B-154595, AUG. 31, 1964

B-154595, AUG. 31, 1964

TO ELDEMA CORPORATION:

WE REFER TO YOUR LETTER DATED JUNE 25, 1964, PROTESTING THE DENIAL OF AN AWARD OF A CONTRACT TO YOU UNDER INVITATION FOR BIDS NO 163/SUC 46-6646, ISSUED ON MARCH 6, 1964, BY THE DEPARTMENT OF THE NAVY, U.S. NAVAL AVIONICS FACILITY, INDIANAPOLIS, INDIANA. THE INVITATION SOLICITED BIDS FOR NINE LINE ITEMS, CONSISTING OF SIX ITEMS OF LAMP SOCKETS AND THREE ITEMS OF LAMPS AND SOCKETS WITH PURCHASE DESCRIPTION OF TRANSISTOR ELECTRONICS CORPORATION PART NUMBERS OR EQUAL.

THREE BIDS WERE RECEIVED FROM PROSPECTIVE SUPPLIERS. THE AWARD OF CONTRACT NO. N163-12272/X) WAS MADE ON APRIL 3, 1964, TO THE DIALIGHT CORPORATION, BROOKLYN, NEW YORK. ADMINISTRATIVE REJECTION OF YOUR BID WAS BASED UPON THE BELIEF THAT IT WAS NOT RESPONSIVE TO THE INVITATION.

THE THREE BIDS RECEIVED IN RESPONSE TO THE INVITATION FOR BIDS, WHICH WERE OPENED ON MARCH 16, 1964, WERE AS FOLLOWS:

TABLE

ITEM NO. TRANSISTOR ELDEMA DIALIGHT

1 $1.05 $0.805 $0.95

2 1.05 .805 .95

3 1.05 .805 .95

4 1.05 .805 .95

5 1.05 .805 .95

6 1.05 .805 .95

7 .97 .83 $0.75* .96

8 .97 .83 .75 .96

9 .97 .83 .75 .96 AMOUNTS $3,765.00 $3,016.00

$3,530.00

(*) ALTERNATE BIDS SUBMITTED BY ELDEMA.

YOUR BIDS UNDER THE INVITATION FOR BIDS OFFER YOUR PART NUMBERS FOR EACH LINE ITEM AND SECOND ALTERNATE PART NUMBERS FOR ITEMS 7, 8, AND 9. ADDITION, YOU ADDED THE FOLLOWING ,CLARIFICATIONS" ON PAGE 3 OF THE CONTINUATION SHEET OF YOUR BID.

"ITEMS 1 TO 6: ALL REQUIREMENTS ARE MET EXCEPT THAT THE SOLDER LUG TERMINALS ON THE ELDEMA ITEMS WILL BE THE SAME AS FURNISHED ON MS25256 TYPE INDICATORS.

"ITEMS 7 TO 9: THE ELDEMA GGD1B ITEMS PROPOSED WILL BE IDENTICAL TO THE UNITS SPECIFIED EXCEPT THE TERMINALS WILL BE OF THE TURRET PIN TYPE. THE ELDEMA EG09 TYPE SECOND ALTERNATE IS 3/8-INCH IN DIAMETER AND IS SHOWN ON PAGE 2 OF THE ENCLOSED E-LITE CATALOG.

"NOTE: ALL ELDEMA UNITS ARE IDENTICAL IN FRONT OF THE PANEL APPEARANCE AND ARE COMPLETELY PHYSICALLY AND FUNCTIONALLY INTERCHANGEABLE WITH ITEMS SPECIFIED.

"SAMPLES WILL BE PROVIDED UPON REQUEST WITH DRAWINGS.'

YOUR BID WAS ACCOMPANIED WITH A COPY OF THE E-LITE CATALOG NO. E-9 63 WHICH DESCRIBED ONLY THE ITEMS OFFERED AS SECOND ALTERNATE BIDS ON ITEMS 7, 8, AND 9. ON MARCH 17, 1964, YOUR BID TOGETHER WITH THIS CATALOG WAS FORWARDED TO TECHNICAL PERSONNEL FOR A DETERMINATION AS TO WHETHER THE PROPOSED PRODUCTS MET THE REQUIREMENTS OF THE INVITATION FOR BIDS. MARCH 30, 1964, THE TECHNICAL PEOPLE AT THE FACILITY DETERMINED THAT BASED UPON THE DESCRIPTIVE LITERATURE FURNISHED DESCRIBING THE "E-LITES" OFFERED AS SECOND ALTERNATES FOR ITEMS 7, 8, AND 9, THEY WERE NOT EQUAL, INASMUCH AS THEY HAVE NO PROVISION FOR LAMP REPLACEMENT.

WITH RESPECT TO THE "R-LITES" OFFERED AS FIRST ALTERNATES, ITEMS 1 THROUGH 9, IT IS REPORTED THAT YOU FAILED TO FURNISH ANY DESCRIPTIVE LITERATURE DESCRIBING THESE ITEMS, NOR WAS SUCH INFORMATION READILY AVAILABLE AT THE FACILITY PRIOR TO BID OPENING. CONSEQUENTLY, THE CONTRACTING OFFICER WAS UNABLE TO DETERMINE THAT THESE PRODUCTS MET THE REQUIREMENTS OF THE INVITATION FOR BIDS. ALTHOUGH THE RECORD SHOWS THAT AFTER THE CONTRACT WAS AWARDED YOU FURNISHED YOUR BULLETIN R101 WHICH ESTABLISHED THAT THE PRODUCTS YOU PROPOSED TO FURNISH MET THE REQUIREMENT OF THE INVITATION FOR BIDS, WE CANNOT CONCLUDE THAT THE AWARD OF THE CONTRACT TO DIALIGHT WAS ILLEGAL.

WE HAVE CONSISTENTLY TAKEN THE POSITION THAT AN INVITATION FOR BIDS MAY REQUIRE BIDDERS TO SUBMIT DESCRIPTIVE LITERATURE SHOWING THAT THEIR PROPOSALS CONFORM TO SPECIFICATIONS WHEN IT APPEARS THAT SUCH A REQUIREMENT IS ESSENTIAL FOR A PROPER DETERMINATION AS TO THE RESPONSIVENESS OF BIDS. SEE 36 COMP. GEN. 415. IN THIS CASE THE INVITATION EXPRESSLY PROVIDES THAT A BIDDER MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIAL NECESSARY FOR THE PURCHASING ACTIVITY TO DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS. THIS PROVISION WAS INCORPORATED IN THE INVITATION FOR THE PRIME PURPOSE OF ESTABLISHING EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. IN THE CIRCUMSTANCES, IT IS OUR OPINION THAT SINCE YOU FAILED TO FURNISH DESCRIPTIVE LITERATURE YOUR BID WAS NOT RESPONSIVE TO THE INVITATION AND THAT IT WOULD NOT HAVE BEEN PROPER FOR THE DEPARTMENT OF THE NAVY TO ACCEPT THE BID.

THE FAILURE OF A BIDDER TO COMPLY WITH THE MANDATORY REQUIREMENTS OF AN INVITATION FOR BIDS ISSUED BY A GOVERNMENT AGENCY CANNOT BE WAIVED SINCE SUCH ACTION WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS AND IT IS IN THE PUBLIC INTEREST TO MAINTAIN THE RULES OF FORMAL COMPETITIVE PROCUREMENT RATHER THAN TO OBTAIN A PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461, 463; CITY OF CHICAGO V. MOHR, 74 N.E. 1056.