B-154320, AUG. 5, 1964

B-154320: Aug 5, 1964

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TO BURTON MANUFACTURING COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 25. THE INDICATORS WERE REQUIRED TO CONFORM TO MILITARY SPECIFICATION MIL-I-22075 (WEP). THE ABOVE PARAGRAPH K WAS AMPLIFIED AS FOLLOWS: "PAGE 19. ALTHOUGH YOUR FIRM WAS QUALIFIED FOR THE SET-ASIDE PORTION. THE REQUIRED DRAWING WAS NOT ONLY INADEQUATE. YOU MAINTAIN THAT THE ERROR IN YOUR PRESENTATION OF THE DIAL ASSEMBLY IS TRIVIAL IN NATURE AND THAT IT COULD HAVE NO EFFECT UPON YOUR FINAL BID SINCE THE SPECIFICATIONS CLEARLY OUTLINED THE REQUIREMENT FOR THE INTENDED ITEM. THE CONTRACTING OFFICER ADVISES THAT THIS WAS THE FIRST PROCUREMENT FOR THIS TYPE OF INDICATOR AND THAT INDICATORS PREVIOUSLY PROCURED HAVING A 12 O-CLOCK READOUT DEVICE HAVE PROVEN UNSATISFACTORY.

B-154320, AUG. 5, 1964

TO BURTON MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 25, 1964, PROTESTING AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN THE BURTON MANUFACTURING COMPANY UNDER THE SET-ASIDE PORTION OF INVITATION FOR BIDS NO. LS-383-573- 64, AS AMENDED.

THE SUBJECT INVITATION, ISSUED BY THE AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, SOLICITED BIDS FOR "STEP-LADDER" QUANTITIES OF AN INDICATOR (TYPE DESIGNATION ID-663-B/U) AND CERTAIN RELATED DATA. THE INDICATORS WERE REQUIRED TO CONFORM TO MILITARY SPECIFICATION MIL-I-22075 (WEP), AS AMENDED. IN CONNECTION THEREWITH THE INVITATION PROVIDES ON PAGE 19:

"K. AMENDMENT 3, PAGE 4, FIGURE 1: MOVE THE DISTANCE INDICATION FROM THE 12 O-CLOCK POSITION TO THE 3 O-CLOCK POSITION.

NOTE: (X) COPIES OF THE COMPLETE AND DIMENSIONED DIAL DISPLAY WITH OFF FLAG DEPICTED SEPARATELY, SHALL BE INCLUDED WITH THE BID.'

BY AMENDMENT NO. 1 DATED FEBRUARY 26, 1964, THE ABOVE PARAGRAPH K WAS AMPLIFIED AS FOLLOWS:

"PAGE 19, PARA. (K/--- THE "NOTE" SHALL REQUIRE THE BIDDERS TO FURNISH TWO (2) COPIES OF DIAL DISPLAY WITH THIS BID.'

THE RECORD FURTHER SHOWS THAT THE PROCURING ACTIVITY HAD DECIDED TO SET ASIDE A CERTAIN PORTION OF THE PROCUREMENT FOR AWARD ONLY TO LABOR SURPLUS AREA CONCERNS, AND TO A LIMITED EXTENT, TO SMALL BUSINESSES WHICH COULD NOT QUALIFY AS LABOR SURPLUS AREA CONCERNS. IN ACCORDANCE WITH SECTION 1- 804.2 OF THE ARMED SERVICES PROCUREMENT REGULATION, THE INVITATION PROVIDED THAT NEGOTIATIONS FOR AWARD ON THE SET-ASIDE PORTION WOULD BE CONDUCTED ONLY WITH THOSE CONCERNS WHICH HAD SUBMITTED RESPONSIVE BIDS ON THE NON-SET-ASIDE PORTION AT A UNIT PRICE NO GREATER THAN 120 PERCENT OF THE HIGHEST AWARD MADE ON THE NON-SET ASIDE PORTION. ALTHOUGH YOUR FIRM WAS QUALIFIED FOR THE SET-ASIDE PORTION, THE CONTRACTING OFFICER REJECTED YOUR BID AS NON-RESPONSIVE TO THE INVITATION BECAUSE THE TECHNICAL DATA SUBMITTED MERELY SHOWED AN UNDIMENSIONED DIAL DISPLAY DEPICTING A 12 O- CLOCK READOUT POSITION FOR THE DISTANCE INDICATION. THE REQUIRED DRAWING WAS NOT ONLY INADEQUATE, BUT ALSO INDICATED AN ITEM DEVIATING MATERIALLY FROM THE SPECIFICATIONS.

