B-149207, SEP. 12, 1962

B-149207: Sep 12, 1962

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YOUR BID WAS LOW BUT WAS REJECTED AS NONRESPONSIVE BECAUSE YOU OFFERED EQUIPMENT DESIGNED TO MOUNT DIRECTLY ON THE CYLINDER RATHER THAN ON A WALL PANEL. THIS PROPOSED VARIATION WAS DETERMINED TO BE A DEVIATION FROM THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS. IN SOME RESPECTS IS SUPERIOR TO THE SPECIFIED EQUIPMENT. THE DEPARTMENT OF THE AIR FORCE STATES THAT THESE DIFFERENCES CAUSED YOUR MACHINE TO OPERATE IN A MANNER WHICH WAS NOT IN COMPLIANCE WITH THE SPECIFICATIONS. THE QUESTION AS TO WHETHER THE TECHNICAL PERFORMANCE REQUIREMENTS ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE PROCURING ACTIVITY. ARE NOT ORDINARILY CONSIDERED TO BE WITHIN THE JURISDICTION OF THIS OFFICE. WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORTS AS CORRECT.

B-149207, SEP. 12, 1962

TO CAPITAL CONTROLS COMPANY, INC.:

IN YOUR LETTER OF JUNE 19, 1962, YOU PROTESTED THE AWARD OF A CONTRACT ON JUNE 11, 1962, MADE PURSUANT TO INVITATION FOR BIDS NO. 04 606-62-538 (A), TO OTHER THAN THE LOW BIDDER.

THE INVITATION SOLICITED BIDS FOR FIVE MACHINES TO FEED CHLORINE GAS FROM CYLINDER CONTAINERS INTO A PIPED WATER SUPPLY IN ACCORDANCE WITH CERTAIN DETAILED REQUIREMENTS. PARAGRAPH 1.03A PROVIDED IN PART THAT "EACH MACHINE SHALL BE SELF-CONTAINED WITH SUPPORTING WALL PANEL MOUNTING.' YOUR BID WAS LOW BUT WAS REJECTED AS NONRESPONSIVE BECAUSE YOU OFFERED EQUIPMENT DESIGNED TO MOUNT DIRECTLY ON THE CYLINDER RATHER THAN ON A WALL PANEL, AND THIS PROPOSED VARIATION WAS DETERMINED TO BE A DEVIATION FROM THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS. YOU AGREE THAT THE EQUIPMENT YOU OFFER DOES NOT PRECISELY CONFORM TO THAT CALLED FOR IN THE INVITATION, BUT YOU CONTEND THAT IT MEETS ALL THE PERFORMANCE REQUIREMENTS OF THE SPECIFICATIONS, AND IN SOME RESPECTS IS SUPERIOR TO THE SPECIFIED EQUIPMENT.

THE RECORD REASONABLY ESTABLISHES THAT THE CHARACTERISTICS OF YOUR PRODUCT DIFFERED IN A DEMONSTRATIVE MANNER FROM THE GOVERNMENT'S REQUIREMENTS. THE DEPARTMENT OF THE AIR FORCE STATES THAT THESE DIFFERENCES CAUSED YOUR MACHINE TO OPERATE IN A MANNER WHICH WAS NOT IN COMPLIANCE WITH THE SPECIFICATIONS. THE QUESTION AS TO WHETHER THE TECHNICAL PERFORMANCE REQUIREMENTS ARE NECESSARY TO MEET THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, AND THE QUESTION AS TO THE MATERIALITY OF THE DIFFERENCES BETWEEN YOUR MACHINE AND THE ONE CALLED FOR IN THE SPECIFICATIONS, ARE NOT ORDINARILY CONSIDERED TO BE WITHIN THE JURISDICTION OF THIS OFFICE. IN OUR DECISION B-139830, DATED AUGUST 19, 1959, WE MADE THE FOLLOWING OBSERVATION:

"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORTS AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. * *

IN THIS REGARD, WE HELD IN OUR DECISION B-143389, DATED AUGUST 26, 1960, AS FOLLOWS:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

" "IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *" "

IN VIEW OF THE FACTS REPORTED IN THIS CASE, AND FOR THE REASONS SET OUT IN THE ABOVE-CITED DECISIONS, WE MUST CONCLUDE THAT YOUR BID WAS NONRESPONSIVE BECAUSE IT DID NOT COMPLY WITH A MATERIAL PART OF THE SPECIFICATIONS. ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS MUST BE REJECTED. ASPR 2-404.2 (A) AND 10 U.S.C. 2305 (C). THEREFORE, OUR OFFICE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN. HOWEVER, WE MAY ADD THAT THE AIR FORCE LOGISTICS COMMAND HAS QUESTIONED WHETHER A REQUIREMENT FOR MOUNTING ON A WALL PANEL IS NECESSARY TO SATISFY THE MINIMUM NEEDS OF THE AIR FORCE. WE ARE ASSURED THAT THE AIR FORCE WILL TAKE APPROPRIATE ACTION TO SEE THAT ONLY REQUIREMENTS SETTING FORTH MINIMUM NEEDS WILL BE INCLUDED IN FUTURE PROCUREMENTS BY THE PROCURING ACTIVITY INVOLVED.