B-142171, APR. 29, 1960

B-142171: Apr 29, 1960

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26. " AS FOLLOWS: "* * * BIDS OFFERING EQUIPMENT OTHER THAN BRAND NAME EQUIPMENT REFERENCED IN THIS INVITATION WILL BE CONSIDERED: PROVIDED. SUCH OFFERED EQUIPMENT IS CLEARLY IDENTIFIED IN THE BIDS AND BIDDERS FURNISH WITH THEIR BIDS (1) DESCRIPTIVE MATERIAL. WHICH WILL CLEARLY SHOW THE CHARACTERISTICS OF THE EQUIPMENT OFFERED. FAILURE TO FURNISH THE INFORMATION REQUIRED BY (1) AND (2) ABOVE WILL REQUIRE REJECTION OF THE BIDS.'. THE ABOVE LANGUAGE IS THAT PRESCRIBED IN SUBPART 1-1.307-6 OF THE FEDERAL PROCUREMENT REGULATIONS. NINE BIDS WERE RECEIVED AND OPENED. IT IS REPORTED THAT NONE OF THE TRANSFORMERS DESCRIBED IN THE DESCRIPTIVE LITERATURE FURNISHED BY YOU MET THE VOLTAGE REQUIREMENTS OF THE INVITATION.

B-142171, APR. 29, 1960

TO MANHATTAN LIGHTING EQUIPMENT CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26, 1959, AND SUBSEQUENT CORRESPONDENCE PROTESTING THE REJECTION BY THE FEDERAL AVIATION AGENCY OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION NO. 1 60-175B2.

THE INVITATION REQUESTED BIDS FOR FURNISHING DURING THE PERIOD BEGINNING DECEMBER 7, 1959, AND ENDING JUNE 30, 1960, TRANSFORMERS DESCRIBED, IN PART, ON PAGE 1 AS FOLLOWS:

"TRANSFORMER, SELF-COOLED, SINGLE PHASE DISTRIBUTION, 60 CYCLES, WITH TWO (2) 2-1/2 PERCENT TAPS ABOVE AND BELOW; WITH NON-BURNING COOLING LIQUID SIMILAR AND EQUAL TO G.E.'PYRANOL" WESTINGHOUSE "INTERTEEN; " TO BE SIMILAR AND EQUAL TO GENERAL ELECTRIC COMPANY TYPE "HS," AS FOLLOWS:

"* * * BIDS OFFERING EQUIPMENT OTHER THAN BRAND NAME EQUIPMENT REFERENCED IN THIS INVITATION WILL BE CONSIDERED: PROVIDED, THAT, SUCH OFFERED EQUIPMENT IS CLEARLY IDENTIFIED IN THE BIDS AND BIDDERS FURNISH WITH THEIR BIDS (1) DESCRIPTIVE MATERIAL, INCLUDING CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER GRAPHIC MATERIAL, WHICH WILL CLEARLY SHOW THE CHARACTERISTICS OF THE EQUIPMENT OFFERED, AND (2) A STATEMENT SHOWING IN DETAIL THE DIFFERENCES BETWEEN THE EQUIPMENT OFFERED AND THAT REFERENCED IN THE INVITATION. FAILURE TO FURNISH THE INFORMATION REQUIRED BY (1) AND (2) ABOVE WILL REQUIRE REJECTION OF THE BIDS.'

THE ABOVE LANGUAGE IS THAT PRESCRIBED IN SUBPART 1-1.307-6 OF THE FEDERAL PROCUREMENT REGULATIONS, CHAPTER 1, TITLE 41, CODE OF FEDERAL REGULATIONS.

