B-142436, APR. 28, 1960

B-142436: Apr 28, 1960

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TO LABRUM AND DOAK: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 29. THE INVITATION REQUESTED BIDS WHICH WERE OPENED ON DECEMBER 18. WHICH ARE TO BE IN ACCORDANCE WITH NASA SPECIFICATION NO. THE ABOVE-QUOTED REQUIREMENTS WERE CONSIDERED NECESSARY BY THE CONTRACTING AGENCY SO THAT OFFERS COULD BE TECHNICALLY EVALUATED TO DETERMINE THAT THE SYSTEM OFFERED WOULD BE ENGINEERED TO MEET THE EXACTING REQUIREMENTS OF THE ACTIVITY. WE HAVE BEEN ADVISED BY NASA THAT THE SPECIFICATIONS COVER A COMPLEX ELECTRONIC SYSTEM. THAT THE EQUIPMENT REQUIRED IS FOR GENERAL USE IN CONNECTION WITH THE LAUNCHING OF TEST VEHICLES. THAT FROM AN ENGINEERING VIEWPOINT IT IS A PRACTICAL IMPOSSIBILITY TO WRITE SPECIFICATIONS FOR A PROGRAMING AND TIMING SYSTEM WHICH WILL GUARANTEE A SATISFACTORY SYSTEM.

B-142436, APR. 28, 1960

TO LABRUM AND DOAK:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 29, 1960, PROTESTING, ON BEHALF OF THE WICKES ENGINEERING AND CONSTRUCTION COMPANY, AGAINST ANY POSSIBLE AWARD OF A CONTRACT TO ANOTHER COMPANY UNDER INVITATION NO. L- 692, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), LANGLEY FIELD, VIRGINIA.

THE INVITATION REQUESTED BIDS WHICH WERE OPENED ON DECEMBER 18, 1959, FOR SERVICES AND MATERIALS NECESSARY TO FURNISH AND INSTALL AT VARIOUS SITES SPECIFIED THEREIN A RANGE PROGRAMMING AND TIMING SYSTEM CONSISTING OF ONE COMPLETE SYSTEM AND FIVE TIMING SUB-UNITS, WHICH ARE TO BE IN ACCORDANCE WITH NASA SPECIFICATION NO. L-692, DATED OCTOBER 12, 1959. ON PAGE 4 UNDER "NOTES," THE INVITATION CONTAINED THE FOLLOWING STATEMENTS:

"BIDDERS SHALL FURNISH EVIDENCE WITH THEIR BIDS DEMONSTRATING TECHNICAL ABILITY TO COMPLY WITH THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS. INFORMATION SHALL INCLUDE BLOCK DIAGRAM OF COMPLETE FIXED STATION SYSTEM PLUS BLOCK DIAGRAMS OF MAJOR UNITS AND SUB-UNITS SHOWING COMPLETE INTERCONNECTION.

"IN ORDER TO BE CONSIDERED RESPONSIVE TO THIS INVITATION, BIDDER SHALL SUBMIT EVIDENCE OF HAVING FURNISHED SYSTEMS OF EQUAL COMPLEXITY TO INDUSTRIAL FIRMS AND/OR GOVERNMENT AGENCIES. INFORMATION SHALL INCLUDE NAMES, ADDRESSES AND CONTRACT NUMBERS.'

THE ABOVE-QUOTED REQUIREMENTS WERE CONSIDERED NECESSARY BY THE CONTRACTING AGENCY SO THAT OFFERS COULD BE TECHNICALLY EVALUATED TO DETERMINE THAT THE SYSTEM OFFERED WOULD BE ENGINEERED TO MEET THE EXACTING REQUIREMENTS OF THE ACTIVITY.

WE HAVE BEEN ADVISED BY NASA THAT THE SPECIFICATIONS COVER A COMPLEX ELECTRONIC SYSTEM; THAT THE EQUIPMENT REQUIRED IS FOR GENERAL USE IN CONNECTION WITH THE LAUNCHING OF TEST VEHICLES; THAT FROM AN ENGINEERING VIEWPOINT IT IS A PRACTICAL IMPOSSIBILITY TO WRITE SPECIFICATIONS FOR A PROGRAMING AND TIMING SYSTEM WHICH WILL GUARANTEE A SATISFACTORY SYSTEM, UNLESS NASA ENGINEERS CAN ASSUME WITH SOME DEGREE OF CERTAINTY THAT PROSPECTIVE BIDDERS CAN IMPLEMENT NASA SPECIFIED SYSTEM DESIGN WITH EXPERIENCED ENGINEERING SERVICES; AND THAT THE SECTION OF THE SPECIFICATIONS UNDER NOTES REQUIRING BLOCK DIAGRAMS IS A MEANS OF DETERMINING THE ENGINEERING CAPABILITY OF THE BIDDER ALONG THE LINES OF THE SYSTEM REQUIRED, IN ADDITION TO ASSURING THAT THE PROPOSAL MEETS ALL SPECIFICATIONS.

ELEVEN BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, THE LOWEST BEING SUBMITTED BY THE WICKES ENGINEERING AND CONSTRUCTION COMPANY. UPON EVALUATION, THE BID OF THE WICKES ENGINEERING AND CONSTRUCTION COMPANY WAS REJECTED FOR THE REASON THAT ITS BID DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS AND THE COMPANY WAS SO ADVISED.

IN YOUR LETTER OF MARCH 29, 1960, YOU CONTEND THAT THE GROUNDS GIVEN BY THE CONTRACTING OFFICE FOR REJECTION OF THE BID OF THE WICKES ENGINEERING AND CONSTRUCTION COMPANY ARE TECHNICALLY AND FACTUALLY UNSOUND AND WILL NOT STAND EXAMINATION. YOU DO NOT, HOWEVER, POINT OUT SPECIFICALLY IN WHAT MANNER THE REASONS GIVEN FOR REJECTION ARE TECHNICALLY AND FACTUALLY UNSOUND.

IT APPEARS THAT THE PRIMARY REASON FOR THE REJECTION OF THE WICKES BID WAS THAT THE COMPANY FAILED TO COMPLY WITH THE PROVISIONS SET FORTH IN THE NOTES ON PAGE 4 OF THE INVITATION WHICH REQUIRE THE BIDDER TO SUBMIT EVIDENCE OF PRIOR EXPERIENCE IN THE TYPE OF INSTALLATION REQUIRED UNDER THE INVITATION BY THE LANGLEY RESEARCH CENTER. ANOTHER REASON WHY THE BID OF THE COMPANY WAS REJECTED IS THAT THE DATA SUBMITTED WITH ITS BID FAILED TO MEET THE REQUIREMENTS OF THE THIRD NOTE OF THE INVITATION IN THAT IT WAS INCOMPLETE, DID NOT MEET SPECIFICATIONS, AND CONTAINED MAJOR OMISSIONS.

WE HAVE CONSISTENTLY HELD THAT WHERE IT IS PROPERLY DETERMINED BY THE CONTRACTING AGENCY THAT THE INTERESTS OF THE GOVERNMENT WOULD THEREBY BE SERVED, ADVERTISED PROCUREMENTS MAY BY THE TERMS OF THE INVITATION REQUIRE, AS A CONDITION OF ELIGIBILITY FOR AWARD, SPECIFIC EXPERIENCE IN A SPECIALIZED FIELD. SEE 37 COMP. GEN. 420 AND CASES THEREIN CITED.

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 THE NOTES WERE UNREASONABLE OR ARBITRARY. SINCE THE COMPANY DID NOT SUBMIT WITH ITS BID THE DATA REQUIRED BY THE INVITATION ITS 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.

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 NOR 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 THE COMPANY'S LOWER PRICE WAS DUE ENTIRELY TO ITS FAILURE 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.