WE THINK IT CLEAR THAT THE USE OF THE WORD "SHALL" SHOULD ALSO BE CONSTRUED AS AN IMPERATIVE IN THIS CASE.

IT IS SUGGESTED IN THE SUBMISSION THAT THE LANGUAGE "WILL BE CAUSE FOR" EMPLOYED IN PARAGRAPH 1-03 (B) RESERVES TO THE CONTRACTING OFFICER THE OPTION TO DETERMINE WHETHER IN A GIVEN INSTANCE FAILURE TO PROVIDE THE DATA SHOULD REQUIRE REJECTION OF THE BID. IF THIS SUGGESTION IS INTENDED TO MEAN THAT THE CONTRACTING OFFICER HAS DISCRETION TO DECIDE WHETHER OR NOT TO WAIVE SUCH A FAILURE, ON THE BASIS OF FACTORS NOT REASONABLY SUGGESTED IN THE TERMS OF THE BIDDING REQUIREMENTS, WE CANNOT AGREE. SEE 36 COMP. GEN. 380.

IT MUST BE RECOGNIZED, HOWEVER, THAT AN AUTOMATIC REJECTION OF A BID BECAUSE OF A FAILURE TO CONFORM TO A PURELY TECHNICAL OR OVERLITERAL READING OF THE STATED REQUIREMENTS MAY BE AS ARBITRARY AS A WAIVER OF NONRESPONSIVENESS TO A MATERIAL AND SUBSTANTIAL REQUIREMENT. IT IS TO BE PRESUMED THAT DESCRIPTIVE MATERIAL OR DATA REQUIRED TO BE FURNISHED BY BIDDERS WITH THEIR BIDS IS NEEDED FOR SOME PURPOSE RELEVANT TO THE PROPER EVALUATION OF THE BIDS; IF THE PURPOSE IS REASONABLY CLEAR AND APPEARS TO BE SUBSTANTIALLY MET BY THE MATERIAL FURNISHED, WE DO NOT BELIEVE THAT THE INTERESTS OF THE GOVERNMENT OR OF COMPETING BIDDERS REQUIRE THAT A BID BE REJECTED BECAUSE OF DEFICIENCIES MERELY OF FORM.

WE MUST, THEREFORE, CONSIDER WHETHER THE DATA REQUIREMENT OF THE INVITATION IN THIS INSTANCE WAS MET BY THE MATERIAL FURNISHED WITH THE LOW BID. SUBPARAGRAPH 1-03 (A) (6) REQUIRED THE SUBMISSION OF PRESSURE DROP CALCULATIONS AND SUBPARAGRAPH 1-03 (A) (8) REQUIRED THEORETICAL HEAT TRANSFER CALCULATIONS. IN THE LATTER INSTANCE, THE MATERIAL TO BE FURNISHED WITH THE CALCULATIONS WAS STATED IN SOME DETAIL. THE DESCRIPTIVE DATA FURNISHED WITH THE A.O. SMITH BID FOR THE TWO ITEMS PROVIDED NOT THE CALCULATIONS BUT ASSURANCES THAT THEY HAD BEEN PERFORMED AND THAT THE RESULTS WERE WITHIN LIMITATIONS STATED IN THE SPECIFICATIONS TO BE ACCEPTABLE, TOGETHER WITH AN INDICATION OF THE METHOD USED TO PERFORM THE CALCULATIONS.