NINE BIDS WERE RECEIVED AND OPENED. YOU SUBMITTED THE LOWEST BID ON THE TRANSFORMERS. WITH YOUR BID YOU SUBMITTED A CIRCULAR OF THE HARRISON TRANSFORMER CORPORATION DESCRIBING SEVERAL TYPES OF TRANSFORMERS. ON THE FACE SHEET OF YOUR BID YOU LINED OUT THE WORDS "GENERAL ELECTRIC COMPANY TYPE "HS," " AND ON PAGE 3 THEREON, YOU INDICATED THAT YOU WOULD FURNISH HARRISON ASKAREL TRANSFORMERS. IT IS REPORTED THAT NONE OF THE TRANSFORMERS DESCRIBED IN THE DESCRIPTIVE LITERATURE FURNISHED BY YOU MET THE VOLTAGE REQUIREMENTS OF THE INVITATION. ALSO, IT IS REPORTED THAT THE CIRCULAR FURNISHED BY YOU FAILED TO INCLUDE ADDITIONAL INFORMATION WHICH WOULD BE REQUIRED TO MAKE A DETERMINATION, SUCH AS THE FOLLOWING:

"1. IMPULSE TESTS

2. TEMPERATURE RISE

3. LOSSES

4. REGULATION

5. EFFICIENCY

6. EXCITING CURRENT

7. ALSO COMPLETE DIMENSIONAL DESCRIPTION OF EACH ITEM"

THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NOT ACCOMPANIED BY THE DESCRIPTIVE DATA REQUIRED BY PARAGRAPH XI AND WAS, THEREFORE, REJECTED BY THE FEDERAL AVIATION AGENCY AS NOT BEING RESPONSIVE TO THE INVITATION.

IN YOUR PROTEST YOU CONTEND THAT THE CONTRACTING OFFICER, ACTING IN THE INTEREST OF THE GOVERNMENT, SHOULD HAVE REQUESTED YOU BY TELEPHONE TO FURNISH ADDITIONAL DESCRIPTIVE LITERATURE, INASMUCH AS YOUR BID PRICE WAS THE LOWEST.

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 XI 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.

IN REGARD TO YOUR CONTENTION THAT YOU WERE PREVIOUSLY AWARDED CONTRACTS UNDER INVITATIONS NOS. 1-58-54B1 AND 1-59-13B1 FOR FURNISHING HARRISON TRANSFORMERS ON THE BASIS OF SIMILAR DESCRIPTIVE LITERATURE, IT SHOULD BE NOTED THAT THESE INVITATIONS DID NOT CONTAIN THE PROVISION THAT FAILURE TO SUBMIT THE REQUIRED DESCRIPTIVE LITERATURE WOULD BE CAUSE FOR REJECTION OF BIDS. SINCE THERE WAS NO MANDATORY PROVISION IN THESE INVITATIONS FOR SUBMISSION OF DESCRIPTIVE LITERATURE, IT APPEARS THAT THE ADMINISTRATIVE OFFICE INVOLVED PROPERLY USED ITS DISCRETION TO WAIVE AS A MINOR DEVIATION THE SUBMISSION OF COMPLETE DESCRIPTIVE LITERATURE.

UNDER THE LAW A BID IS REQUIRED TO BE COMPLETE AND RESPONSIVE TO THE INVITATION IN ALL MATERIAL RESPECTS AT THE TIME FIXED IN THE INVITATION FOR THE OPENING OF THE BIDS. AFTER THE OPENING, BIDS MAY NOT BE CHANGED OR MODIFIED. THE GOVERNMENT PURCHASING OFFICERS ARE REQUIRED TO GIVE ALL INTERESTED BIDDERS AN EQUAL OPPORTUNITY TO BID AND THE GOVERNMENT IS DESIROUS OF OBTAINING THE BEST PRICE POSSIBLE. IT IS FOR THESE REASONS THAT THE INVITATION FOR BIDS SHOULD BE DRAWN IN SUCH A MANNER TO FACILITATE BIDDERS IN GIVING THE REQUIRED INFORMATION SO THAT THERE MAY BE NO QUESTION OF FAVORITISM OR FRAUD AND THAT ALL BIDS MAY BE CONSIDERED FOR AWARD. THE REASON WHY THE CONTRACTING OFFICER DID NOT TAKE ADVANTAGE OF YOUR LOWER PRICE WAS DUE ENTIRELY TO YOUR OWN ACTIONS IN FAILING TO GIVE THE REQUIRED INFORMATION AS SPECIFICALLY REQUIRED BY THE INVITATION.

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