B-154054, JUN. 25, 1964

B-154054, JUN. 25, 1964

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED MAY 28, 1964, WITH ENCLOSURES, FROM THE DEPUTY ADMINISTRATIVE ASSISTANT SECRETARY, SUBMITTED IN RESPONSE TO A LETTER OF OUR OFFICE DATED MAY 20, 1964, TO YOU, REQUESTING A REPORT ON THE PROTEST OF THE CONSOLIDATED ELECTRODYNAMICS CORPORATION, PASADENA, CALIFORNIA, AGAINST THE AWARD OF A CONTRACT TO MINNEAPOLIS-HONEYWELL REGULATOR COMPANY UNDER INVITATION NO. H AND S PGH. 10.

THE BUREAU OF MINES, HEALTH AND SAFETY, PITTSBURGH, PENNSYLVANIA, BY THE REFERRED-TO INVITATION REQUESTED BIDS FOR FURNISHING LIGHT-BEAM GALVANOMETER RECORDER/S) AND ACCESSORIES IN ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS. THE SPECIFICATIONS PROVIDED THAT THE RECORDER/S) SHALL RECORD AT LEAST 72 CHANNELS OF TRANSIENT PHENOMENA ON PHOTOSENSITIVE PAPER THAT SHALL NOT REQUIRE PROCESSING OR LIGHT TIGHT MAGAZINES AND THAT THE RECORD WIDTH SHALL EQUAL OR EXCEED 24 INCHES. THE INVITATION FOR BIDS DID NOT CONTAIN A REQUIREMENT FOR THE SUBMISSION OF DESCRIPTIVE LITERATURE AS A PART OF ANY BID. ON PAGE 3 OF THE INVITATION BIDDERS WERE ADVISED THAT IN REGARD TO BID EVALUATION, "BIDS CONTAINING DEVIATIONS, EXCEPTIONS, OR ALTERNATES TO THE SPECIFICATIONS SHALL NOT BE EVALUATED.' TWO BIDS WERE RECEIVED AND OPENED ON MARCH 26, 1964. THE LOWEST BID WAS SUBMITTED BY THE MINNEAPOLIS-HONEYWELL REGULATOR COMPANY AND THAT COMPANY OFFERED TO FURNISH TWO HONEYWELL MODEL 1612-3-6-X-PT RECORDERS AT A UNIT PRICE OF $8,750 OR FOR A TOTAL PRICE OF $17,500. THE ONLY OTHER BID WAS SUBMITTED BY THE CONSOLIDATED ELECTRODYNAMICS CORPORATION AND THAT CORPORATION OFFERED TO FURNISH TWO MODEL 5/133P4-36 DR RECORDING OSCILLOGRAPHS AT A UNIT PRICE OF $10,040 OR FOR A TOTAL OF $20,080.

IN ITS LETTER OF MAY 13, 1964, THE CONSOLIDATED ELECTRODYNAMICS CORPORATION STATES:

"WE RESPECTFULLY SUBMIT THAT THE HONEYWELL BID IS NON-RESPONSIVE TO ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS, MORE SPECIFICALLY, NON- RESPONSIVE TO THE SPECIFICATION REQUIREMENTS AS SET FORTH BELOW AND BECAUSE OF THIS SHOULD BE REJECTED PURSUANT TO FEDERAL PROCUREMENT REGULATION 1-2.404-2:

"/A) RECORD WIDTH AS SPECIFIED IN THE FIRST PARAGRAPH, SECOND SENTENCE OF THE SPECIFICATION,

"/B) FULL RECORD WIDTH COINCIDENT TIMING LINES, REFERENCE SPECIFICATION PARAGRAPH K., AND

"/C) INDIVIDUAL INPUT CONNECTOR FOR EACH GALVANOMETER, REFERENCE SPECIFICATION PARAGRAPH O.

"THE EQUIPMENT OFFERED BY HONEYWELL IS IDENTIFIED IN THEIR BID AS THE HONEYWELL MODEL 1612-3-6-4-8-P-T. NO DESCRIPTIVE LITERATURE ACCOMPANIED THE BID AND NO EXCEPTIONS OR DEVIATIONS TO THE REQUIREMENTS WERE STATED.

