B-157108, NOV. 17, 1965

B-157108: Nov 17, 1965

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JULY 23. BIDS WERE REQUESTED FOR FURNISHING ULTRASONIC CLEANING SYSTEMS. THE BIDS WERE FORWARDED TO THE U.S. ADVISED THE NAVY PURCHASING OFFICE THAT YOUR BID DID NOT CONFORM TO THE REQUIREMENTS OF THE SPECIFICATIONS IN THAT YOU WERE BIDDING ON A CABINET WHICH MEASURED 39 INCHES FROM FRONT TO REAR. SINCE THIS WAS CONSIDERED TO BE A MATERIAL DEVIATION. YOUR BID WAS DETERMINED TO BE NONRESPONSIVE AND AWARD WAS MADE ON JUNE 18. YOU HAVE PROTESTED THIS ACTION ON THE GROUND THAT YOUR BID OFFERED TO FURNISH EQUIPMENT IN ACCORDANCE WITH THE SPECIFICATIONS AND THAT IF THE FIGURE "39" INCHES DID APPEAR ON A DRAWING SUBMITTED WITH YOUR BID. IT WAS A TYPOGRAPHICAL ERROR OR AN ERROR ON THE PART OF THE DRAFTSMAN WHO PREPARED THE DRAWING.

B-157108, NOV. 17, 1965

TO ULTRASONIC INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1965, WITH ENCLOSURES, PROTESTING AWARD TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. 600 405- 65, ISSUED BY THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D.C.

BIDS WERE REQUESTED FOR FURNISHING ULTRASONIC CLEANING SYSTEMS, WITH ULTRASONIC GENERATORS, CLEANING TANK, RINSE TANK AND DRYERS. AT THE OPENING ON MARCH 29, 1965, 14 BIDS HAD BEEN RECEIVED RANGING IN UNIT PRICE FROM YOUR LOW BID OF $2,349.50 TO $7,917. THE BIDS WERE FORWARDED TO THE U.S. NAVY MARINE ENGINEERING LABORATORY FOR EVALUATION AS TO CONFORMANCE WITH THE IFB SPECIFICATIONS, AND THE LABORATORY, BY LETTER OF APRIL 14, 1965, ADVISED THE NAVY PURCHASING OFFICE THAT YOUR BID DID NOT CONFORM TO THE REQUIREMENTS OF THE SPECIFICATIONS IN THAT YOU WERE BIDDING ON A CABINET WHICH MEASURED 39 INCHES FROM FRONT TO REAR, AS SHOWN ON YOUR DRAWING B-S-44C, INSTEAD OF 29 INCHES, AS REQUIRED, AND THAT THIS DIMENSION COULD NOT BE EXCEEDED. SINCE THIS WAS CONSIDERED TO BE A MATERIAL DEVIATION, YOUR BID WAS DETERMINED TO BE NONRESPONSIVE AND AWARD WAS MADE ON JUNE 18, 1965, TO ANOTHER BIDDER.

YOU HAVE PROTESTED THIS ACTION ON THE GROUND THAT YOUR BID OFFERED TO FURNISH EQUIPMENT IN ACCORDANCE WITH THE SPECIFICATIONS AND THAT IF THE FIGURE "39" INCHES DID APPEAR ON A DRAWING SUBMITTED WITH YOUR BID, IT WAS A TYPOGRAPHICAL ERROR OR AN ERROR ON THE PART OF THE DRAFTSMAN WHO PREPARED THE DRAWING, OR THE NUMBER WAS BEING MISREAD, BUT THAT IN ANY EVENT, A DEPTH OF 29 INCHES WAS PRECISELY WHAT YOU PROPOSED TO FURNISH. ADDITIONALLY, YOU ALLEGE THAT THERE WAS NO REQUIREMENT IN THE IFB CALLING FOR SUBMISSION OF A DRAWING SHOWING ANY DIMENSIONS WHATSOEVER AND THAT THE DRAWING IN QUESTION WAS NOT A PART OF YOUR BID, BUT WAS SUBMITTED SOLELY TO GIVE EVIDENCE OF YOUR COMPANY'S CAPABILITIES IN CABINETIZED ULTRASONIC CLEANERS.

ALL BIDS MUST BE EVALUATED ON THE SAME BASIS, AND A BID WHICH OFFERS TO FURNISH EQUIPMENT DIFFERING MATERIALLY FROM THE REQUIREMENTS OF THE SPECIFICATIONS MAY NOT BE CONSIDERED AS RESPONSIVE. TO PERMIT CORRECTION OF A NONRESPONSIVE BID AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. 38 COMP. GEN. 819, 821.

THE SPECIFICATIONS OF THE IFB PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"3.1.1 ENCLOSURE CABINETS - THE ULTRASONIC CLEANING SYSTEM SHALL BE CONTAINED IN NOT MORE THAN THREE (3) INDIVIDUAL CABINETS (CLEANER, RINSER, DRYER); THE OUTSIDE DIMENSIONS OF WHICH SHALL NOT EXCEED THOSE SHOWN IN PARAGRAPH 3.4 (A) OF THIS SPECIFICATION.

"3.4 CAPACITIES AND DIMENSIONS - CAPACITIES, DIMENSIONS AND ALL APPLICABLE DETAILED REQUIREMENTS SHALL BE AS FOLLOWS:

CHART

"A. CABINET (ENCLOSURE) - 34 INCHES ACROSS FRONT

(CLEANER, RINSER, DRYER) BY 29 INCHES, FRONT TO

REAR BY 44 INCHES TOP

TO BOTTOM (INCLUDING

CONTROL PANEL)"

IT IS REPORTED THAT THE ABOVE PROHIBITION AGAINST EXCEEDING THE OUTSIDE DIMENSIONS OF THE ENCLOSURE CABINETS IS DUE TO THE CRITICALNESS OF SHIPBOARD SPACE IN THE TELETYPEWRITER SHOP AND GOES TO THE SUBSTANCE OF THE BID. IN THESE CIRCUMSTANCES, AND SINCE THE INVITATION SHOWED THAT THE ITEMS WERE TO BE DELIVERED TO NAMED NAVAL VESSELS, THE SPECIFIED DIMENSIONS CANNOT BE REGARDED AS IMMATERIAL.

YOUR LETTER OF MARCH 25, 1965, FORWARDING YOUR BID FOR CONSIDERATION, STATES AS FOLLOWS:

"DESCRIPTIVE LITERATURE IS ENCLOSED FOR PREAWARD EVALUATION.

"INCLUDED ARE: BLUEPRINT SHOWING ALL CONSOLES, WASHER, RINSER, DRYER.

THE ABOVE-MENTIONED BLUEPRINT CAN BE NONE OTHER THAN DRAWING B-S-44C AND, AS STATED IN YOUR LETTER OF TRANSMITTAL, WAS FORWARDED AS PART OF YOUR DESCRIPTIVE LITERATURE FOR PREAWARD EVALUATION OF YOUR BID. THE INVOLVED CABINET DIMENSION FROM FRONT TO REAR IS SHOWN CLEARLY ON THE TOP VIEW INCLUDED IN THIS DRAWING AS "39" INCHES AND COULD NOT POSSIBLY BE MISREAD. IT IS FURTHER NOTED THAT THE DRAWING IN QUESTION WAS IDENTIFIED AS "A REV., " AND THE LEGEND THEREON INDICATED THAT THE REVISION WAS "DIMEN. REVISED.'

REGARDLESS OF THE REQUIREMENTS OF THE IFB FOR FURNISHING DESCRIPTIVE LITERATURE, THE FACT REMAINS THAT YOU SUBMITTED AS A PART OF YOUR BID PACKAGE A COMPANY DOCUMENT WHICH INDICATED THAT YOU WERE OFFERING AN ITEM THAT DIFFERED IN A MATERIAL RESPECT FROM THAT REQUIRED BY THE INVITATION. IN OUR DECISION OF APRIL 15, 1957, 36 COMP. GEN. 705, WE HELD, QUOTING FROM THE SYLLABUS, THAT:

"A BIDDER WHO VOLUNTARILY AUGMENTS HIS BID WITH DRAWINGS WHICH CONTAIN MATERIAL DEVIATIONS FROM THE SPECIFICATIONS MAY NOT BE GIVEN AN OPPORTUNITY AFTER THE BIDS ARE OPENED TO CLARIFY THE REASONABLE DOUBT CONCERNING HIS INTENTION TO FURNISH EQUIPMENT MEETING THE REQUIREMENTS NOR MAY THE DEVIATIONS WHICH GO INTO THE SUBSTANCE OF THE BID BE WAIVED AS MERE INFORMALITIES.'

SEE, ALSO, 40 COMP. GEN. 432, 435. THERE IS NOTHING TO INDICATE THAT THE FIGURE "39" HAD BEEN INSERTED IN ERROR, AND SINCE THE DEVIATION WENT TO THE SUBSTANCE OF THE BID, IT COULD NOT BE WAIVED AS AN INFORMALITY. EVEN IF ERROR WERE DEFINITELY AND SPECIFICALLY ALLEGED, WE HAVE HELD THAT NONRESPONSIVENESS OF A BID MAY NOT BE CURED ON THAT GROUND. 38 COMP. GEN. 819, 39 ID. 774.

FOR THE REASONS STATED WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE NAVY'S ACTION IN REJECTING YOUR BID AS NONRESPONSIVE AND YOUR PROTEST MUST THEREFORE BE DENIED.