B-148246, MAR. 16, 1962

B-148246: Mar 16, 1962

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WHEN BIDS WERE OPENED AS SCHEDULE ON DECEMBER 11. THE LOW BIDS ON ITEM 1 AND ITEMS 2A THROUGH 2C WERE FOUND TO HAVE BEEN SUBMITTED BY LAVOIE LABORATORIES. FOR THE ITEMS ON WHICH IT WAS LOW LAVOIE OFFERED TO FURNISH UNITS OF ITS OWN MANUFACTURE. THE PARAGRAPH WARNS THAT FAILURE TO PROVIDE THE INFORMATION WILL REQUIRE REJECTION OF THE BID. THE LOW BIDDER WAS ADVISED THAT ITS BID FOR ITEMS 1 THROUGH 2D WAS REJECTED BECAUSE. OTHER REASONS STATED FOR THE REJECTION WERE THAT A COMPLETE ASSORTMENT OF PLUG-IN UNITS WAS AVAILABLE FOR USE WITH THE NAMED BRAND. STATED THAT NO DIFFERENCES WERE STATED IN ITS BID BECAUSE PLUG-IN UNITS MANUFACTURED BY BOTH FIRMS COULD BE USED INTERCHANGEABLY WITH EITHER THE LAVOIE OR THE TEKTRONIX OSCILLOSCOPES.

B-148246, MAR. 16, 1962

TO THE SECRETARY OF THE INTERIOR:

BY LETTER OF FEBRUARY 21, 1962, WITH ENCLOSURES, SIGNED BY THE ADMINISTRATIVE ASSISTANT SECRETARY, OUR DECISION HAS BEEN REQUESTED ON THE PROPRIETY OF AN AWARD UNDER INVITATION FOR BIDS NO. AFO-62-8, ISSUED NOVEMBER 16, 1961, BY THE BUREAU OF LAND MANAGEMENT, JUNEAU, ALASKA, FOR THE PROCUREMENT OF CERTAIN ELECTRONIC EQUIPMENT.

ITEM 1 OF THE BID SCHEDULE CALLED FOR AN OSCILLOSCOPE DESCRIBED AS "TEKTRONIX, INC. MODEL 545-A OR EQUAL.' ITEMS 2A THROUGH 2D CALLED FOR PLUG-IN UNITS TO BE USED IN CONNECTION WITH THE OSCILLOSCOPE DESCRIBED AS VARIOUS TEKTRONIX TYPES OR EQUAL. WHEN BIDS WERE OPENED AS SCHEDULE ON DECEMBER 11, 1961, THE LOW BIDS ON ITEM 1 AND ITEMS 2A THROUGH 2C WERE FOUND TO HAVE BEEN SUBMITTED BY LAVOIE LABORATORIES, INC. FOR THE ITEMS ON WHICH IT WAS LOW LAVOIE OFFERED TO FURNISH UNITS OF ITS OWN MANUFACTURE.

PARAGRAPH 5 OF THE ADDITIONAL GENERAL PROVISIONS TO THE INVITATION PROVIDES THAT BIDS OFFERING ,OR EQUAL" ARTICLES SHOULD BE ACCOMPANIED BY DESCRIPTIVE MATERIAL SHOWING THE CHARACTERISTICS OF SUCH ARTICLES AND A DETAILED STATEMENT OF THE DIFFERENCES BETWEEN THE ARTICLES OFFERED AND THE NAMED BRAND. THE PARAGRAPH WARNS THAT FAILURE TO PROVIDE THE INFORMATION WILL REQUIRE REJECTION OF THE BID. IT APPEARS FROM THE FILE THAT THE LAVOIE BID INCLUDED DESCRIPTIVE DATA ON THE ARTICLES OFFERED BUT FAILED TO PROVIDE THE DETAILED STATEMENT OF THE DIFFERENCES BETWEEN THESE ARTICLES AND THOSE NAMED IN THE INVITATION. BY LETTER OF DECEMBER 28, 1961, THE LOW BIDDER WAS ADVISED THAT ITS BID FOR ITEMS 1 THROUGH 2D WAS REJECTED BECAUSE, IN THE OPINION OF THE ELECTRONICS ENGINEER, THE RELATIVELY SMALL ADDITIONAL PRICE WARRANTED PURCHASE OF THE NAMED BRAND. OTHER REASONS STATED FOR THE REJECTION WERE THAT A COMPLETE ASSORTMENT OF PLUG-IN UNITS WAS AVAILABLE FOR USE WITH THE NAMED BRAND, THAT FUTURE REQUIREMENTS WOULD INCLUDE ADDITIONAL KINDS OF PLUG-INS BEYOND THOSE INCLUDED IN THE INVITATION, AND THAT THE BIDDER HAD FAILED TO LIST THE DIFFERENCES BETWEEN THE NAMED BRAND AND THE ARTICLE OFFERED.

