B-156102, FEB. 24, 1965

B-156102, FEB. 24, 1965

TO E. T. PETERSON (CONTRACTING OFFICER), ACTING CHIEF, PURCHASING BRANCH, OFFICE OF THE SECRETARY:

WE HAVE YOUR LETTER DATED FEBRUARY 5, 1965, WITH ENCLOSURES, REQUESTING OUR DECISION AS TO WHETHER THE LOW BIDS SUBMITTED BY WANG LABORATORIES, INC., AND KELTEC INDUSTRIES, INC., UNDER INVITATION FOR BIDS NO. C-157-65, ISSUED ON DECEMBER 24, 1964, MAY BE CONSIDERED AS RESPONSIVE TO THE ADVERTISED SPECIFICATIONS.

THE INVITATION REQUESTED BIDS FOR THE FURNISHING, INSTALLATION AND TESTING OF A DIGITAL RECORDING SYSTEM, TOGETHER WITH MANUALS AND PARTS LIST, IN ACCORDANCE WITH "THE ATTACHED SPECIAL PROVISIONS AND SPECIFICATIONS.' ALTHOUGH THE INVITATION DID NOT REQUIRE THE FURNISHING OF DESCRIPTIVE LITERATURE (SECTION 1-2.202-5 (F), FEDERAL PROCUREMENT REGULATIONS), WANG ACCOMPANIED ITS BID WITH A LETTER DATED JANUARY 8, 1965, WHICH READ IN PART AS FOLLOWS:

"THE DIGITAL TAPE RECORDER WHICH WE PROPOSE TO USE IS THE DSR 1420, AS MANUFACTURED BY THE DIGI-DATA CORPORATION, 4315 BALTIMORE AVENUE, HYATTSVILLE, MARYLAND. IT IS IN EXACT ACCORDANCE WITH THE REQUIREMENTS SPECIFIED ON THE IFB, ON PAGE 11, BUT THERE IS ONE POINT OF AMPLIFICATION.

"THE RECORDER HAS AN END-OF-TAPE MARKER, IN THE FORM OF A LOGIC LEVEL. THIS CAN BE USED TO CONTROL A LAMP, SHOWING THAT THE CONDITION EXISTS, THUS ENABLING THE OPERATOR TO MANUALLY ACTIVATE "FULL-FORWARD" AND "REWIND" MODES, WHICH ARE CONTROLLED BY A SELECTOR SWITCH ON THE RECORDER. THIS RECORDER TAKES LESS THAN THREE MINUTES IN EACH MODE FOR "FAST FORWARD" OR "REWIND" WITH BRAKING QUALITY REQUIRING NO TAPE RE TREADING.

"THE BALANCE OF THE EQUIPMENT WILL BE SOLID STATE WHEREVER POSSIBLE. SINCE WE HAVE HAD A WIDE VARIETY OF EXPERIENCE IN TAILORING SYSTEMS TO CUSTOMERS' APPLICATIONS, WE SEE NO DIFFICULTY IN BEING ABLE TO PROVIDE THE SYSTEMS AS REQUIRED. WE ARE ENCLOSING OUR SYSTEMS ENGINEERING BULLETIN, SHOWING SEVERAL TYPICAL SYSTEMS WHICH WE HAVE FURNISHED. ALTHOUGH NONE OF THOSE ILLUSTRATED SHOWS OUTPUT TO MAGNETIC TAPE, THE CONTROL OF THE DIGITAL UNIT IS ACCOMPLISHED IN THE SAME FASHION AS THE CONTROL FOR PUNCHED PAPER TAPE. THIS MEANS THAT WE WILL TAKE THE BCD INFORMATION, IN PARALLEL FORM, AND SERIALIZE IT WITH OUTPUT TO TAPE IN THE DESIRED DATA WORD MAT.'

PAGE 3 OF INVITATION PROVIDED:

"COMPLIANCE WITH SPECIFICATIONS: BIDDERS MUST STATE HERE WHETHER THEIR BID COMPLIES WITH THE ,SPECIFICATIONS" IN EVERY PARTICULAR:

YES----------------, OR NO------------------.

"IF THE ANSWER IS "NO," EXPLAIN IN EACH INSTANCE WHERE THE ITEM OFFERED DOES NOT SO COMPLY: * * *"

WANG RESPONDED TO THE ABOVE BY CHECKING THE "YES" SPACE.

