B-149735, APR. 9, 1963

B-149735, APR. 9, 1963

TO GENERAL DYNAMICS/ELECTRONICS-ROCHESTER:

FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 30-635-62 455, ISSUED BY THE ROME AIR MATERIEL AREA.

THE INVITATION WAS A TWO-STEP FORMALLY ADVERTISED PROCUREMENT TO ENGINEER, FURNISH AND INSTALL A HIGH FREQUENCY RADIO TRANSMITTER SYSTEM AT MALABAR TRANSMITTER ANNEX, FLORIDA, IN SUPPORT OF CAPE CANAVERAL ACTIVITIES. SEVEN BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. YOUR BID WAS ACCOMPANIED BY COVERING LETTER DATED JULY 12, 1962, WHICH PROVIDED IN PART AS FOLLOWS:

"THE REQUIREMENT FOR ENGINEERING DATA IN ACCORDANCE WITH THE ENCLOSED MCP 71-77 IS ACCEPTABLE TO GENERAL DYNAMICS/ELECTRONICS ROCHESTER WITH THE FOLLOWING UNDERSTANDING:

EVERY EFFORT WILL BE MADE TO OBTAIN THE NECESSARY DRAWING AND OTHER INFORMATION FROM OUR VENDORS. HOWEVER, NO GUARANTEE CAN BE MADE THAT THEY WILL MAKE THIS INFORMATION AVAILABLE. ALTHOUGH GENERAL DYNAMICS/ELECTRONICS-ROCHESTER WILL USE ITS BEST EFFORTS TO OBTAIN SUCH INFORMATION, IN THE EVENT THAT IT IS UNABLE TO DO SO WITHIN A REASONABLE TIME THIS REQUIREMENT WILL BE DEEMED TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT.

"ATTACHED IS A STATEMENT INTENDED TO CLARIFY GENERAL DYNAMICS/ELECTRONICS -ROCHESTER'S OPERATION UNDER MIL-D-70327.'

THE REFERRED-TO ATTACHED STATEMENT WAS ENTITLED "INTERPRETATION AND CLARIFICATION OF MIL-D-70327 DRAWING SPECIFICATION" AND LABELED "NOTE: (THIS DOCUMENT MUST BE AFFIXED TO BID PAPERS)," AND PROVIDED IN PART AS FOLLOWS:

"1. DRAWING FORMAT

DRAWING FORMAT SHALL BE IN ACCORDANCE WITH MIL-STD-3 EXCEPT FOR:

A. GENERAL DYNAMICS "STANDARD" PARTS DRAWINGS.

B. BOOK FORM TYPE DRAWINGS. THIS TYPE OF DRAWING, WHEN USED SHALL CONFORM TO FULL MILITARY FORMAT FOR THE FIRST SHEET ONLY. SECOND AND SUBSEQUENT PAGES OF THESE DRAWINGS MAY HAVE AN ABBREVIATED VERSION OF THE FORMAT WITH SUFFICIENT INFORMATION TO MAINTAIN IDENTITY AND REFER BACK TO THE FIRST PAGE OF THE DRAWING.

C. EXISTENT DRAWINGS AS CITED IN 3.6.1.3 OF MIL-D-70327.

"5. * * *

"1. DELIVERY SCHEDULES FOR DRAWINGS, LISTS AND OTHER DOCUMENTS WILL BE

(A) FOR DEVELOPMENT CONTRACTS--- 90 DAYS AFTER ACCEPTANCE OF FIRST MODEL

(B) FOR PRODUCTION CONTRACTS--- 90 DAYS AFTER ACCEPTANCE OF PREPRODUCTION MODEL.'

ITEM 1A OF THE INVITATION REQUIRED THE FURNISHING OF "ENGINEERING DATA FOR ITEM 1 IN ACCORDANCE WITH MCP 71-77 DATED AUG 1960, ATTACHED HERETO AND MADE APART THEREOF.' MCP 71-77 REQUIRED THAT ,DRAWINGS, ENGINEERING AND ASSOCIATED LISTS" BE FURNISHED TO THE GOVERNMENT BY THE CONTRACTOR IN ACCORDANCE WITH SPECIFICATIONS OF MIL-D-70327--- THE DOCUMENT WHICH WAS CONSTRUED BY YOUR ATTACHMENT REFERRED TO ABOVE.

