B-147296, DEC. 5, 1961

B-147296: Dec 5, 1961

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YOUR LETTER STATES THAT YOU BELIEVE THAT THE WEATHER BUREAU HAS UNJUSTIFIABLY REJECTED GEC'S LOW BID BASED UPON UNREALISTIC AND HYPERTECHNICAL OBJECTIONS RESULTING IN THE PAYMENT OF MORE THAN TWICE THE PRICE FOR A PIECE OF FOREIGN-MADE EQUIPMENT WHICH IS NOT AS ADVANCED IN DESIGN AS THE AMERICAN-MADE EQUIPMENT OFFERED BY GEC. WAS FOR THE PURCHASE OF SCAN CONVERTER. THE INVITATION CONTAINED THE FOLLOWING PROVISION WHICH IS QUOTED IN PERTINENT PART AS FOLLOWS: "REQUIREMENT FOR DESCRIPTIVE LITERATURE: (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 DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH.

B-147296, DEC. 5, 1961

TO KOTEEN AND BURT:

YOUR LETTER OF SEPTEMBER 21, 1961, PROTESTED ON BEHALF OF THE GENERAL ELECTRODYNAMICS CORPORATION, HEREINAFTER REFERRED TO AS GEC, THE AWARD BY THE UNITED STATES WEATHER BUREAU UNDER INVITATION NO. WB121-61 OF A CONTRACT TO INTERCONTINENTAL ELECTRONICS CORPORATION. YOUR LETTER STATES THAT YOU BELIEVE THAT THE WEATHER BUREAU HAS UNJUSTIFIABLY REJECTED GEC'S LOW BID BASED UPON UNREALISTIC AND HYPERTECHNICAL OBJECTIONS RESULTING IN THE PAYMENT OF MORE THAN TWICE THE PRICE FOR A PIECE OF FOREIGN-MADE EQUIPMENT WHICH IS NOT AS ADVANCED IN DESIGN AS THE AMERICAN-MADE EQUIPMENT OFFERED BY GEC.

THE RECORD SHOWS THAT INVITATION FOR BIDS NO. WB121-61 ISSUED MAY 19, 1961, WAS FOR THE PURCHASE OF SCAN CONVERTER, BRIGHT DISPLAY, RADAR-TV, WSR-57 RADAR, IN ACCORDANCE WITH U.S. WEATHER BUREAU SPECIFICATION NO. 458.5513/1 DATED MAY 19, 1961. THE SPECIFICATION REFERRED TO SETS FORTH IN THE USUAL DETAILS THE COMPONENTS AND PERFORMANCE REQUIREMENTS OF THE EQUIPMENT TO BE PURCHASED. THE INVITATION CONTAINED THE FOLLOWING PROVISION WHICH IS QUOTED IN PERTINENT PART AS FOLLOWS:

"REQUIREMENT FOR DESCRIPTIVE LITERATURE: (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 TI PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, COMPONENTS, 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. * * *"

THE RECORD SHOWS THAT THE LOW BID OF GEC WAS REJECTED BY THE WEATHER BUREAU AS BEING NONRESPONSIVE IN THAT THE BIDDER DID NOT PROVIDE SUFFICIENT INFORMATION, AS REQUIRED UNDER THE ,REQUIREMENT FOR DESCRIPTIVE LITERATURE" PROVISION QUOTED, TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATION AND OTHER REQUIREMENTS OF THE INVITATION. ADVICE OF THIS REJECTION AND THE REASONS THEREFOR WERE SET FORTH IN THE LETTER TO GEC FROM THE CONTRACTING OFFICER DATED JULY 19, 1961. THE DETAILED DEFICIENCIES SET FORTH IN THIS LETTER GENERALLY POINT OUT THE FAILURE OF THE DESCRIPTIVE LITERATURE TO DEMONSTRATE THAT THE CRITICAL FEATURES DESCRIBED IN THE SPECIFICATION WERE INCORPORATED IN THE EQUIPMENT OFFERED AND/OR THAT PERFORMANCE WOULD MEET SPECIFICATION REQUIREMENTS.

YOU STATE IN YOUR LETTER OF SEPTEMBER 21, 1961, THAT THE DESCRIPTIVE LITERATURE FURNISHED BY GEC FULLY DEMONSTRATED THAT THE GEC EQUIPMENT CONFORMS TO THE SPECIFICATION AND OTHER REQUIREMENTS OF THE INVITATION. YOU CONTEND THAT THERE WAS NO NEED TO RESTATE THE ENTIRE ORIGINAL SPECIFICATIONS AND THAT GEC WAS PREPARED TO COMPLY COMPLETELY WITH THE SPECIFICATIONS. YOU FURTHER STATE THAT THE DETERMINATION OF THE WEATHER BUREAU WAS ARBITRARY AND CAPRICIOUS AND CONTRARY TO THE BEST INTERESTS OF THE GOVERNMENT IN OBTAINING AMERICAN-MADE EQUIPMENT OF ADVANCE DESIGN AT LOW PRICES.