THE PURPOSE OF DATA REQUIRED TO BE SUBMITTED WITH A BID IS TO PERMIT A DETERMINATION BY THE PROCURING AGENCY OF PRECISELY WHAT THE BIDDER PROPOSES, AND WILL BE BOUND, TO FURNISH IF AWARDED THE CONTRACT. SEE 38 COMP. GEN. 345. WHILE, AS INDICATED ABOVE, A DESCRIPTIVE DATA REQUIREMENT MUST NORMALLY BE REGARDED AS MATERIAL AND COMPLIED WITH FULLY, WE THINK THAT, HAVING IN MIND THE PURPOSE OF SUCH REQUIREMENT, A DISTINCTION MUST BE DRAWN BETWEEN DATA WHICH REPRESENT A RELATIVELY FREE CHOICE BY THE BIDDER, AND DATA WHICH ARE BOUND BY THE APPLICATION OF INFORMATION FURNISHED IN THE INVITATION OR THE BID TO THE LIMITATIONS OF A RECOGNIZED MATHEMATICAL FORMULA OR RULE OF PHYSICS OR CHEMISTRY. STRICT APPLICATION OF THE GENERAL PRINCIPLE IN THE LATTER CASE WOULD APPEAR TO SERVE LITTLE PURPOSE OTHER THAN TO DETERMINE THE ABILITY OF THE BID PREPARER TO APPLY THE FORMULA OR RULE TO THE GIVEN INFORMATION. (THE BIDDER'S RESPONSIBILITY, OF WHICH SUCH ABILITY WOULD BE A FACTOR, IS BETTER DETERMINED BY MORE CUSTOMARY METHODS.) FOR EXAMPLE, A BID COULD HARDLY BE REJECTED FOR THE BIDDER'S FAILURE TO PROVIDE A TOTAL FIGURE IN HIS DESCRIPTIVE LITERATURE, EVEN THOUGH REQUIRED BY THE TERMS OF THE INVITATION, IF SUCH TOTAL CLEARLY REPRESENTED NOTHING MORE THAN THE SUM OF THE SEVERAL ITEMS LISTED. THE REASON FOR THIS IS THAT THE TOTAL FIGURE IS NOT SUBJECT TO VARIANCE AFTER BID SUBMISSION AT THE OPTION OF THE BIDDER BUT IS FIXED BY THE OTHER INFORMATION SUBMITTED AND THE APPLICATION OF A RECOGNIZED MATHEMATICAL PRINCIPLE. REJECTION OF A BID IN THAT INSTANCE, NOTWITHSTANDING THE LANGUAGE OF THE DESCRIPTIVE LITERATURE REQUIREMENT, WOULD BE UNJUSTIFIABLE.

IN THE INSTANT CASE THE FOLLOWING INFORMATION WAS PROVIDED IN A MEMORANDUM OF FEBRUARY 3, 1960, WRITTEN BY THE CONTRACTING OFFICER IN CLARIFICATION OF A MEMORANDUM OF DECEMBER 29, 1959, INCLUDED IN THE ADMINISTRATIVE REPORT:

IN ORDER TO CALCULATE THE PRESSURE DROP APPLICABLE TO THE AIR AND GAS STORAGE SYSTEM DESIRED THE FOLLOWING INFORMATION IS REQUIRED:

1. PRESSURE

2. TEMPERATURE

3. APPROXIMATE EQUIVALENT LENGTH

4. INSIDE DIAMETER OF PIPE

5. FLOW (LBS. PER SECOND)

6. FRICTION FACTOR

7. GRAVITATIONAL FACTOR

8. MEDIUM (AIR OR GAS)

THE PRINCIPLE BEHIND THE CALCULATIONS OF PRESSURE DROP FOR THE AIR AND GAS SYSTEMS IS THE SAME.

ITEMS 1, 2, 5 AND 8 ARE FOUND IN PARAGRAPH 1-01-/D) AND 41B-03 (I) AND (J) OF THE SPECIFICATIONS FOR THE AIR AND GAS STORAGE SYSTEMS, RESPECTIVELY. ITEM 3 IS SET FORTH IN PARAGRAPH 41B-03 (A) OF THE SPECIFICATIONS. ITEM 6 IS SET FORTH AT PAGE 156, MCADAMS, THIRD EDITION, AS STATED BY A. O. SMITH IN PARAGRAPH (6) OF ITS BID. ITEM 7 IS A UNIVERSAL CONSTANT BASED ON THE LAWS OF NEWTON AND FULLY SET FORTH IN THE REFERENCE WORK REFERENCED BY PARAGRAPH (6) OF A. O. SMITH'S BID, VIZ, MCADAMS, THIRD EDITION. ITEM 4 WAS NOT FURNISHED BY THE LOW BIDDER. HOWEVER, IT WAS NOT NECESSARY FOR THE EVALUATING ENGINEERS TO RESORT TO EXTRINSIC SOURCES OTHER THAN MATHEMATICAL FORMULAE TO DETERMINE THE INTERNAL PIPE DIAMETER SINCE, USING THE SAME FORMULAE CITED BY THE LOW BIDDER, THE INSIDE PIPE DIAMETER COULD BE READILY DETERMINED BECAUSE ALL THE OTHER UNKNOWNS IN THE EQUATION WERE ESTABLISHED EITHER IN THE SPECIFICATIONS OR IN THE LOW BIDDER'S BID.

