B-160068, OCT. 27, 1966

B-160068: Oct 27, 1966

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TO HATHAWAY INSTRUMENTS INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14. ADVISING THAT YOU WERE THE LOW BIDDER UNDER INVITATION FOR BIDS NO. 304-36-252R. THE SUBJECT INVITATION WAS ISSUED ON MAY 25. WERE THE ONLY BIDS RECEIVED. IT IS REPORTED BY THE ADMINISTRATIVE OFFICE THAT IN EVALUATING YOUR BID IT WAS NOTED THAT WHILE YOU DID NOT INDICATE ANY DEVIATION FROM THE SPECIFICATIONS THE EQUIPMENT OFFERED BY YOU DEVIATED FROM THE ESSENTIAL REQUIREMENTS OF THE INVITATION AS FOLLOWS: (1) SPECIFICATIONS PARAGRAPH 4. EQUIPMENT OFFERED BY HATHAWAY DOES NOT MEET THIS REQUIREMENT. (2) THE OSCILLOGRAPH PROPOSED BY HATHAWAY IS ITS PRESENT FIELD FAULT RECORDING OSCILLOGRAPH WHICH THE BIDDER PROPOSES TO MODIFY TO MEET OUR REQUIREMENT.

B-160068, OCT. 27, 1966

TO HATHAWAY INSTRUMENTS INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14, 1966, ADVISING THAT YOU WERE THE LOW BIDDER UNDER INVITATION FOR BIDS NO. 304-36-252R, AND PROTESTING THE ACTION OF THE BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR, IN AWARDING A CONTRACT THEREUNDER TO THE SANGAMO ELECTRIC COMPANY.

THE SUBJECT INVITATION WAS ISSUED ON MAY 25, 1966, SOLICITING BIDS FOR AUTOMATIC TRANSIENT PREFAULT RECORDING EQUIPMENT. YOUR BID IN THE AMOUNT OF $26,865, AND A BID FROM SANGAMO IN THE AMOUNT OF $34,609.33, WERE THE ONLY BIDS RECEIVED.

IT IS REPORTED BY THE ADMINISTRATIVE OFFICE THAT IN EVALUATING YOUR BID IT WAS NOTED THAT WHILE YOU DID NOT INDICATE ANY DEVIATION FROM THE SPECIFICATIONS THE EQUIPMENT OFFERED BY YOU DEVIATED FROM THE ESSENTIAL REQUIREMENTS OF THE INVITATION AS FOLLOWS:

(1) SPECIFICATIONS PARAGRAPH 4, PAGE 19, READS IN PART, "THE UNIT SHALL SCAN THE TAPE, LOCATE THE RECORDED FAULT, AND AUTOMATICALLY STOP THE TAPE AT THE FAULT.' EQUIPMENT OFFERED BY HATHAWAY DOES NOT MEET THIS REQUIREMENT.

(2) THE OSCILLOGRAPH PROPOSED BY HATHAWAY IS ITS PRESENT FIELD FAULT RECORDING OSCILLOGRAPH WHICH THE BIDDER PROPOSES TO MODIFY TO MEET OUR REQUIREMENT. THIS (MODIFIED) OSCILLOGRAPH WOULD BE NONSTANDARD, CREATING PROBLEMS ASSOCIATED WITH NONSTANDARD EQUIPMENT, SUCH AS HIGH COST OF REPLACEMENT PARTS AND MAINTENANCE PROBLEMS. THE PROPOSAL IN THIS RESPECT DEVIATES FROM THE SPECIAL CONDITIONS PROVISION OF THE INVITATION REQUIRING THAT EQUIPMENT OFFERED BE FIELD-OPERATED OVER A SUFFICIENT PERIOD OF TIME TO INSURE RELIABILITY OF THE EQUIPMENT.

(3) TAPE SPEED DOES NOT MEET 250 IPS REQUIRED BY THE INVITATION.

(4) HATHAWAY PROPOSED SYSTEM WILL RECORD ONLY WHEN A DISTURBANCE IS SENSED BY ONE OF THE FAULT SENSORS. MANY TIMES A REMOTE DISTURBANCE IS NOT OF SUFFICIENT MAGNITUDE TO INITIATE THE FAULT SENSORS, THUS NO DATA WILL BE RECORDED.

FURTHER, IT WAS NOTED THAT YOUR BID DID NOT INCLUDE PAGES 16-20 OF THE SPECIFICATIONS AND FORM 7-1560 AND, THEREFORE, IT WAS DETERMINED THAT YOUR BID ALSO WAS NONRESPONSIVE FOR THIS REASON.

IN YOUR LETTER YOU CONTEND THAT, SINCE YOU TOOK NO EXCEPTION TO THE SPECIFICATIONS AND SINCE PAGE 1 OF THE INVITATION INCORPORATES PAGES 16-20 OF THE SPECIFICATIONS AND FORM 7-1560, YOU WOULD BE OBLIGATED TO COMPLY THEREWITH IRRESPECTIVE AS TO WHETHER THEY WERE RETURNED WITH YOUR BID. YOU FURTHER CONTEND, IN EFFECT, THAT YOU TOOK NO EXCEPTION TO THE SPECIFICATIONS BECAUSE YOU INTENDED TO MODIFY YOUR EXISTING EQUIPMENT TO COMPLY WITH THE SPECIFICATIONS.

REGARDING YOUR FAILURE TO INCLUDE THE ABOVE SPECIFICATION PAGES AND FORM 7-1560 IN YOUR BID, WE HAVE HELD THAT A BIDDER WOULD NOT BE OBLIGATED TO COMPLY WITH ANY PROVISIONS WHICH THE INVITATION STATED WERE ATTACHED BUT WHICH, IN FACT, WERE NOT ATTACHED WHEN THE BID WAS SUBMITTED. 42 COMP. GEN. 502. IN VIEW THEREOF, WE WOULD NOT BE WARRANTED IN QUESTIONING THE ADMINISTRATIVE ACTION IN REJECTING YOUR BID AS BEING NONRESPONSIVE FOR FAILURE TO RETURN THE INVOLVED SUBSTANTIVE PROVISIONS OF THE INVITATION WITH YOUR BID.

ASIDE FROM THE FOREGOING, IT APPEARS THAT YOUR BID WAS PROPER FOR REJECTION BECAUSE THE EQUIPMENT OFFERED BY YOU DID NOT CONFORM TO THE REQUIREMENTS OF THE SPECIFICATIONS. WHILE YOU CONTEND THAT YOU INTENDED TO MODIFY YOUR PRESENT EQUIPMENT TO MEET THE SPECIFICATIONS, THE ADMINISTRATIVE OFFICE REPORTS THAT IT EVALUATED YOUR BID UPON THE DATA SUBMITTED SINCE YOUR PROPOSED MODIFICATIONS TO THE EQUIPMENT WERE AT VARIANCE WITH THE PROVISIONS OF CLAUSE 2 OF THE SPECIAL CONDITIONS REQUIRING THAT EQUIPMENT SHOULD BE FIELD OPERATED OVER A SUFFICIENT PERIOD OF TIME TO INSURE RELIABILITY OF THE EQUIPMENT OFFERED.

IT LONG HAS BEEN RECOGNIZED THAT THE FACTUAL DETERMINATION AS TO WHETHER THAT WHICH IS OFFERED BY THE BIDDER CONFORMS TO THE SPECIFICATIONS IS TO BE DECIDED PRIMARILY BY THE CONTRACTING AGENCY. 17 COMP. GEN. 554; 36 COMP. GEN. 251. THUS, WHERE IT IS REASONABLY SHOWN THAT EQUIPMENT OFFERED BY A BIDDER FAILS TO MEET THE SPECIFICATION IN SOME SPECIFIC RESPECT, A DETERMINATION THAT SUCH BID SHOULD BE REJECTED WILL NOT BE QUESTIONED BY OUR OFFICE. IN THIS INSTANCE, SINCE IT IS REPORTED THAT YOUR EQUIPMENT DOES NOT MEET THE REQUIREMENTS OF THE SPECIFICATION ON THREE ESSENTIAL POINTS AND THAT A MODIFICATION OF YOUR PRESENT OSCILLOGRAPH WOULD RESULT IN A NONSTANDARD ITEM CREATING HIGH COST OF REPLACEMENT PARTS AND MAINTENANCE PROBLEMS, WE MUST CONCLUDE THAT NO LEGAL BASIS EXISTS FOR OUR OFFICE TO OBJECT TO THE ACTION TAKEN BY THE CONTRACTING OFFICER IN REJECTING YOUR BID.