B-158601, MAY 2, 1966

B-158601: May 2, 1966

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DA 28-043-AMC-02606 (E) WAS AWARDED TO ALFRED ELECTRONICS. THE IFB WAS ISSUED JUNE 3. WAS DESCRIBED AS FOLLOWS: "SWEEP OSCILLATOR. WERE DESCRIBED IN A SIMILAR MANNER. OF THE INVITATION CONTAINED THE FOLLOWING PERTINENT PROVISIONS: "/A) * * * BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS. "/C) * * * THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID.

B-158601, MAY 2, 1966

TO MICRO-POWER, INC.:

WE REFER AGAIN TO YOUR LETTER OF FEBRUARY 23, 1966, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. AMC (E/-28 -043-65-00188 (F). CONTRACT NO. DA 28-043-AMC-02606 (E) WAS AWARDED TO ALFRED ELECTRONICS, PALO ALTO, CALIFORNIA, ON JUNE 30, 1965, AND HAS BEEN COMPLETED AND PAYMENTS MADE.

THE IFB WAS ISSUED JUNE 3, 1965, AND SOLICITED BIDS FOR THE SUPPLY OF ONE SWEEP OSCILLATOR AND THREE SWEEP OSCILLATOR AND THREE SWEEP OSCILLATOR PLUG-IN UNITS, WITH AWARD TO BE MADE OF THE GROUP ONLY. ITEM 1, THE SWEEP OSCILLATOR, WAS DESCRIBED AS FOLLOWS:

"SWEEP OSCILLATOR, W/POWER SUPPLY AND CENTRAL CIRCUITRY OPERABLE FROM THE FOLLOWING POWER NPUT: 105 TO 125 VOLTS, OR 210 TO 250 VOLTS, 50/400 CPS. MAXIMUM UP TO 160 VOLTAMPERES, ALFRED ELECTRONICS MODEL 650, OR EQUAL.' ITEMS 2, 3 AND 4, THE PLUG-IN UNITS, WERE DESCRIBED IN A SIMILAR MANNER, CALLING ALSO FOR AN ALFRED ELECTRONICS MODEL NUMBER OR EQUAL. FURTHER, PAGE 5 OF THE IFB CONTAINED ADDITIONAL CHARACTERISTICS FOR THE PLUG-IN UNITS, ONE OF WHICH (D.) CALLED FOR FIVE SINGLE FREQUENCIES ABLE TO BE PRE-SET WITH CONTROLS F0, F1, F2, M1, AND M2. NOTE 5, PAGE 10, OF THE INVITATION CONTAINED THE FOLLOWING PERTINENT PROVISIONS:

"/A) * * * BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS.

"/C) * * * THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. CAUTION TO BIDDERS. THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS PART OF HIS BID ALL DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHETHER THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. * * *"

WITH YOUR BID OF JUNE 15, 1965, YOU SUBMITTED A COVER LETTER, REFERENCE QN1530, APPARENTLY TO MEET THE DESCRIPTIVE DATA REQUIREMENT, CONTAINING VARIOUS CATALOG DATA AND PRICES, AND IN WHICH YOU STATED VARIOUS SPECIFICATIONS TO WHICH YOUR STANDARD MICRO-POWER UNIT WOULD CONFORM. YOU LISTED THE MODEL NUMBER AND PRICE OF THE UNIT YOU INTENDED TO FURNISH AS AN EQUAL TO THE ALFRED ELECTRONICS MODEL IN THE IFB. THE DATA YOU FORWARDED APPARENTLY DID NOT CONTAIN ANY INFORMATION AS TO THE MAXIMUM OUTPUT OF THE SWEEP OSCILLATOR, WHICH, IN THE IFB, WAS REQUIRED TO BE 160 VOLTAMPERES, NOR DID IT CONTAIN INFORMATION CONCERNING THE F0 SINGLE FREQUENCY CONTROL OF THE PLUG-IN UNITS. YOUR BID WAS REJECTED FOR FAILURE TO CONFORM TO THE SPECIFICATIONS AS AN "EQUAL.' TWO OF THE REASONS WERE THE INABILITY OF THE AGENCY TO EVALUATE THE MAXIMUM INPUT REQUIREMENT OF 160 VOLTAMPERES DUE TO YOUR FAILURE TO FURNISH SUFFICIENT DATA, AND THE ABSENCE OF A F0 SINGLE FREQUENCY CONTROL SETTING. ON JUNE 30, 1965, YOU WERE ADVISED THAT YOUR BID DID NOT MEET THE SPECIFICATION AS AN "EQUAL" BECAUSE "THE SWEEP MODES YOU ARE OFFERING DO NOT HAVE A SYMMETRICAL SWEEP FOR ANY SINGLE (F0) CONTROL SETTING. THE DESIRED SWEEP MODES HAVE A SYMMETRICAL SWEEP * * * ADJUSTABLE FROM 0 TO 10 PERCENT OF RANGE ANYWHERE IN BAND AROUND CENTER FREQUENCY F0.' LATER, AT A MEETING ON JULY 12, 1965, YOU STATED THAT THE MICRO-POWER UNIT MAXIMUM POWER INPUT WAS WITHIN THE 160 VOLTAMPERES MAXIMUM AND THEN DEMONSTRATED THE FUNCTIONAL EQUIVALENCE OF THE FREQUENCY AND MANUAL CONTROLS OF YOUR UNIT, AND THE AGENCY DETERMINED YOUR UNITS TO BE ACCEPTABLE. YOUR BID, HOWEVER, WAS STILL CONSIDERED NONRESPONSIVE FOR FAILURE TO SUBMIT THE DESCRIPTIVE DATA ON THE POWER INPUT AND FREQUENCY CONTROL SETTING AS REQUIRED IN NOTE 5 OF THE IFB, AND YOU WERE ADVISED ACCORDINGLY ON AUGUST 17.

ON SEPTEMBER 2, 1965, YOU PROTESTED THE REJECTION OF YOUR BID, STATING FIRST THAT YOUR BID ,DESCRIBED A SYMMETRICAL SWEEP MODE ADJUSTABLE FROM AT LEAST 0 TO 10 PERCENT OF THE RANGE, * * *.' THIS ALLEGATION IS APPARENTLY CORRECT. FURTHER, YOU CONTENDED "THE "SYMMETRICAL MODE" OF COURSE, AS IS COMMONLY UNDERSTOOD INDUSTRY WIDE, IS ABOUT A CENTER FREQUENCY," WHICH IS APPARENTLY WHAT THE F0 SETTING IS; AND, THUS, YOU FEEL THAT THE DESCRIPTION OF THE SYMMETRICAL MODE IN YOUR BID MEETS THE REQUIREMENTS OF THE SPECIFICATION. WE NOTE, ON THIS POINT, THAT THE INVITATION CALLED FOR BOTH A SYMMETRICAL SWEEP ADJUSTABLE FROM 0 TO 10 PERCENT OF RANGE AND AN F0 SETTING.

SECONDLY, YOU STATED THAT THE OMISSION OF DATA ON THE "MAXIMUM INPUT OF 160 VOLTAMPERES" IS A MINOR MATTER AND SHOULD NOT AFFECT YOUR BID. YOU ALSO POINT OUT THAT THE AGENCY OMITTED THIS IN THEIR NOTIFICATION TO YOU.

AS YOUR PROTEST WAS BEING PROCESSED BY THE AGENCY FOR SUBMISSION TO THIS OFFICE, THERE WAS NOTICED THE STATEMENT ON YOUR "PRICE SCHEDULE," ATTACHED TO YOUR BID, THAT PRICES WERE "SUBJECT TO CHANGE WITHOUT NOTICE.' THIS DEFECT WAS BROUGHT TO YOUR ATTENTION AS RENDERING YOUR BID NONRESPONSIVE UNDER THE ARMED SERVICES PROCUREMENT REGULATION. HOWEVER, YOU CONTEND THAT THIS STATEMENT IS RENDERED INEFFECTIVE, AND IS SUPERSEDED BY YOUR STATEMENT ON THE FACE OF YOUR BID AS FOLLOWS:

"IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF THIS BID BE ACCEPTED WITHIN ----- CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD BE INSERTED BY THE BIDDER) FROM THE DATE OF OPENING, TO FURNISH ANY OR ALL OF THE ITEMS UPON WHICH PRICES ARE QUOTED, AT THE PRICE SET OPPOSITE EACH ITEM, * * * .'

THE INVITATION SPECIFIED THAT CERTAIN DESCRIPTIVE DATA MUST BE FURNISHED IN ORDER FOR THE AGENCY TO EVALUATE THE UNIT FOR EQUIVALENCY. YOUR BID DID NOT CONTAIN THE NECESSARY DATA TO ALLOW AN EVALUATION TO BE MADE, AND, ALTHOUGH YOUR UNIT IS NOW CONSIDERED ACCEPTABLE, THAT DETERMINATION WAS BASED UPON ADDITIONAL INFORMATION IMPROPERLY RECEIVED AND CONSIDERED AFTER BID OPENING. IN 40 COMP. GEN. 132, A CASE INVOLVING A SIMILAR FAILURE TO SUBMIT REQUIRED DESCRIPTIVE DATA, WE HELD AS FOLLOWS:

"UNLESS BIDS ARE EVALUATED SOLELY ON THE BASIS OF THEIR CONTENT AT THE TIME OF BID OPENING THE COMPETITIVE BID SYSTEM WOULD SOON LOSE ITS INTEGRITY BECAUSE, CONTRARY TO THE PURPOSES OF THE ADVERTISING STATUTES, THE EFFECT WOULD BE THAT BIDS COULD BE WAIVED AFTER OPENING AND PRIOR TO AWARD. UNITED STATES V. BROOKRIDGE FARM, 111 F 2D 461. * * *" IN B- 154320, AUGUST 5, 1964, WE SAID THAT "ALTHOUGH THE INVITATION DID NOT SPECIFICALLY WARN PROSPECTIVE BIDDERS OF THE CONSEQUENCES OF FAILURE TO FURNISH THE DESIRED INFORMATION, THE FACT THAT THE INVITATION STATED, IN MANDATORY LANGUAGE, THAT SUCH DRAWINGS SHOULD BE FURNISHED AND THEY WERE NOT FURNISHED IS SUFFICIENT JUSTIFICATION FOR REJECTION PROVIDED THAT THE DRAWINGS ARE NECESSARY FOR BID EVALUATION.' SEE ALSO 37 COMP. GEN. 763; ID. 645; 41 ED. 348. B-145335, JULY 6, 1961; B-149634, SEPTEMBER 6, 1962; B-155295,NOVEMBER 30, 1964; B-155238, DECEMBER 14, 1964; B-155408, JANUARY 5, 1965.

YOUR CONTENTION THAT THESE OMISSIONS WERE OF RELATIVELY MINOR IMPORTANCE CANNOT BE SUPPORTED BY THE FACTS, SINCE THE AGENCY APPARENTLY WAS UNABLE TO PROPERLY EVALUATE THE UNITS WITHOUT THE INFORMATION. IN THIS CONNECTION, WE HAVE HELD THAT, WHERE DESIGNATED INFORMATION IS REQUIRED BY THE TERMS OF THE INVITATION TO BE SUBMITTED WITH THE BID, THE INFERENCE ARISES THAT SUCH INFORMATION IS REGARDED BY THE GOVERNMENT AS MATERIAL SO THAT THE FAILURE TO ACCOMPANY THE BID WITH SUCH INFORMATION REQUIRES THAT THE BID BE REJECTED. 39 COMP. GEN.247. FURTHER, THE DECISION AS TO THE NECESSITY OF SUCH DATA IS PRIMARILY THAT OF THE PROCURING AGENCY AND WILL NOT BE QUESTIONED BY THIS OFFICE. 17 COMP. GEN. 554.

SIMILARLY, WE CANNOT ACCEPT YOUR ALLEGATION THAT THE DATA YOU SUBMITTED ON THE SYMMETRICAL SWEEP MODE IS SUFFICIENT TO FULFILL THE REQUIREMENT OF THE F0 FREQUENCY CONTROL, INASMUCH AS THE AGENCY SEEMS TO REJECT THAT CONTENTION, AND THE EVALUATION OF BIDS AND THE INFORMATION CONTAINED THEREIN IS ALSO FOR THE DETERMINATION OF THE AGENCY INVOLVED. 36 COMP. GEN. 251.

CONSEQUENTLY, IT IS OUR OPINION THAT, BY FAILING TO SUBMIT THE DESCRIPTIVE DATA REQUIRED BY THE INVITATION, YOU RENDERED YOUR BID NONRESPONSIVE TO THE INVITATION AND PRECLUDED ITS CONSIDERATION. THIS RESULT IS NOT AFFECTED BY THE FAILURE OF THE AGENCY TO ACCURATELY ADVISE YOU OF ALL OF THE DEFECTS IN YOUR BID.

IN ADDITION TO THE ABOVE, PARAGRAPH 37 OF THE GENERAL PROVISIONS WARNED YOU TO EXCLUDE ANY CONDITIONS FROM YOUR BID WHICH MAY BE IN CONFLICT WITH ANY OTHER PROVISION IN THE INVITATION. THIS WARNING IS DESIGNED TO PREVENT THE SITUATION WHICH AROSE BY THE INCLUSION IN YOUR BID OF THE STATEMENT THAT "PRICES WERE SUBJECT TO CHANGE WITHOUT NOTICE.' IF SUCH A PROVISION WERE TO BE ACCEPTED BY THE GOVERNMENT, IT MIGHT BE BINDING NOTWITHSTANDING THE IFB PROVISION THAT YOU CITED. THIS PROVISION FALLS SQUARELY WITHIN THE TERMS OF PARAGRAPH 2-404.2 (D) (I), ARMED SERVICES PROCUREMENT REGULATION, WHICH REQUIRES REJECTION OF BIDS WHERE THE BIDDER "ATTEMPTS TO PROTECT HIMSELF AGAINST FUTURE CHANGES IN CONDITIONS, SUCH AS INCREASED COSTS, IF TOTAL POSSIBLE COSTS TO THE GOVERNMENT CANNOT BE DETERMINED.' THUS, THE AGENCY WAS JUSTIFIED IN REJECTING YOUR BID ON THIS BASIS ALONE. B 158399, FEBRUARY 2, 1966.

FOR THE ABOVE-STATED REASONS, WE FIND THAT THE REJECTION OF YOUR BID WAS PROPER.