B-154415, AUG. 4, 1964

B-154415: Aug 4, 1964

Additional Materials:

Contact:

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

 

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

THE ABOVE INVITATION WAS ISSUED BY THE SUPPLY OFFICER. BIDS WERE OPENED ON APRIL 20. THE SYSTEM SHALL HAVE A FIXED WINDOW WHICH CAN BE SWEPT THROUGH THE ENTIRE INPUT AMPLITUDE RANGE.'. IN CONNECTION WITH THE RACKS REQUIRED BY PARAGRAPH 7.1 OF THE SPECIFICATIONS THE LITERATURE ACCOMPANYING YOUR BID STATED AS FOLLOWS: "THE PANELS WILL BE DELIVERED WITH MODULES ATTACHED FOR IMMEDIATE RACK MOUNTING (RACK OR CABINET IS NOT NORMALLY SUPPLIED). MODULE INTERCONNECTING CABLES WILL BE KEYED TO PREVENT INTERCONNECTION ERROR. CABLES TO HP COUNTER AND PRINTER WILL ALSO BE INCLUDED.'. PURSUANT TO THIS EVALUATION OF YOUR BID IT WAS INITIALLY DETERMINED BY NAVY THAT YOUR BID WAS NONRESPONSIVE. NAVY ADVISES THAT THE LETTER OFFERING YOUR TECHNICAL CHANGES WAS PLACED IN SAFEKEEPING.

B-154415, AUG. 4, 1964

TO SPEAR, INCORPORATED:

WE REFER TO YOUR TELEGRAM OF JUNE 9, 1964, AND LETTER DATED JUNE 13, 1964, WITH ENCLOSURE, PROTESTING THE CANCELLATION AFTER BID OPENING OF INVITATION FOR BIDS NO. 421-84-64.

THE ABOVE INVITATION WAS ISSUED BY THE SUPPLY OFFICER, UNITED STATES NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, FOR THE PROCUREMENT OF AN AMPLITUDE PROBABILITY DENSITY ANALYZER SYSTEM. BIDS WERE OPENED ON APRIL 20, 1964, AND THREE BIDDERS QUOTED PRICES AS FOLLOWS:

SPEAR, INCORPORATED $17,235 WITH AN ALTERNATE

BID OF $16,675

GULTON INDUSTRIES,

INCORPORATED $24,920

QUAN-TECH LABORATORIES, INC. $32,650 PARAGRAPH 1.1 OF THE SPECIFICATIONS OF THIS INVITATION PROVIDED:

"1.1 THE ANALYZER SPECIFIED HEREIN SHALL BE A TWO CHANNEL SOLID STATE UNIT CAPABLE OF PERFORMING THE ANALYSES AS SET FORTH IN SECTION 1.2. THE SYSTEM SHALL BE ABLE TO ANALYZE INPUT DATA, FROM A LABORATORY TYPE CONTINUOUS LOOP TAPE RECORDER, WITH A FREQUENCY RANGE OF DC TO 20,000 CPS, WITH A THRESHOLD LEVEL OF PLUS OR MINUS 6.00 SIGMA. THE SYSTEM SHALL HAVE A FIXED WINDOW WHICH CAN BE SWEPT THROUGH THE ENTIRE INPUT AMPLITUDE RANGE.'

SECTION 1.2 OF THE SPECIFICATIONS DID NOT SPECIFICALLY STATE THAT SEPARATE CONTROLS AND OUTPUTS WOULD BE REQUIRED FOR EACH CHANNEL. PARAGRAPH 1.2.12, OF THE SPECIFICATIONS UNDER "OUTPUT FUNCTIONS" PROVIDED FOR A JOINT RAYLEIGH DISTRIBUTION. PARAGRAPH 7.1 OF THE SPECIFICATIONS PROVIDED THAT THE ANALYZER SYSTEM SHOULD BE MOUNTED IN A STANDARD RACK IN ACCORDANCE WITH THE STATED DIMENSIONS.

A TECHNICAL EVALUATION BY NAVY OF THE LITERATURE ACCOMPANYING YOUR BID INDICATED THAT YOU PROPOSED TO FURNISH AN ANALYZER WHICH CONTAINED A SINGLE OUTPUT FOR THE DUAL CHANNELS. IN CONNECTION WITH THE RACKS REQUIRED BY PARAGRAPH 7.1 OF THE SPECIFICATIONS THE LITERATURE ACCOMPANYING YOUR BID STATED AS FOLLOWS:

"THE PANELS WILL BE DELIVERED WITH MODULES ATTACHED FOR IMMEDIATE RACK MOUNTING (RACK OR CABINET IS NOT NORMALLY SUPPLIED). MODULE INTERCONNECTING CABLES WILL BE KEYED TO PREVENT INTERCONNECTION ERROR. ALL CABLING ENTERS THE REAR OF THE MODULES. CABLES TO HP COUNTER AND PRINTER WILL ALSO BE INCLUDED.'