LIKEWISE, KELTEC ATTACHED A LETTER DATED JANUARY 11, 1965, TO ITS BID, WHICH READ IN PART AS FOLLOWS:

"THE FOLLOWING TEXT IS A DESCRIPTION OF THE KELTEC SYSTEM TO COMPLY WITH SPECIFICATIONS FOR A DIGITAL RECORDING SYSTEM TO WORK WITH A MAGNETOGRAM SCANNER. THE SYSTEM IS MADE UP OF THE FOLLOWING COMPONENT PARTS: THE AGAC CP 225 OUTPUT COUPLER; THE AGAC CP 241 MANUAL DATA ENTRY PANEL; THE AGAC CP 243 KEYBOARD ENTRY PANEL; THE AGAC CP 127 DISPLAY PANEL; THE DIGI-DATA CORPORATION DSR MODEL 1420 INCREMENTAL MAGNETIC TAPE RECORDER; A SPECIAL CHASSIS ENTITLED CONTROL PANEL AND COUNTERS; ONE MCLEAN BLOWER; AN EMCOR RACK ENCLOSURE; AND THE NECESSARY CABLES TO IMPLEMENT THE SYSTEM. SPECIFICATION SHEETS FOR THE CP 225, CP 241, CP 243, CP 127, AND THE DIGI- DATA DSR MODEL 1420 ARE INCLUDED AS A PART OF THIS TEXT.'

THE SPECIFICATION SHEETS MENTIONED CONTAIN A LEGEND AT THE BOTTOM THEREOF READING:

"DATA SUBJECT TO CHANGE WITHOUT NOTICE"

KELTEC ALSO RESPONDED "YES" TO THE QUESTIONNAIRE ON PAGE 3 OF THE INVITATION AND HAS STATED IN ITS LETTER THAT:

"IF WE ARE THE SUCCESSFUL BIDDER, THE EQUIPMENT WILL BE SET UP AT THE COAST AND GEODETIC SURVEY LABORATORY IN ROCKVILLE, MARYLAND AND OPERATED TO PROVE THAT THE EQUIPMENT COMPLIES WITH THE REQUIREMENTS OF THE SPECIFICATION. * * *"

SUBSEQUENT TO THE OPENING OF BIDS WANG CLARIFIED ITS BID IN LETTER OF JANUARY 25, 1965, AS FOLLOWS:

"THE COUNTERS AND CIRCUITRY TO DRIVE THE NIXIE TUBE INDICATORS ARE ALL SOLID STATE. THE DIODE MATRICES TO HANDLE THE PRESET CONSTANTS AND INPUT INFORMATION FROM THE KEYBOARD ARE ALSO SOLID STATE. THE MANUAL DATA ENTRY SWITCHES AND KEYBOARD UNITS ARE ELECTRO-MECHANICAL ITEMS, AS IS THE MAGNETIC TAPE RECORDER. EXCEPT FOR THESE ITEMS, THE COMPLETE SYSTEM IS TRANSISTORIZED.'

SECTION 1-2.202-5 (F) OF THE FEDERAL PROCUREMENT REGULATIONS, RELATING TO UNSOLICITED DESCRIPTIVE LITERATURE FURNISHED WITH A BID, PROVIDES THAT SUCH DESCRIPTIVE LITERATURE WILL NOT BE CONSIDERED AS QUALIFYING THE BID AND WILL BE DISREGARDED, UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE BIDDER'S INTENTION SO TO QUALIFY THE BID.

IN THE CASE OF THE KELTEC BID, IT IS CLEAR THAT ITS LETTER WAS PART OF THE BID (36 COMP. GEN. 535), AND MUST BE CONSIDERED IN THE EVALUATION THEREOF. THE LEGENDS ON THE SPECIFICATION SHEETS CREATE A REASONABLE DOUBT CONCERNING KELTEC'S INTENTIONS TO FURNISH A DIGITAL RECORDING SYSTEM MEETING THE REQUIREMENTS OF THE SPECIFICATION. IN FACT, KELTEC MUST BE REGARDED AS BIDDING ON THE BASIS THAT ANY DATA ON ITS SPECIFICATION SHEETS RELATING TO THE TECHNICAL ASPECTS OF THE EQUIPMENT COULD BE SUBJECT TO CHANGE WITHOUT NOTICE. WHILE THE DATA APPEARING ON THE SPECIFICATION MIGHT POSSIBLY CONFORM TO THE ADVERTISED REQUIREMENTS, KELTEC, IN EFFECT, BID ON THE BASIS THAT IT COULD, AT ITS OPTION, MATERIALLY DEVIATE AFTER AWARD FROM THESE REQUIREMENTS, OR, FOR THAT MATTER, FROM ITS QUOTED PRICE. RESPECTING KELTEC'S AFFIRMATIVE ANSWER TO THE QUESTIONNAIRE ON PAGE 3 OF THE INVITATION, WE HELD IN MATERIAL PART IN 40 COMP. GEN. 432, 434-435, THAT:

"YOUR ATTORNEY URGES THAT A DECISION OF OUR OFFICE REPORTED AT 10 COMP. GEN. 160, SHOULD BE CONSIDERED AS AUTHORITY FOR THE AWARD OF A CONTRACT TO YOUR FIRM. THAT CASE STANDS FOR THE PROPOSITION THAT AN OVERALL OFFER TO COMPLY WITH THE ADVERTISED REQUIREMENTS OF AN INVITATION CURES ANY DETAILED SPECIFICATIONS IN A BID WHICH ARE AT VARIANCE WITH THE TERMS OF THE SOLICITATION. BUT, CF. 36 COMP. GEN. 415. OUR ATTENTION IS DIRECTED TO THE LANGUAGE APPEARING ON PAGE ONE OF THE BID INVITATION (STANDARD FORM 33, OCTOBER 1957 EDITION), WHICH STATES:

"IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES * * * TO FURNISH ANY AND ALL OF THE ITEMS UPON WHICH PRICES ARE QUOTED * * *"

AND IT IS ARGUED THAT THIS CONSTITUTES AN UNEQUIVOCAL OVERALL AGREEMENT TO BE BOUND BY THE SPECIFICATIONS REGARDLESS OF ANY OTHER REPRESENTATIONS MADE WITH THE OFFER. WE CANNOT AGREE WITH THIS CONTENTION. FREQUENTLY BIDDERS SUBMIT EXTRANEOUS DOCUMENTS, OR INSERT CONDITIONS IN THE BID FORM, WHEN THEY ARE OFFERING A COMMERCIAL PRODUCT. AS PREVIOUSLY STATED, SUCH STATEMENT OR DOCUMENTS MUST BE RECOGNIZED AS A PART OF THE BID. CONSIDERATION MUST ALSO BE GIVEN TO THE FACT THAT TYPEWRITTEN PROVISIONS INSERTED BY A BIDDER MUST BE GIVEN PRECEDENCE OVER PRINTED CONDITIONS IN THE GOVERNMENT BID FORM. IN SUCH CASES, IF THE EXCEPTIONS OR DEVIATIONS FROM THE REQUIREMENTS OF THE INVITATION ARE MATERIAL, THE BID MUST BE CONSIDERED NON RESPONSIVE AS A COUNTER-OFFER.'

THEREFORE, AS TO THE KELTEC BID, WE FEEL THAT ITS UNSOLICITED DESCRIPTIVE LITERATURE MAY NOT BE DISREGARDED UNDER SECTION 1-2.202-5 (F) OF THE FEDERAL PROCUREMENT REGULATIONS, AND THAT SUCH BID SHOULD BE REJECTED AS BEING NONRESPONSIVE TO THE ADVERTISED REQUIREMENTS. 30 COMP. GEN. 179.

CONCERNING WANG'S BID, IT IS ALSO CLEAR THAT ITS LETTER OF JANUARY 8, 1965, CONSTITUTES A PART OF ITS BID AND THAT THE CRITERIA OF SECTION 1- 2.202-5 (F) MUST BE APPLIED TO DETERMINE THE RESPONSIVENESS OF THE BID AS SUBMITTED. WHETHER WANG'S GRATUITOUS STATEMENT "THE BALANCE OF THE EQUIPMENT WILL BE SOLID STATE WHEREVER POSSIBLE" QUALIFIES ITS BID IS DEPENDENT UPON A TECHNICAL EVALUATION OF THE BID IN THE LIGHT OF ADVERTISED SPECIFICATION. OUR OFFICE DOES NOT POSSESS THE CAPABILITY TO DETERMINE FACTUALLY WHETHER THIS BID MEETS THE EXACT TECHNICAL REQUIREMENTS OF THE INVITATION; RATHER, WE USUALLY RELY UPON THE EXPERTNESS OF THE PROCUREMENT AGENCY TO ASSIST US IN ARRIVING AT CONCLUSIONS RESPECTING THE RESPONSIVENESS OF BIDS TO TECHNICAL SPECIFICATIONS. 43 COMP. GEN. 77; 41 ID. 620, 623; 40 ID. 35, 38. THEREFORE, AND IN VIEW OF SECTION 1-2.202-5 (F) OF THE FEDERAL PROCUREMENT REGULATIONS, WE WOULD INTERPOSE NO OBJECTION TO A PROPERLY SUPPORTED DETERMINATION RESPECTING THE QUALIFYING EFFECT OF THE LETTER ACCOMPANYING THE WANG BID. IN THIS CONNECTION, NO CONSIDERATION SHOULD BE GIVEN TO WANG'S LETTER OF JANUARY 25, 1965, WHEREIN IT ATTEMPTED TO CLARIFY ITS BID SINCE TO DO SO WOULD BE CONTRARY TO THE WELL-ESTABLISHED RULE THAT NO BIDDER MAY BE GIVEN A SECOND OPPORTUNITY TO BID AFTER BID OPENING. COMP. GEN. 82; 35 ID. 3; 36 ID. 705; 40 ID. 432.