B-155860, APR. 5, 1965

B-155860: Apr 5, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED DECEMBER 29. IT IS YOUR STATED POSITION THAT THE INVITATION AND PURCHASE DESCRIPTION DID NOT ASK FOR A TECHNICAL PROPOSAL BUT MERELY REQUIRED THE SUBMISSION OF TECHNICAL LITERATURE COVERING DESIGN AND PERFORMANCE CHARACTERISTICS OF THE PRODUCT OFFERED. A LIST AND EXPLANATION OF ANY DIFFERENCES BETWEEN THE EQUIPMENT OFFERED AND THE REQUIREMENT OF THE PURCHASE DESCRIPTION AND THAT THIS IS WHAT YOU SUBMITTED. IS PROTESTED ON THE BASIS THAT IT WAS NONRESPONSIVE IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 2-404.4 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AND CITED PROVISIONS OF THE PURCHASE DESCRIPTION. YOU STATE FURTHER THAT THE OBVIOUS TECHNICAL ERROR IN THE EVALUATION REPORT THAT YOUR BID WAS NONRESPONSIVE LEADS TO THE SUSPICION THAT THE EVALUATION WAS NOT THOROUGHLY PERFORMED.

B-155860, APR. 5, 1965

TO DIGITECH, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED DECEMBER 29, CONFIRMING LETTER DATED DECEMBER 30, 1964, AND SUBSEQUENT CORRESPONDENCE DATED JANUARY 11 AND FEBRUARY 6, 1965, PROTESTING THE REJECTION OF YOUR BID UNDER NAVY INVITATION NO. 600-103-65 AS NONRESPONSIVE. IT IS YOUR STATED POSITION THAT THE INVITATION AND PURCHASE DESCRIPTION DID NOT ASK FOR A TECHNICAL PROPOSAL BUT MERELY REQUIRED THE SUBMISSION OF TECHNICAL LITERATURE COVERING DESIGN AND PERFORMANCE CHARACTERISTICS OF THE PRODUCT OFFERED, AND A LIST AND EXPLANATION OF ANY DIFFERENCES BETWEEN THE EQUIPMENT OFFERED AND THE REQUIREMENT OF THE PURCHASE DESCRIPTION AND THAT THIS IS WHAT YOU SUBMITTED. YOU STATE FURTHER THAT AN AWARD TO STELMA, INC. IS PROTESTED ON THE BASIS THAT IT WAS NONRESPONSIVE IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 2-404.4 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AND CITED PROVISIONS OF THE PURCHASE DESCRIPTION. YOU STATE FURTHER THAT THE OBVIOUS TECHNICAL ERROR IN THE EVALUATION REPORT THAT YOUR BID WAS NONRESPONSIVE LEADS TO THE SUSPICION THAT THE EVALUATION WAS NOT THOROUGHLY PERFORMED. YOU CONCEDE THAT THERE ARE ONLY TWO ISSUES TO BE DECIDED IN RESOLVING YOUR PROTEST, THESE BEING WHAT THE INVITATION REQUIRED IN THE WAY OF DESCRIPTIVE LITERATURE AND WHETHER THE LITERATURE SUBMITTED BY DIGITECH, INC. WAS WITHIN THESE REQUIREMENTS.