MEANWHILE ON DECEMBER 27, 1961, A CONTRACT FOR THE ITEMS IN QUESTION HAD BEEN AWARDED TO TEKTRONIX, INC., FOR DELIVERY NOT LATER THAN JANUARY 15, 1962. BY TELEGRAM OF DECEMBER 28, 1961, LAVOIE, IN REPLY TO THE NOTIFICATION OF REJECTION, STATED THAT NO DIFFERENCES WERE STATED IN ITS BID BECAUSE PLUG-IN UNITS MANUFACTURED BY BOTH FIRMS COULD BE USED INTERCHANGEABLY WITH EITHER THE LAVOIE OR THE TEKTRONIX OSCILLOSCOPES. WAS FURTHER NOTED THAT THE ADVERTISED BID PROCEDURES REQUIRE AWARD TO THE LOW RESPONSIBLE BIDDER.

A MEMORANDUM DATED JANUARY 16, 1962, ADDRESSED TO THE FIELD ADMINISTRATIVE OFFICER FROM THE ALASKA STATE DIRECTOR, POINTED OUT THAT THE RELATIVELY SMALL ADDITIONAL PRICE WAS NOT REGARDED AS A FACTOR IN SELECTING THE TEKTRONIX BID FOR AWARD. IT WAS NOTED FURTHER THAT AN OPEN MARKET PROCUREMENT WAS ORIGINALLY CONTEMPLATED AND THAT A MORE DETAILED SPECIFICATION WOULD HAVE BEEN PREPARED BY TECHNICAL PERSONNEL IF IT HAD BEEN KNOWN THAT FORMAL ADVERTISING WAS TO BE USED.

THE STATUTES GOVERNING FORMALLY ADVERTISED PROCUREMENTS HAVE CONSISTENTLY BEEN REGARDED AS REQUIRING AWARD TO THE LOW RESPONSIVE BIDDER. WE CONCUR IN THE POSITION TAKEN BY LAVOIE THAT A ,SMALL DIFFERENCE IN PRICE" DOES NOT JUSTIFY REJECTION OF A LOW RESPONSIVE BID. IT APPEARS FROM THE FOREGOING THAT THE ONE LEGITIMATE REASON STATED FOR REJECTION OF THE LAVOIE BID WAS THE FAILURE TO SUBMIT THE LIST OF DIFFERENCES REQUIRED UNDER THE TERMS OF THE INVITATION. IN THIS CONNECTION, HOWEVER, IT SHOULD BE NOTED THAT WE HAVE SPECIFICALLY HELD THAT OMISSIONS IN DESCRIPTIVE DATA DO NOT REQUIRE REJECTION OF THE BID IN SITUATIONS WHERE THE INFORMATION CAN BE DEVELOPED WITHOUT REFERENCE TO EXTRINSIC SOURCES. 39 COMP. GEN. 595. THE FILE ACCOMPANYING THE SUBMISSION IS NOT ADEQUATE TO DETERMINE WHETHER THE CITED RULE IS FOR APPLICATION IN THIS INSTANCE.

THE ENCLOSURES TO YOUR LETTER OF FEBRUARY 21, 1962, ALSO INDICATE A RECOGNITION THAT THE SPECIFICATIONS EMPLOYED WITH RESPECT TO THE ITEMS IN QUESTION WERE INADEQUATE FOR COMPETITIVE BID PURPOSES IN THAT THEY DID NOT SPECIFY THE DEGREE OF ADAPTABILITY SAID TO BE NECESSARY TO MEET THE GOVERNMENT'S NEEDS. SUCH A DEFICIENCY WOULD ORDINARILY RENDER AN AWARD INVALID. HOWEVER, SINCE THE FILE SHOWS THAT THE ITEMS IN QUESTION WERE DELIVERED ON JANUARY 9, 1962, THERE APPEARS NO PURPOSE FOR CONSIDERING THE MATTER FURTHER. ACCORDINGLY, NO FURTHER ACTION NEED BE TAKEN WITH RESPECT TO THE PROCUREMENT, BUT APPROPRIATE PERSONNEL SHOULD BE CLEARLY ADVISED THAT THE ADEQUACY OF SPECIFICATIONS SHOULD BE CAREFULLY CONSIDERED WHEN AN ADVERTISED PROCUREMENT IS CONTEMPLATED.