B-154586, OCT. 7, 1964

B-154586: Oct 7, 1964

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 25. THE ABOVE PROCUREMENT WAS A TOTAL SET-ASIDE FOR SMALL BUSINESS CONCERNS AND BIDS WERE REQUESTED FOR FURNISHING THREE RANDOM SEQUENTIAL CORE MEMORIES IN ACCORDANCE WITH SPECIFICATIONS CONTAINED IN THE INVITATION. BIDS WERE SOLICITED FROM 37 FIRMS AND FOUR RESPONDED. 370 WAS LOW. AFTER A TECHNICAL EVALUATION IT WAS CONCLUDED THAT NEITHER YOUR BID NOR THAT OF THE SECOND LOW BIDDER WAS RESPONSIVE TO THE INVITATION. AWARD WAS THEREFORE MADE ON JUNE 23. YOU HAVE PROTESTED THE ABOVE AWARD ON THE GROUND THAT COMPUTER CONTROL COMPANY IS LISTED AS LARGE BUSINESS IN THE JANUARY 1964 EDITION OF STANDARD AND POOR-S. YOU ALLEGE FURTHER THAT YOUR BID WAS REJECTED ON A MINOR TECHNICAL POINT.

B-154586, OCT. 7, 1964

TO DECISIONAL CONTROL ASSOCIATES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 25, 1964, PROTESTING AWARD TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. L-4450, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, HAMPTON, VIRGINIA.

THE ABOVE PROCUREMENT WAS A TOTAL SET-ASIDE FOR SMALL BUSINESS CONCERNS AND BIDS WERE REQUESTED FOR FURNISHING THREE RANDOM SEQUENTIAL CORE MEMORIES IN ACCORDANCE WITH SPECIFICATIONS CONTAINED IN THE INVITATION. BIDS WERE SOLICITED FROM 37 FIRMS AND FOUR RESPONDED. YOUR BID IN THE TOTAL AMOUNT OF $56,370 WAS LOW. HOWEVER, AFTER A TECHNICAL EVALUATION IT WAS CONCLUDED THAT NEITHER YOUR BID NOR THAT OF THE SECOND LOW BIDDER WAS RESPONSIVE TO THE INVITATION, AND AWARD WAS THEREFORE MADE ON JUNE 23, 1964, TO COMPUTER CONTROL COMPANY, INC., THE THIRD LOW BIDDER, IN THE AMOUNT OF $63,855.

YOU HAVE PROTESTED THE ABOVE AWARD ON THE GROUND THAT COMPUTER CONTROL COMPANY IS LISTED AS LARGE BUSINESS IN THE JANUARY 1964 EDITION OF STANDARD AND POOR-S, AND THEREFORE DOES NOT QUALIFY AS SMALL BUSINESS UNDER THE CONDITIONS OF THE BID. YOU ALLEGE FURTHER THAT YOUR BID WAS REJECTED ON A MINOR TECHNICAL POINT, THAT YOU FELT THE VARIANCE WAS IN THE BEST INTEREST OF THE GOVERNMENT, AND THAT EVIDENCE OF THE MINOR NATURE OF THE VARIATION IS THE COST OF CORRECTING SAME, WHICH YOU STATE WOULD BE ONLY $1,200.

THE RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY THAT OF THE ADMINISTRATIVE AGENCIES. IN ORDER TO RECEIVE CONSIDERATION A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE TERMS OF THE INVITATION. THE PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRES THAT ALL BIDDERS BE ON AN EQUAL BASIS AND WHILE THE CONTRACTING OFFICER MAY WAIVE MINOR INFORMALITIES OR IRREGULARITIES, HE MAY NOT PERMIT A BIDDER TO CURE DEFICIENCIES WHICH AFFECT PRICE, QUANTITY OR QUALITY, OR WHICH OTHERWISE GO TO THE SUBSTANCE OF THE BID AS DISTINGUISHED FROM THE FORM. 37 COMP. GEN. 763; 30 ID. 179; 17 ID. 554. IT WAS DETERMINED BY THE PROCURING AGENCY IN THIS CASE THAT YOUR BID TOOK EXCEPTION ON TWO MAJOR REQUIREMENTS OF THE SPECIFICATION, IN THAT CLAMPED VOLTAGE POWER SUPPLY WOULD NOT BE FURNISHED, ALTHOUGH SPECIFICALLY REQUIRED BY THE TERMS OF THE INVITATION, AND IN THAT THE POWER SUPPLY LINE FREQUENCY LIMITS STATED IN YOUR BID WERE 60 PLUS OR MINUS 1 CYCLES PER SECOND COMPARED TO THE SPECIFICATION REQUIREMENT OF 48 TO 63 CYCLES PER SECOND. SINCE YOU ADMIT THAT YOUR BID TOOK EXCEPTION TO THE SPECIFICATIONS, AND SINCE NO EVIDENCE HAS BEEN PRESENTED ESTABLISHING THAT THE REQUIREMENTS TO WHICH YOU TOOK EXCEPTION WERE NOT MATERIAL, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE DETERMINATION THAT YOUR BID WAS NONRESPONSIVE.

AS TO THE SMALL BUSINESS STATUS OF COMPUTER CONTROL COMPANY, IT WAS PROVIDED AT PAGE 7 OF THE INVITATION THAT A MANUFACTURING CONCERN WITH NOT MORE THAN 1000 EMPLOYEES WOULD BE CONSIDERED A SMALL BUSINESS CONCERN IN THIS PROCUREMENT. THE NASA PROCUREMENT REGULATION NPO400, PART 1, SECTION 1.703, PROVIDES THAT ANY "RESPONSIVE" BIDDER OR OFFEROR MAY,"PRIOR TO AWARD," QUESTION THE SMALL BUSINESS STATUS OF THE APPARENTLY SUCCESSFUL BIDDER BY SENDING A WRITTEN PROTEST TO THE CONTRACTING OFFICER. THE REGULATION PROVIDES FURTHER THAT THE CONTRACTING OFFICER SHALL ACCEPT AT FACE VALUE FOR THE PARTICULAR PROCUREMENT INVOLVED A STATEMENT BY THE BIDDER OR OFFEROR THAT HE IS SMALL BUSINESS CONCERN, WHICH STATEMENT WAS FURNISHED IN THIS INSTANCE BY COMPUTER CONTROL COMPANY. SINCE YOU WERE FOUND BY THE CONTRACTING OFFICER TO BE NOT RESPONSIVE, YOU WERE NOT ELIGIBLE TO SUBMIT A SIZE PROTEST UNDER THE TERMS OF THE REGULATION, AND SINCE IT WAS NOT ADMITTED "PRIOR TO AWARD" IT COULD NOT HAVE BEEN CONSIDERED EVEN IF PROPER FOR SUBMISSION. IN ADDITION, WE FIND UPON EXAMINATION OF THE JANUARY 1964 EDITION OF POOR'S REGISTER OF CORPORATIONS, DIRECTORS AND EXECUTIVES, PUBLISHED BY STANDARD AND POOR'S CORPORATION, THAT COMPUTER CONTROL COMPANY IS LISTED AS HAVING 700 EMPLOYEES. IN THESE CIRCUMSTANCES, WE DO NOT FEEL THAT FURTHER INQUIRY INTO THE SIZE STATUS OF THAT FIRM IS REQUIRED.

FOR THE REASONS STATED, WE CONCLUDE THAT THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BID WAS FULLY JUSTIFIED AND THAT YOUR PROTEST MUST THEREFORE BE DENIED.