B-146485, SEPTEMBER 13, 1961, 41 COMP. GEN. 192

B-146485, SEPTEMBER 13, 1961, 41 COMP. GEN. 192

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - BLANKET OFFER TO CONFORM TO SPECIFICATIONS--- CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - DRAWINGS , SAMPLES, ETC.--- BIDDERS - QUALIFICATIONS - EXPERIENCE - RESTRICTIVE--- BIDS - MISTAKES - CORRECTION - PREJUDICIAL TO OTHER BIDDERS A BLANKET OFFER OF COMPLIANCE WITH SPECIFICATIONS BY A BIDDER WHO FAILS TO SUBMIT SUFFICIENT DESCRIPTIVE DATA UNDER AN INVITATION FOR PROCUREMENT OF HIGHLY SPECIALIZED EQUIPMENT WHICH PROVIDED THAT THE DATA WAS NECESSARY FOR BID EVALUATION PURPOSES AND THAT BIDS WOULD BE REJECTED IF THE DATA IS NONCONFORMING DOES NOT OVERCOME OR RENDER NUGATORY EITHER THE SPECIFIC REQUIREMENT FOR FURNISHING DESCRIPTIVE DATA OR THE EXTENT TO WHICH SUCH DATA WILL BE CONSIDERED IN THE EVALUATION OF BIDS. A BIDDER WHO SUBMITTED WITH HIS BID A ROUGH SKETCH OF A DESIGN OTHER THAN THAT CONTEMPLATED BY THE INVITATION WHICH REQUIRED SUBMISSION OF DESCRIPTIVE LITERATURE AND DID NOT DESIGNATE THE DESIGN AS AN ALTERNATE OR SUBMIT PRELIMINARY DRAWINGS AS REQUIRED IN THE INSTRUCTIONS TO BIDDERS IN SUCH CASES SHOULD HAVE FORESEEN THE NECESSITY FOR MORE DETAILED DRAWINGS THAN WOULD HAVE BEEN REQUIRED FOR THE DESIGN CONTEMPLATED SO THAT EVALUATION OF THE PROPOSAL COULD BE MADE; THEREFORE, ALTHOUGH AN ALTERNATE DESIGN WAS PERMISSIBLE UNDER THE INVITATION, THE DETERMINATION BY THE CONTRACTING AGENCY THAT THE SKETCH WAS INADEQUATE AND THAT THE BID SHOULD BE REJECTED FOR FAILURE TO COMPLY WITH THE DESCRIPTIVE LITERATURE REQUIREMENT IS NOT IMPROPER. UNDER AN INVITATION FOR HIGHLY TECHNICAL EQUIPMENT WHICH LIMITED AWARD TO BIDDERS WHO SUBMITTED EVIDENCE OF EXPERIENCE IN SUCH WORK BY THE BIDDER OR HIS SUBCONTRACTORS, THE REJECTION OF A LOW BID BECAUSE THE SUBCONTRACTOR LACKED THE REQUIRED EXPERIENCE IN THE MANUFACTURE OF THE PARTICULAR EQUIPMENT WILL NOT BE QUESTIONED, THE PROPRIETY OF LIMITING THE USE OF SUBCONTRACTORS TO THOSE HAVING QUALIFICATIONS, INCLUDING EXPERIENCE, ETC., OF A NECESSARY ORDER HAVING BEEN RECOGNIZED. WHERE THE CORRECTION OF A LOW BID ON THE BASIS OF EVIDENCE CLEARLY ESTABLISHING THE EXISTENCE OF AN OBVIOUS MISTAKE AND THE BIDDER'S INTENDED PRICES RESULTS IN THE BID BECOMING THE SECOND LOW BID BUT THE THEN LOW BID IS REJECTED AS NONRESPONSIVE, SUCH CORRECTION DOES NOT PREJUDICE THE RIGHTS OF ANY OTHER RESPONSIVE BIDDER AND AN AWARD ON THE BASIS OF THE CORRECTED BID IS PROPER.

TO THE EMPIRE GAS ENGINEERING COMPANY, SEPTEMBER 13, 1961:

REFERENCE IS MADE TO YOUR LETTERS DATED JULY 21, AND AUGUST 29, 1961, PROTESTING THE ACTION OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION IN FAILING TO MAKE AN AWARD TO YOUR COMPANY PURSUANT TO INVITATION TO BID NO. L-1568, DATED APRIL 25, 1961, COVERING CENTRIFUGE HOUSING AND VACUUM SYSTEM FOR THE DYNAMICS RESEARCH FACILITY, WEST AREA, LANGLEY FIELD, VIRGINIA.