"THE HONEYWELL BROCHURE ON THE EQUIPMENT AS BID STATES THAT ITS RECORDING WIDTH CAPABILITY IS 11 3/8 INCHES PER MACHINE, A TOTAL OF 22 3/4 INCHES FOR THE COMBINATION OF EQUIPMENT OFFERED. THE FIRST PARAGRAPH, SECOND SENTENCE OF THE IFB SPECIFICATION READS IN PART: "RECORD WIDTH SHALL EQUAL OR EXCEED 24 INCHES; " ETC. WE DRAW ATTENTION TO THE WORDS "RECORD WIDTH" SINCE THIS IS PERTINENT TO OUR CLAIM OF NON-RESPONSIVENESS. SINCE THE WIDTH OF THE RECORD IS ONLY THAT WIDTH UPON WHICH DATA MAY BE RECORDED, THEN ONLY A DEVICE CAPABLE OF PROVIDING 24 OR MORE INCHES TOTAL DYNAMIC GALVANOMETER RECORDING EXCURSION WOULD BE AN ACCEPTABLE DEVICE ACCORDING TO THE STATED ,RECORD WIDTH" REQUIREMENT OF THE IFB.

"PARAGRAPH (K) OF THE IFB SPECIFICATIONS REQUIRES FULL RECORD WIDTH COINCIDENT TIMING LINES BE AVAILABLE. AS A CONSEQUENCE OF THE RECORDING WIDTH LIMITATION OF THE HONEYWELL MODED 1612, IT CANNOT PROVIDE TIMING LINES BEYOND 11 3/8 INCHES PER MACHINE, OR A TOTAL SYSTEM CAPABILITY OF 22 3/4 INCHES, AS OPPOSED TO THE IFB SPECIFICATION REQUIREMENT OF 24 OR MORE INCHES.

"THE HONEYWELL BROCHURE ALSO REVEALS THAT MODEL 1612-3-6-4-8-P-T DOES NOT CONTAIN THE INDIVIDUAL INPUT CONNECTOR FOR EACH GALVANOMETER FEATURE AS REQUIRED BY PARAGRAPH O. OF THE SPECIFICATION. EACH OF THE NUMBERS AND LETTERS ADDED TO THE BASIC MODED 1612 INDICATE FEATURES CALLED OUT IN THE SPECIFICATIONS. THE HONEYWELL BROCHURE IDENTIFIES INDIVIDUAL INPUT CONNECTOR, PANELS, WHICH ARE REQUIRED TO COMPLY WITH SPECIFICATION REQUIREMENTS, WITH THE LETTER D. THEIR BROCHURE PRICE OF THESE PANELS IS $420 EACH. AS TWO OF THESE PANELS WOULD BE REQUIRED, ONE FOR EACH EQUIPMENT, HONEYWELL HAS GAINED A DEMONSTRATED PRICE ADVANTAGE OF $840 BY NON-RESPONSIVENESS TO THIS REQUIREMENT.

"PAGE 3 OF THE INVITATION STATES THAT "BIDS CONTAINING DEVIATIONS, EXCEPTIONS, OR ALTERNATES TO THE SPECIFICATIONS SHALL NOT BE EVALUATED.' WE FURTHER SUBMIT THAT BY OFFERING THEIR MODEL 1612 WITHOUT ANY FURTHER STATEMENT THAT ALL SPECIFICATION REQUIREMENTS WILL BE MET, HONEYWELL HAS OFFERED AN ALTERNATE TO THE SPECIFICATIONS AND, THUS, DISQUALIFIED THEIR BID FOR EVALUATION.'

IN REGARD TO THE ALLEGATIONS IN THE CORPORATION'S LETTER, THE DEPUTY ADMINISTRATIVE ASSISTANT SECRETARY MAKES THE FOLLOWING COMMENTS:

"WE DO NOT AGREE WITH THE CONSOLIDATED ELECTRODYNAMICS CORPORATION INTERPRETATION OF THE PHRASE "RECORD WIDTH" FOR THE FOLLOWING REASONS:

"IN THE FIRST PARAGRAPH OF THE SPECIFICATIONS, THE FOLLOWING STATEMENT IS MADE: "RECORD WIDTH SHALL EQUAL OR EXCEED 24 INCHES * * *.' APPARENTLY, CONSOLIDATED ELECTRODYNAMICS CORPORATION HAS INTERPRETED THIS STATEMENT TO MEAN THE "RECORDING AREA" SHALL EQUAL OR EXCEED 24 INCHES. THE TERMS "RECORD WIDTH" AND "RECORDING AREA" ARE NOT SYNONYMOUS. THE FOLLOWING DISTINCTIONS ARE SET FORTH IN THE ENCLOSED BROCHURES SUBMITTED BY THE MINNEAPOLIS-HONEYWELL REGULATOR COMPANY AND CONSOLIDATED ELECTRODYNAMICS CORPORATION:

"MODEL 1612 DIRECT RECORDING VISICORDER OSCILLOGRAPH, MINNEAPOLIS HONEYWELL REGULATOR COMPANY CATALOG D-2024, OCTOBER 1963, PAGE 16,"RECORD WIDTH: 12 IN. (11 3/8 IN. ACTUAL RECORDING AREA).'

"TYPE 5-133 RECORDING OSCILLOGRAPH, CONSOLIDATED ELECTRODYNAMICS CORPORATION BULLETIN 5133, SEPTEMBER 1963, PAGE 7,"RECORD WIDTH: 12 INCH PAPER, FULL WIDTH RECORDING CAPABILITY.'

"WE CONTEND THAT "RECORD WIDTH" IS THE WIDTH OF THE RECORDING PAPER, AND THAT "RECORDING AREA" IS THE MAXIMUM WIDTH ACTUALLY AVAILABLE FOR RECORDING DATA.

"IN THE SPECIFICATIONS, NO DIRECT REFERENCE IS MADE TO RECORDING AREA; HOWEVER, SUBPARAGRAPHS H AND I OF THE SPECIFICATIONS STATE THAT A MARGIN IS REQUIRED ON THE RECORD. THEREFORE, FULL-WIDTH RECORDING AREA IS NEITHER REQUIRED NOR DESIRABLE.

"THE COVERING LETTER WITH THE MINNEAPOLIS-HONEYWELL REGULATOR COMPANY BID STATES,"ENCLOSED ARE COMPLETE SPECIFICATIONS, PRICE AND DELIVERY ON TWO (2) HONEYWELL MODEL 1612 VISICORDERS EXACTLY AS REQUESTED.' THE OMISSION OF THE LETTER "E" FROM THE MODEL NUMBER GIVEN ON PAGE 3 OF THE MINNEAPOLIS -HONEYWELL REGULATOR COMPANY BID WAS NOT NOTICED BY BUREAU OF MINES PERSONNEL PRIOR TO RECEIPT OF THE CONSOLIDATED ELECTRODYNAMICS CORPORATION LETTER OF PROTEST DATED MAY 13, 1964; IT NOT HAVING BEEN REFERRED TO IN PREVIOUS DISCUSSIONS BETWEEN CONSOLIDATED ELECTRODYNAMICS CORPORATION AND BUREAU OFFICIALS.

"WE HAVE BEEN INFORMED BY THE MINNEAPOLIS-HONEYWELL REGULATOR COMPANY THAT THIS FEATURE IS INCLUDED IN THEIR BID PRICE, AND THAT OMISSION OF THE LETTER "E" FROM THE MODEL NUMBER WAS ENTIRELY INADVERTENT. WRITTEN CONFIRMATION OF THIS MAY BE OBTAINED IF DESIRED. IN ALL FAIRNESS, IT SHOULD BE OBSERVED THAT EQUIPMENT DESCRIBED, AS ACTUALLY STATED IN THE MINNEAPOLIS-HONEYWELL REGULATOR COMPANY BID, COULD BE ORDERED, BUT THE ITEM KNOWN AS "INDIVIDUAL INPUT CONNECTORS" WOULD BE REQUIRED TO MEET THE SPECIFICATIONS. IN THIS CONNECTION, YOUR ATTENTION IS DIRECTED TO PAGE 19 OF THE MINNEAPOLIS-HONEYWELL REGULATOR COMPANY BROCHURE AND TO THE DIRECTION TO INSERT "O" WHERE AN OPTIONAL FEATURE IS NOT REQUIRED TO MEET THE SPECIFICATIONS.'

WE AGREE WITH THE ADMINISTRATIVE OFFICE THAT THE BID OF THE MINNEAPOLIS- HONEYWELL COMPANY IS RESPONSIVE TO THE REQUIREMENT OF THE FIRST PARAGRAPH OF THE SPECIFICATIONS THAT THE RECORD WIDTH SHALL EQUAL OR EXCEED 24 INCHES AND TO THE REQUIREMENT OF PARAGRAPH (K) OF THE SPECIFICATIONS THAT FULL RECORD WIDTH COINCIDENT TIMING LINES BE AVAILABLE.

