B-162566, OCT. 18, 1967

B-162566: Oct 18, 1967

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THE HIGH BIDDER WHO PROTESTS AWARD TO LOW BIDDER ON SEVERAL BASES INCLUDING ALLEGATION THAT NO BIDDER CAN MEET REQUIREMENT THAT COMPONENTS BE PRODUCTS OF A SINGLE MANUFACTURER MUST BE DENIED SINCE IT IS SHOWN THAT REQUIREMENT FOR COMPONENTS OF SINGLE MANUFACTURER IS STANDARD PART OF VA DESIGN SPECIFICATIONS FOR ELECTRICAL UNITS AND REQUIREMENT IS CONSTRUED ONLY TO PRECLUDE THE USE OF MAJOR COMPONENTS OF DIFFERENT MAKES TO THE POINT OF ADULTERATING THE UNITIZED DESIGN CONCEPT. FURTHER POSSIBLE DEVIATIONS ARE NOT MATERIAL OR PREJUDICIAL. THE RECORD FURNISHED BY THE CONTRACTING OFFICER SHOWS THAT YOUR BID WAS THE HIGHEST OF THREE BIDS RECEIVED. THAT IT IS IMPOSSIBLE FOR ANYONE TO COMPLY FULLY WITH THE GOVERNMENT'S SPECIFICATIONS.

B-162566, OCT. 18, 1967

BIDS - SPECIFICATIONS - COMPLIANCE DECISION TO TRAYER ENGINEERING CORPORATION CONCERNING PROTEST AGAINST AWARD OF A CONTRACT FOR AN ELECTRIC UNIT SUBSTATION BY VETERANS ADMINISTRATION HOSPITAL, SAN FRANCISCO. THE HIGH BIDDER WHO PROTESTS AWARD TO LOW BIDDER ON SEVERAL BASES INCLUDING ALLEGATION THAT NO BIDDER CAN MEET REQUIREMENT THAT COMPONENTS BE PRODUCTS OF A SINGLE MANUFACTURER MUST BE DENIED SINCE IT IS SHOWN THAT REQUIREMENT FOR COMPONENTS OF SINGLE MANUFACTURER IS STANDARD PART OF VA DESIGN SPECIFICATIONS FOR ELECTRICAL UNITS AND REQUIREMENT IS CONSTRUED ONLY TO PRECLUDE THE USE OF MAJOR COMPONENTS OF DIFFERENT MAKES TO THE POINT OF ADULTERATING THE UNITIZED DESIGN CONCEPT. FURTHER POSSIBLE DEVIATIONS ARE NOT MATERIAL OR PREJUDICIAL.

TO TRAYER ENGINEERING CORPORATION:

YOUR LETTERS OF SEPTEMBER 5 AND 15, 1967, TO THE VETERANS ADMINISTRATION HOSPITAL, SAN FRANCISCO, PROTESTING AGAINST AWARD TO ANY OTHER BIDDER UNDER IFB 68-20 OF A CONTRACT FOR AN ELECTRIC UNIT SUBSTATION, HAS BEEN REFERRED TO OUR OFFICE FOR DECISION.

THE RECORD FURNISHED BY THE CONTRACTING OFFICER SHOWS THAT YOUR BID WAS THE HIGHEST OF THREE BIDS RECEIVED. YOU CONTEND, HOWEVER, THAT IT IS IMPOSSIBLE FOR ANYONE TO COMPLY FULLY WITH THE GOVERNMENT'S SPECIFICATIONS, AND THAT THE LOWER BIDDER MUST THEREFORE BE INTENDING TO FURNISH SOMETHING OTHER THAN THE EXACT EQUIPMENT CALLED FOR, AND SHOULD HAVE COMPLIED, AS YOU SAY YOU DID, WITH THE INVITATION REQUIREMENT THAT ANY ALTERNATE EQUIPMENT PROPOSED FOR THE PROCUREMENT BE CLEARLY INDICATED IN THE BID.

THE IFB PROVISION RELEVANT TO ALTERNATE EQUIPMENT STATES AS FOLLOWS: "* * * IT IS NOT INTENDED TO DISCOURAGE THE OFFERING OF ALTERNATE EQUIPMENT PROVIDED SUCH SUBMISSION IS CLEARLY IDENTIFIED AS AN ALTERNATE AND ALL DIFFERENCES BETWEEN THE ALTERNATE AND THE SPECIFICATIONS ARE CLEARLY LISTED AND COMPLETELY EXPLAINED IN WRITING BY THE BIDDER. PROVIDED FURTHER THAT ALTERNATE SHALL MEET OR EXCEED THE SPECIFICATIONS IN ALL ASPECTS AND THAT ALL DIMENSIONAL LIMITS AND CAPACITY LEVELS SHALL BE MET. RIGHT IS RESERVED TO REJECT ANY ALTERNATE NOT MEETING THE DESIGN STANDARDS, CAPACITIES, DIMENSIONAL LIMITS OR ESSENTIAL REQUIREMENTS SET FORTH IN THE SPECIFICATIONS.'

