B-151461, MAY 20, 1963

B-151461, MAY 20, 1963

TO COMMANDANT, THE COAST GUARD:

IN LETTER FS-1, RECEIVED MAY 6, 1963, A DECISION IS REQUESTED WHETHER AN AWARD MAY BE MADE TO SIMPLEX WIRE AND CABLE COMPANY FOR CERTAIN SUBMARINE POWER CABLE DESPITE THE FAILURE OF ITS LOW BID UNDER INVITATION FOR BIDS CG-58, 956-A TO MEET A REQUIREMENT CALLING FOR A REFERENCE TO THE PARTICULAR COMPOUND THAT IS TO BE USED ON THE CABLE.

IN THAT CONNECTION, A REQUIREMENT THAT CERTAIN INFORMATION BE INCLUDED IN THE BID IS CONTAINED IN THE INVITATION FOR BIDS AND IN THE SPECIFICATION INCORPORATED BY REFERENCE INTO THE INVITATION. THE PROVISION IN THE INVITATION STATES:

"BIDDER SHALL INCLUDE SUCH DESCRIPTIVE DATA AS NECESSARY TO ADEQUATELY DESCRIBE THE CABLE OFFERED.'

THE PROVISION IN THE SPECIFICATION STATES:

"SAMPLE SUBMISSION.--- THE MANUFACTURER SHALL STATE IN THE BID THE NUMBER OF THE COMPOUND WHICH HE PROPOSES TO FURNISH, AND NO BIDS WILL BE CONSIDERED UNTIL THIS PARTICULAR COMPOUND HAS BEEN TESTED AND APPROVED. (THE CONDUCTANCE OF APPROVAL TESTS AND TABULATION AND APPROVAL OF RESULTS REQUIRE A PERIOD OF AT LEAST 35 TO 40 DAYS. AS THE AWARD OF CONTRACTS USUALLY CANNOT BE HELD UP FOR THIS PERIOD AFTER BIDS ARE OPENED, IT IS SUGGESTED THAT SAMPLES BE SUBMITTED WELL IN ADVANCE.) AFTER APPROVAL HAS ONCE BEEN OBTAINED FOR A GIVEN COMPOUND, THE SUBMISSION OF ADDITIONAL SAMPLES WILL NOT BE REQUIRED PRIOR TO SUBMISSION OF SUBSEQUENT BIDS UNLESS THE TYPE OF CABLE SPECIFIED DIFFERS MATERIALLY IN CONSTRUCTION FROM THE SAMPLE ORIGINALLY SUBMITTED. THE GOVERNMENT RESERVES THE RIGHT, HOWEVER, TO REPEAT APPROVAL TESTS ON SAMPLES SELECTED BY THE INSPECTOR FROM THE MATERIAL OFFERED ON ANY ORDER.'

IN THE LETTER REQUESTING OUR DECISION IT IS STATED THAT THE PURPOSE OF THE INVITATION AND SPECIFICATION REQUIREMENTS IS TO OBTAIN ASSURANCE IN ADVANCE OF AWARD THAT THE PRODUCT OFFERED WILL MEET THE SPECIFICATIONS. ON THAT POINT, SPECIFICATION PARAGRAPH 4.2.2.1 STATES THAT THE OBJECT OF THE TESTS ON THE SAMPLES IS TO DETERMINE WHETHER THE BIDDER IS PREPARED TO FURNISH AN INSULATING COMPOUND AND CONDUCTORS THAT MEET THE REQUIREMENTS OF THE SPECIFICATIONS.

ONE OF THE BIDDERS FOR THE PROCUREMENT HAS PROTESTED AGAINST AN AWARD BEING MADE TO THE LOW BIDDER. THE BASIS FOR THE PROTEST IS THAT THE LOW BID IS NOT RESPONSIVE TO THE ABOVE-QUOTED PROVISIONS.

THE LOW BIDDER HAS EXPLAINED THAT IT DID NOT INCLUDE ANY INFORMATION IN THE BID BECAUSE IT READ THE INVITATION REQUIREMENT LITERALLY AND CONSIDERED THAT THE CABLES WERE ADEQUATELY DESCRIBED IN THE INVITATION PURCHASE DESCRIPTION AND FELT THAT FURTHER DESCRIPTION WAS UNNECESSARY AND BECAUSE IT OVERLOOKED THE SPECIFICATION REQUIREMENT THAT THE COMPOUND BE REFERENCED IN THE BID.

IN THE LETTER REQUESTING OUR DECISION IT IS REPORTED THAT SINCE 1959 THE LOW BIDDER HAS RECEIVED AFTER ADVERTISED COMPETITIVE BIDDING 14 CONTRACTS INVOLVING THE SAME SPECIFICATION AND THAT AFTER THE FIRST BID THE BIDDER HAS NEVER SPECIFICALLY DESCRIBED THE CABLE, BUT HAS ALWAYS SUPPLIED CABLE UNDER THE AWARDED CONTRACTS WITH THE SAME INSULATING COMPOUND WHICH MET THE SPECIFICATION IN EVERY DETAIL. IN VIEW THEREOF, IT IS STATED THAT IT IS SAFE TO ASSUME THAT THE BIDDER INTENDS TO CONTINUE TO PERFORM IN THE SAME MANNER AND IT IS SUGGESTED THAT THE BID BE CONSIDERED RESPONSIVE FOR THE PURPOSE OF MAKING AN AWARD.

THE REQUIREMENT FOR REFERENCE TO THE INSULATION COMPOUND WHICH THE BIDDER PROPOSES TO USE IN THE MANUFACTURE OF THE CABLE PROVIDES THAT THE BIDDER "SHALL" STATE THE COMPOUND IN THE BID AND THAT NO BID WILL BE CONSIDERED UNLESS THE COMPOUND HAS BEEN TESTED AND APPROVED. IN SOMEWHAT SIMILAR CIRCUMSTANCES WE HAVE SAID THAT THE WORD "SHALL" MAKES THE REQUIRED ACTION IMPERATIVE. 39 COMP. GEN. 595, 597. FURTHER, IN THE CITED CASE, WE DREW ATTENTION TO THE FACT THAT WE HAVE HELD THAT WHERE THE LANGUAGE OF AN INVITATION IS SUCH AS TO REASONABLY CONVEY TO BIDDERS THE IMPRESSION THAT CERTAIN INFORMATION MUST ACCOMPANY THE BID, A BID NOT SO ACCOMPANIED MUST BE REJECTED.

THEREFORE, IF AWARDS HAVE BEEN MADE TO THE BIDDER IN THE PAST DESPITE THE ABSENCE OF THE REQUIRED INFORMATION, SUCH ACTIONS WOULD APPEAR TO HAVE BEEN IMPROPER AND THE FACT THAT ONE OR MORE IMPROPER AWARDS MAY HAVE BEEN MADE UNDER CONDITIONS SIMILAR TO THE INSTANT MATTER WOULD NOT JUSTIFY A REPETITION OF THE SAME ERROR. 36 COMP. GEN. 535, 540.