B-157417, OCT. 15, 1965

B-157417, OCT. 15, 1965

TO ROTATING COMPONENTS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 29, 1965, TO THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, COPY OF WHICH WAS FORWARDED TO THIS OFFICE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO EASTERN AIR DEVICES, INC., BY THE ABOVE ACTIVITY PURSUANT TO THE INVITATION FOR BIDS NO. DSA-4-65-2409. YOU ALSO QUESTION THE ASSERTION THAT YOUR BID WAS UNSIGNED AND THE EFFECT THEREOF.

THE INVITATION WAS ISSUED ON MAY 11, 1965, AND CALLED FOR BIDS ON FURNISHING A QUANTITY OF PROPELLER VENTILATING FANS IN ACCORDANCE WITH PACIFIC DIVISION OF BENDIX AVIATION CORPORATION DRAWING NO. 1015635-H. THE EASTERN AIR DEVICES' BID ON ITS "EAD MODEL F-40H3R-6 ... IN ACCORDANCE WITH THE PACIFIC DIVISION OF BENDIX AVIATION CORP., NO. 1015635H" WAS THE LOWEST BID RECEIVED AND YOUR BID WAS SECOND LOWEST. AWARD WAS MADE TO EASTERN ON JULY 14, 1965.

IT IS YOUR CONTENTION THAT THE UNIT WHICH EASTERN PROPOSES TO FURNISH, AS WELL AS UNITS IT HAS FURNISHED UNDER PRIOR PROCUREMENTS OF THE SAME EQUIPMENT, IS NOT IN ACCORDANCE WITH THE BENDIX DRAWING. YOU CLAIM THAT THE EASTERN UNIT, WHICH YOU REPORTEDLY EXAMINED AT A RECENT FAIR AT THE PROCURING ACTIVITY, DOES NOT MEET THE REQUIREMENT FOR 250 CFM AIR DELIVERY AS STATED IN NOTE 5 OF THE SUBJECT DRAWING. YOU FURTHER STATE THAT IF THE EASTERN PRODUCT DOES IN FACT MEET THE GOVERNMENT'S NEEDS IN SPITE OF THIS DEFICIENCY, THEN THE IFB SHOULD BE CANCELLED AND THE REQUIREMENT READVERTISED UNDER DIFFERENT SPECIFICATIONS.

IT APPEARS FROM THE ADMINISTRATIVE REPORT THAT THIS ITEM HAS BEEN PROCURED SEVERAL TIMES FROM YOUR COMPANY, FROM EASTERN, AND FROM OTHER COMPANIES SINCE THE 1961 DATE OF THE BENDIX DRAWING. APPARENTLY NO SUCH COMPLAINT AS YOU NOW MAKE HAS BEEN MADE WITH RESPECT TO EARLIER PROCUREMENTS, AND THE PROCURING ACTIVITY ADVISES THAT THE GOVERNMENT PERSONNEL USING THE ITEM HAVE FOUND NO FAULT WITH IT. SINCE EASTERN HAS PREVIOUSLY FURNISHED THE ITEM WITHOUT ANY PROBLEMS BEING EXPERIENCED AND HAS AGAIN MADE AN OFFER TO FURNISH THE ITEM IN ACCORDANCE WITH THE BENDIX DRAWING WITHOUT ANY EXCEPTIONS THERETO, THE PROCURING ACTIVITY TAKES THE POSITION THAT EASTERN'S BID IS RESPONSIVE TO THE INVITATION AND UNDER AN AWARD OF A CONTRACT IT WILL BE REQUIRED TO FURNISH THE ITEM AS SPECIFIED.

ALTHOUGH YOU WERE UNABLE TO SUBSTANTIATE YOUR CHARGES WITH RESPECT TO THE NONCOMPLIANCE OF THE EASTERN EQUIPMENT, BENDIX WAS CONTACTED IN REGARD TO NOTE 5 AND THE 250 CFM AIR DELIVERY STATED THEREIN. A PART OF THE MEMORANDUM OF THE PROCUREMENT AGENT'S CONFERENCE WITH THE BENDIX ENGINEER FOLLOWS:

"I ASKED MR. MCANULTY IF THIS NOTE APPLIED TO THE COMPLETE FAN WITH SHROUD IN PLACE OR TO THE TORRINGTON MFG. CO. P/N NO. 0-429-4 FAN BLADE WHICH APPEARS IN NOTE 4 OF THE DRAWING. MR. MCANULTY, WHO WAS PROJECT ENGINEER FOR BENDIX ON THE DEVELOPMENT OF THIS FAN CHECKED HIS DRAWINGS AND ENGINEERING NOTES ON THIS ITEM AND REPLIED THAT NOTE 5 WAS FOR REFERENCE PURPOSES ONLY AND THAT THE 250 CFM INDICATED REFERRED TO CAPACITY OF THE TORRINGTON FAN BLADE AT 10,000 RPM MOTOR SPEED AS REQUIRED BY NOTE 3. HE STATED FURTHER THAT NOTES 3 AND 4 DETERMINED THE ACTUAL AIR DELIVERY OF THE FAN WHICH HE STATED DELIVERS 2 1/2 TIMES THE ACTUAL AIR DELIVERY REQUIREMENT FOR EFFECTIVELY COOLING THE ELECTRONIC EQUIPMENT THAT THE FAN WAS DESIGNED FOR.'

