B-143591, SEP. 13, 1960

B-143591: Sep 13, 1960

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER OF AUGUST 25. 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. SUCH DATA WILL BE MADE A PART OF THE CONTRACT INSTRUMENT. OR FAILURE TO SUBMIT ALL OF THE REQUIRED DATA WILL RESULT IN REJECTION OF THE BID.'. TWO SIGNIFICANT STATEMENTS ARE MADE IN THAT BID. IN ANOTHER PLACE THE BID STATES: "PLEASE NOTE THAT WE ARE BIDDING ON OHIO BRASS LIGHTNING ARRESTERS AND INSULATORS. THE OHIO BRASS COMPANY BID IS ACCOMPANIED BY A LETTER. IT IS ESTIMATED THAT APPROXIMATELY 15 VIEWS OF THE EQUIPMENT WILL BE REQUIRED AND PHOTOGRAPHS ARE TO BE TAKEN WHERE INDICATED BY THE CONTRACTING OFFICER OR HIS REPRESENTATIVE.

B-143591, SEP. 13, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF AUGUST 25, 1960, FROM THE DEPUTY ASSISTANT SECRETARY (LOGISTICS) REPORTING ON THE PROTEST OF THE SCHWAGER-WOOD COMPANY, PORTLAND, OREGON, AGAINST THE REJECTION OF ITS LOW LUMP SUM BID FOR LIGHTNING ARRESTERS, INSULATORS AND DISCONNECT SWITCHES SUBMITTED UNDER INVITATION CIVENG-45-164-60-41.

PARAGRAPH 3A,"DRAWINGS AND DATA TO BE SUBMITTED WITH BID," ON PAGE 6 OF THE INVITATION ROVIDES:

"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.'

IN COMPLIANCE WITH THIS REQUIREMENT, THE SCHWAGER-WOOD COMPANY SUBMITTED TECHNICAL DATA WITH ITS BID. TWO SIGNIFICANT STATEMENTS ARE MADE IN THAT BID. IN ONE PLACE IT NOTES:

"WE TAKE NO EXCEPTIONS TO THE INVITATION OR SPECIFICATIONS AND WE PROPOSE FURNISHING EQUIPMENT IN COMPLETE COMPLIANCE THEREWITH.'

IN ANOTHER PLACE THE BID STATES:

"PLEASE NOTE THAT WE ARE BIDDING ON OHIO BRASS LIGHTNING ARRESTERS AND INSULATORS. IN ADDITION TO THE DATA INCLUDED WITH OUR BID THE OHIO BRASS COMPANY HAS AUTHORIZED US TO REFER YOU TO ALL THE DATA SUBMITTED WITH THEIR BID.'

THE OHIO BRASS COMPANY BID IS ACCOMPANIED BY A LETTER, STATED TO BE PART OF THE COMPANY BID, AND TECHNICAL DATA RELATED TO THE LIGHTNING ARRESTERS AND INSULATORS. THE LETTER CONTAINS INFORMATION ABOUT THE COMPANY, THE LIGHTNING ARRESTERS AND INSULATORS MANUFACTURED BY IT, AND THE LOCATIONS WHERE THE EQUIPMENT HAS BEEN INSTALLED. FURTHER, THE LETTER IDENTIFIES THE TECHNICAL DATA ATTACHED TO THE BID THAT HAS A BEARING ON THE PRODUCTS OFFERED. THE LETTER CONCLUDES AS FOLLOWS:

"SPECIAL CONDITION PARAGRAPH SC-4, PHOTOGRAPHS, STATES THAT THE CONTRACTOR SHALL FURNISH THE CONTRACTING OFFICER WITH THREE PRINTS AND ONE NEGATIVE OF PHOTOGRAPHS TAKEN OF THE WORK DONE IN HIS SHOP. IT IS ESTIMATED THAT APPROXIMATELY 15 VIEWS OF THE EQUIPMENT WILL BE REQUIRED AND PHOTOGRAPHS ARE TO BE TAKEN WHERE INDICATED BY THE CONTRACTING OFFICER OR HIS REPRESENTATIVE. IF REQUIRED TO FULFILL THIS SPECIAL CONDITION THE BIDDER RESERVES THE RIGHT TO APPROVE THE SUBJECT MATTER OF ANY PHOTOGRAPH TAKEN WHICH IN HIS OPINION MAY MAKE PUBLIC ANY PROCESS, TECHNIQUE OR EQUIPMENT WHICH THE BIDDER WISHES TO PRESERVE AS BEING UNIQUE TO WORK DONE IN HIS OWN PLANT. THE DECISION OF THE CONTRACTOR AS TO SUITABILITY OF MATERIAL TO BE PHOTOGRAPHED SHALL BE FINAL. * * *"

ALTHOUGH, FROM THE TECHNICAL DATA SUBMITTED WITH THE BID, THE ITEMS OFFERED HAVE BEEN DETERMINED TO BE TECHNICALLY COMPLIANT WITH THE GOVERNMENT'S REQUIREMENTS, THE RESERVATION OF THE RIGHT TO DETERMINE THE SUBJECT MATTER OF ANY PHOTOGRAPH WAS CONSIDERED A MATERIAL DEVIATION FROM THE PROVISION VESTING THAT AUTHORITY IN THE GOVERNMENT. THE OHIO BRASS BID WAS THEREFORE REJECTED AS QUALIFIED AND NONRESPONSIVE.

THE SCHWAGER-WOOD BID WAS VIEWED AS NONRESPONSIVE ALSO, BECAUSE THE EXCEPTION TAKEN BY OHIO BRASS WAS CONSIDERED TO BE INCORPORATED BY REFERENCE INTO THE FORMER'S BID BY THE STATEMENT REFERRING TO ALL THE DATA SUBMITTED IN THE OHIO BRASS BID. HOWEVER, THE SCHWAGER-WOOD COMPANY CONTENDS THAT THE LANGUAGE EMPLOYED IN ITS BID INDICATES THAT IT INCORPORATES ONLY THE TECHNICAL DATA DESCRIBING THE PRODUCT.

WE HAVE HELD THAT A BIDDER'S OVERALL OFFER TO COMPLY WITH THE SPECIFICATIONS CURES A DEVIATION WHICH WOULD ORDINARILY RENDER THE BID NONRESPONSIVE. 37 COMP. GEN. 27. THIS CASE IS DISTINGUISHABLE FROM THOSE REPORTED AT 36 COMP. GEN. 415 AND 39 ID. 490 IN THAT THEY INVOLVED SITUATIONS WHERE THE BIDDERS FAILED TO FURNISH DETAILED TECHNICAL DATA REQUIRED TO EVALUATE THE PRODUCT OFFERED. IN THE IMMEDIATE CASE, THE BIDDER, BY ATTACHMENTS TO ITS BID AND BY REFERENCE TO DATA IN ANOTHER BID, HAS COMPLIED WITH THE REQUIREMENT FOR TECHNICAL DATA WHICH IS UNDERSTOOD TO FULLY MEET THE REQUIREMENTS OF THE EQUIPMENT THE GOVERNMENT PROPOSES TO PURCHASE.

THEREFORE, ALTHOUGH THE EXCEPTION TO THE PHOTOGRAPH REQUIREMENT IN THE OHIO BRASS BID WAS A MATERIAL DEVIATION REQUIRING REJECTION OF THAT BID, IN VIEW OF THE BLANKET OFFER OF COMPLIANCE IN THE SCHWAGER WOOD BID, THAT BID SHOULD BE CONSIDERED FOR AWARD.

THE FILE ENCLOSED WITH THE LETTER OF AUGUST 25, 1960, IS RETURNED HEREWITH.