B-142476, AUG. 19, 1960

B-142476, AUG. 19, 1960

TO COMPUDYNE CORPORATION:

REFERENCE IS MADE TO LETTER OF APRIL 2, 1960, AND SUBSEQUENT CORRESPONDENCE, FROM THE LAW OFFICES OF WOLF, BLOCK, SCHORR AND SOLIS COHEN, PROTESTING ON YOUR BEHALF AGAINST THE REJECTION OF YOUR BID, AND THE AWARD OF A CONTRACT TO THE GENERAL ELECTRIC COMPANY UNDER INVITATION FOR BIDS NO. CIVENG-45-164-60-29, ISSUED BY THE DEPARTMENT OF THE ARMY, UNITED STATES ENGINEER DISTRICT OFFICE AT WALLA WALLA, WASHINGTON. IT IS CONTENDED, IN SUBSTANCE, THAT THE DEVIATIONS AND DEFICIENCIES IN YOUR BID ARE MINOR INFORMALITIES OR IRREGULARITIES AND THEREFORE SHOULD HAVE BEEN WAIVED, OR THE NECESSARY CORRECTIONS PERMITTED, BY THE CONTRACTING OFFICER.

THE SUBJECT INVITATION SOUGHT BIDS ON THE FURNISHING OF CERTAIN FISHWAY AUTOMATIC CONTROL EQUIPMENT FOR DELIVERY AT THE SITE OF THE ICE HARBOR LOCK AND DAM, ASH, WASHINGTON, TO BE DESIGNED AND MANUFACTURED IN ACCORDANCE WITH THE BASIC REQUIREMENTS SET FORTH IN THE DRAWINGS AND SPECIFICATIONS MADE A PART OF THE SAID INVITATION. PARAGRAPH SC-2B OF THE SPECIAL CONDITIONS OF THE SPECIFICATIONS APPRISED ALL BIDDERS THAT THE CONTRACT DRAWINGS INDICATED THE GENERAL ARRANGEMENT DESIRED AND, EXCEPT FOR SPECIFIED LIMITATIONS, WERE NOT TO BE CONSIDERED AS DEFINING THE DESIGN BUT MERELY AS ILLUSTRATIVE OF THE EQUIPMENT TO BE FURNISHED.

IN RELATION TO THAT PROVISION, PARAGRAPH 3 OF THE CONTINUATION SHEET STIPULATED, IN PERTINENT PART, AS FOLLOWS:

"* * * EACH BIDDER SHALL SUBMIT WITH HIS BID THE INFORMATION LISTED BELOW, WHICH WILL BE USED IN DETERMINING THE RESPONSIVENESS OF THE BID. BIDS WILL BE EVALUATED STRICTLY ON THE BASIS OF INFORMATION SUBMITTED WITH THE BID. THE DRAWINGS AND DATA SUBMITTED MUST BE IN SUFFICIENT DETAIL AND CLARITY TO ENABLE MAKING A COMPLETE AND POSITIVE CHECK WITH THE TECHNICAL PROVISIONS OF THE SPECIFICATIONS AND, WHERE HEREINAFTER INDICATED, SUCH DATA WILL BE MADE A PART OF THE CONTRACT INSTRUMENT. IF BIDDERS SUBMIT STANDARD DRAWINGS AND/OR STANDARD PUBLISHED DESCRIPTIVE DATA OF THEIR PRODUCT, ANY MODIFICATION REQUIRED AND INTENDED BY THEM IN ORDER TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS SHALL BE CLEARLY SET FORTH BY DESCRIPTION OF THE CHANGE OR REVISION. FAILURE TO SUBMIT DRAWINGS AND DATA OF SUCH DETAIL AND CLARITY AS DESCRIBED ABOVE, FAILURE OF SUCH INFORMATION TO INDICATE COMPLIANCE OF THE BID WITH THE SPECIFICATIONS, OR FAILURE TO SUBMIT ALL OF THE REQUIRED DATA WILL RESULT IN REJECTION OF THE BID.

"B. THE DRAWINGS AND DATA SUBMITTED SHALL INCLUDE, AS A MINIMUM, THE FOLLOWING:

(1) DRAWINGS OR PHOTOGRAPHS OF SIMILAR EQUIPMENT WHICH HE HAS MANUFACTURED.

(2) DRAWINGS OR SKETCH OF FSC AND FCQ4 SWITCHBOARDS WITH CROSS SECTION SHOWING CONSTRUCTION DETAILS, OVERALL DIMENSION AND LOCATIONS AND DIMENSIONS OF VARIOUS COMPONENT UNITS AND SECTIONS.

(3) NAME OF MANUFACTURER AND CATALOG SHEETS OR DESCRIPTIVE DATA INCLUDING PHOTOGRAPHS OR SKETCHES FOR:

(A) PRIMARY CONTROL DEVICES.

(B) RELAYS AND PROTECTIVE EQUIPMENT.

(C) ANNUNCIATOR EQUIPMENT AND INDICATING LAMP ASSEMBLY.

(D) SWITCHES.

(E) TRANSFORMERS.

(F) PANELBOARDS.

(G) INDICATORS.

(H) FLOAT EQUIPMENT.