THIS INFORMATION WAS CONFIRMED BY LETTER, AND IT WAS ALSO RECOMMENDED THAT NOTE 5 BE DELETED FROM THE DRAWING IN FUTURE PROCUREMENTS TO OBVIATE ANY POSSIBILITY OF FUTURE MISINTERPRETATION BY POTENTIAL BIDDERS. HOWEVER, IT IS REPORTED THAT A REVIEW OF PREVIOUS CONTRACT FILES FOR THIS ITEM FAILED TO INDICATE THAT ANY BIDDER HAD BEEN MISLED INTO BELIEVING THAT THE COMPLETED UNIT HAD TO DELIVER AIR AT THE RATE OF 250 CFM AT 0 STATIC PRESSURE. IN THIS CONNECTION, THE ADMINISTRATIVE REPORT INCLUDES A COPY OF A LETTER FROM ONE OF THE APPROVED SOURCES LISTED ON THE DRAWING WHICH WAS SUBMITTED IN CONNECTION WITH AN EARLIER PROCUREMENT. IT IS POINTED OUT IN THIS LETTER THAT THE APPROVED AIR MARINE UNIT DOES NOT REALIZE AN AIR DELIVERY OF 250 CFM AT 0 INCHES WATER HEAD BUT DOES MEET THE AIR DELIVERY OF 120 CFM AT 0.5 INCHES WATER HEAD, WHICH IS THE "SIGNIFICANT AND FUNCTIONAL DELIVERY.'

THE ESTABLISHMENT OF SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION OF WHETHER PRODUCTS OFFERED MEET THE SPECIFICATIONS ARE MATTERS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY. 36 COMP. GEN. 251. HOWEVER, THE SPECIFICATIONS SHOULD BE SUFFICIENTLY DEFINITE AND ACCURATE TO FACILITATE THE PREPARATION AND EVALUATION OF BIDS ON AN EQUAL BASIS, AND TO INSURE THE FREE AND FULL COMPETITION CONTEMPLATED BY FORMAL ADVERTISING. 38 ID. 190. THE HISTORY OF THE PROCUREMENT AND USE OF THIS ITEM AS REPORTED BY THE ADMINISTRATIVE AGENCY LEAVES NO DOUBT THAT A UNIT MANUFACTURED IN ACCORDANCE WITH THE DRAWING SPECIFIED AND THE UNIT PREVIOUSLY FURNISHED BY EASTERN MEETS THE NEEDS OF THE GOVERNMENT. SINCE IT APPEARS TO HAVE BEEN ADEQUATELY ESTABLISHED THAT THE DRAWING DOES NOT REQUIRE A UNIT WITH AIR DELIVERY OF 250 CFM, WHETHER THE EASTERN UNIT MEETS THIS AIR DELIVERY RATE HAS NO RELEVANCY TO THE VALIDITY OF THE AWARD OF THE CONTRACT OR EASTERN'S PERFORMANCE THEREUNDER. THEREFORE, EASTERN HAVING OFFERED A UNIT IN ACCORDANCE WITH THE BENDIX DRAWING UNDER THE SUBJECT INVITATION, THE CONTRACT AWARDED THEREBY BINDS EASTERN TO FURNISH A UNIT IN ACCORDANCE WITH THE SPECIFICATIONS.

WHILE IT MAY BE CONCEDED THAT THE DRAWING COULD HAVE BEEN MORE CLEARLY WORDED, THE REMAINING QUESTION WOULD APPEAR TO BE WHETHER ANY OTHER BIDDER HAS BEEN MISLED BY THE DRAWING, AND THAT AN AWARD TO EASTERN WOULD THEREFORE BE PREJUDICIAL TO THE RIGHT OF SUCH OTHER BIDDER TO HAVE HIS BID CONSIDERED ON THE SAME BASIS AS EASTERN-S. ALTHOUGH YOU INTERPRET THE DRAWING AS REQUIRING A UNIT WITH A 250 CFM AIR DELIVERY RATE, IT DOES NOT APPEAR THAT THIS WAS THE CASE AS FAR AS OTHER BIDDERS ARE CONCERNED, OR THAT ANY OF THE OTHER BIDDERS WERE PREJUDICED EITHER IN THE PREPARATION OR EVALUATION OF THEIR BIDS.

WHETHER ACCEPTANCE OF EASTERN'S BID WOULD BE PREJUDICIAL TO YOUR RIGHTS WOULD APPEAR TO DEPEND, IN THE FIRST INSTANCE, UPON WHETHER YOU SUBMITTED A BID WHICH, EXCEPT FOR PRICE, MIGHT OTHERWISE HAVE BEEN ACCEPTED. THIS CONNECTION, WE HAVE EXAMINED THE ORIGINAL BID AND IT IS NOT SIGNED. WE ARE ADVISED THAT THE DUPLICATE COPY WAS CAREFULLY EXAMINED AT THE TIME OF OPENING AND IT WAS NOT SIGNED. THE COPY WAS THEN DESTROYED IN ACCORDANCE WITH THE --- USUAL PROCEDURE OF THE AGENCY. WHEN A BID LACKS A PROPER SIGNATURE AND THERE IS NO OTHER CLEAR INDICATION IN THE BID SUBMISSION THAT THE BIDDER INTENDED TO SUBMIT THE BID AND BE BOUND BY AN ACCEPTANCE THEREOF, IT IS WELL ESTABLISHED THAT THIS IS A SUBSTANTIVE DEFECT WHICH MAY NOT BE WAIVED OR CURED. 34 COMP. GEN. 39; 38 ID. 819. TO THE SAME EFFECT IS PARAGRAPH 1-2.405 OF THE FEDERAL PROCUREMENT REGULATIONS.

ACCORDINGLY, SINCE IT WOULD NOT APPEAR THAT THE AWARD TO EASTERN IS PREJUDICIAL TO EITHER THE GOVERNMENT OR THE RIGHTS OF OTHER BIDDERS, YOUR PROTEST MUST BE DENIED.