AFTER THE OPENING OF THE BIDS, AND APPARENTLY UPON LEARNING THAT THE RESPONSIVENESS OF YOUR BID WAS BEING QUESTIONED DUE TO EXCEPTIONS BEING TAKEN TO THE SPECIFICATIONS, YOU ADVISED BY LETTER DATED JULY 20, 1962, THAT YOU WISHED TO REAFFIRM YOUR UNDERSTANDING AND INTENTION THAT YOUR BID WAS IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS, AND THAT NO EXCEPTION WAS INTENDED NOR TAKEN TO ANY PROVISIONS THEREOF.

YOUR LETTER OF JULY 12, 1962, AND THE ATTACHED STATEMENT THERETO, WHICH ACCOMPANIED YOUR BID, SETTING FORTH YOUR "INTERPRETATION AND CLARIFICATION OF MIL-D-70327 DRAWING SPECIFICATION" MUST BE REGARDED AS AN INTEGRAL PART OF THE BID WHICH UNDER APPLICABLE PRINCIPLES OF LAW WOULD BECOME A PART OF THE CONTRACT RESULTING FROM THE ACCEPTANCE OF YOUR BID AND WOULD CONTROL OVER THE PROVISIONS OF THE INVITATION AND SPECIFICATIONS. IT IS A FUNDAMENTAL RULE UNDER ADVERTISED BIDDING THAT THE CONTRACT AWARDED TO A BIDDER MUST BE THE CONTRACT OFFERED TO ALL BIDDERS. 17 COMP. GEN. 554, 558. HENCE, IF A BIDDER IMPOSES CONDITIONS AT VARIANCE WITH THOSE EXTENDED BY THE INVITATION TO ALL BIDDERS, HIS BID MUST BE REJECTED AS NONRESPONSIVE. ONLY THOSE DEVIATIONS WHICH ARE IMMATERIAL AND DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO PREJUDICE THE RIGHTS OF OTHER BIDDERS MAY BE WAIVED. 30 COMP. GEN. 179; 37 ID. 110. YOU WERE ADVISED BY LETTER FROM THE PURCHASING AGENCY DATED OCTOBER 8, 1962, OF THE SPECIFIC REASONS FOR THE REJECTION OF YOUR BID, NAMELY, THAT YOUR "INTERPRETATION AND CLARIFICATION OF MIL-D-70327 DRAWING SPECIFICATION" DEVIATED FROM THE REQUIREMENTS OF THE INVITATION IN THE FOLLOWING RESPECTS.

"1. DRAWING FORMAT

DRAWING FORMAT SHALL BE IN ACCORDANCE WITH MIL-STD-3 WITHOUT EXCEPTION:

A. NOT CONCURRED IN---

GENERAL DYNAMICS "STANDARD" PARTS DRAWINGS ARE NOT ACCEPTABLE UNLESS THEY ARE REDRAWN TO MEET REQUIREMENTS OF MIL-STD-3.

B. NOT CONCURRED IN---

THE FORMAT FOR BOOK FORM DRAWINGS IS CONTAINED IN MIL-STD-7 AND SHALL BE COMPLIED WITH.

C. CONCURRED IN WITH THE FOLLOWING ADDITION:

PARA 3.2.3 OF MCP 71-77, COVERING EXISTENT DATA, MUST BE COMPLIED WITH.

"5. * * *

1. NOT CONCURRED IN.

DELIVERY SCHEDULE SHALL BE AS SPECIFIED IN APPLICABLE CONTRACT (SEE FIGURE IV, MCP 71-77).'

IN YOUR LETTER OF OCTOBER 18, 1962, YOU REAFFIRM YOUR CONTENTION THAT NO EXCEPTIONS WERE INTENDED OR TAKEN TO THE SPECIFICATION REQUIREMENTS AND RAISED ADDITIONAL CONTENTIONS TO MEET THE AIR FORCE'S POINTS REGARDING THE CLAIMED EXCEPTIONS TO THE MIL-D-70327.

IT IS CONTENDED THAT THE PRACTICES YOU PROPOSED IN THE ATTACHMENT ARE EITHER AUTHORIZED BY MCP 71-77 OR ARE NOT APPLICABLE TO CONSTRUCTION-TYPE PROCUREMENTS. IN THIS CONNECTION THE AIR FORCE REPORTS THAT THE SUBJECT PROCUREMENT IS NOT A CONSTRUCTION-TYPE PROCUREMENT. ALTHOUGH SOME CONSTRUCTION MAY BE INVOLVED, THE PRIMARY OBJECT OF THE PROCUREMENT IS TO SECURE ELECTRONIC EQUIPMENT, AND THE DATA DESIRED IS DATA RELATING TO THAT ELECTRONIC EQUIPMENT, AND THE DATA SPECIFICATIONS AND REQUIREMENTS ARE CLEARLY APPLICABLE TO THAT PORTION OF THE PROCUREMENT.

