B-162406, OCT. 30, 1967

B-162406: Oct 30, 1967

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OF AGRICULTURE LOW BIDDER WHO OFFERED COMPONENT THAT DID NOT MEET SPECIFICATIONS AND INDICATED THAT ANOTHER TYPE COMPONENT COULD BE SUPPLIED HAD HIS BID PROPERLY INTERPRETED AS OFFERING AN ALTERNATIVE ITEM AT AN ADDITIONAL UNDISCLOSED PRICE SINCE BIDDER COULD HAVE CLEARLY INDICATED THAT ALTERNATIVE ITEM WOULD BE FURNISHED AT NO ADDITIONAL COST. SINCE OFFER IS AMBIGUOUS IT MUST BE CONSTRUED AGAINST BIDDER. TO NON-LINEAR SYSTEMS INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31. SOLICITATIONS WERE ISSUED ON JUNE 7. SOLICITATIONS WERE ISSUED ON JUNE 10. THE CONTRACTING OFFICER HAS REPORTED THAT AWARD OF THE CONTRACT UNDER BOTH INVITATIONS WAS MADE TO HONEYWELL. YOUR BIDS WERE REJECTED UNDER EACH INVITATION BECAUSE THE CLOCK YOU PROPOSED TO FURNISH FOR TIME REFERENCE DEVIATED FROM THE ADVERTISED SPECIFICATIONS.

B-162406, OCT. 30, 1967

BIDS - AMBIGUOUS DECISION TO NON-LINEAR SYSTEMS, INC. CONCERNING PROTEST AGAINST REJECTION OF BIDS FOR DIGITAL DATA SYSTEMS FOR SOIL AND WATER CONSERVATION RESEARCH DIVISION, DEPT. OF AGRICULTURE LOW BIDDER WHO OFFERED COMPONENT THAT DID NOT MEET SPECIFICATIONS AND INDICATED THAT ANOTHER TYPE COMPONENT COULD BE SUPPLIED HAD HIS BID PROPERLY INTERPRETED AS OFFERING AN ALTERNATIVE ITEM AT AN ADDITIONAL UNDISCLOSED PRICE SINCE BIDDER COULD HAVE CLEARLY INDICATED THAT ALTERNATIVE ITEM WOULD BE FURNISHED AT NO ADDITIONAL COST. THEREFORE, SINCE OFFER IS AMBIGUOUS IT MUST BE CONSTRUED AGAINST BIDDER.

TO NON-LINEAR SYSTEMS INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31, 1967, WITH ENCLOSURES, PROTESTING THE REJECTION OF YOUR BIDS AS NONRESPONSIVE UNDER DEPARTMENT OF AGRICULTURE INVITATIONS FOR BIDS NOS. 280-N-ARS-67 AND 290-N -ARS-67.

SOLICITATIONS WERE ISSUED ON JUNE 7, 1967, UNDER INVITATION NO. 280 N-ARS -67 FOR A DATA ACQUISITION SYSTEM FOR SHIPMENT TO THE SOIL AND WATER CONSERVATION RESEARCH DIVISION, LOMPOC, CALIFORNIA. SOLICITATIONS WERE ISSUED ON JUNE 10, 1967, FOR A DIGITAL DATA ACQUISITION SYSTEM UNDER INVITATION NO. 290-N-ARS-67 FOR SHIPMENT TO THE SOIL AND WATER CONSERVATION RESEARCH DIVISION, DAVIS, CALIFORNIA.

THE CONTRACTING OFFICER HAS REPORTED THAT AWARD OF THE CONTRACT UNDER BOTH INVITATIONS WAS MADE TO HONEYWELL, INC., AS THE LOWEST RESPONSIVE BIDDER, BASED ON EQUIPMENTS WHICH FULLY MET THE ADVERTISED SPECIFICATIONS. YOUR BIDS WERE REJECTED UNDER EACH INVITATION BECAUSE THE CLOCK YOU PROPOSED TO FURNISH FOR TIME REFERENCE DEVIATED FROM THE ADVERTISED SPECIFICATIONS. THE PERTINENT SPECIFICATION ON PAGE 9 OF THE INVITATION PROVIDED AS FOLLOWS:

"CLOCK

G. TUNING FORK REFERENCE FOR TIME BASE; ACCURACY SHALL BE BETTER THAN 60 SECONDS IN 24 HOURS OVER RANGE OF 0-60 DEGREES CENTIGRADE. AT 25 DEGREES CENTIGRADE THE ACCURACY SHALL BE WITHIN 30 SECONDS FOR 24 HOURS.'

ON PAGE 3 OF YOUR PROPOSAL YOU OFFERED THE FOLLOWING:

"ONE NLS MODEL DC6ST DIGITAL CLOCK.'

"THE DC6ST CLOCK CONTAINS A 6 DIGIT ILLUMINATED IN LINE DIGITAL DISPLAY OF HOURS, MINUTES AND SECONDS (23 HRS., 59 MIN., AND 59 SECS.) SELECTION OF TIMING OUTPUT AT INTERVALS OF 1 MINUTE TO 1 OR MORE HOURS IS PROVIDED. TIME REFERENCE WILL BE INTERNALLY GENERATED FROM LINE FREQUENCY. THE DC6ST CONTAINS RECORDABLE TIME OUTPUTS AND INTERLOCK FEATURE. INTERLOCK FEATURE PERMITS ACCURATE AMBIGUOUS TIME RECORDING. DC6ST IS ALL SOLID STATE WITH AUTOMATIC POWER FAILURE INDICATOR. FURTHER DETAILS IN SECTION III. DC6ST CAN ALSO BE SUPPLIED WITH CRYSTAL TIME BASE.'

YOU OFFERED A CLOCK HAVING TIME REFERENCE THAT WOULD BE INTERNALLY GENERATED FROM LINE FREQUENCY. THIS WAS ADMINISTRATIVELY DETERMINED TO BE UNSATISFACTORY FOR USE FOR THE PURPOSE INTENDED SINCE LINE FREQUENCY WOULD BE UNSTABLE UNDER FIELD CONDITIONS WHEN A MOTOR GENERATOR IS USED AS THE SOURCE OF ELECTRIC POWER. WE ARE ADVISED THAT INCORRECT INDICATIONS OF TIME RESULTING FROM FLUCTUATING LINE FREQUENCY WOULD INVALIDATE THE RESEARCH DATA BEING COLLECTED.

AS NOTED ABOVE, YOU STATED ON PAGE 3 OF YOUR PROPOSAL THAT "DC6ST CAN ALSO BE SUPPLIED WITH CRYSTAL TIME BASE.' THE SAME STATEMENT IS CONTAINED IN BOTH SOLICITATIONS NOS. 280-N-ARS-67 AND 290-N-ARS-67. THIS STATEMENT WAS INTERPRETED BY THE CONTRACTING OFFICER AS MERELY INDICATING THE AVAILABILITY OF THE CRYSTAL TIME BASE AND SINCE YOU DID NOT STATE THAT IT WOULD BE SUPPLIED AT YOUR BID PRICE, IT WAS CONCLUDED THAT THE CRYSTAL TIME BASE WAS BEING OFFERED AT AN ADDITIONAL UNSPECIFIED COST. WHILE YOU ADVISED AFTER BID OPENING THAT YOU WERE WILLING TO FURNISH THE CRYSTAL TIME BASE FOR THE SAME PRICE AS THE NONRESPONSIVE TIME REFERENCE CLOCK, YOU WERE NOT ENTITLED TO CLARIFY YOUR BID AFTER THE BID OPENING. IN THIS REGARD, WE HELD IN 40 COMP. GEN. 668, 671, THAT:

"* * * IT HAS CONSISTENTLY BEEN HELD BY OUR OFFICE AND THE COURTS THAT BIDDERS SHOULD NOT BE PERMITTED TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED, IT BEING CONSIDERED THAT THE STRICT MAINTENANCE OF SUCH RULE IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENT PECUNIARY ADVANTAGE IN A PARTICULAR CASE. AS WAS SAID BY THE COURT IN CITY OF CHICAGO V. MOHR, 216 ILLINOIS 320, 74 N.E. 1056 WHERE A BID IS PERMITTED TO BE CHANGED (AFTER BID OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--A DIRECT VIOLATION OF LAW--AND CANNOT BE TOO STRONGLY CONDEMNED.- SEE 17 COMP. GEN. 554; 20 ID. 4; 30 ID. 179; 31 ID. 660; 33 ID. 421.'

AS A MATTER OF INFORMATION, THE CONTRACTING OFFICER DID MAKE INQUIRY OF OTHER COMPANIES WHICH SUPPLY SIMILAR EQUIPMENT AND WHICH HAVE SUPPLIED SIMILAR EQUIPMENT IN THE PAST AND HE WAS ADVISED THAT THE CRYSTAL TIME BASE CAN BE FURNISHED AT ADDITIONAL COST.

YOU STATE IN YOUR PROTEST LETTER THAT "THERE IS NO DISPUTE THAT THE CRYSTAL BASE WILL PERFORM EQUALLY OR SUPERIOR TO THE TUNING FORK.' THIS STATEMENT IS NOT DISPUTED BY THE CONTRACTING OFFICER. HOWEVER, THE ONLY ISSUE PRESENTED BY YOUR PROTEST IS WHETHER YOUR BID OFFERED THE CRYSTAL TIME BASE AT YOUR BID PRICE SO DEFINITELY THAT IT COULD ONLY BE INTERPRETED AS AN OFFER OF AN ALTERNATE CLOCK OTHERWISE MEETING THE REQUIREMENTS OF THE SPECIFICATIONS.

IT WAS CLEARLY SET FORTH IN YOUR BID THAT YOU OFFERED TO FURNISH A TIME REFERENCE CLOCK WHICH WOULD BE INTERNALLY GENERATED FROM LINE FREQUENCY. IT IS NOT CLEAR, HOWEVER, FROM THE LANGUAGE EMPLOYED, THAT YOU ALSO OFFERED THE CRYSTAL TIME BASE AS A RESPONSIVE ALTERNATE AT YOUR BID PRICE. YOU COULD HAVE REMOVED ANY DOUBT BY STATING THAT THE ALTERNATE ITEM WOULD BE FURNISHED AT NO INCREASE IN PRICE, OR AT A STATED PRICE, HAD YOU INTENDED TO DO SO.

IN THE CIRCUMSTANCES, AND IN VIEW OF THE AMBIGUITY RAISED BY YOUR OFFER, WE FIND NO BASIS TO DISAGREE WITH THE ADMINISTRATIVE INTERPRETATION PLACED UPON YOUR OFFER; THAT IS, IT WAS INTENDED ONLY AS ADVICE OF AVAILABILITY OF A CRYSTAL TIME BASE AT AN ADDITIONAL UNDISCLOSED PRICE. COMPARE 36 COMP. GEN. 251; ID. 705; 37 ID. 780. AT BEST, THIS OFFER MUST BE VIEWED AS AMBIGUOUS AND AS SUCH MUST BE CONSTRUED AGAINST YOU. WE HAVE CONSIDERED THE DECISIONS OF OUR OFFICE CITED IN YOUR LETTER BUT THEY AFFORD NO BASIS FOR FAVORABLY CONSIDERING YOUR PROTEST.

THEREFORE, IT MUST BE CONCLUDED THAT THE ADMINISTRATIVE ACTIONS TAKEN UNDER THE INVITATIONS WERE PROPER. ACCORDINGLY, YOUR PROTEST IS DENIED.