B-153934, JUN. 19, 1964

B-153934: Jun 19, 1964

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 10. "THE BIDDER MUST SUBMIT WITH HIS BID THE FOLLOWING DEFINITIVE DATA (BIDS RECEIVED WITHOUT THIS DATA WILL BE CONSIDERED NON RESPONSIVE): "3.1 SPECIFIC LAYOUT OF THE SYSTEM OFFERED AND DETAILED ENGINEERING AND DIMENSIONAL DATA FULLY ILLUSTRATING AND DESCRIBING EQUIPMENT TO BE PROVIDED. THE TOTE BOX SIGNAL READING DEVICE. "3.3 LIST OF PRINCIPAL SUBCONTRACTORS AND THE MATERIALS AND/OR SERVICES THEY ARE TO FURNISH.'. THE RECORD SHOWS THAT FOUR BIDS WERE RECEIVED AND OPENED ON APRIL 6. THE FOUR BIDS RECEIVED WERE REFERRED TO THE BUREAU OF SUPPLIES AND ACCOUNTS FOR TECHNICAL EVALUATION. YOUR BID WAS REJECTED FOR THE REASON THAT THE TECHNICAL DATA SUBMITTED BY YOUR FIRM FAILED TO COVER THE CONVEYOR SUPPORTS AND A TOTE SIGNAL READING DEVICE AS REQUIRED BY THE INVITATION.

B-153934, JUN. 19, 1964

TO C AND M INDUSTRIAL ASSOCIATES, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 10, 1964, PROTESTING AGAINST THE MAKING OF ANY AWARD OTHER THAN TO YOUR FIRM UNDER INVITATION NO. 600-777-64.

THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C., BY THE REFERRED TO INVITATION REQUESTED BIDS FOR FURNISHING SERVICES, LABOR AND MATERIALS AS NECESSARY TO PROVIDE A CONVEYOR EXTENSION AND CONTROLS FROM BUILDING 1138 TO THE RECEIVING, SHIPPING AND ADMINISTRATION BUILDING, CHARLESTON NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA, ITEM 1, IN ACCORDANCE WITH BUREAU OF SUPPLIES AND ACCOUNTS PURCHASE DESCRIPTION H33- 64-17 DATED FEBRUARY 27, 1964. ITEM 2 COVERED THE SAME CONVEYOR EXTENSION AS REQUIRED UNDER ITEM 1 EXCEPT THAT UNDER ITEM 2 THE GOVERNMENT WOULD FURNISH THE REQUIRED ACCUMULATION CONVEYOR.

PARAGRAPH 3 OF THE PURCHASE DESCRIPTION H33-64-17 PROVIDES AS FOLLOWS:

"3. TECHNICAL DATA.

"THE BIDDER MUST SUBMIT WITH HIS BID THE FOLLOWING DEFINITIVE DATA

(BIDS RECEIVED WITHOUT THIS DATA WILL BE CONSIDERED NON RESPONSIVE):

"3.1 SPECIFIC LAYOUT OF THE SYSTEM OFFERED AND DETAILED ENGINEERING AND DIMENSIONAL DATA FULLY ILLUSTRATING AND DESCRIBING EQUIPMENT TO BE PROVIDED. THIS INCLUDES THE FOLLOWING:

"A. GRAVITY ROLLER CONVEYOR

"B. GRAVITY ROLLER CURVES

"C. LIVE ROLLER CONVEYOR

"D. POWER ROLLER CURVES

"E. LIVE ROLLER TRANSFER UNIT

"F.ACCUMULATION CONVEYOR

"G. TRANSPORTATION CONVEYOR

"H. METERING BELT CONVEYOR

"I. INCLINE BELT CONVEYOR INCLUDING FEEDER AND NOSE-OVER SECTIONS

"J. DECLINE BELT CONVEYOR INCLUDING FEEDER AND NOSE-OVER SECTIONS

"K. CONVEYOR SUPPORTS TO BE UTILIZED IN PACKING AREA

"3.2 SPECIFIC TECHNICAL DESIGN AND DESCRIPTIVE DATA SUFFICIENT TO ASCERTAIN ENGINEERING AND FUNCTIONAL ADEQUACY OF SENSING DEVICES, LIMIT SWITCHES, DIVERTER, STOPS, AND THE TOTE BOX SIGNAL READING DEVICE.

"3.3 LIST OF PRINCIPAL SUBCONTRACTORS AND THE MATERIALS AND/OR SERVICES THEY ARE TO FURNISH.'

THE RECORD SHOWS THAT FOUR BIDS WERE RECEIVED AND OPENED ON APRIL 6, 1964; THAT YOUR FIRM SUBMITTED THE LOWEST BID ON ITEM 1 (CONTRACTOR TO FURNISH ACCUMULATION CONVEYOR) AND ON ITEM 2 (GOVERNMENT TO FURNISH ACCUMULATION CONVEYOR); AND THAT AUTOMATIC SYSTEMS DIVISION, FRUEHAUF CORPORATION, SUBMITTED THE SECOND LOWEST BID ON ITEM 1 AND ON ITEM 2. THE FOUR BIDS RECEIVED WERE REFERRED TO THE BUREAU OF SUPPLIES AND ACCOUNTS FOR TECHNICAL EVALUATION. THE BUREAU RECOMMENDED THAT AWARD BE MADE ON ITEM 2 (GOVERNMENT TO FURNISH ACCUMULATION CONVEYOR) AND THAT THE AWARD BE MADE TO AUTOMATIC SYSTEMS DIVISION, FRUEHAUF CORPORATION. YOUR BID WAS REJECTED FOR THE REASON THAT THE TECHNICAL DATA SUBMITTED BY YOUR FIRM FAILED TO COVER THE CONVEYOR SUPPORTS AND A TOTE SIGNAL READING DEVICE AS REQUIRED BY THE INVITATION. IN REGARD TO YOUR BID, THE BUREAU OF SUPPLIES AND ACCOUNTS DETERMINED THAT IT WAS DEFICIENT IN THE FOLLOWING RESPECTS:

"BIDDER FAILED TO FURNISH COMPLETE TECHNICAL DATA AS REQUIRED BY SECTION 3 OF THE GOVERNING SPECIFICATIONS. SPECIFIC ITEMS OF NON COMPLIANCE ARE AS FOLLOWS:

"A. CONVEYOR SUPPORTS TO BE UTILIZED IN PACKING AREA (PARAGRAPH 3.1.K). SKETCH FURNISHED SHOWS NO DIMENSIONAL DATA; NO SCALE; NO INDICATION OF TYPE, SIZE, NOR SHAPE OF MATERIAL; NO INDICATION OF LOCATION OF SUPPORTS; AND NO INDICATION OF SUPPORT SPACING.

"B. TOTE BOX SIGNAL READING DEVICE (PARAGRAPH 3.2). DATA FURNISHED ONLY SHOWS READER HOUSING AND MOUNTING ON CONVEYOR. NO DESCRIPTIVE DATA NOR SPECIFIC TECHNICAL DESIGN WERE FURNISHED AND ENGINEERING AND FUNCTIONAL ADEQUACY CAN NOT BE ASCERTAINED.

"C. SEVERAL REFERENCES TO NON-EXISTENT PARAGRAPHS OF THE APPLICABLE SPECIFICATIONS INDICATE THAT THE BIDDER WAS NOT USING THE PROPER SPECIFICATIONS. IT APPEARS THAT THE BIDDER REFERENCES SPECIFICATIONS APPLICABLE TO THE PREVIOUS INVITATION FOR BID FOR THE CONVEYOR EXTENSION. THIS IFB WAS CANCELLED AND THE SPECIFICATIONS WERE SUBSEQUENTLY REVISED.'

IT IS REPORTED THAT BECAUSE OF THE URGENT NEED FOR THE CONVEYOR SYSTEM, A CONTRACT FOR PERFORMING THE WORK COVERED BY ITEM 2 WAS AWARDED TO AUTOMATIC SYSTEMS DIVISION, FRUEHAUF CORPORATION, ON MAY 1, 1964.

BY TELEGRAM OF APRIL 10, 1964, TO OUR OFFICE, YOU PROTESTED AGAINST THE MAKING OF ANY AWARD OTHER THAN TO YOUR FIRM UNDER THIS INVITATION, APPARENTLY ON THE GROUND THAT THE SPECIFICATIONS ARE INCOMPLETE AND INADEQUATE, NOTWITHSTANDING THE FACT THAT YOU SUBMITTED A BID.

IN REGARD TO THE ALLEGATIONS IN THAT TELEGRAM, THE BUREAU MAKES THE FOLLOWING COMMENTS:

"1. THE SUBJECT PROTEST, FILED BY C AND M INDUSTRIAL ASSOCIATES,

"1. THE SUBJECT PROTEST, FILED BY G AND M INDUSTRIAL ASSOCIATES,INC., TELEGRAM OF 10 APRIL 1964 AND FORWARDED AS ENCLOSURE (1) TO REFERENCE (A), HAS BEEN REVIEWED AS REQUESTED.

"2. THE ABOVE PROTEST RAISES THREE POINTS: BID REQUIREMENT FOR TECHNICAL DATA ON A METERING BELT WITHOUT A METERING BELT BEING REQUIRED IN THE SYSTEM; INSUFFICIENT INFORMATION AVAILABLE TO DESIGN THE TOTE BOX SIGNAL DEVICE READER; AND QUESTIONS THAT ANYONE HAS SUPPLIED THE DETAILED DATA REQUIRED IN THE BID SUBMISSION. COMMENTS PERTAINING TO THESE POINTS ARE FURNISHED AS OLLOWS:

"A. METERING BELT. THE BIDDER CALLS ATTENTION TO PARAGRAPH 3.1.H. OF THE APPLICABLE SPECIFICATIONS, REFERENCE (B), REQUIRING TECHNICAL DATA TO BE SUBMITTED FOR THE METERING BELT, AND ALLEGES THAT NOWHERE IN THE SYSTEM IS A METERING BELT CALLED FOR. THE METERING BELT IS NECESSARY TO PROVIDE THE REQUIRED FLOW CONTROL OF MATERIALS. A METERING BELT IS SIMPLY BELT TRANSPORTATION CONVEYOR, AND TECHNICAL REQUIREMENTS ARE COVERED IN SECTION 12 OF THE APPLICABLE SPECIFICATIONS. THE TERM "METERING" IS A FUNCTIONAL DESCRIPTION, AND DENOTES THE APPLIED USE OF THIS PARTICULAR SECTION OF BELT TRANSPORTATION CONVEYOR. METERING BELTS ACCOMPLISH THE FUNCTIONS OF INDEXING STOPS BY OPERATING AT PARTICULAR SPEEDS AND/OR AS SIMPLE STOPS BY THE FRICTIONAL FORCE GENERATED BETWEEN THE BELT SURFACE AND THE BEARING SURFACE OF THE ITEM BEING STOPPED. IN THE SYSTEM AS SPECIFIED, THE METERING BELT WILL SERVE AS A SIMPLE STOP. MATERIAL WILL ACCUMULATE ON CONVEYOR UNIT NO. 7, AND A MEANS OF STOPPING MATERIAL AT THE DISCHARGE END OF THIS CONVEYOR UNIT MUST BE EMPLOYED.

"THE METERING BELT WILL BE UTILIZED AS CONVEYOR UNIT NO. 8, AND IS DESIGNATED AS TRANSPORTATION CONVEYOR ON THE APPLICABLE DRAWING, BUSANDA DRAWING NO. H33-22 OF 27 FEBRUARY 1964.

"ALTHOUGH THE REQUIREMENT OF PARAGRAPH 3.1.G. OF THE APPLICABLE SPECIFICATIONS, REQUIRING TECHNICAL DATA SUBMISSION FOR TRANSPORTATION TYPE CONVEYOR IN ADDITION TO METERING BELT CONVEYOR, MAY APPEAR TO BE IN CONFLICT WITH THE PREMISE THAT METERING BELT CONVEYOR IS SIMPLY BELT TRANSPORTATION CONVEYOR, THE TWO SEPARATE REQUIREMENTS ARE NOT IN CONFLICT. SECTION 12 OF THE APPLICABLE SPECIFICATIONS PROVIDES FOR MORE THAN ONE TYPE OF TRANSPORTATION CONVEYOR, AS OTHER PORTIONS OF THE CONVEYOR EXTENSION MAY USE ANOTHER TYPE OF TRANSPORTATION CONVEYOR, NAMELY, LIVE ROLLER CONVEYOR. THE TYPE OF TRANSPORTATION CONVEYOR PROPOSED TO BE FURNISHED IS AT THE OPTION OF THE BIDDER. IF THE BIDDER PROPOSES TO FURNISH LIVE ROLLER CONVEYOR FOR TRANSPORTATION CONVEYOR, THERE REMAINS THE REQUIREMENT FOR ADDITIONAL TECHNICAL DATA FOR METERING BELT CONVEYOR. IF THE BIDDER PROPOSES TO UTILIZE BELT CONVEYOR EXCLUSIVELY FOR TRANSPORTATION TYPE CONVEYOR, THE REQUIRED TECHNICAL DATA FOR METERING BELT CONVEYOR ARE IDENTICAL TO THE REQUIRED TECHNICAL DATA FOR TRANSPORTATION CONVEYOR. THIS PREMISE IS FURTHER SUPPORTED BY THE TECHNICAL DATA SUBMISSION OF THE PROTESTANT FOR THE METERING BELT CONVEYOR WHICH SUPPLIED TECHNICAL DATA FOR LEVEL BELT CONVEYOR WITH THE STATEMENT,"METERING BELT SAME AS TRANSPORTATION EXCEPT SPEED.' THE TECHNICAL DATA SUBMISSION OF THE LOWEST RESPONSIVE BIDDER CONTAINED COMPLETE TECHNICAL DATA FOR BELT TYPE TRANSPORTATION CONVEYOR.

"IT SHOULD ALSO BE POINTED OUT THAT ALTHOUGH THE PROTESTANT NOW CLAIMS THE SYSTEM DOES NOT CALL FOR A METERING BELT, THE PROTESTANT INCLUDED THIS DATA IN THE BID SUBMISSION.

"B. TOTE BOX SIGNAL DEVICE READER. THE ALLEGATION THAT INSUFFICIENT INFORMATION WAS AVAILABLE TO DESIGN THE TOTE BOX SIGNAL READER IS NOT VALID. PARAGRAPHS 22.2.1. AND 22.2.2. ESTABLISH THE READING PERFORMANCE REQUIREMENTS. THE BIDDER IS ALLOWED WIDE LATITUDE IN THE TECHNICAL DESIGN OF THE READER, AS LONG AS THE CITED PERFORMANCE REQUIREMENTS ARE FULFILLED. WHERE THE BIDDER FELT ADDITIONAL INFORMATION WAS NECESSARY TO PROPERLY DESIGN THE READER, TWO OPPORTUNITIES WERE AVAILABLE FOR DETAILED TECHNICAL AND FUNCTIONAL INFORMATION. PARAGRAPH 2.4 OF THE APPLICABLE SPECIFICATIONS URGES PROSPECTIVE BIDDERS TO VISIT THE SITE AND APPRISE THEMSELVES OF THE EXISTING CONDITIONS. FURTHER, THE SUBJECT IFB PROVIDED FOR A BIDDERS' CONFERENCE TO BE HELD ON 26 MARCH 1964 FOR THE PURPOSE OF ANSWERING ANY TECHNICAL QUESTIONS REGARDING THE PROCUREMENT UNDER CONSIDERATION. THE SUBJECT IFB FURTHER URGED BIDDERS TO VISIT THE SITE IN ADVANCE OF THE BIDDERS' CONFERENCE. IT CAN ONLY BE PRESUMED THAT BIDDERS FELT SUFFICIENT KNOWLEDGE HAD BEEN PROVIDED SINCE NO BIDDERS AVAILED THEMSELVES OF THE OPPORTUNITY FOR TECHNICAL INFORMATION THAT COULD BE OBTAINED AT THE BIDDERS' CONFERENCE.

"C. SUBMISSION OF REQUIRED DATA. IN REGARD TO THE PROTESTANT'S QUESTIONING WHETHER ANY BIDDER SUPPLIED THE REQUIRED TECHNICAL DATA, BID REVIEW WAS CONDUCTED BY TECHNICAL PERSONNEL OF THE BUREAU OF SUPPLIES AND ACCOUNTS. ALL BIDS WERE NOT THOROUGHLY REVIEWED AS IT IS A MATTER OF PRACTICE THAT THE LOWEST BID IS REVIEWED AND, IF THE BID SUBMISSION IS RESPONSIVE, REVIEW OF OTHER BIDS IS NOT CONSIDERED NECESSARY. REVIEW OF THE LOWEST BID FOR THE SUBJECT IFB DISCLOSED THAT THE TECHNICAL DATA SUPPLIED WERE INCOMPLETE AND NOT IN COMPLIANCE WITH THE SPECIFICATION REQUIREMENTS. ACCORDINGLY, THE BIDDER WAS CONSIDERED NON-RESPONSIVE. REVIEW OF THE SECOND LOWEST BID DISCLOSED, IN THE CONSIDERED JUDGMENT OF THE TECHNICAL REVIEWERS, THAT THE BIDDER SUPPLIED ALL REQUIRED TECHNICAL DATA, AND IT WAS RECOMMENDED THAT THE CONTRACT AWARD BE MADE. THE REMAINING TWO BID SUBMISSIONS WERE, THEREFORE, NOT REVIEWED IN DETAIL. REGARD TO THE PROTESTANT'S REQUEST TO REVIEW ALL DATA SUPPLIED, IT IS CONSIDERED THAT THIS IS A MATTER UNDER THE COGNIZANCE OF THE ADDRESSEE AND NOT APPROPRIATE FOR COMMENT.'

THE FOREGOING IS, IN OUR OPINION, AN ADEQUATE RESPONSE TO YOUR CONTENTIONS.

PARAGRAPH 3 OF PURCHASE DESCRIPTION H33-64-17 PROVIDES THAT THE BIDDER MUST SUBMIT WITH HIS BID CERTAIN TECHNICAL DATA. THE ISSUE TO BE DECIDED HERE IS WHETHER THE TECHNICAL DATA FURNISHED BY YOUR FIRM SATISFIED THE REQUIREMENTS OF THE INVITATION. IT IS THE CONTENTION OF THE CONTRACTING OFFICER THAT THE TECHNICAL DATA FURNISHED BY YOU WAS DEFICIENT IN CERTAIN RESPECTS. UNDER THE PROVISIONS OF THE INVITATION THIS DEFICIENCY REQUIRED THE REJECTION OF YOUR BID. OUR OFFICE HAS HELD THAT TECHNICAL DATA REQUIRED TO BE SUBMITTED FOR THE PURPOSES OF BID EVALUATION, AS DISTINGUISHED FROM MATERIAL REQUIRED FOR A DETERMINATION OF THE BIDDER'S RESPONSIBILITY, MUST BE REGARDED AS PART OF THE BID SO THAT THE FAILURE TO INCLUDE THE REQUIRED INFORMATION IN THE TECHNICAL DATA MAKES THE BID NONRESPONSIVE TO THE INVITATION. SEE 40 COMP. GEN. 132.

THE DETERMINATION OF WHETHER THE TECHNICAL DATA FURNISHED BY A BIDDER DEMONSTRATED THE CONFORMABILITY OF THE PRODUCT OFFERED TO THE SPECIFICATIONS IS CLEARLY A TECHNICAL ONE REQUIRING THE USE BY THE CONTRACTING OFFICER OF EVERY MEANS AT HIS DISPOSAL TO ASSIST HIM IN THIS DETERMINATION. THE RECORD INDICATES THAT THE OPINIONS OF QUALIFIED ENGINEERING PERSONNEL OF THE BUREAU OF SUPPLIES AND ACCOUNTS WERE SOLICITED AND USED BY THE CONTRACTING OFFICER IN REACHING A CONCLUSION ON THE ADEQUACY OF THE TECHNICAL DATA. HAVING REGARD FOR THE WIDE DISCRETION VESTED IN THE CONTRACTING OFFICER IN THE DETERMINATION OF THE SUFFICIENCY OF INFORMATION REQUIRED TO BE FURNISHED FOR BID EVALUATION PURPOSES, WE CAN FIND NO LEGAL BASIS FOR QUESTIONING THE REJECTION OF YOUR BID WHERE IN HIS JUDGMENT THE TECHNICAL DATA FURNISHED FAILED TO SHOW THAT THE PRODUCT OFFERED CONFORMED TO THE SPECIFICATIONS.