AN EXAMINATION OF THE ADMINISTRATIVE REPORT NOW BEFORE THIS OFFICE INDICATES THAT THE BID OF YOUR COMPANY WAS REJECTED FOR THE FOLLOWING TWO REASONS:

1. THE SUBMISSION OF INSUFFICIENT DATA TO EVALUATE THE BID PROPERLY, AND

2. THE LACK OF EXPERIENCE OF THE PROPOSED SUBCONTRACTOR FOR THE FABRICATION AND ERECTION OF THE EQUIPMENT.

WITH RESPECT TO YOUR FAILURE TO SUBMIT SUFFICIENT DATA TO EVALUATE THE BID PROPERLY, THE INVITATION FOR BIDS PROVIDED, UNDER THE CAPTION " DESCRIPTIVE LITERATURE," IN MATERIAL PART, AS FOLLOWS:

(A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, COMPONENTS, OPERATION AND PERFORMANCE CHARACTERISTICS.

(B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID * * *.

(C) HOWEVER, THE REQUIREMENTS FOR FURNISHING DESCRIPTIVE LITERATURE MAY BE WAIVED AS TO A BIDDER IF (I) THE BIDDER STATES IN HIS BID THAT THE PRODUCT HE IS OFFERING TO FURNISH IS THE SAME AS A PRODUCT HE HAS PREVIOUSLY FURNISHED TO THE PURCHASING ACTIVITY UNDER A PRIOR CONTRACT AND THE BIDDER IDENTIFIES THE CONTRACT, AND (II) THE CONTRACTING OFFICER DETERMINES THAT SUCH PRODUCT MEETS THE REQUIREMENTS OF THIS INVITATION FOR BIDS. ( ITALICS SUPPLIED).

ALSO, IMMEDIATELY FOLLOWING THE ABOVE-QUOTED " DESCRIPTIVE LITERATURE" CAPTION, THERE APPEARS A CAPTION ENTITLED " INSTRUCTIONS TO BIDDERS" WHICH READS, IN PERTINENT PART, AS FOLLOWS:

(A) A DESIGN PROPOSAL INCORPORATING AT LEAST THE FOLLOWING INFORMATION SHALL BE SUPPLIED WITH THE BIDS. THE PROPOSED DESIGN SHALL BE SUBJECT TO THE APPROVAL OF THE CONTRACTING OFFICER.

(1) PRELIMINARY ARRANGEMENT DRAWINGS OF THE CENTRIFUGE HOUSING AND VACUUM SYSTEM, SHOWING THE GENERAL DESIGN APPROACH TO BE FOLLOWED. THESE DRAWINGS SHALL SHOW THE PROPOSED CONFIGURATION, MODES OF OPERATION AND PRELIMINARY CONTROL PANEL ARRANGEMENT FOR THE VACUUM SYSTEM. ( ITALICS SUPPLIED).

IT IS ADMINISTRATIVELY REPORTED THAT INVITATION NO. L-1568 INVOLVED THE PROCUREMENT OF HIGHLY SPECIALIZED EQUIPMENT, AND THE LANGLEY RESEARCH CENTER DEEMED THE SUPPLYING OF THE DESCRIPTIVE LITERATURE ESSENTIAL TO ITS DETERMINATION AS TO WHETHER THE PROPOSED DESIGN WOULD MEET ITS REQUIREMENTS. THE AGENCY ALSO STATES THAT UNLESS THE PROPOSED DESIGN WAS SET FORTH IN SUFFICIENT DETAIL, AS REQUIRED BY THE INSTRUCTIONS TO BIDDERS, QUOTED IN PART ABOVE, THE LANGLEY RESEARCH CENTER WOULD BE UNABLE INTELLIGENTLY TO CONCLUDE PRECISELY WHAT YOUR COMPANY WAS PROPOSING TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO ACCEPT. IT IS FURTHER REPORTED THAT IN RESPONSE TO THE REQUIREMENTS OF THE INVITATION, YOUR COMPANY SUBMITTED A ROUGH SKETCH OF YOUR APPROACH TO THE PROPOSED CONFIGURATION FOR THE BOTTOM OF THE CENTRIFUGE HOUSING, BUT THIS SKETCH WAS INSUFFICIENT TO AFFORD ADEQUATE EVALUATION OF YOUR DESIGN PROPOSAL. IN YOUR BID, YOU STATED THAT "THE FINAL RESULT WILL BE A FACILITY FULLY COMPLYING WITH THE DESIGN CRITERIA ESTABLISHED BY THE NASA; " BUT THIS BLANKET OFFER TO COMPLY WITH THE REQUIREMENTS OF THE AGENCY AND TO BUILD THE EQUIPMENT IN A MANNER ACCEPTABLE TO THE AGENCY COULD NOT BE CONSIDERED AS COMPLIANCE WITH THE CLEAR REQUIREMENTS OF THE INVITATION. SPECIFICALLY, THE ADMINISTRATIVE AGENCY REPORTS, IN PERTINENT PART, AS FOLLOWS:

THE LOW BIDDER SUBMITTED, AS PART OF ITS PROPOSAL, A SKETCH * * * PURPORTING TO SHOW THE LOW BIDDER'S APPROACH TO THE CONFIGURATION FOR THE BOTTOM OF THE CENTRIFUGE HOUSING. IT WAS THE JUDGMENT OF THE EVALUATING ENGINEERS THAT THE SKETCH WAS INSUFFICIENT TO AFFORD ADEQUATE EVALUATION OF THE LOW BIDDER'S DESIGN PROPOSAL. SPECIFICALLY THE FLAT BOTTOM SURFACE REQUIRED BY PARAGRAPH 4B-02 (B) (1) OF THE SPECIFICATIONS * * * AND INDICATED ON DRAWING LD-701256 * * * WAS NOT INDICATED ON THE SKETCH, NOR WAS IT MENTIONED ELSEWHERE BY THE LOW BIDDER. IN ADDITION, THERE WAS NO INDICATION ON THE SKETCH AS TO THE FOUNDATION AND PILE ARRANGEMENT, NOR WAS THE ARRANGEMENT OF THE 20 FOOT SERVICE ACCESS DOOR INDICATED. COMPARISON OF THE LOW BIDDER'S PROPOSED CONFIGURATION AS SHOWN ON THE SKETCH WITH THAT OF THE PROPOSED DESIGN OF THE NEXT TWO LOW BIDDERS * * * WOULD LEAVE NO OTHER CONCLUSION TO THE EVALUATING ENGINEERS BUT THAT THE LOW BIDDER'S SKETCH LEFT A GREAT DEAL TO BE DESIRED. UNDER SECTION 1-02 OF SPECIFICATION L-1568, BIDDERS COULD SUBMIT DESIGN PROPOSALS OF BOTTOM CONFIGURATION VARYING FROM THE SUGGESTED DESIGN APPROACH SHOWN ON DRAWING LD-701256 PREPARED BY LANGLEY RESEARCH ENGINEERS. HOWEVER, HAVING ELECTED TO ADOPT A DIFFERENT APPROACH, THE LOW BIDDER SUBMITTED NO DETAILS OF THE FLAT BOTTOM SURFACE OR ITS SUPPORT, A MOST IMPORTANT COMPONENT OF THE TEST VESSEL. THE FAILURE OF LOW BIDDER TO FURNISH DESIGN DATA WITH REGARD TO THE FLAT BOTTOM SURFACE MADE IT IMPOSSIBLE FOR THE ENGINEERS TO EVALUATE THE LOW BIDDER'S PROPOSAL. THE ENGINEERS WERE PARTICULARLY ANXIOUS TO RECEIVE DESIGN DATA FROM THE BIDDERS BECAUSE THE NATURE OF THE TESTING TO BE CONDUCTED WITHIN THE FACILITY IS DEPENDENT ON THE DESIGN OF THE VESSEL STRUCTURE. * * * ( ITALICS SUPPLIED.)

