B-157235, SEP. 23, 1965

B-157235: Sep 23, 1965

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TO SECRETARY OF THE NAVY: REFERENCE IS MADE TO THE LETTER DATED SEPTEMBER 10. THE GENERAL PROVISIONS OF THE INVITATION PROVIDE THAT DESCRIPTIVE LITERATURE AS SPECIFIED IN THE INVITATION MUST BE FURNISHED AS PART OF THE BID AND THAT FAILURE TO FURNISH SUCH LITERATURE WILL REQUIRE REJECTION OF THE BID. ARE EQUIPPED WITH SPICER MODEL 6352 (5-SPEED) TRANSMISSIONS. THE BIDS WERE OPENED ON MAY 26. THAT "PTO DATA (IS) NOT YET AVAILABLE.'. WHILE BID EVALUATION WAS IN PROCESS A GENERAL STEEL TANK COMPANY LETTER OF MAY 28. WAS RECEIVED WHICH EXPLAINED WHY THE PTO DATA WAS NOT FURNISHED WITH THE BID AS FOLLOWS: "THE IFB NOTES THAT TRANSFER CASE IS MODEL TDKEN T-138. WE HAVE NOT YET BEEN ABLE TO GET DATA ON A PTO TO FIT THIS TRANSFER CASE.

B-157235, SEP. 23, 1965

TO SECRETARY OF THE NAVY:

REFERENCE IS MADE TO THE LETTER DATED SEPTEMBER 10, 1965, WITH ATTACHMENTS (FILE R1), FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, CONCERNING A PROTEST BY SELLERS, CONNER AND CUNEO, ATTORNEYS FOR THE GENERAL STEEL TANK COMPANY, AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. 600 694-65, ISSUED FEBRUARY 17, 1965, BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., WITH BID OPENING, AS NOTIFIED, SET FOR MAY 26, 1965.

THIS PROCUREMENT INVOLVES THE FURNISHING AND INSTALLATION OF QUANTITIES OF 2,000 GALLON CAPACITY AIRCRAFT REFUELING TANKS TO BE MOUNTED ON GOVERNMENT-FURNISHED TRUCK CHASSIS WITH RELATED PUMPING EQUIPMENT AND ACCESSORIES, INCLUDING POWER TAKE-OFFS. THE GENERAL PROVISIONS OF THE INVITATION PROVIDE THAT DESCRIPTIVE LITERATURE AS SPECIFIED IN THE INVITATION MUST BE FURNISHED AS PART OF THE BID AND THAT FAILURE TO FURNISH SUCH LITERATURE WILL REQUIRE REJECTION OF THE BID. PARAGRAPH 6 4/3) OF THE SPECIFICATIONS PROVIDES WITH RESPECT TO DESCRIPTIVE LITERATURE THAT BIDDERS:

"FURNISH MAKE, MODEL AND RATED CAPACITY OF THE POWER TAKE-OFF.'

MODIFICATION NO. 2 OF THE INVITATION DATED APRIL 13, 1965, PROVIDES THE FOLLOWING INFORMATION:

"THE GOVERNMENT FURNISHED CHASSIS BEING PROVIDED PURSUANT TO THE CLAUSE "GOVERNMENT FURNISHED PROPERTY--- MATERIAL" APPEARING ON PAGE 7 OF THE IFB, ARE EQUIPPED WITH SPICER MODEL 6352 (5-SPEED) TRANSMISSIONS, WITH TRANSFER CASE MODEL TDKEN T-138.'