INVITATION FOR BIDS 600-103-65, WHICH OPENED OCTOBER 16, 1964, COVERS THE PROCUREMENT OF FIFTY-SEVEN (57) AN/GGM-2 TELETYPE TERMINAL TEST SETS, AWARD TO BE MADE ON EITHER LOT I (EXCLUSIVE OF PREPRODUCTION SAMPLE) OR LOT II (INCLUSIVE OF PREPRODUCTION SAMPLE). THE INVITATION WAS ISSUED AUGUST 3, 1964, TO A TOTAL OF SIXTY (60) INTERESTED AND POTENTIAL SUPPLIERS. IT IS REPORTED THAT WHILE IT WAS NOT CONSIDERED NECESSARY EITHER FROM A TECHNICAL OR A PROCUREMENT STANDPOINT TO REQUEST A TECHNICAL PROPOSAL REQUIRING MANUFACTURING PROCESSES, TESTING TECHNIQUES AND ENGINEERING AND MANAGEMENT APPROACHES, IT WAS IMPERATIVE THAT A MEANS BE PROVIDED TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH SINCE THE EQUIPMENT IS HIGHLY TECHNICAL AND SPECIALIZED AND WILL BE USED IN CRITICAL AND SENSITIVE LOCATIONS. THREE BIDS WERE RECEIVED ON EACH OF THE TWO LOTS. ATLANTIC RESEARCH CORPORATION BID $7,275, $7,225, AND $7,425 ON EACH ITEM UNDER LOTS I AND II. STELMA, INC. BID $3,719, $3,719, AND $4,274 ON THE ITEMS UNDER LOT I; $3,769, $3,769, AND $4,324 ON THE ITEMS UNDER LOT II. YOUR COMPANY WAS LOW BIDDER AT PRICES OF $3410, $3395 AND $3750 ON THE ITEMS UNDER BOTH LOTS. YOUR APPARENT LOW BID HAS BEEN REJECTED AS NON -RESPONSIVE FOR FAILURE OF THE DESCRIPTIVE LITERATURE SUBMITTED TO ESTABLISH EXACTLY WHAT WILL BE FURNISHED AND WHERE THE LITERATURE DOES PERMIT PARTIAL EVALUATION, IT IS DEFICIENT IN AT LEAST ONE MAJOR AREA OF THE PURCHASE DESCRIPTION, THAT OF PARAGRAPH 3.4.5, ADDENDUM NO. 2. SPECIFICALLY, IT IS ADMINISTRATIVELY REPORTED THAT IT CANNOT BE DETERMINED IF THE REQUIREMENT FOR INDEPENDENT CRYSTAL CONTROLLED OSCILLATORS, EACH OF WHICH PROVIDE TIMING FOR ANY BAUD RATE, WOULD BE FULFILLED. IT IS ALSO REPORTED THAT IT CANNOT BE DETERMINED IF EACH TIMING OUTPUT WILL BE CAPABLE OF DRIVING UP TO TEN ANALYZERS AND 10 PATTERN GENERATORS SIMULTANEOUSLY AS REQUIRED IN PARAGRAPH 3.4.5C OF THE PURCHASE DESCRIPTION. THE EVALUATION OF THE BID OF YOUR COMPANY INDICATED THAT SUFFICIENTLY DETAILED INFORMATION WAS NOT SUBMITTED WITH THE BID TO PERMIT A COMPLETE TECHNICAL EVALUATION. IT IS REPORTED FURTHER THAT IN ADDENDUM NO. 2 TO THE PURCHASE DESCRIPTION A CHANGE WAS MADE TO REQUIRE THAT BAUD RATES BE SELECTABLE BY A 12-POSITION FRONT-PANEL SWITCH ON THE ANALYZER. IN YOUR LETTER OF SPECIFICATIONS YOU MERELY STATE THAT THE INPUT BAUD RATE SWITCH WILL BE LOCATED ON THE FRONT PANEL OF THE ANALYZER. NO MENTION IS MADE OF THE REQUIREMENT FOR SELECTION BY MEANS OF A 12 POSITION SWITCH. THE PURCHASE DESCRIPTION IN PARAGRAPH 3.4.2.C ALSO SPECIFIES THAT THE INPUT BAUD RATES SHALL BE UP TO 12 BAUD RATES INCLUDING ONE INTERNAL VARIABLE OPTION AT ANY BAUD RATE FROM 30-BAUD TO 150-BAUD VARIABLE, 30- BAUD TO 600-BAUD FIXED, SELECTABLE BY A FRONT PANEL SWITCH ON THE ANALYZER FROM A SOURCE SUCH AS THE ASSOCIATED TIME BASE GENERATOR. IT IS SUBMITTED THAT YOUR MODEL 1200B WHICH YOU HAVE OFFERED WITH MODIFICATIONS IN COMPLIANCE WITH THE INVITATION AND PURCHASE DESCRIPTION, DOES NOT MEET THIS REQUIREMENT AND YOU DID NOT STATE IN YOUR LETTER OF MODIFICATIONS THAT YOU WOULD REDESIGN THE ANALYZER OF YOUR MODEL 1200B TO MEET THIS REQUIREMENT NOR DID YOU SUPPLY ANY DETAILS OF DESIGN AND PERFORMANCE CHARACTERISTICS AND A COMPLETE DESCRIPTION OF WHAT YOU PROPOSED TO PROVIDE.

THE INVITATION CONTAINS (PAGE 6) A "REQUIREMENT FOR DESCRIPTIVE LITERATURE" CLAUSE. (SEE SECTION 2-202.5 (D) (2), ASPR) PARAGRAPHS (A) AND (B) OF THIS CLAUSE PROVIDE AS FOLLOWS:

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN AND PERFORMANCE CHARACTERISTICS.

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.'