HEAT TRANSFER CALCULATIONS WERE REQUIRED ON THE PART OF A. O. SMITH BECAUSE ITS DESIGN PROPOSAL CONTEMPLATED THE USE OF STORAGE VESSELS WITH DIAMETER LARGER THAN 14 1/2 INCHES. HEAT TRANSFER CALCULATIONS ARE REQUIRED ONLY FOR THE AIR STORAGE SYSTEM AND NOT FOR THE GAS STORAGE SYSTEM. IN ORDER TO PERFORM THE HEAT TRANSFER CALCULATIONS THE FOLLOWING INFORMATION WAS REQUIRED:

1. VESSEL INTERNAL DIAMETER

2. VESSEL LENGTH

3. VESSEL VOLUME

4. VESSEL WALL THICKNESS

5. VESSEL WEIGHT

6. ANNULAR SPACING (SPACE BETWEEN THE INSIDE VESSEL WALL AND INTERNAL

LINER THROUGH WHICH THE INTERNAL AIR MUST PASS)

7. MASS VELOCITY TO SIMULATE TEST RUNS

8. INITIAL PRESSURE AND TEMPERATURE CONDITIONS

9. RUN TIME

ITEMS 1, 2, 4 AND 5 ARE SET FORTH IN PARAGRAPH (A) (3) OF A. O. SMITH'S BID. ITEM 3 IS SET FORTH IN PARAGRAPH (7) OF THE BID, VIZ, 1,100 CU. FT. WATER VOLUME. ITEM 6 IS SET FORTH IN PARAGRAPH (9) OF THE BID, VIZ, 1 INCH ANNULAR SPACE. ITEM 7 IS OBTAINED BY MULTIPLYING THE VESSEL VOLUME BY 10.0908 LB. PER SECOND PER CUBIC FOOT APPEARING IN PARAGRAPH 41B-02 (E). ITEM 8 AND 9 ARE ESTABLISHED IN PARAGRAPH 41B 02 (E).

BY APPLYING STANDARD EQUATIONS AND SOLUTIONS OF TRANSIENT HEAT TRANSFER PROCESSES (AS APPEARING IN MCADAMS " HEAT TRANSMISSION," THIRD EDITION) A HEAT BALANCE CAN BE ESTABLISHED. IN ORDER FOR THE AIR TEMPERATURE TO STAY WITHIN THE TEMPERATURE ENVELOPE ESTABLISHED IN SKETCH NO. 1, A MINIMUM AMOUNT OF HEAT MUST BE ABSORBED BY THE AIR. THIS CAN BE EASILY CALCULATED BY APPLYING STANDARD HEAT TRANSFER EQUATIONS. FURTHER, BY HAVING THE INFORMATION AS NOTED ABOVE, THE HEAT TRANSFER COEFFICIENT CAN BE CALCULATED BETWEEN THE AIR LEAVING THE BOTTLE AND THE INTERNAL VESSEL WALL, AND THE FINAL TEMPERATURE OF VESSEL WALL CAN BE CALCULATED. COMPARING THE HEAT RELEASED BY THE VESSEL WALL TO THE TOTAL HEAT GAIN BY THE AIR, A. O. SMITH'S DESIGN IS FOUND TO BE IN CONFORMANCE WITH THE SPECIFICATIONS.

TO SUMMARIZE, THE ENGINEERS RESPONSIBLE FOR EVALUATING THE BIDS WERE ABLE TO EVALUATE A. O. SMITH'S BID WITHOUT RECOURSE TO EXTRINSIC SOURCES, OTHER THAN MATHEMATICAL FORMULAE GENERALLY USED FOR CALCULATING PRESSURE DROP AND HEAT TRANSFER.

IF, AS APPEARS TO BE THE CASE, THE OMISSIONS FROM THE DESCRIPTIVE DATA IN THE A. O. SMITH BID COULD BE REMEDIED BY THE APPLICATION OF GIVEN OR RECOGNIZED FORMULAE TO INFORMATION ALREADY INCLUDED IN THE INVITATION OR THE BID, SUCH BID SHOULD NOT BE REJECTED FOR FAILURE TO FURNISH THE MERE MATHEMATICAL COMPUTATIONS INCLUDED AS A PART OF THE DESCRIPTIVE DATA REQUIREMENT. ACCORDINGLY, IF OTHERWISE CORRECT, THE A. O. SMITH BID MAY BE CONSIDERED FOR AWARD.