THE BIDS WERE OPENED ON MAY 26, 1965, WITH GENERAL STEEL TANK COMPANY AS THE LOW BIDDER. HOWEVER, GENERAL STEEL TANK COMPANY DID NOT SUBMIT WITH ITS BID THE REQUIRED DESCRIPTIVE DATA ON THE POWER TAKE-OFF UNIT, EXPLAINING BY TRANSMITTAL LETTER DATED MAY 25, 1965, THAT "PTO DATA (IS) NOT YET AVAILABLE.' THE OTHER THREE BIDDERS FURNISHED POWER TAKE-OFF DATA. WHILE BID EVALUATION WAS IN PROCESS A GENERAL STEEL TANK COMPANY LETTER OF MAY 28, 1965, WAS RECEIVED WHICH EXPLAINED WHY THE PTO DATA WAS NOT FURNISHED WITH THE BID AS FOLLOWS:

"THE IFB NOTES THAT TRANSFER CASE IS MODEL TDKEN T-138. WE HAVE NOT YET BEEN ABLE TO GET DATA ON A PTO TO FIT THIS TRANSFER CASE, AND BELIEVE THIS MODEL NUMBER IS INCORRECT.'

BY REPORT DATED SEPTEMBER 9, 1965, THE CONTRACTING OFFICER SAYS THAT THE TRANSFER CASE "MODEL TDKEN T-138" SPECIFIED IN THE INVITATION AS BEING FURNISHED ON THE GOVERNMENT-FURNISHED CHASSIS WAS IN ERROR; THAT THE CORRECT MODEL DESIGNATION IS "TIMKEN T-138; " AND THAT TO HIS KNOWLEDGE THERE IS NO MODEL ENTITLED "TDKEN.' THE CONTRACTING OFFICER THEN EXPLAINS THAT A CLOSE ANALYSIS OF THE POWER TAKE-OFF REQUIREMENT OF THESE REFUELING UNITS DOES NOT SUPPORT A DETERMINATION THAT THE DESCRIPTIVE DATA (MAKE, MODEL, AND RATED CAPACITY) REQUESTED IN THE INVITATION IS REQUIRED FOR BID EVALUATION. HE SAYS THAT SECTIONS 3.8 AND 3.9 OF THE SPECIFICATIONS CLEARLY DEFINE WHAT PERFORMANCE IS REQUIRED OF THE POWER TAKE-OFF AND THE PUMP (WHICH THE POWER TAKE-OFF DRIVES); THAT A NUMBER OF POWER TAKE-OFF MODELS ON THE MARKET WILL PROVIDE THE REQUIRED PERFORMANCE (EACH OF THE OTHER THREE BIDDERS BID ON A DIFFERENT MODEL); THAT POWER TAKE-OFFS SUITABLE FOR THE REQUIRED PERFORMANCE ARE AVAILABLE ON THE MARKET IN THE REQUIRED QUANTITY AT ABOUT $50 EACH; THAT THE CHOOSING OF A SUITABLE POWER TAKE-OFF IS NOT A DIFFICULT CONSIDERATION AND CANNOT BE CONSIDERED A CRITICAL OR HIGHLY TECHNICAL ASPECT OF MANUFACTURING THESE REFUELING UNITS; AND THAT SUITABLE POWER TAKE-OFF WILL HAVE TO BE PROVIDED IF THE FIRST ARTICLE SAMPLE IS TO PASS THE REQUIRED TESTS. HE THEREFORE CONCLUDES THAT IT IS NOT AN ESSENTIAL REQUIREMENT TO THIS PROCUREMENT THAT THE GOVERNMENT KNOW, PRIOR TO AWARD, THE MAKE, MODEL, AND RATED CAPACITY OF THE POWER TAKE-OFF TO BE FURNISHED BY THE CONTRACTOR.

THE NEXT-TO-LAST PARAGRAPH OF THE CONTRACTING OFFICER'S REPORT IS AS FOLLOWS:

"BASED ON THE FOREGOING CONSIDERATIONS, IT IS THE OPINION OF NPO, WASH; IN THIS CASE THAT GENERAL STEEL TANK'S BID OMISSION OF THE MAKE, MODEL AND RATED CAPACITY OF THE POWER TAKE-OFF TO BE FURNISHED CAN PROPERLY BE CONSIDERED A MINOR IRREGULARITY, AS DEFINED IN ASPR 2-405, WHICH THE CONTRACTING OFFICER MAY WAIVE. WE FEEL THAT THE LOW BIDDER'S OMISSION IS AN "IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, AND NO EFFECT ON QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES . . ., AND CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF OR BE OTHERWISE PREJUDICIAL TO, BIDDERS.' ASPR 2-405.'

