B-155699, FEB. 17, 1965

B-155699: Feb 17, 1965

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TO SCOPE INCORPORATED: REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 1. THE TWO BIDS WHICH WERE OPENED ON OCTOBER 20. WERE AS FOLLOWS: TABLE FIRM BID PRICE SCOPE INCORPORATED $18. 810 IT IS REPORTED BY THE ADMINISTRATIVE AGENCY THAT YOUR BID WAS CONSIDERED NONRESPONSIVE BECAUSE OF YOUR FAILURE TO CONFORM TO SPECIFICATIONS. THERE WERE SET OUT THE REQUIREMENTS FOR DESCRIPTIVE LITERATURE AND WHAT SUCH LITERATURE WAS REQUIRED TO SHOW. IT WAS PROVIDED THAT THE FAILURE OF THE DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATION AND OTHER REQUIREMENTS OF THE INVITATION "WILL REQUIRE REJECTION OF THE BID.'. THE RESULTS OF THIS EVALUATION ARE AS FOLLOWS: "SCOPE INCORPORATED PROPOSED A "TYPE TEST PROCEDURE" FOR CONSIDERATION AS COMPLIANCE WITH TEST PROCEDURES AND TEST DATA REQUIRED BY PARAGRAPH 4.1A OF THE EXHIBIT.

B-155699, FEB. 17, 1965

TO SCOPE INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 1, 1964, PROTESTING THE AWARD OF A CONTRACT TO THE SECOND LOWEST BIDDER BY THE DEPARTMENT OF THE AIR FORCE, AIR PROVING GROUND CENTER, EGLIN AIR FORCE BASE, FLORIDA, UNDER INVITATION FOR BIDS NO. 08-635-65-48. THE INVITATION SOLICITED BIDS FOR THREE "C" BAND RADAR TRANSPONDERS WITH AN EQUAL NUMBER OF OPERATION AND MAINTENANCE MANUALS, UNDER BID ITEMS 1 AND 2 OF THE INVITATION.

THE TWO BIDS WHICH WERE OPENED ON OCTOBER 20, 1964, WERE AS FOLLOWS:

TABLE

FIRM BID PRICE

SCOPE INCORPORATED $18,585

MOTOROLA, INC. 18,810

IT IS REPORTED BY THE ADMINISTRATIVE AGENCY THAT YOUR BID WAS CONSIDERED NONRESPONSIVE BECAUSE OF YOUR FAILURE TO CONFORM TO SPECIFICATIONS, AS REQUIRED BY THE DESCRIPTIVE LITERATURE CLAUSE OF THE INVITATION FOR BIDS. ON PAGE 11, PART "G" OF THE INVITATION, THERE WERE SET OUT THE REQUIREMENTS FOR DESCRIPTIVE LITERATURE AND WHAT SUCH LITERATURE WAS REQUIRED TO SHOW. IT WAS PROVIDED THAT THE FAILURE OF THE DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATION AND OTHER REQUIREMENTS OF THE INVITATION "WILL REQUIRE REJECTION OF THE BID.' IN THIS CASE YOU NEGLECTED TO PROVIDE ADEQUATE TEST DATA AS REQUIRED UNDER SECTION 4 OF THE SPECIFICATION.

IN AN ENDEAVOR TO AVOID REJECTION OF YOUR BID ON THE GROUNDS ABOVE STATED, THE CONTRACTING OFFICER SUBMITTED THE DESCRIPTIVE LITERATURE THAT YOU DID PROVIDE TO THE PROJECT ENGINEERS TO DETERMINE WHETHER THE MISSING TECHNICAL DATA COULD CONSTITUTE A MINOR DEVIATION TO THE SPECIFICATIONS AND POSSIBLY BE WAIVED.

THE RESULTS OF THIS EVALUATION ARE AS FOLLOWS:

"SCOPE INCORPORATED PROPOSED A "TYPE TEST PROCEDURE" FOR CONSIDERATION AS COMPLIANCE WITH TEST PROCEDURES AND TEST DATA REQUIRED BY PARAGRAPH 4.1A OF THE EXHIBIT. NO DATA IS INCLUDED IN THE PROPOSAL. THE MEASUREMENTS LISTED FOR PERFORMANCE OF THE "ELECTRICAL TYPE TEST," PARAGRAPH 4.3.1 OF THE EXHIBIT, INCLUDES ONLY TEN OF THE TWENTY-SEVEN REQUIRED. THE PROPOSED ENVIRONMENTAL TYPE TEST IS DEFICIENT IN SENSITIVITY AND DECODER MEASUREMENT DURING TEMPERATURE TESTS. THESE DEFICIENCIES PRECLUDE THE ACCEPTANCE OF DATA COLLECTED IN ACCORDANCE WITH THE PROPOSED PROCEDURE.' FURTHERMORE, THE PROJECT ENGINEERS ENDEAVORED TO OBTAIN SUPPLEMENTARY INFORMATION FROM PREVIOUS BUYERS CONCERNING TEST DATA OR PERFORMANCE RESULTS OF IDENTICAL SCOPE EQUIPMENT. THIS EFFORT PROVED NEGATIVE SINCE THE PREVIOUSLY PURCHASED ITEMS HAD NOT BEEN TESTED. THEREFORE, THE CONTRACTING OFFICER DETERMINED THAT YOUR FAILURE TO FURNISH THE TEST DATA WAS FATAL TO YOUR PROPOSAL BECAUSE OF THE IMPOSSIBILITY TO FULLY EVALUATE YOUR BID.

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 ITS 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. THE DESCRIPTIVE LITERATURE WAS SPECIFICALLY REQUIRED FOR EVALUATION OF BIDS, AND THE BIDS HAD TO BE EVALUATED ON THE BASIS OF THEIR CONTENT AT THE TIME OF BID OPENING. IN THE CIRCUMSTANCES, SINCE YOU FAILED TO FURNISH COMPLETE DESCRIPTIVE LITERATURE YOUR BID WAS NOT RESPONSIVE TO THE INVITATION AND IT WOULD NOT HAVE BEEN PROPER FOR THE DEPARTMENT OF THE AIR FORCE 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.