B-151716, JUL. 31, 1963

B-151716: Jul 31, 1963

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO NATVAR CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF MAY 31. THE TYPE OF TREATMENT SPECIFIED IN TABLE I OF THE SPECIFICATION FOR THE ABOVE CLASSES IS AS FOLLOWS: CLASSES B-A-1 AND B-B-1. YOUR BID WAS SUBJECTED TO THE REQUIRED TECHNICAL EVALUATION TO DETERMINE THE ACCEPTABILITY OF THE OFFERED ITEMS. IT WAS DETERMINED THAT THE SUPPLIES OFFERED AS ALTERNATES DID NOT MEET THE REQUIREMENTS SPECIFIED IN THE INVITATION. THIS DETERMINATION WAS PURPORTEDLY MADE UNDER THE PROVISIONS OF PARAGRAPH 2-404.2 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION. WHICH IS AS FOLLOWS: "/B) ANY BID WHICH DOES NOT CONFORM TO THE SPECIFICATIONS CONTAINED OR REFERENCED IN THE INVITATION FOR BIDS SHALL BE REJECTED UNLESS THE INVITATION AUTHORIZED THE SUBMISSION OF ALTERNATE BIDS AND THE SUPPLIES OFFERED AS ALTERNATES MEET THE REQUIREMENTS SPECIFIED IN THE INVITATION.'.

B-151716, JUL. 31, 1963

TO NATVAR CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF MAY 31, 1963, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. DSA 9-63-8 ISSUED BY THE DEFENSE ELECTRONICS SUPPLY CENTER, DAYTON, OHIO.

THE CITED INVITATION SOLICITED BIDS--- TO BE OPENED OCTOBER 17, 1962 -- FOR FURNISHING, AS REQUIRED DURING THE PERIOD OF ONE YEAR AFTER DATE OF ISSUANCE OF CONTRACT, 364 ITEMS OF INSULATION SLEEVING, ELECTRICAL, FLEXIBLE, TREATED, AND MANUFACTURED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-I-3190B. TABLE I ON PAGE 1 OF THAT SPECIFICATION SETS FORTH VARIOUS CLASSES OF SLEEVING ACCORDING TO THE TYPE OF BASE MATERIAL TO BE USED AND THE TYPE OF TREATMENT TO BE APPLIED. WHEN YOU PREPARED YOUR BID, YOU ADDED TO THE "SUPPLIES OR SERVICES" COLUMN OF THE INVITATION THE WORDS "VINYL COATED FIBERGLAS" AFTER EACH ITEM CALLING FOR CLASSES B-A -1, B-B-1 AND B-C-1, AND THE WORDS "SILICONE RUBBER COATED FIBERGLAS" AFTER EACH ITEM CALLING FOR CLASSES H-A-1, H-B-1 AND H-C-1. THE TYPE OF TREATMENT SPECIFIED IN TABLE I OF THE SPECIFICATION FOR THE ABOVE CLASSES IS AS FOLLOWS:

CLASSES B-A-1 AND B-B-1--- "IMPREGNATED AND COATED CONTINUOUS FILM" USING "OLEORESINOUS VARNISH OR VINYL"

CLASS B-C-1--- "IMPREGNATED ONLY" USING "OLEORESINOUS VARNISH OR VINYL"

CLASSES H-A-1 AND H-B-1--- "IMPREGNATED AND COATED CONTINUOUS FILM" USING "SILICONE VARNISH TREATMENT"

CLASS H-C-1--- "IMPREGNATED ONLY" USING "SILICONE VARNISH TREATMENT"

AFTER THE OPENING OF BIDS AND THE CORRECTION OF MISTAKES BY TWO OTHER BIDDERS, YOUR BID WAS SUBJECTED TO THE REQUIRED TECHNICAL EVALUATION TO DETERMINE THE ACCEPTABILITY OF THE OFFERED ITEMS. IT WAS DETERMINED THAT THE SUPPLIES OFFERED AS ALTERNATES DID NOT MEET THE REQUIREMENTS SPECIFIED IN THE INVITATION, AND THIS DETERMINATION WAS PURPORTEDLY MADE UNDER THE PROVISIONS OF PARAGRAPH 2-404.2 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH IS AS FOLLOWS:

"/B) ANY BID WHICH DOES NOT CONFORM TO THE SPECIFICATIONS CONTAINED OR REFERENCED IN THE INVITATION FOR BIDS SHALL BE REJECTED UNLESS THE INVITATION AUTHORIZED THE SUBMISSION OF ALTERNATE BIDS AND THE SUPPLIES OFFERED AS ALTERNATES MEET THE REQUIREMENTS SPECIFIED IN THE INVITATION.'

TWO CONTRACTS WERE AWARDED ON FEBRUARY 26, 1963, TO TWO OTHER BIDDERS.

ON MARCH 6, 1963, YOU ADDRESSED A LETTER TO THE CONTRACTING OFFICER IN WHICH YOU PROTESTED THE REJECTION OF YOUR LOW BID ON A NUMBER OF THE ITEMS CALLED FOR BY THE INVITATION. YOU POINTED OUT THAT YOU DID NOT TAKE AN EXCEPTION TO THE INVITATION WHEN YOU INSERTED THE WORDS "VINYL COATED FIBERGLAS" AND "SILICONE RUBBER COATED FIBERGLAS" ON THE BIDDING FORM BUT MERELY ADDED TO EACH ITEM THE COMMERCIAL NAMES OF THESE PRODUCTS. AS TO THE MATTER OF YOUR OFFER TO USE "SILICONE RUBBER COATED FIBERGLAS," YOU ADMIT IN YOUR LETTER OF MAY 31, 1963, TO OUR OFFICE THAT THIS OFFER DOES NOT MEET THE SPECIFICATION IN THAT IT CANNOT TAKE THE PLACE OF THE VARNISH TREATMENT REQUIRED UNDER CLASSES H-A-1, H-B-1 AND H-C-1 AND, THEREFORE, YOU HAVE WITHDRAWN YOUR PROTEST AGAINST THE REJECTION OF YOUR BID ON THESE CLASSES AS BEING NONRESPONSIVE.

AS TO THE MATTER OF YOUR USE OF THE WORDS "VINYL COATED FIBERGLAS," THE CONTRACTING OFFICER WAS CONFRONTED WITH THE PROBLEM OF INTERPRETING THE BID AS SUBMITTED, IN SUCH A WAY AS TO MAINTAIN THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM AND TO ASSURE THAT AN AWARD, IF MADE AS A RESULT OF SUCH BID, WOULD OBLIGATE YOU TO FURNISH SLEEVING IN COMPLIANCE WITH MILITARY SPECIFICATION MIL-I-3190B. PRIOR TO REJECTING YOUR BID THE CONTRACTING OFFICER RECEIVED ADVICE FROM THE TECHNICAL PERSONNEL AT THE DEFENSE ELECTRONICS SUPPLY CENTER THAT THE INVOLVED SPECIFICATION REQUIRED ALL CLASSES OF SLEEVING BID UPON BY YOU TO BE "IMPREGNATED" AND THAT THERE WAS A DEFINITE DISTINCTION BETWEEN "IMPREGNATED" AND "COATED.' BASED ON THIS ADVICE AND HIS OWN EXAMINATION OF THE SPECIFICATION AND THE LANGUAGE USED BY YOU, THE CONTRACTING OFFICER THEN DETERMINED THAT IT WOULD BE PREJUDICIAL TO OTHER BIDS TO PERMIT YOU TO MODIFY YOUR BID BY DELETING THE WORDS "SILICONE RUBBER COATED FIBERGLAS" FROM YOUR BID OR TO PERMIT YOU TO CLARIFY THE MEANING OF THESE WORDS. IN CIRCUMSTANCES WHERE TWO POSSIBLE MEANINGS CAN BE REACHED FROM THE TERMS OF A BID, OUR OFFICE HAS HELD THAT A BIDDER SHOULD NOT BE ALLOWED TO EXPLAIN HIS MEANING WHEN HE IS IN A POSITION THEREBY TO PREJUDICE OTHER BIDDERS OR TO AFFECT THE RESPONSIVENESS OF HIS OWN BID. 40 COMP. GEN. 393. TO ALLOW HIM TO DO SO MIGHT RESULT IN HIM BEING AWARDED A CONTRACT, WHEREAS IF HE REFUSED TO EXPLAIN HIS BID IN A CASE WHERE HE FELT HIS BID WAS IMPROVIDENT, THE GOVERNMENT COULD NOT INSIST ON PERFORMANCE IN ACCORDANCE WITH THE SPECIFICATION IF IT AWARDED A CONTRACT TO HIM. IT IS, OF COURSE, CONTENDED BY YOU THAT THE APPLICATION OF VINYL WILL RESULT IN IMPREGNATION OF THE FIBERGLAS SLEEVING. THIS HAS BEEN DISPUTED BY SOME OF THE GOVERNMENT TECHNICAL PERSONNEL. IF IMPREGNATION CANNOT BE ACCOMPLISHED BY USING VINYL, VARNISH CAN BE USED AS EITHER PRODUCT IS ACCEPTABLE FOR USE UNDER THE SPECIFICATION.

ALTHOUGH YOU STATE THAT YOU USED BOTH VINYL COATED FIBERGLAS SLEEVING AND SILICONE RUBBER COATED FIBERGLAS IN FULFILLING YOUR CONTRACT NO. AF- 33/604/39276 DATED MARCH 12, 1962, OUR OFFICE IS NOT INFORMED TO THE TERMS OF THE INVITATION IN THAT CASE AND THE FACT THAT YOU FURNISHED SILICONE RUBBER COATED SLEEVING UNDER THAT CONTRACT WHEN THE SPECIFICATION (MIL-I- 3190B) REQUIRES A VARNISH TREATMENT, WHICH YOU ADMIT IN THE INSTANT CASE WAS IMPROPER, DOES NOT JUSTIFY THE EXTENSION OF A POSSIBLE ERROR IN PERMITTING YOU TO FURNISH VINYL COATED FIBERGLAS WHEN IMPREGNATED FIBERGLAS IS CALLED FOR BY THE INVOLVED SPECIFICATION.

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THE CONTRACTING OFFICER ACTED PROPERLY IN REJECTING YOUR BID AND YOUR PROTEST IS DENIED.