B-162233, AUG. 17, 1967

B-162233, AUG. 17, 1967

BIDS - DEVIATIONS - GOVERNMENT EQUIPMENT DECISION TO CONTRACTING OFFICER OF COMMERCE DEPT. RE PROTEST OF LOW BIDDER AMERICAN ELECTRONIC LABORATORIES, INC., AGAINST AWARD TO ANY OTHER BIDDER BECAUSE ITS BID WAS NOT QUALIFIED. LOW BIDDER WHO UNDER INVITATION FOR FURNISHING UHF AMPLIFIER SUBMITTED LETTER INDICATING QUOTATION WAS BASED ON GOVERNMENT SUPPLYING EQUIPMENT FOR TESTING HAS QUALIFIED HIS BID BY IMPOSING A MATERIAL REQUIREMENT UPON THE GOVERNMENT THAT WAS NOT CONTEMPLATED BY INVITATION AND, THEREFORE THE BID WAS PROPERLY REJECTED.

TO MR. SCODARI:

REFERENCE IS MADE TO YOUR LETTER NS/7-35411 OF AUGUST 8, 1967, REQUESTING A DECISION WITH RESPECT TO THE BID OF AMERICAN ELECTRONIC LABORATORIES, INC., UNDER INVITATION FOR BIDS 7-35411.

THE INVITATION FOR BIDS SOLICITED PRICES ON A VHF LINEAR AMPLIFIER TO BE IN ACCORDANCE WITH SPECIFICATION S212.001, DATED MARCH 1, 1967. THE FACE OF THE INVITATION CONTAINED A NOTE WHICH STATED THAT THE BIDDER SHALL SUBMIT AN OUTLINE OF THE PROPOSED TEST PLAN AS REQUIRED BY PARAGRAPH 4.2 OF THE SPECIFICATION.

PARAGRAPH 4.1 OF THE SPECIFICATION PROVIDES THAT THE CONTRACTOR SHALL PERFORM ALL PERFORMANCE TESTS USING ITS OWN FACILITIES OR THAT OF ANY COMMERCIAL LABORATORY ACCEPTABLE TO THE GOVERNMENT. PARAGRAPH 4.2 OF THE SPECIFICATION STATES THAT AN OUTLINE OF THE PROPOSED TEST PLAN TO DETERMINE OPERATION IN CONFORMANCE WITH THE SPECIFICATIONS SHALL BE SUBMITTED AS A PART OF THE BID.

AMERICAN ELECTRONIC LABORATORIES, INC., SUBMITTED THE LOWEST BID IN THE AMOUNT OF $36,278 UNDER THE INVITATION. IN A LETTER ACCOMPANYING ITS BID, THIS BIDDER ADVISED:

"OUR QUOTATION IS PREDICATED UPON THE GOVERNMENT SUPPLYING A SUITABLE RF DRIVE SOURCE FOR TESTING THE AMPLIFIER.'

IT IS REPORTED FURTHER THAT THE BIDDER'S TEST PLAN OUTLINE SUBMITTED WITH THE BID SHOWS A SUITABLE RF DRIVE SOURCE AS GOVERNMENT FURNISHED. YOU STATE THAT YOUR DEPARTMENT HAS NO SUITABLE RF DRIVE SOURCE THAT CAN BE MADE AVAILABLE FOR TESTING.

YOU ADVISE THAT THE BIDDER WAS NOTIFIED THAT THE BID WAS CONSIDERED NONRESPONSIVE BECAUSE OF THE QUALIFICATION IN THE BID. HOWEVER, THE BIDDER PROTESTED AGAINST AN AWARD TO ANY OTHER BIDDER ON THE BASIS THAT THE REQUEST FOR GOVERNMENT-FURNISHED EQUIPMENT DID NOT QUALIFY ITS BID SINCE IT WAS OFFERED AS A PART OF THE TEST PLAN REQUESTED BY THE GOVERNMENT.

THE INVITATION DID NOT PROVIDE THAT THE GOVERNMENT WOULD FURNISH A SUITABLE RF DRIVE SOURCE. WHILE THE EQUIPMENT MAY BE REQUIRED FOR TESTING ALONE, IN CONDITIONING THE BID UPON THE GOVERNMENT FURNISHING IT, THE BIDDER CLEARLY QUALIFIED ITS BID BY IMPOSING A MATERIAL REQUIREMENT UPON THE GOVERNMENT THAT WAS NOT CONTEMPLATED BY THE INVITATION FOR BIDS. COMP. GEN. 179.

ACCORDINGLY, THE BID FROM AMERICAN ELECTRONIC LABORATORIES, INC., SHOULD BE REJECTED AS NONRESPONSIVE.