"C. A LIST OF ACCESSORIES AND SPARE PARTS WHICH HE PROPOSES TO FURNISH IN ACCORDANCE WITH PARAGRAPH 4-04. * * *"

UPON OPENING OF THE BIDS IT WAS DETERMINED THAT THE DATA FURNISHED WITH YOUR BID WAS DEFICIENT AND AT VARIANCE WITH THE INVITATION IN THAT IT OMITTED FOUR NEEDED ITEMS FROM THE SPARE PARTS IST; THAT DRAWING SK 216 SHOWS A DIFFERENT AND UNACCEPTABLE SWITCH TO BE USED; THAT YOU CONTEMPLATED USING TYPE FHA RELAYS INSTEAD OF THE TYPE CR7511-B113, CALLED FOR IN THE SPECIFICATIONS; AND THAT NO DATA OR DATA SHEETS FOR SUCH RELAY WERE FURNISHED. YOUR BID AND SUPPORTING DOCUMENTS WERE REVIEWED BY TECHNICAL PERSONNEL IN THE OFFICE OF THE DIVISION ENGINEER, AND IT WAS DETERMINED THAT THE TECHNICAL DEFICIENCIES AND LACK OF DESCRIPTIVE LITERATURE PRECLUDED EVALUATION OF YOUR OFFER, THUS RENDERING YOUR BID NONRESPONSIVE. IT IS FURTHER REPORTED THAT AWARD OF A CONTRACT TO YOU ON THE BASIS OF YOUR EXISTING OFFER COULD NOT BE MADE WITHOUT NEGOTIATION OR THE ISSUANCE OF A CHANGE ORDER, BOTH OF WHICH ARE CONTRARY TO APPLICABLE PROCUREMENT LAWS AND REGULATIONS.

MORE SPECIFICALLY, YOUR ATTORNEYS CONTEND THAT THE OFFER CONTAINED IN YOUR LETTER OF MARCH 4, 1960, WHICH ACCOMPANIED YOUR PROPOSAL, TO SUPPLY THE EQUIPMENT "IN COMPLETE ACCORDANCE WITH YOUR SPECIFICATION REQUIREMENTS," SHOULD BE VIEWED AS OVERCOMING ANY OMISSION OR DEVIATION IN YOUR BID, CONSISTENT WITH OUR HOLDING IN DECISION OF NOVEMBER 6, 1956, 36 COMP. GEN. 376. IN THAT DECISION WE ACQUIESCED IN THE REJECTION OF THE BID, ALTHOUGH WE INDICATED THAT WE FELT THAT THE OVER-ALL OFFER OF COMPLIANCE SHOULD HAVE BEEN REGARDED AS OVERCOMING THE DEVIATION, IN THE ABSENCE OF A DEFINITE STATEMENT IN THE INVITATION THAT FAILURE OF DESCRIPTIVE MATERIAL CALLED FOR TO MEET ALL REQUIREMENTS OF THE SPECIFICATIONS WOULD RESULT IN REJECTION OF THE BID. IN 36 COMP. GEN. 415, WHERE THE INVITATION DID CONTAIN SUCH A STATEMENT, WE HELD THAT AN OFFER OF COMPLIANCE COULD NOT BE ACCEPTED TO AVOID REJECTION.

WITH RESPECT TO THE CONTENTION THAT CORRECTION OF THE BID SHOULD BE PERMITTED, YOUR ATTORNEYS CITE OUR DECISION OF JULY 17, 1957, 37 COMP. GEN.27. IN THAT CASE AUTHORITY TO CORRECT THE BID THERE INVOLVED, TO ELIMINATE A STIPULATION OF THE PROPOSAL WHICH CONFLICTED WITH THE TERMS OF THE INVITATION, WAS BASED UPON AN OBVIOUS ERROR ALLEGED AND APPROVED, AND SUCH ACTION WAS NOT PREJUDICIAL TO THE OTHER BIDDERS. HERE IT IS APPARENT THAT THE FURNISHING OF THE ITEMIZED MATERIAL, INFORMATION,AND DRAWINGS WAS MADE MANDATORY BY THE QUOTED PROVISIONS OF THE INVITATION IN ORDER TO ESTABLISH THE DETAILS OF THE SYSTEM PROPOSED TO BE FURNISHED, AND THE PROVISION IS TO BE ENFORCED IN ACCORDANCE WITH 36 COMP. GEN. 415.

YOUR COUNSEL ALSO URGES THAT THE BID OF THE GENERAL ELECTRIC COMPANY IS DEFICIENT IN THAT ITS LIST OF MATERIAL INCLUDES ONE PUSH BUTTON, C 2940, FOR PANEL FSC, AND ONE AUXILIARY RELAY FOR SWITCHBOARD FSC, WHEREAS FIVE PUSH BUTTONS AND TEN AUXILIARY RELAYS, RESPECTIVELY, ARE REQUIRED. THE ADMINISTRATIVE OFFICE REPORTS THAT, WHILE THE NUMBER OF THOSE PARTS AS LISTED DEVIATE FROM THE QUANTITIES CALLED FOR IN THE INVITATION, THE DRAWING PREPARED AND SUBMITTED BY THAT BIDDER CLEARLY SHOWS THE CORRECT NUMBER TO BE INSTALLED IN THE ASSEMBLY, AND WE SEE NO GROUND FOR DISAGREEMENT WITH THE VIEW OF THE PROCUREMENT OFFICIALS THAT SUCH FACT IS SUFFICIENT TO OVERCOME THE INCONSISTENCY IN THE MATERIAL LISTING.

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THERE IS NO LEGAL BASIS UPON WHICH THIS OFFICE MAY PROPERLY OBJECT TO THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY.