B-153983, AUG. 21, 1964

B-153983, AUG. 21, 1964

TO THOMPSON CONTROLS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 19, AND CONFIRMING LETTER OF JUNE 24, 1964, PROTESTING THE COMTEMPLATED REJECTION OF YOUR BID UNDER DEPARTMENT OF THE ARMY INVITATION FOR BIDS NO. CIVENG-22-079-64-26.

AN ADVANCE NOTICE TO BIDDERS WAS ISSUED DECEMBER 18, 1963, AND THE INVITATION FOR BIDS WAS ISSUED JANUARY 2, 1964, WITH THE DATE OF OPENING SET FOR APRIL 2, 1964. THIS INVITATION INCORPORATED THE PERFORMANCE SPECIFICATIONS AND REQUIREMENTS FOR ACCEPTANCE TESTS AND DESCRIPTIVE LITERATURE FOR AUTOMATIC INSTRUMENTS, INFLOW PROGRAMMERS AND CONTROLLERS, FOR THE MISSISSIPPI BASIN MODEL, MAINTAINED BY THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, AND USED IN THE CONDUCT OF RESEARCH CONNECTED WITH FLOOD CONTROL PROBLEMS. SIX BIDS WERE RECEIVED RANGING FROM $157,728 TO $465,800. THE LOW BIDDER WAS YOUR COMPANY AT $157,728; THE SECOND LOW BIDDER WAS COMPUDYNE CORPORATION, HATBORO, PENNSYLVANIA, AT $158,091.57. THE COMPUDYNE CORPORATION PROTESTED ANY AWARD TO YOUR COMPANY ON THE BASIS THAT YOUR BID DID NOT MEET THE SPECIFICATIONS.

IN THE ADMINISTRATIVE REVIEW OF THE SPECIFICATIONS CONTAINED IN THE INVITATION AND OF THE BIDS RECEIVED, IT WAS DETERMINED THAT GENERAL SPECIFICATION PARAGRAPH 2 OF THE INVITATION REQUIRES THAT BIDDERS TO SUBMIT DESCRIPTIVE LITERATURE WITH HIS BID TO SHOW THAT THE PRODUCTS OFFERED CONFORM TO THE SPECIFICATIONS. THE LITERATURE SUBMITTED IS REQUIRED TO ESTABLISH "DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, MATERIALS, COMPONENTS, PERFORMANCE CHARACTERISTICS, METHODS OF MANUFACTURE, CONSTRUCTION, ASSEMBLY AND OPERATION.' THIS PARAGRAPH ALSO PROVIDES THAT "FAILURE OF THE DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID.' IN ADDITION, A CAUTION NOTE TO BIDDERS WAS ATTACHED TO EACH INVITATION STATING,"FAILURE TO FURNISH DESCRIPTIVE LITERATURE ADEQUATE FOR THE STATED PURPOSES WILL RESULT IN REJECTION OF YOUR BID.' IN ORDER TO STRICTLY CONFORM TO THE SPECIFICATION REQUIREMENTS, COMPLETE INFORMATION IS REQUIRED ON EACH ITEM OF EQUIPMENT PROPOSED. YOUR PROPOSAL INCLUDES A GENERAL WRITTEN DESCRIPTION OF THE MAJOR ITEMS OF EQUIPMENT AND THEIR OPERATION; A TABLE LISTING THE TYPE OR MODEL, MANUFACTURER AND RATINGS FOR THE DIFFERENTIAL PRESSURE REGULATOR ASSEMBLIES AND HEAD CONTROL VALVE ASSEMBLIES; AND EITHER PRODUCT DATA SHEETS OR PRICE SHEETS FOR THE DIFFERENTIAL PRESSURE TRANSMITTERS, HEAD VALVE CONTROLLERS, AIR GAUGES, AIR SUPPLY AND SET-POINT REGULATORS AND HEAD CONTROL VALVES AND POSITIONERS. EXCEPT FOR THE GENERAL DESCRIPTION, THE DATA LISTED IN PARAGRAPH 2 OF THE SPECIFICATIONS WAS NOT INCLUDED. NO INFORMATION WAS INCLUDED ON THE LIMIT SWITCHES, CONTROL AND TOGGLE SWITCHES, INDICATING LIGHTS, TERMINAL BLOCKS, CABLE AND CONNECTORS, CONTROL TRANSFORMERS, DIFFERENTIAL PRESSURE SWITCHES, MANUALLY OPERATED VALVES OR PRESSURE RELIEF DEVICES.

FAILURE TO SUBMIT THE DESCRIPTIVE LITERATURE REQUIRED BY THE SPECIFICATIONS IS CONSIDERED A MAJOR DEVIATION FROM THE SPECIFICATIONS.

SPECIFICATION PARAGRAPH 13B REQUIRES FLOW RANGES FOR THE SIZE A AND SIZE C CONTROLLERS OF 0 TO 100 AND O TO 1050 GPM, RESPECTIVELY. ENGINEERING CALCULATIONS SHOW THAT THE VALVES PROPOSED ARE NOT LARGE ENOUGH TO GIVE THE MAXIMUM FLOW REQUIRED AT MINIMUM SUPPLY PRESSURE. SINCE FAILURE TO PROPOSE ADEQUATE VALVES COULD MATERIALLY AFFECT THE LIST PRICE, THIS IS CONSIDERED A MAJOR DEVIATION.

THE INFORMATION SUBMITTED BY YOUR LETTER OF JUNE 24, 1964, IS NOT SUFFICIENT TO OVERCOME YOUR FAILURE TO BE RESPONSIVE TO THE INVITATION. YOU HAVE DEFENDED YOUR BID BY INDICATING THAT AT THE BIDDERS' CONFERENCE, PRIOR TO BID OPENING, IT WAS POINTED OUT BY REPRESENTATIVES OF THE WATERWAYS EXPERIMENT STATION THAT THE REQUIREMENT FOR DESCRIPTIVE LITERATURE WAS TO SHOW THE ABILITY OF THE EQUIPMENT TO DO THE JOB, THE SOUNDNESS OF THE DESIGN, AND THE SELECTION OF MAJOR COMPONENTS. IF THIS WERE SO, IT IS UNFORTUNATE THAT THE REQUIREMENTS OF THE INVITATION WERE NOT CHANGED TO CORRESPOND TO THIS CONCEPTION OF THE DESIRED PROCUREMENT. IN FAIRNESS TO OTHER BIDDERS, SUCH STATEMENTS CONCERNING THE REQUIREMENTS FOR THE DESCRIPTIVE LITERATURE CANNOT BE PERMITTED TO SUPERSEDE THE SPECIFICATIONS STATED REQUIREMENTS.

IN SUMMARY, IT HAS BEEN ADMINISTRATIVELY ASCERTAINED THAT THE REQUIREMENT FOR DESCRIPTIVE LITERATURE IS SO DEFINITIVE IN SCOPE THAT IT IS PRACTICALLY IMPOSSIBLE FOR ANY BIDDER TO COMPLY WITH ITS TERMS; THAT ALL BIDDERS WERE NONRESPONSIVE TO THE REQUIREMENT FOR FURNISHING DESCRIPTIVE LITERATURE; THAT YOUR COMPANY'S BID WAS ALSO DEFICIENT IN THAT THE VALVES PROPOSED WERE NOT LARGE ENOUGH TO GIVE THE MAXIMUM FLOW REQUIRED AT MINIMUM SUPPLY PRESSURE; AND THAT THE SPECIFICATIONS WILL BE REVISED TO REQUIRE ONLY THAT INFORMATION REQUIRED FOR EVALUATION PURPOSES AND WHICH IT IS REASONABLE TO ASSUME CAN BE FURNISHED BY BIDDERS.

IT IS WELL SETTLED THAT THE GOVERNMENT HAS THE RIGHT TO REJECT ANY OR ALL BIDS RECEIVED UNDER THE INVITATION. THIS IS IN ACCORDANCE WITH THE PROVISION OF 10 U.S.C. 2305/C) WHICH AUTHORIZES THE REJECTION OF ALL BIDS IF THE HEAD OF THE AGENCY DETERMINES SUCH ACTION TO BE IN THE PUBLIC INTEREST. UNLESS BIDS ARE EVALUATED SOLELY ON THE BASIS OF THEIR CONTEXT AT THE TIME OF BID OPENING, THE COMPETITIVE BIDDING SYSTEM WOULD LOSE ITS INTEGRITY BECAUSE, CONTRARY TO THE PURPOSES OF THE ADVERTISING STATUTES, THE EFFECT WOULD BE THAT BIDS COULD BE VARIED AFTER OPENING AND PRIOR TO AWARD. 40 COMP. GEN. 132.

THE QUESTION OF REJECTING ALL BIDS AND READVERTISING IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION AND A REQUEST FOR BIDS DOES NOT IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE BIDS RECEIVED, INCLUDING THE LOWEST CORRECT BID. 17 COMP. GEN. 554; 26 COMP. GEN. 49; PERKINS V. LUKENS STEEL CO., 310 U.S. 113; O-BRIEN V. CARNEY, 6 F.SUPP. 761; COLORADO PAV. CO. V. MURPHY, 78 F. 28.

THEREFORE, AND SINCE THE REASON FOR SUCH REJECTION--- ASIDE FROM THE MATTER OF THE RESPONSIVENESS OF THE BIDS RECEIVED--- WAS FOR THE PURPOSE OF REVISING THE SPECIFICATIONS TO MORE ADEQUATELY AND CLEARLY EXPRESS THE GOVERNMENT'S NEEDS, WE PERCEIVE NO OBJECTION TO SUCH ACTION AND YOUR PROTEST IS DENIED.