HOWEVER, AS TO THE FAILURE OF THE MINNEAPOLIS-HONEYWELL REGULATOR COMPANY TO INSERT THE LETTER ,E" IN THE MODEL NUMBER LISTED IN ITS BID, WHICH LETTER WOULD HAVE INDICATED THAT THE EQUIPMENT BEING OFFERED BY THE COMPANY WOULD BE EQUIPPED WITH AN INDIVIDUAL INPUT CONNECTOR FOR EACH GALVANOMETER, AS REQUIRED BY PARAGRAPH "O" OF THE SPECIFICATIONS, WE ARE OF THE OPINION THAT SUCH OMISSION ON THE PART OF THE COMPANY MUST BE REGARDED AS A MATERIAL DEVIATION FROM THE SPECIFICATIONS AND THAT, THEREFORE, COMPANY'S BID MUST BE REGARDED AS BEING NONRESPONSIVE TO THE INVITATION AND UNACCEPTABLE. SEE SECTION 1 2.407-1 OF THE FEDERAL PROCUREMENT REGULATIONS REQUIRING, AS DO THE PROVISIONS OF 41 U.S.C. 253B, THAT AWARD SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, UNACCEPTABLE. SEE SECTION 1-2.407-1 OF THE FEDERAL PROCUREMENT REGULATIONS REQUIRING, AS DO THE PROVISIONS OF 41 U.S.C. 253B, THAT AWARD SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, "CONFORMING TO THE INVITATION FOR BIDS," WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT. ALSO SEE 30 COMP. GEN. 179. ASSUMING THE STATEMENT CONTAINED IN THE COMPANY'S LETTER ACCOMPANYING ITS BID THAT "ENCLOSED ARE COMPLETE SPECIFICATIONS, PRICE AND DELIVERY TWO (2) HONEYWELL MODEL 1612 VISICORDERS EXACTLY AS REQUESTED" PROPERLY COULD BE INTERPRETED AS AN AFFIRMATIVE STATEMENT THAT NO EXCEPTION WAS BEING TAKEN TO THE SPECIFICATIONS, SUCH STATEMENT COULD NOT BE ACCEPTED AS CORRECTING THE MATERIAL DEFECT CONTAINED IN THE COMPANY'S BID. B 149172, AUGUST 8, 1962, 42 COMP. GEN. 96.

NOR IS IT A SATISFACTORY ANSWER TO CONTEND THAT THE NONRESPONSIVENESS OF HONEYWELL'S BID WAS DUE TO AN OVERSIGHT OR MISTAKE. IN A DECISION DATED JUNE 5, 1959, 38 COMP. GEN. 819, 821, WE MAKE THE FOLLOWING STATEMENT REGARDING A SIMILAR CONTENTION:

"IT IS PROBABLE THAT THE MAJORITY OF UNRESPONSIVE BIDS ARE DUE TO OVERSIGHT OR ERROR, SUCH AS THE FAILURE TO QUOTE A PRICE, TO SIGN A BID, TO FURNISH A BID BOND, TO SUBMIT REQUIRED SAMPLES OR DATA, OR THE SUBMISSION OF THE WRONG SAMPLE, INCOMPLETE DATA, OR STATEMENTS THE ACTUAL MEANING OF WHICH WAS NOT INTENDED, ETC. AN UNRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PART OF THE BID ON THE BASIS OF AN ERROR ALLEGED AFTER THE OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. IT IS OUR OPINION THAT AN ALLEGATION OF ERROR IS PROPER FOR CONSIDERATION ONLY IN CASES WHERE THE BID IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE PROPER FOR ACCEPTANCE.'

WE FIND NOTHING IN THE RECORD BEFORE US WHICH WOULD JUSTIFY AN EXCEPTION TO THE ABOVE-STATED RULE. SEE ALSO 40 COMP. GEN. 132, ID. 432.

ACCORDINGLY, THE BID SUBMITTED BY THE MINNEAPOLIS-HONEYWELL REGULATOR COMPANY SHOULD BE DISREGARDED IN MAKING THE AWARD.

THE BIDS OF THE CONSOLIDATED ELECTRODYNAMICS CORPORATION AND THE MINNEAPOLIS-HONEYWELL REGULATOR COMPANY ARE RETURNED.