IN YOUR LETTER OF PROTEST TO OUR OFFICE DATED MAY 25, 1964, YOU MAINTAIN THAT THE ERROR IN YOUR PRESENTATION OF THE DIAL ASSEMBLY IS TRIVIAL IN NATURE AND THAT IT COULD HAVE NO EFFECT UPON YOUR FINAL BID SINCE THE SPECIFICATIONS CLEARLY OUTLINED THE REQUIREMENT FOR THE INTENDED ITEM.

IN THE ADMINISTRATIVE REPORT FURNISHED OUR OFFICE, THE CONTRACTING OFFICER ADVISES THAT THIS WAS THE FIRST PROCUREMENT FOR THIS TYPE OF INDICATOR AND THAT INDICATORS PREVIOUSLY PROCURED HAVING A 12 O-CLOCK READOUT DEVICE HAVE PROVEN UNSATISFACTORY. THE 3 O-CLOCK DISTANCE INDICATION READOUT POSITION REPRESENTS A PRODUCT IMPROVEMENT WHICH NECESSITATES DESIGN, ENGINEERING AND DEVELOPMENT COSTS. WE UNDERSTAND THAT YOU ATTEMPTED TO CORRECT THIS ERROR SOMETIME AFTER BID OPENING.

ALTHOUGH THE INVITATION DID NOT SPECIFICALLY WARN PROSPECTIVE BIDDERS OF THE CONSEQUENCES OF FAILURE TO FURNISH THE DESIRED INFORMATION, THE FACT THAT THE INVITATION STATED, IN MANDATORY LANGUAGE, THAT SUCH DRAWINGS SHOULD BE FURNISHED AND THEY WERE NOT FURNISHED IS SUFFICIENT JUSTIFICATION FOR REJECTION PROVIDED THAT THE DRAWINGS ARE NECESSARY FOR BID EVALUATION. B-141630, JANUARY 27, 1960; SEE ALSO 40 COMP. GEN. 132, 135.

IN AN ANALOGOUS CASE, B-143477, DATED SEPTEMBER 1, 1960, WE HAD OCCASION TO CONSIDER A SITUATION IN WHICH A LOW BID WAS REJECTED ON THE BASIS THAT THE LOW BIDDER HAD NOT SUBMITTED A SCHEMATIC DIAGRAM WHICH ACCURATELY DEPICTED THE REQUIRED EQUIPMENT. THE LOW BIDDER ARGUED THAT HIS BID SHOULD HAVE BEEN CONSIDERED SINCE HE HAD ALSO AGREED TO FURNISH A SYSTEM EXACTLY AS SPECIFIED. WE TOOK THE POSITION, HOWEVER, THAT WHERE DRAWINGS OR DATA ARE ESSENTIAL IN DETERMINING WHETHER THE EQUIPMENT MEETS THE REQUIREMENTS OF THE GOVERNMENT, FAILURE TO FURNISH SUCH INFORMATION RENDERS THE BID NON RESPONSIVE. WHERE, AS HERE, THE DESCRIPTIVE DATA GOES TO THE NATURE OF THE ITEM TO BE FURNISHED BY THE CONTRACTOR, THE REQUIREMENT THEREFOR MUST BE REGARDED AS MATERIAL AND MAY NOT BE WAIVED. 40 COMP. GEN. 132, 135; 37 COMP. GEN. 763, 765.

IN VIEW OF THE ABOVE, WE FIND NO LEGAL BASIS TO OBJECT TO THE ADMINISTRATIVE ACTION TAKEN IN THIS MATTER.