WE HAVE HELD THAT IT IS APPROPRIATE FOR AN INVITATION TO CONDITION THE CONSIDERATION AND EVALUATION OF A BID UPON THE FURNISHING OF DESCRIPTIVE DATA (36 COMP. GEN. 376; ID. 415). IN OUR OPINION, THE PRESENT INVITATION, PROPERLY INTERPRETED, CONTEMPLATED THAT A BIDDER SUBMIT HIS BID EITHER ON THE BASIS OF THE DESCRIPTIVE LITERATURE TO BE FURNISHED, OR ON THE BASIS OF A PREVIOUSLY PROCURED PRODUCT. THE RECORD INDICATES THAT YOUR COMPANY CHOSE TO SUBMIT ITS BID UPON THE BASIS OF DESCRIPTIVE LITERATURE AS REQUIRED BY THE ABOVE-MENTIONED CAPTION CONTAINED IN THE INVITATION. THERE IS NOTHING IN THAT SECTION WHICH COULD BE REGARDED AS AUTHORIZING THE WAIVER OF THE REQUIREMENT OF DESCRIPTIVE LITERATURE; IN FACT, IT CLEARLY PROVIDES THAT WHERE SUCH DATA IS SUBMITTED FOR EVALUATION THE BID WILL BE REJECTED IF THE DATA IS NONCONFORMING. SINCE YOUR COMPANY DID NOT PREDICATE ITS BID UPON PREVIOUS TRANSACTIONS AS PERMITTED BY PARAGRAPH (C) OF THE ABOVE-QUOTED SECTION, YOUR BID NECESSARILY HAD TO BE CONSIDERED ON THE BASIS OF THE DESCRIPTIVE LITERATURE FURNISHED. BLANKET OFFER TO COMPLY WITH SPECIFICATIONS CANNOT OVERCOME OR RENDER NUGATORY EITHER THE SPECIFIC REQUIREMENT OF AN INVITATION FOR THE FURNISHING OF DESCRIPTIVE DATA OR THE PROVISIONS THEREOF CONCERNING THE EXTENT TO WHICH SUCH DATA WILL BE CONSIDERED IN THE EVALUATION OF BIDS.

THE REQUIREMENT IN THE INSTRUCTIONS TO BIDDERS FOR FURNISHING "PRELIMINARY" DRAWINGS SHOWING THE "GENERAL DESIGN APPROACH" TO BE FOLLOWED MUST, WE THINK, BE CONSTRUED AS A RELAXATION OF THE PRECEDING REQUIREMENT THAT THE DESCRIPTIVE LITERATURE SHOW "DETAILS * * * AS TO DESIGN.' WE AGREE THAT THE LANGUAGE USED IS NOT AS SPECIFIC AS MIGHT BE DESIRED. ON THE OTHER HAND, IT MUST BE ADMITTED THAT YOUR DESIGN APPROACH USING A DISHED BOTTOM, WHILE PERMISSIBLE UNDER THE SPECIFICATIONS AS DRAWN, WAS NOT INDICATED AS AN ALTERNATE IN THE SPECIFICATIONS OR DRAWINGS ACCOMPANYING THE INVITATION. SINCE YOU CHOSE TO ADOPT A DESIGN OTHER THAN THAT CONTEMPLATED BY THE INVITATION, WE ARE OF THE OPINION THAT YOU REASONABLY SHOULD HAVE FORESEEN THE NECESSITY FOR MORE DETAILED PRELIMINARY DRAWINGS THAN WOULD HAVE BEEN REQUIRED FOR THE DESIGN CONTEMPLATED. WE CANNOT, THEREFORE, CONCLUDE THAT THE CONTRACTING AGENCY ACTED UNREASONABLY IN CONSIDERING THE SKETCH YOU SUBMITTED INADEQUATE. ACCORDINGLY, IT IS OUR VIEW WITH RESPECT TO THIS PHASE OF THE MATTER THAT YOUR BID WAS PROPERLY REJECTED FOR FAILURE TO COMPLY FULLY WITH THE DESCRIPTIVE LITERATURE REQUIREMENT OF THE INVITATION.

WITH RESPECT TO THE SECOND REASON FOR THE REJECTION OF YOUR BID, I.E., THE LACK OF EXPERIENCE OF THE PROPOSED SUBCONTRACTOR FOR THE FABRICATION AND ERECTION OF THE EQUIPMENT, ATTENTION IS INVITED TO AN AMENDMENT DATED MAY 1, 1961, TO INVITATION FOR BIDS NO. L-1568, WHICH READS AS FOLLOWS:

QUALIFICATIONS FOR BIDDERS

BIDS WILL BE CONSIDERED ONLY FROM FIRMS SUBMITTING EVIDENCE THAT HE

OR HIS SUBCONTRACTORS HAS DESIGNED, BUILT, AND ERECTED VACUUM VESSELS

AND SYSTEMS OF MAGNITUDE SPECIFIED UNDER NASA SPECIFICATION

L-1568 DATED APRIL 25, 1961. ( ITALICS SUPPLIED.)