IT IS ALSO CONTENDED THAT AMENDMENT NO. 2 TO MIL-D-70327 DELETES THEREFROM MIL-STD-3. THIS IS REPORTED TO BE CORRECT BUT OF NO SIGNIFICANCE, SINCE THE AMENDMENT SUBSTITUTES MIL-STD-2B WHICH STILL REQUIRES DRAWINGS OF A PRESCRIBED MILITARY FORMAT AND CONTENT.

IT IS FURTHER CONTENDED THAT PARAGRAPH 3.8.1 OF MCP 71-77 AND PARAGRAPH 3.6.1.3 OF MIL-D-70327 PERMIT THE SUBSTITUTION OF STANDARD COMPANY DRAWINGS. THIS IS INACCURATE. PARAGRAPH 3.8.1 OF MCP 71-77 PROVIDES: "CONTRACTOR STANDARDS, WHICH ARE THOSE PREPARED BY THE CONTRACTOR AS STANDARDS USED WITHIN HIS COMPANY, SHALL BE FURNISHED AS A PART OF THE DATA PACKAGE WHEN CALLED FOR BY FIGURE I OR WHEN THEY ARE CALLED OUT ON A DRAWING REQUIRED TO BE FURNISHED UNDER FIGURE I, OR REQUIRED IN SUPPORT OF THE MISSIONS/S) CITED IN FIGURE II.' FIGURE I OF THIS INVITATION FOR BIDS, INCORPORATED AS A PART OF MCP 71-77, SPECIFICALLY REQUIRED A "COMPLETE SET" OF DATA CONFORMING TO MIL-D 70327, AND FIGURE II REQUIRED THAT THIS COMPLETE SET OF DATA BE ADEQUATE FOR ,MANUFACTURE," EITHER THROUGH COMPETITIVE REPROCUREMENT OR BY THE GOVERNMENT,"OVERHAUL," "GENERAL MAINTENANCE," AND "ORDERING OF REPLACEMENT PARTS.'

PARAGRAPH 3.6.1.3 OF MIL-D-7027, DEALING WITH "EXISTENT DRAWINGS," PERMITS THE GOVERNMENT TO WAIVE THE SUBMISSION OF ANY DRAWINGS CONFORMING WITH THE FORMAT AND SPECIFICATIONS OF MIL-D-70327 WHEN COMPANY STANDARD DRAWINGS HAVE PREVIOUSLY BEEN FURNISHED TO THE GOVERNMENT AND ALREADY CONTAIN ALL THE DATA REQUIRED BY MIL-D-70327. PARAGRAPH 3.6.1.3 IS A PART OF THE "PRIOR UBMITTAL" SECTION (3.6.1) AND, THEREFORE, REFERS TO ONLY THOSE "EXISTENT DRAWINGS" WHICH HAVE PREVIOUSLY BEEN FURNISHED TO THE GOVERNMENT. (SEE ALSO PARAGRAPH 3.2.3 OF MCP 71-77.)

SINCE THE AIR FORCE COULD NOT BE CERTAIN WHAT YOUR STANDARD COMPANY DRAWINGS WOULD CONTAIN, THEY COULD NOT BE CERTAIN THAT THEY WOULD NOT BE FORCED INTO A SITUATION WHERE ALL REPROCUREMENTS WOULD HAVE TO BE MADE FROM YOU, AS A SOLE SOURCE. THEREFORE, YOUR "INTERPRETATION AND CLARIFICATION OF MIL-D-70327 DRAWING SPECIFICATION" WAS CONSIDERED A SUBSTANTIAL DEVIATION FROM THE REQUIREMENTS OF THE INVITATION. ALSO, THE DELIVERY SCHEDULE CITED IN YOUR PARAGRAPH 5 (1) FOR THE DATA IS NOT IN ACCORDANCE WITH FIGURE IV OF MCP 71-77 WHICH REQUIRES THE BASIC OR INITIAL SHIPMENT OF DATA CONCURRENT WITH THE DELIVERY OF THE FIRST PRODUCTION ARTICLE AND REVISIONS ON NEW DRAWINGS EVERY 30 DAYS THEREAFTER.

FOR THE FOREGOING REASONS, AND SINCE THE TRANSMITTAL LETTER AND YOUR "INTERPRETATION AND CLARIFICATION OF MIL-D-70327 DRAWING SPECIFICATION" MUST BE CONSIDERED AS PARTS OF YOUR BID, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE ACTION TAKEN IN REJECTION OF THE BID AS NOT BEING RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION.