B-155034, MAR. 5, 1965, 44 COMP. GEN. 529

B-155034, MAR. 5, 1965, 44 COMP. GEN. 529

CONTRACTS - SPECIFICATIONS - DEVIATIONS - PERMITTED UNDER INVITATION THE AWARD OF A CONTRACT FOR TECHNICAL EQUIPMENT TO A BIDDER WHOSE BID LIKE ALL OF THE OTHER BIDS RECEIVED DEVIATED FROM THE SPECIFICATIONS UNDER AN INVITATION WHICH PROVIDED THAT IF THE ITEM OFFERED DID NOT MEET THE SPECIFICATIONS, THE BIDDER MUST STATE THE DEVIATION OR MEET ALL THE SPECIFICATION REQUIREMENTS, BUT DID NOT ADVISE BIDDERS HOW POINTS OF NONCOMPLIANCE WOULD BE EVALUATED OR WHETHER CERTAIN DEVIATIONS WOULD CAUSE REJECTION, IS AN AWARD ON THE BASIS OF THE PARTICULAR FEATURES OF THE SUCCESSFUL BIDDER'S OWN EQUIPMENT RATHER THAN ON A COMMON BASIS IN COMPLIANCE WITH THE SPECIFICATIONS AND, THEREFORE, SUCH AN AWARD IS IMPROPER.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, MARCH 5, 1965:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8, 1965, AND ENCLOSURES, IN RESPONSE TO OUR REQUEST OF JANUARY 25, 1965, FOR A REPORT CONCERNING THE PROTEST OF PACKARD INSTRUMENT COMPANY, INC., UNDER INVITATION FOR BIDS (IFB) NO. 65-28.

THE SUBJECT IFB, ISSUED DECEMBER 16, 1964, CALLED FOR BIDS ON FURNISHING A LIQUID SCINTILLATION SPECTROMETER FOR THE VETERANS ADMINISTRATION HOSPITAL, BEDFORD, MASSACHUSETTS. THIS WAS A READVERTISEMENT OF THE REQUIREMENT, WHICH HAD ORIGINALLY BEEN ADVERTISED UNDER IFB NO. 64-39. AWARD OF A CONTRACT TO ANS, INC., UNDER THE ORIGINAL IFB WAS THE SUBJECT OF OUR DECISION OF NOVEMBER 24, 1964, B-155034, 44 COMP. GEN. 302, WHEREIN IT WAS HELD THAT SUCH AWARD WAS VOID AB INITIO AS THE OFFERED PRODUCT WAS NEITHER THE "BRAND NAME" SPECIFIED NOR THE "EQUAL" THEREOF UNDER THE SPECIFICATIONS AND APPLICABLE REGULATION. IN THE COURSE OF OUR DECISION, WE ALSO MADE THE OBSERVATION THAT BECAUSE THE "BRAND NAME OR EQUAL" SPECIFICATIONS WENT FAR BEYOND A GENERALIZED REFERENCE TO THE DESIGN FEATURES OF THE BRAND NAME PRODUCT, WHEN IT APPEARED THAT SUCH SPECIFIED FEATURES WERE NOT ESSENTIAL TO SATISFY THE NEEDS OF THE GOVERNMENT, SUCH SPECIFICATIONS MAY WELL BE RESTRICTIVE AND PRECLUDE THE FULL AND FREE COMPETITION, CONSISTENT WITH THE NEEDS OF THE GOVERNMENT, REQUIRED BY 41 U.S.C. 253 (A). WE THEREFORE SUGGESTED THAT, SINCE IT APPEARED THAT THE NEEDS OF THE GOVERNMENT COULD BE MET BY EQUIPMENT WITH SPECIFICATIONS OTHER THAN AS ORIGINALLY ADVERTISED, ANY READVERTISEMENT SHOULD INCLUDE SPECIFICATIONS WHICH REFLECTED ONLY THE ACTUAL NEEDS OF THE AGENCY AND WHICH WOULD PERMIT FULL AND FREE COMPETITION.

AS AMENDED AND INCLUDED IN THE PRESENT IFB THE SPECIFICATIONS CALL FOR A THREE CHANNEL AUTOMATIC LIQUID SCINTILLATION SPECTROMETER WITHOUT REFERENCE TO A "BRAND NAME OR EQUAL" PRODUCT. THEY ARE PRIMARILY PERFORMANCE-TYPE SPECIFICATIONS, WITH CERTAIN DESIGN FEATURES SPECIFIED. AS UNDER THE ORIGINAL IFB, BIDS WERE SUBMITTED BY THREE COMPANIES AS FOLLOWS:

TABLE

ANS, INC. $13,633 ($13,770 LESS 1 PERCENT PROMPT

PAYMENT DISCOUNT)

PACKARD 13,675

NUCLEAR - CHICAGO 13,813

BOTH PACKARD AND NUCLEAR SUBMITTED INFORMATION WITH THEIR BIDS INDICATING THAT THEIR RESPECTIVE PRODUCTS DID NOT CONFORM TO THE SPECIFICATIONS IN ALL RESPECTS. THE COVER LETTER WITH THE ANS BID STATED THAT IT WAS OFFERING ITS MODEL 1300 WHICH FULLY CONFORMED TO ALL SPECIFICATIONS. APPARENTLY DESCRIPTIVE LITERATURE WAS NEITHER REQUIRED BY THE IFB NOR SUBMITTED BY ANY OF THE BIDDERS. THE CONTRACTING OFFICER DETERMINED THAT PACKARD WAS NONRESPONSIVE BECAUSE IT DID NOT MEET THE SPECIFICATIONS; THAT NUCLEAR WAS NONRESPONSIVE BECAUSE IT DID NOT MEET EITHER THE SPECIFICATIONS OR DELIVERY REQUIREMENTS; AND THAT ANS WAS NONRESPONSIVE FOR FAILURE TO COMPLY WITH DELIVERY REQUIREMENTS. HOWEVER, SINCE THE ANS BID IS LOW AND SPECIAL CONDITION NO. 2 OF THE IFB PROVIDES THAT WHERE NO OTHER RESPONSIVE BID IS RECEIVED AWARD MAY BE MADE TO AN OTHERWISE RESPONSIVE BIDDER OFFERING A DIFFERENT DELIVERY DATE, IT IS PROPOSED THAT AWARD BE MADE TO ANS.

PRIOR TO BID OPENING, IN A LETTER DATED JANUARY 2, 1965, TO YOUR AGENCY FROM THE ATTORNEYS FOR PACKARD, PROTEST TO THE SPECIFICATIONS WAS LODGED. IN THAT LETTER, AND IN SUBSEQUENT CORRESPONDENCE TO OUR OFFICE, IT IS CLAIMED THAT THE SPECIFICATIONS IN THE SUBJECT IFB ARE SUCH AS TO "PRECLUDE FULLY AND LITERALLY RESPONSIVE BIDDING BY ANY POTENTIAL SUPPLIER," AND THAT CERTAIN OF THE SPECIFICATIONS OF THE ORIGINAL IFB WHICH ANS COULD NOT SATISFY HAVE NOW BEEN OMITTED AND OTHERS ADDED WHICH ONLY ANS CAN MEET. FURTHERMORE, IT IS ALLEGED THAT THE SPECIFICATIONS DO NOT REFLECT THE "PRESENT, ACTUAL AND ESSENTIAL REQUIREMENTS" OF THE HOSPITAL AS THEY "ADD DETAILS AND RESTRICTIONS TOTALLY ABSENT FROM THE ORIGINAL INVITATION WHICH DEFINED THE ESSENTIAL REQUIREMENTS OF THE HOSPITAL.'

WHILE IT APPEARS TO US FROM THE PRESENT RECORD THAT NONE OF THE THREE BIDS RECEIVED IN RESPONSE TO THIS IFB OFFERED A PRODUCT FULLY COMPLYING WITH THE SPECIFICATIONS, WE DO NOT THINK PACKARD HAS SUBSTANTIATED ITS CHARGE THAT THE SPECIFICATIONS ARE SUCH AS TO PRECLUDE ANY POTENTIAL SUPPLIER FROM SO DOING. APPARENTLY ALL THREE BIDDERS ARE OFFERING THEIR STANDARD PRODUCTION MODEL, NONE OF WHICH MEETS ALL THE SPECIFICATIONS CALLED FOR. WHILE THIS FACT INDICATES THAT THE BIDDERS ARE UNWILLING TO MEET THE STATED REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEED, WE DO NOT THINK THIS ALONE IS SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. THE CHARGE THAT THE SPECIFICATIONS HAVE BEEN WRITTEN SO AS TO FAVOR ANS AND TO DISCRIMINATE AGAINST PACKARD HAS BEEN DENIED BY THOSE CONNECTED WITH THIS PROCUREMENT. WE DO NOT THINK THE ARGUMENT ADVANCED BY PACKARD IN SUPPORT OF THIS ALLEGATION IS THE ONLY, OR NECESSARILY LOGICAL, CONCLUSION TO BE REACHED FROM THE FACT, ASSUMING IT TO BE TRUE, THAT CERTAIN OF THE ORIGINAL SPECIFICATIONS WHICH ANS COULD NOT AND DID NOT MEET HAVE NOW BEEN OMITTED AND OTHERS WHICH IS ALONE CAN MEET HAVE BEEN ADDED. WE HAVE NO ADEQUATE REASON TO QUESTION THE CORRECTNESS OF THE ADMINISTRATIVE EXPLANATION, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, THAT THE DIFFERENCES RESULT FROM A REEVALUATION OF THE HOSPITAL'S NEEDS, AND REFLECT THE "ACTUAL AND ESSENTIAL NEEDS" AS OF THE DATE OF ISSUANCE OF THE IFB.

ALTHOUGH WE FIND NO VALID BASIS IN THE PACKARD PROTEST FOR OUR OFFICE TO OBJECT TO THE SPECIFICATIONS OF THIS IFB, WE MUST OBJECT TO THE AWARD OF A CONTRACT TO ANS SINCE WE DO NOT BELIEVE THAT THE ANS BID WAS RESPONSIVE TO THE SPECIFICATION REQUIREMENTS. IN THIS CONNECTION, WE REFER TO THE MEMORANDUM OF JANUARY 18, 1965, FROM THE ASSOCIATE CHIEF OF STAFF, DR. CHARLES G. COLBURN, TO THE SUPPLY OFFICER OF THE HOSPITAL. IN REPLYING TO PACKARD'S ASSERTION IN ITS LETTER OF JANUARY 2, 1965, THAT THE FAILURE OF ITS MACHINE TO PROVIDE AUTOMATIC BACKGROUND SUBTRACTION WHICH OPERATES ON PRESET COUNT IS "TRIVIAL," DR. COLBURN STATED,"I DO NOT CONSIDER THE FAILURE OF PACKARD TO OFFER AUTOMATIC BACKGROUND SUBTRACTION ON PRESET COUNT "TRIVIAL" NOR DO I FEEL THAT FAILURE OF ANS TO OFFER CALCULATION OF COUNTS PER MINUTE IN THIS MODE OF OPERATION TRIVIAL.' THE DOCTOR CONTINUES,"WE FELT THAT AUTOMATIC BACKGROUND SUBTRACTION WAS MORE IMPORTANT THAN CALCULATION OF COUNTS PER MINUTE, AND PAR. 4 OF THE SPECIFICATIONS STATES CLEARLY "PRINTED DATA PRESENTATION TO INCLUDE SAMPLE NUMBER, COUNTS PER MINUTE OR SECOND AS REQUIRED (OR TIME AND COUNT IF PRESET COUNT) * * *.' THUS ANS CAN MEET THESE SPECIFICATIONS.' UNLESS WE HAVE FAILED TO GRASP THE IMPORT OF WHAT THE DOCTOR IS SAYING, IT APPEARS THAT, WHILE HE CONCEDES BOTH THE PACKARD AND ANS MACHINES HAVE MATERIAL DEVIATIONS FROM THE SPECIFICATIONS, HE BELIEVES THE DEVIATION IN THE ANS MACHINE SHOULD BE WAIVED AS A DEVIATION WITH RESPECT TO A RELATIVELY LESS IMPORTANT REQUIREMENT OF THE SPECIFICATION. IN ADDITION, THE DOCTOR AGREES WITH PACKARD'S CLAIM THAT THE ANS MACHINE DOES NOT CORRECTLY LOCATE THE DECIMAL POINT IN THE SAMPLE NUMBER AS REQUIRED BY PARAGRAPH 4 OF THE INSTRUMENT FEATURES, BUT STATES THIS IS MEANINGLESS.

WHILE OUR OFFICE HAS CONSISTENTLY HELD THAT A DEVIATION FROM THE SPECIFICATIONS MAY BE WAIVED WHERE THE DEVIATION PROPOSED TO BE WAIVED DOES NOT GO TO THE SUBSTANCE OF THE BID SO AS TO AFFECT EITHER THE PRICE, QUANTITY, OR QUALITY OF THE ARTICLE OFFERED AND IS NOT THEREFORE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, 30 COMP. GEN. 179, WE FAIL TO SEE HOW THE DEVIATIONS IN THE ANS MACHINE DISCUSSED ABOVE ARE ANY LESS OF A SUBSTANTIVE NATURE THAN SIMILAR DEVIATIONS IN THE PACKARD MACHINE. CERTAINLY NOTHING IN THE INVITATION INDICATES THAT ONE OR THE OTHER SPECIFICATION REQUIREMENTS IS OF GREATER OR LESSER IMPORTANCE. TO THE CONTRARY, SPECIAL CONDITION NO. 6 STATES AS FOLLOWS:

COMPLIANCE WITH SPECIFICATIONS: VENDORS SUBMITTING BIDS WILL BE AN INDICATION THAT THE EQUIPMENT OFFERED WILL COMPLY IN EVERY RESPECT WITH THE TERMS OF THIS INVITATION. IN THE EVENT THE EQUIPMENT OFFERED DOES NOT COMPLY WITH THE SPECIFICATIONS, THE BIDDER SHALL STATE DEFINITELY, REFERRING TO THE PROPER PARAGRAPH, WHEREIN THE EQUIPMENT HE PROPOSES TO FURNISH DOES NOT COMPLY. WHEN NO STATEMENT OF EXCEPTION IS RECEIVED, THE SUCCESSFUL BIDDER SHALL BE REQUIRED TO MEET EVERY REQUIREMENT OF THE SPECIFICATION.

IN VIEW OF THIS PROVISION, FURTHER DOUBT IS CAST UPON THE PROPRIETY OF AN AWARD TO ANS. ALTHOUGH THE BID SUBMITTED BY ANS STATED THAT ITS MACHINE FULLY COMPLIED WITH THE SPECIFICATIONS, IT IS CLEAR THAT DR. COLBURN HAS KNOWLEDGE THAT THIS IS NOT LITERALLY TRUE. SINCE THE GOVERNMENT IS THEREFORE ON NOTICE THAT THE EQUIPMENT OFFERED DOES NOT COMPLY IN EVERY RESPECT WITH THE SPECIFICATIONS, IT IS HIGHLY QUESTIONABLE WHETHER ANS WOULD BE BOUND TO "MEET EVERY REQUIREMENT OF THE SPECIFICATION," ANY MORE THAN OTHER BIDDERS WHO SUBMITTED STATEMENTS OF EXCEPTION IN ACCORDANCE WITH THE ABOVE-QUOTED PROVISION.

FURTHERMORE, THIS PROVISION MAY WELL BE VIOLATIVE OF A FUNDAMENTAL OF THE COMPETITIVE BIDDING STATUTE (41 U.S.C. 253) THAT THE INVITATION MUST BE SUFFICIENTLY DEFINITE TO PERMIT THE PREPARATION AND INVITATION OF BIDS ON A COMMON BASIS. WHILE IT WAS PROPER FOR THE PROCURING ACTIVITY TO INCLUDE THE REQUIREMENT OF THIS PROVISION IN THE INVITATION TO ENABLE IT TO DETERMINE WHETHER THE EQUIPMENT OFFERED MET THE SPECIFICATIONS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH, FAILURE EITHER TO ADHERE STRICTLY TO ITS REQUIREMENTS OR TO ADVISE BIDDERS OF THE BASIS UPON WHICH PARTICULAR POINTS OF NONCOMPLIANCE WOULD BE EVALUATED, OR WHETHER PARTICULAR DEVIATIONS FROM CERTAIN SPECIFICATIONS WOULD RESULT IN REJECTION OF THEIR BID WOULD, IN EFFECT, PERMIT BIDDERS TO DRAFT THEIR OWN SPECIFICATIONS FROM WHICH THE CONTRACTING OFFICER COULD SELECT THE EQUIPMENT CONSIDERED MOST PREFERABLE. SUCH PROCEDURE, WHICH APPEARS TO BE THE ONLY BASIS FOR THE PROPOSED AWARD, WOULD PERMIT EACH BIDDER TO BID ON THE BASIS OF, AND TO HAVE HIS BID EVALUATED ON, THE PARTICULAR FEATURES OF HIS OWN MACHINE RATHER THAN ON A COMMON BASIS IN STRICT COMPLIANCE WITH THE SPECIFICATIONS. SEE 43 COMP. GEN. 544.

ACCORDINGLY, WE MUST CONCLUDE THAT AWARD MAY NOT PROPERLY BE MADE ON THE BASIS OF THE BIDS RECEIVED.