THERE CAN BE LITTLE QUESTION AS TO ADEQUACY OF ABOVE PARAGRAPHS (A) AND (B) OF THE REQUIREMENT FOR DESCRIPTIVE LITERATURE OR THE FAILURE OF YOUR BID TO FULLY COMPLY WITH THE REQUIREMENT FOR DETAILS OF THE PRODUCT YOU PROPOSED TO FURNISH AS TO DESIGN AND PERFORMANCE CHARACTERISTICS. APPEARS THAT THE UNIT YOU OFFERED WAS A STANDARD MODEL TO BE MODIFIED TO MEET THE NAVY'S SPECIFICATIONS. PARAGRAPH (A) ABOVE CLEARLY REQUIRES THE BIDDER TO FURNISH DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN AND PERFORMANCE CHARACTERISTICS. SUCH DETAIL, WHERE A STANDARD MODEL WITH MODIFICATIONS IS OFFERED WOULD, IN OUR VIEW, REASONABLY INCLUDE DETAILS AS TO THE NATURE OF SUCH MODIFICATION AND THE METHODS PROPOSED TO MAKE THEM. ASPR 2-202.5 DEFINES DESCRIPTIVE DATA AS DATA FURNISHED BY A BIDDER AS PART OF HIS BID "TO DESCRIBE THE PRODUCTS OFFERED" AND TO "ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH.' THIS REQUIREMENT WAS CLEARLY NOT MET BY YOUR COMPANY AND, IN OUR VIEW, YOUR BID MAY PROPERLY BE REGARDED AS NONRESPONSIVE FOR THAT REASON. COMP. GEN. 376 AND 36 COMP. GEN. 415. A STATEMENT THAT THE EQUIPMENT OFFERED MEETS THE REQUIREMENTS OF THE SPECIFICATIONS OR A BIDDER'S BLANKET OFFER TO COMPLY WITH THE SPECIFICATIONS WILL NOT SUFFICE TO OVERCOME OMISSIONS IN THE BID DATA. 40 COMP. GEN. 132, 135.

AFTER RECEIVING YOUR PROTEST THE DEPARTMENT OF THE NAVY FOUND NO VALID BASIS FOR TAKING EXCEPTION TO THE FINDING OF THE TECHNICAL EVALUATION WHICH RESULTED IN REJECTION OF YOUR BID AND IT IS NOTED THAT YOU HAVE NOT FURNISHED ANY SPECIFIC INFORMATION TO SUPPORT YOUR PROTEST, WHICH IS, IN EFFECT, A BROAD ALLEGATION THAT YOUR BID WAS RESPONSIVE.

YOUR CONTENTION THAT THE BID OF STELMA, INC. WAS NONRESPONSIVE IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 2-404.4 OF THE ASPR HAS BEEN INVESTIGATED BY THE ADMINISTRATIVE OFFICE WHICH REPORTED THAT THE PORTION OF THE BID OF STELMA THAT WAS NOT CLASSIFIED INDICATED THAT PREVIOUS AN/GGM EQUIPMENT MEETING ALL THE FEATURES OF THE PURCHASE DESCRIPTION HAD BEEN FURNISHED AND WAS CONSIDERED SUFFICIENT TO PERMIT OTHER BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF PRODUCT OFFERED, INCLUDING THOSE ELEMENTS OF THE BID RELATING TO QUANTITY, PRICE, AND DELIVERY. RESPECTING YOUR CONTENTION THAT THE STELMA DESCRIPTIVE LITERATURE WAS NONRESPONSIVE AS NOT MEETING PURCHASE DESCRIPTION PARAGRAPH 3.4.2C AND 3.4.9, AN ADMINISTRATIVE DETERMINATION WAS MADE THAT THESE REQUIREMENTS WERE MET BY PAGE 1 AND THE FRONTISPIECE OF STELMA TECHNICAL MANUAL CTM1004 AND PAGES 10, 11, 14 AND 15 OF TECHNICAL MANUAL CTM1005 WHICH WERE FURNISHED AS PART OF THE STELMA BID.

IT IS NOT OUR FUNCTION TO TECHNICALLY EVALUATE BIDS AND PROPOSALS, OR TO MAKE AN INDEPENDENT DETERMINATION IN THIS CASE AS TO WHETHER STELMA'S BID WAS IN COMPLIANCE WITH THE SPECIFICATIONS. SEE, GENERALLY, 17 COMP. GEN. 554; 19 ID. 587; 40 ID. 35. INDEED, WE ARE NOT EQUIPPED TO DO SO. IT DOES APPEAR HOWEVER THAT YOUR BID WAS EVALUATED IN ACCORDANCE WITH THE ESTABLISHED EVALUATION PROCEDURE, AND THAT ANOTHER FIRM WAS DULY SELECTED FOR AWARD UNDER THIS PROCEDURE. SEE 35 COMP. GEN. 174.

THEREFORE, SINCE THERE IS NO EVIDENCE THAT THE ADMINISTRATIVE ACTION IN THIS CASE WAS ARBITRARY OR CAPRICIOUS, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY NOR DO WE PERCEIVE ANDY BASIS UPON WHICH WE COULD OBJECT TO THE AWARD TO A HIGHER BIDDER. AGENCIES OF THE GOVERNMENT ARE NOT REQUIRED TO MAKE PURCHASES OF EQUIPMENT NOT FULFILLING THEIR REQUIREMENTS SIMPLY BECAUSE A LOWER PRICE CAN BE OBTAINED IN THAT WAY.