IT IS ADMINISTRATIVELY REPORTED THAT THE LANGLEY RESEARCH CENTER CONSIDERED THAT THE VACUUM VESSELS AND SYSTEMS WERE OF SUCH MAGNITUDE THAT ONLY A HIGHLY SKILLED AND EXPERIENCED CONTRACTOR COULD DESIGN, BUILD AND ERECT THEM WITHOUT DELAYS WHICH, IN VIEW OF THE NATURE OF THE PROJECT, COULD NOT BE RISKED. IN VIEW THEREOF, THE AGENCY CONSIDERED THAT THE ABOVE-QUOTED AMENDMENT WAS REALISTIC AND IN THE BEST INTERESTS OF THE GOVERNMENT. IT IS FURTHER REPORTED, HOWEVER, THAT THE REJECTION OF YOUR PROPOSED SUBCONTRACTOR FOR THE BUILDING AND ERECTION OF THE EQUIPMENT WAS MADE ONLY AFTER A COMPLETE INVESTIGATION AND REVIEW OF SUCH SUBCONTRACTOR'S QUALIFICATIONS. IT ALSO WAS POINTED OUT BY THE AGENCY THAT---

THE EVALUATING ENGINEERS WERE OF THE OPINION THAT, ALTHOUGH SOME OF THE WORK PERFORMED BY CHATTANOOGA BOILER AND TANK COMPANY WOULD INDICATE THAT THE CHATTANOOGA COMPANY HAD THE POTENTIAL, THEIR PAST EXPERIENCE DEFINITELY WAS NOT IN THE ORDER OF MAGNITUDE REQUIRED UNDER THE SPECIFICATIONS. FURTHERMORE, THE PROPOSED SUBCONTRACTOR DID NOT HAVE THE REQUIRED EXPERIENCE IN CONNECTION WITH THE MANUFACTURE AND INSTALLATION OF SEALED OPENINGS IN THE PRESSURE RANGE TO BE ENCOUNTERED. ( ITALICS SUPPLIED.)

WE BELIEVE THE ITALICIZED LANGUAGE IS OF PARTICULAR PERTINENCE WHEN IT IS CONSIDERED THAT ONE OF THE OPENINGS INVOLVED IS TO BE 20 FEET IN DIAMETER. WE ALSO OBSERVE THAT IN A LETTER DATED JULY 19, 1961, THE CHATTANOOGA BOILER AND TANK CO., THE SUBCONTRACTOR INVOLVED, IN DISCUSSING ITS QUALIFICATIONS, ADMITTED THAT " IT IS TRUE THAT WE HAVE NEVER FABRICATED A VESSEL SPECIFICALLY CALLED "CENTRIFUGE HOUSING" TO OPERATE UNDER FULL VACUUM.' IN THIS CONNECTION, WE SHOULD POINT OUT THAT THE PROPRIETY OF LIMITING BY CONTRACT CONDITION THE USE OF SUBCONTRACTORS TO THOSE HAVING QUALIFICATIONS, INCLUDING EXPERIENCE, ETC., OF A NECESSARY ORDER, HAS BEEN RECOGNIZED. 37 COMP. GEN. 196.

CONCERNING YOUR COMMENTS WITH RESPECT TO AN ERROR IN THE BID OF THE PITTSBURGH-DES MOINES STEEL COMPANY, THE AGENCY REPORT INDICATES THAT THIS BIDDER WAS LOW ON THE BASIS OF ITS ORIGINAL SUBMISSION; HOWEVER, AFTER OPENING, THE BIDDER ALLEGED A TRANSPOSITION MISTAKE IN SETTING FORTH ITS BID PRICES UNDER ITEMS 5 AND 6, AND REQUESTED THAT ITS BID PRICES BE CORRECTED TO REFLECT ITS INTENDED BID PRICES FOR THESE ITEMS. AFTER REVIEWING THE EVIDENCE, THE CONTRACTING OFFICER CONSIDERED THAT THE MISTAKE WAS AN OBVIOUS MISTAKE AND THAT CLEAR AND CONVINCING EVIDENCE ESTABLISHED BOTH THE EXISTENCE OF THE MISTAKE AND THE BID PRICES ACTUALLY INTENDED. THE CORRECTED BID PRICE ON ITEM 6 LEFT THE PITTSBURGH-DES MOINES STEEL COMPANY THE SECOND LOW BIDDER; HOWEVER, THE CORRECTION OF THE OBVIOUS MISTAKE DID NOT PREJUDICE ANY OTHER RESPONSIVE BIDDER, SINCE, BUT FOR YOUR BID, ITS BID PRICE FOR ITEM 6 WAS LOW BOTH BEFORE AND AFTER THE CORRECTION BY THE CONTRACTING OFFICER.

IN CONCLUSION, THEREFORE, FOR THE REASONS SET FORTH ABOVE, WE PERCEIVE NO BASIS FOR HOLDING THAT THE CONTRACT AWARDED PURSUANT TO INVITATION FOR BIDS NO. L-1568 IS LEGALLY INVALID.