AS A GENERAL RULE, A DESCRIPTIVE DATA REQUIREMENT, TOGETHER WITH LANGUAGE MAKING IT MANDATORY UPON THE CONTRACTING OFFICER TO REJECT BIDS WHICH FAIL TO COMPLY WITH SUCH REQUIREMENT, IS TO BE CONSTRUED AND ENFORCED AS WRITTEN. 40 COMP. GEN. 132, 135. HOWEVER, AS STATED IN 39 COMP. GEN. 595, 597, IT MUST BE RECOGNIZED THAT AN AUTOMATIC REJECTION OF A BID BECAUSE OF A FAILURE TO CONFORM TO A PURELY TECHNICAL OR OVERLITERAL READING OF THE STATED REQUIREMENT MAY BE AS ARBITRARY AS THE WAIVER OF NONRESPONSIVENESS TO A MATERIAL AND SUBSTANTIAL REQUIREMENT. IN THAT DECISION WE THEREFORE HELD IT PROPER TO EXAMINE INTO THE QUESTION WHETHER INFORMATION FURNISHED BY A BIDDER IN LIEU OF STRICT COMPLIANCE WITH THE DATA REQUIREMENTS OF THE INVITATION, TOGETHER WITH INFORMATION ALREADY AVAILABLE TO THE CONTRACTING AGENCY, WAS SUFFICIENT TO ACCOMPLISH THE SAME PURPOSES WHICH WOULD BE ACCOMPLISHED BY STRICT COMPLIANCE WITH THE TERMS OF THE INVITATION. IN ADDITION, WE HAVE RECOGNIZED THAT WHERE A PARTICULAR ITEM OF INFORMATION CALLED FOR BY AN INVITATION WOULD NOT IN FACT AFFECT THE DETERMINATION OF THE RESPONSIVENESS OF THE BID, FAILURE TO FURNISH IT DOES NOT REQUIRE REJECTION. 40 COMP. GEN. 548.

IN THE PRESENT CASE, THE SPECIFICATIONS CLEARLY DEFINE WHAT PERFORMANCE IS REQUIRED OF THE POWER TAKE-OFF; AND NUMBER OF POWER TAKE-OFF MODELS AVAILABLE ON THE MARKET--- APPARENTLY AT APPROXIMATELY THE SAME PRICES--- WILL PROVIDE THE REQUIRED PERFORMANCE; AND THE CHOOSING OF A SUITABLE POWER TAKE-OFF IS NOT CONSIDERED A CRITICAL OR HIGHLY TECHNICAL ASPECT OF MANUFACTURING THE REFUELING UNITS. IN ANY EVENT A SUITABLE POWER TAKE-OFF WILL HAVE TO BE PROVIDED IF THE FIRST ARTICLE SAMPLE IS TO PASS THE REQUIRED TESTS. UNDER SUCH CIRCUMSTANCES IT IS CLEAR, AS THE CONTRACTING OFFICER SAYS, THAT IT IS NOT AN ESSENTIAL REQUIREMENT OF THIS PROCUREMENT THAT THE GOVERNMENT KNOW PRIOR TO AWARD THE MAKE, MODEL, AND RATED CAPACITY OF THE POWER TAKE-OFF TO BE FURNISHED BY THE CONTRACTOR.

IN THESE CIRCUMSTANCES, PARTICULARLY IN VIEW OF THE FACT THAT GENERAL STEEL TANK COMPANY'S FAILURE TO SUBMIT THE DATA WITH THE BID APPEARS TO HAVE BEEN PRIMARILY, IF NOT SOLELY, THE RESULT OF THE GOVERNMENT'S MISDESCRIPTION IN THE INVITATION OF THE TRANSFER CASE, WE CONCLUDE THAT SUCH OMISSION MAY BE WAIVED AS A MINOR DEVIATION SO THAT THE CONTRACT MAY BE AWARDED TO THE GENERAL ..END :