PURSUANT TO THIS EVALUATION OF YOUR BID IT WAS INITIALLY DETERMINED BY NAVY THAT YOUR BID WAS NONRESPONSIVE. AFTER BEING SO ADVISED BY THE NAVY, YOU OFFERED TO TECHNICALLY CHANGE YOUR BID FOR A CORRESPONDING INCREASE IN PRICE WHICH THE CONTRACTING OFFICER REFUSED TO ACCEPT. NAVY ADVISES THAT THE LETTER OFFERING YOUR TECHNICAL CHANGES WAS PLACED IN SAFEKEEPING, THAT THE CONTRACTING OFFICER WAS THE ONLY ONE WHO READ THE LETTER AND THAT THE CONTENTS OF THE LETTER WERE NOT REVEALED TO OTHER BIDDERS. THIS LETTER WAS LATER RETURNED TO YOU. WE ARE ADVISED THAT AFTER BID OPENING THE NAVAL AIR TEST CENTER DETERMINED THAT THE JOINT RAYLEIGH DISTRIBUTION SPECIFIED UNDER INVITATION FOR BIDS NO. 421-84-64 WAS NO LONGER REQUIRED. IN THESE CIRCUMSTANCES NAVY DETERMINED THAT INVITATION FOR BIDS NO. 421-84 -64 SHOULD BE CANCELLED AND THE PROCUREMENT READVERTISED UTILIZING AMENDED SPECIFICATIONS CLARIFYING THE REQUIREMENT FOR SEPARATE CONTROLS AND OUTPUTS FOR EACH CHANNEL AND ELIMINATING THE JOINT RAYLEIGH DISTRIBUTION REQUIREMENT.

ON MAY 22, 1964, THE SUPPLY OFFICER, UNITED STATES NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, ISSUED INVITATION FOR BIDS NO. 421 116-64 FOR THE PROCUREMENT OF THE AMPLITUDE PROBABILITY DENSITY ANALYZER SYSTEM. BIDS WERE OPENED ON JUNE 8, 1964, AND THE FOLLOWING PRICES WERE QUOTED IN THE BIDS RECEIVED:

TABLE

GULTON INDUSTRIES, INC. $19,200

SPEAR, INCORPORATED $20,900

SPEAR, INCORPORATED

ALTERNATE BID $20,900

THE SPECIFICATIONS FOR THE LATER INVITATION CLEARLY ADVISED BIDDERS THAT THE ANALYZER SHOULD BE A TWO CHANNEL SOLID STATE UNIT WITH SEPARATE CONTROLS AND OUTPUTS FOR EACH CHANNEL AND ELIMINATED THE REFERENCE TO A JOINT RAYLEIGH DISTRIBUTION. THE LITERATURE ACCOMPANYING YOUR BID UNDER THIS INVITATION CLEARLY MET THE REQUIREMENT FOR RACKS SET OUT AT PARAGRAPH 7.1 OF THE SPECIFICATIONS. ON JUNE 9, 1964, YOU PROTESTED THE CANCELLATION OF INVITATION FOR BIDS NO. 421-84-64, TO OUR OFFICE, AND BY LETTER DATED JUNE 13, 1964, YOU REQUESTED THAT THIS PROCUREMENT BE INVESTIGATED BY OUR OFFICE.

THE LITERATURE ACCOMPANYING YOUR BID UNDER INVITATION FOR BIDS NO. 421-84 -64 INDICATES THE ANALYZER WHICH YOU OFFERED TO THE NAVY UNDER INVITATION FOR BIDS NO. 421-84-64 DID NOT MEET THE NAVY'S REQUIREMENTS FOR A DUAL CHANNEL ANALYZER WITH SEPARATE CONTROLS AND OUTPUTS FOR EACH CHANNEL. REVIEW OF PARAGRAPH 1.1 OF THE SPECIFICATIONS UNDER INVITATION FOR BIDS NO. 421-84-64 INDICATES THAT THESE SPECIFICATIONS ARE SUSCEPTIBLE OF THE CONSTRUCTION THAT THERE IS NO REQUIREMENT FOR SEPARATE CONTROLS AND OUTPUTS FOR EACH OF THE CHANNELS AND THE SPECIFICATIONS WERE IN FACT SO CONSTRUED BY YOU, A BIDDER COGNIZANT OF THE TECHNICAL ASPECTS OF THIS PROCUREMENT. WE THINK THIS EMPHASIZES THAT THESE SPECIFICATIONS WERE AMBIGUOUS OR INADEQUATE REGARDING THE REQUIREMENT FOR AN ANALYZER WITH A DUAL CHANNEL SYSTEM WITH SEPARATE CONTROLS AND OUTPUTS FOR EACH CHANNEL. THEREFORE, WE CONSIDER THE ACTION OF THE PROCURING AGENCY IN THIS MATTER TO BE CONSISTENT WITH ARMED SERVICES PROCUREMENT REGULATION SEC. 2-404.1 (B) (I) WHICH PROVIDES FOR THE CANCELLATION OF AN INVITATION AFTER BID OPENING IF INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION. SEEB-147465, DECEMBER 12, 1961.

SO FAR AS CONCERNS THE POSSIBILITY OF ANY AWARD TO YOUR FIRM ON THE BASIS OF THE DESIGN CHANGES OFFERED AFTER BIDS UNDER THE EARLIER INVITATION HAD BEEN OPENED, IT IS AXIOMATIC THAT A BID MAY NOT BE CHANGED AFTER OPENING TO CONFORM TO THE SPECIFICATIONS. UNITED STATES V. ELLICOTT, 223 U.S. 524 (1911); SEE ALSO, 17 COMP. GEN. 554.