CONCERNING THE GOVERNMENT'S SPECIFICATIONS YOUR LETTERS POINT OUT THAT THE INVITATION REQUIRES THE SUCCESSFUL BIDDER TO COMPLETELY ASSEMBLE THE ELECTRICAL UNIT AT ITS FACTORY, NECESSITATING VERY STRICTLY LIMITED DIMENSIONS TO ENABLE IT TO BE PLACED WITHIN THE SPACE PROVIDED FOR IT, AND SPECIAL STRENGTHENING OR PROTECTION TO PERMIT THE ASSEMBLY TO BE TURNED OVER FOR PASSAGE THROUGH THE LIMITED OPENING. YOU ALSO STATE THAT ALTHOUGH THE SPECIFICATIONS CALL FOR "600 AMPERE CAPACITY CURRENT LIMITING FUSES," TO YOUR KNOWLEDGE NO UNITED STATES FIRM MANUFACTURES A 600 A CAPACITY CURRENT LIMITING FUSE. FINALLY, YOU APPEAR TO QUESTION WHETHER ANY BIDDER CAN MEET THE REQUIREMENT THAT ALL COMPONENTS OF THE UNIT BE THE PRODUCTS OF A SINGLE ELECTRICAL MANUFACTURER WITH EXTENSIVE NATIONWIDE EXPERIENCE. WE NOTE THAT YOUR BID PROPOSES TO ASSEMBLE THE UNIT AT THE DELIVERY SITE; THAT YOU APPARENTLY PROPOSED TO SUPPLY THE GOVERNMENT WITH THE SPECIFIED FUSE SINCE NO EXCEPTION WAS TAKEN TO THIS REQUIREMENT IN YOUR BID; AND THAT YOU OFFERED TO FURNISH COMPONENTS MANUFACTURED BY MORE THAN ONE FIRM WITHOUT NAMING ANY FIRM OR EXPLAINING THE SPECIFIC DEVIATIONS INTENDED.

THE POSITION OF THE CONTRACTING AGENCY WITH RESPECT TO ASSEMBLY OF THE SUBSTATION IS THAT WHETHER THE UNITS ARE SHIPPED FROM THE FACTORY IN A SINGLE COMPLETE ASSEMBLY AND PHYSICALLY TAKEN INTO FINAL POSITION IN THAT CONDITION, OR SHIPPED AS INDIVIDUAL UNITS AND ASSEMBLED IN POSITION IN THE DESIGNATED ENCLOSURE, THE DIFFERENCE IS MERELY A DETAIL OF DELIVERY WHICH HAS NO EFFECT UPON WHAT THE GOVERNMENT WILL ULTIMATELY HAVE UPON COMPLETION OF THE CONTRACT. AS TO THE DIMENSIONS STATED, THESE WERE INTENDED ONLY TO ESTABLISH AND GIVE NOTICE OF THE ACCESS CLEARANCES REQUIRED.

WITH REGARD TO THE SPECIFICATION OF 600 AMPERE CURRENT LIMITING FUSES IT IS ADMITTED THAT THE WORDING WAS POORLY CHOSEN, BUT STATED THAT THE INTENT WAS TO OBTAIN FUSES OF 600 AMPERE CASING SIZE TO FIT THE SWITCH FRAME, WITH, HOWEVER, AN ACTUAL BLOW POINT RATING OF A LOWER VALUE TO BE SELECTED FROM THE CONTRACTOR'S SUBMITTALS.

THE STATED REQUIREMENT FOR COMPONENTS OF A SINGLE MANUFACTURER IS REPORTED TO BE A STANDARD PART OF VA DESIGN SPECIFICATIONS FOR THIS TYPE OF EQUIPMENT. HOWEVER, IT IS RECOGNIZED THAT NO MANUFACTURER ACTUALLY MAKES ALL ITEMS OF ANY COMPLEX ASSEMBLY AND THE REQUIREMENT IS CONSTRUED ONLY TO PRECLUDE THE USE OF MAJOR COMPONENTS OF DIFFERENT MAKES TO THE POINT OF ADULTERATING THE UNITIZED DESIGN CONCEPT.

IT IS THE VIEW OF THE PROCURING AUTHORITIES THAT AN "ALTERNATE" BID WITHIN THE MEANING OF THE PROVISION QUOTED ABOVE IS ONE CONSIDERED TO OFFER A SUBSTITUTE OR PRODUCT SUBSTANTIALLY DIFFERENT FROM THE GENERAL REQUIREMENT, AND THAT EVEN WITHOUT ANY PROVISION FOR CONSIDERATION OF ALTERNATES, BIDS MAY NOT BE REJECTED BECAUSE OF MINOR DIFFERENCES IN DESIGN OR CONSTRUCTION OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE FINAL PRODUCT FOR ITS INTENDED USE.

THE FEDERAL PROCUREMENT REGULATIONS, SECTION 1-2.405, DEFINE A "MINOR INFORMALITY OR IRREGULARITY" AS ONE WHICH "* * * PERTAINS TO SOME IMMATERIAL OR INCONSEQUENTIAL DEFECT OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION FOR BIDS, THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS.' IN SUCH CASE THE CONTRACTING OFFICER IS REQUIRED EITHER TO GIVE THE BIDDER AN OPPORTUNITY TO CURE THE DEFICIENCY, OR TO WAIVE THE DEFICIENCY, WHICHEVER IS TO THE ADVANTAGE OF THE GOVERNMENT.

ON THE BASIS OF THE ADMINISTRATIVE STATEMENTS WE CANNOT REGARD THE POSSIBLE DEVIATIONS FROM THE SPECIFICATIONS WHICH YOU CLAIM WOULD HAVE TO BE MADE BY ANY BIDDER AS MATERIAL OR CONSEQUENTIAL, NOR DO WE FIND ANY BASIS FOR CONSIDERING THE WAIVER OF SUCH POSSIBLE DEVIATIONS AS PREJUDICIAL TO YOU. THE INCLUSION IN THE BID OF THE PROVISION FOR AN ALTERNATE HAD THE EFFECT OF BROADENING THE SCOPE OF THE PROCUREMENT AND OF PERMITTING THE ACCEPTANCE OF ARTICLES WHICH IN THE ABSENCE OF SUCH PROVISION MIGHT HAVE BEEN REJECTED AS NONRESPONSIVE. IT WAS NOT INTENDED, AND WE DO NOT BELIEVE IT SHOULD BE CONSTRUED, TO LIMIT THE AUTHORITY OF THE CONTRACTING OFFICIALS TO DETERMINE THE RESPONSIVENESS OF BIDS TO THE STATED REQUIREMENTS OF THE INVITATION. SINCE THE CONTRACTING OFFICER CONSIDERS THE LOWER BIDS TO BE RESPONSIVE TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION, WE DO NOT BELIEVE THEY SHOULD BE REJECTED MERELY BECAUSE YOU, OUT OF AN ABUNDANCE OF CAUTION, CHOSE TO OFFER YOUR PROPOSED EQUIPMENT AS AN ALTERNATE AND THEREBY TO AVOID THE POSSIBILITY OF HAVING YOUR BID REJECTED AS NONRESPONSIVE.

IT MAY ALSO BE POINTED OUT THAT IN THE ABSENCE OF ANY EXCEPTION BY A BIDDER TO ANY SPECIFICATION REQUIREMENT THE GOVERNMENT UPON ACCEPTANCE OF THE BID ACQUIRES A LEGALLY ENFORCEABLE RIGHT TO DEMAND PERFORMANCE IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, AND WE HAVE HELD IN THE PAST THAT A BID MUST BE REJECTED AS NONRESPONSIVE ONLY IF IT AFFIRMATIVELY SHOWS AN INTENTION NOT TO CONFORM TO THE IFB. SEE B 159434, OCTOBER 14, 1966. IN THE EVENT OF AMBIGUITY IN THE SPECIFICATIONS THEY WILL BE CONSTRUED AGAINST THE PARTY WHO PREPARED THEM, BUT EVERY EFFORT SHOULD BE MADE TO REACH AN INTERPRETATION WHICH WILL AVOID ANY AMBIGUITY OR IMPOSSIBILITY. ON THE RECORD BEFORE US WE SEE NO REASON WHY ACCEPTANCE OF EITHER OF THE LOWER BIDS WOULD NOT RESULT IN A VALID CONTRACT AND THE FURNISHING OF WHAT THE GOVERNMENT CALLED FOR IN THE INVITATION.

FOR THE REASONS STATED THE PROTEST AGAINST CONSIDERATION OF THE LOW BID FOR AWARD MUST BE DENIED.