ENCLOSURE NO. 1 WITH YOUR LETTER OF SEPTEMBER 21, 1961, PREPARED BY MR. ALBERTINE OF GEC IS A DISCUSSION ON A POINT BASIS OF THE DETAILED DEFICIENCIES SET FORTH IN THE WEATHER BUREAU LETTER OF JULY 19, 1961, TO GEC. SUMMARIZING THESE AND OTHER POINTS RAISED IN YOUR LETTER OF SEPTEMBER 21, 1961, THE REFUTATION OFFERED IN OPPOSITION TO THE REJECTION OF THE BID CONSISTS OF THE FOLLOWING: (1) THAT THE LITERATURE FURNISHED SHOULD SHOW TO ANYONE FAMILIAR WITH THIS TYPE OF EQUIPMENT THAT THE GEC EQUIPMENT WOULD MEET THE REQUIREMENTS OF THE WEATHER BUREAU, (2) THAT DETAILS OF THE FEATURES SET FORTH IN THE SPECIFICATIONS WERE NOT DISCUSSED AS THESE WERE INCORPORATED IN THE EQUIPMENT OFFERED AS A STANDARD FEATURE, (3) THAT SINCE THE SPECIFICATIONS DEFINED REQUIREMENTS OF THE EQUIPMENT TO BE FURNISHED THERE WAS NO NEED TO REPEAT THE SPECIFICATIONS IN THE DESCRIPTIVE LITERATURE. IT IS YOUR POSITION, THEREFORE, THAT THE DESCRIPTIVE LITERATURE PROVIDED BY GEC WITH ITS BID FULLY DEMONSTRATED THAT THE GEC EQUIPMENT CONFORMED TO THE SPECIFICATION AND OTHER REQUIREMENTS. YOU ASK THAT THE GENERAL ACCOUNTING OFFICE REQUIRE THE WEATHER BUREAU TO REVERSE ITS ACTION AND AWARD THE CONTRACT TO GEC.

THE ISSUE TO BE DECIDED HERE IS WHETHER DESCRIPTIVE LITERATURE FURNISHED BY GEC SATISFIED THE REQUIREMENTS IN THE PROVISION OF THE INVITATION QUOTED ABOVE THAT IT "SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS.' IT IS THE CONTENTION OF THE CONTRACTING OFFICER THAT THE DESCRIPTIVE LITERATURE WAS DEFICIENT IN THIS RESPECT. UNDER THE PROVISIONS OF THE INVITATION QUOTED ABOVE THIS DEFICIENCY REQUIRED TO BE SUBMITTED FOR THE PURPOSES OF BID EVALUATION, AS DISTINGUISHED FROM MATERIAL REQUIRED FOR A DETERMINATION OF THE BIDDER'S RESPONSIBILITY, MUST BE REGARDED AS PART OF THE BID SO THAT THE FAILURE TO INCLUDE THE REQUIRED INFORMATION IN THE TECHNICAL DATA MAKES THE BID NONRESPONSIVE TO THE INVITATION. SEE 40 COMP. GEN. 132; 36 ID. 415.

WE HAVE BEEN ADVISED BY THE WEATHER BUREAU THAT THE REQUIREMENT FOR DESCRIPTIVE LITERATURE IN THIS PROCUREMENT ACTION WAS DETERMINED TO BE CRITICAL IN THE EVALUATION OF THE EQUIPMENT PROPOSED AND THEREFORE THE TECHNICAL REVIEW OF THE LITERATURE SUPPLIED WAS EXCEEDINGLY DETAILED. THE DETERMINATION OF WHETHER THE DESCRIPTIVE LITERATURE FURNISHED BY A BIDDER DEMONSTRATED THE CONFORMABILITY OF THE PRODUCT OFFERED TO THE SPECIFICATIONS IS CLEARLY A TECHNICAL ONE REQUIRING THE USE BY THE CONTRACTING OFFICER OF EVERY MEANS AT HIS DISPOSAL TO ASSIST HIM IN THIS DETERMINATION. THIS OFFICE HAS ASCERTAINED FROM THE WEATHER BUREAU THAT THE OPINIONS OF QUALIFIED ENGINEERING PERSONNEL OF THAT AGENCY WERE SOLICITED AND USED BY THE CONTRACTING OFFICER IN REACHING A CONCLUSION ON THE ADEQUACY OF THE DESCRIPTIVE LITERATURE. HAVING REGARD FOR THE WIDE DISCRETION VESTED IN THE CONTRACTING OFFICER IN THE DETERMINATION OF THE SUFFICIENCY OF INFORMATION REQUIRED TO BE FURNISHED FOR BID EVALUATION PURPOSES, WE CAN FIND NO BASIS FOR QUESTIONING THE REJECTION OF YOUR BID WHERE IN HIS JUDGMENT THE DESCRIPTIVE LITERATURE FURNISHED FAILED TO SHOW THAT THE PRODUCT OFFERED CONFORMED TO THE SPECIFICATIONS.

YOUR LETTER ALSO ASSERTED THAT THE SUCCESSFUL BIDDER, INTERCONTINENTAL ELECTRONICS CORPORATION, WAS FURNISHING FOREIGN-MADE EQUIPMENT AND THUS RAISED THE QUESTION AS TO THE APPLICATION OF THE SO CALLED BUY AMERICAN ACT. THE WEATHER BUREAU HAS REPORTED THAT THIS MATTER WAS INVESTIGATED PRIOR TO AWARD AND THEY FOUND THAT APPROXIMATELY 30 PERCENT OF THE MAJOR SUBCOMPONENTS WERE MANUFACTURED IN FRANCE. THE BALANCE OF COMPONENTS, PLUS THE FABRICATION OF THE ITEM, IS COMPLETELY AMERICAN MADE. ADDITION, THE NEXT LOWEST RESPONSIVE BID OFFER IS WELL IN EXCESS OF THE PERCENTAGE FACTOR REQUIRED IN THE EVALUATION PROCESS BETWEEN AMERICAN- AND FOREIGN-MADE EQUIPMENT.

ACCORDINGLY, WE FIND NO BASIS FOR REQUIRING THE WEATHER BUREAU TO REVERSE ITS ACTION AND AWARD THE CONTRACT TO GEC.