B-165575, JANUARY 10, 1969, 48 COMP. GEN. 464

B-165575: Jan 10, 1969

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BIDS - EVALUATION - DETERMINABLE FACTORS REQUIREMENT AN ADMINISTRATIVE DETERMINATION BASED ON UNADVERTISED STANDARDS THAT THE ELEVATING PLATFORMS OFFERED BY THE LOW BIDDER WERE TECHNICALLY INADEQUATE TO SERVE THE NEEDS OF THE GOVERNMENT CONTRAVENES THE ESTABLISHED PRINCIPLES GOVERNING FORMAL ADVERTISING THAT REQUIRE A BID EVALUATION TO BE BASED ON OBJECTIVELY DETERMINABLE FACTORS MADE KNOWN TO BIDDERS IN ADVANCE. ALTHOUGH THE LOW BID SHOULD NOT HAVE BEEN REJECTED NOR AN AWARD MADE ON THE BASIS OF THE NONRESPONSIVE SECOND LOWEST BID. THE PLATFORMS WERE TO BE FURNISHED IN ACCORDANCE WITH SPECIFICATION NO. " PROVIDED: EACH BIDDER SHALL FURNISH COMPLETE DESCRIPTIVE LITERATURE COVERING THE PROPOSED EQUIPMENT IDENTIFYING THE ELEVATING PLATFORM BY NAME AND MODEL NUMBER IF A STANDARD COMMERCIAL UNIT IS PROPOSED.

B-165575, JANUARY 10, 1969, 48 COMP. GEN. 464

BIDS - EVALUATION - DETERMINABLE FACTORS REQUIREMENT AN ADMINISTRATIVE DETERMINATION BASED ON UNADVERTISED STANDARDS THAT THE ELEVATING PLATFORMS OFFERED BY THE LOW BIDDER WERE TECHNICALLY INADEQUATE TO SERVE THE NEEDS OF THE GOVERNMENT CONTRAVENES THE ESTABLISHED PRINCIPLES GOVERNING FORMAL ADVERTISING THAT REQUIRE A BID EVALUATION TO BE BASED ON OBJECTIVELY DETERMINABLE FACTORS MADE KNOWN TO BIDDERS IN ADVANCE; THAT DO NOT PERMIT THE REJECTION OF A BID FOR FAILURE TO SPECIFY A FEATURE NOT REQUIRED BY THE INVITATION; AND THAT REQUIRE THE INCLUSION IN THE SPECIFICATIONS OF THE REQUIREMENT FOR THE SUBMISSION OF TECHNICAL OR DESCRIPTIVE DATA IF NEEDED FOR EVALUATION PURPOSES. ALTHOUGH THE LOW BID SHOULD NOT HAVE BEEN REJECTED NOR AN AWARD MADE ON THE BASIS OF THE NONRESPONSIVE SECOND LOWEST BID, CANCELLATION OF THE CONTRACT CLOSE TO DELIVERY DATE WOULD SERVE NO USEFUL PURPOSE; HOWEVER, STEPS SHOULD BE TAKEN TO PRECLUDE THE RECURRENCE OF SUCH A SITUATION.

TO THE POSTMASTER GENERAL, JANUARY 10, 1969:

WE REFER TO A LETTER DATED NOVEMBER 12, 1968, FROM A CONTRACTING OFFICER IN THE MEMPHIS REGIONAL OFFICE, REPORTING UPON THE PROTEST OF HYDRALIFTS, INC., AGAINST THE AWARD OF A CONTRACT TO SOUTHWORTH MACHINE COMPANY UNDER INVITATION FOR BIDS NO. 33A-69-1, ISSUED BY THE ENGINEERING AND FACILITIES DIVISION OF THE POST OFFICE DEPARTMENT, MEMPHIS, TENNESSEE.

THE PROCUREMENT COVERED 22 ELECTRO-HYDRAULIC, SCISSORS TYPE, ELEVATING PLATFORMS MANUFACTURED, ASSEMBLED AND DELIVERED TO LISTED POST OFFICES IN THE MEMPHIS REGION. THE PLATFORMS WERE TO BE FURNISHED IN ACCORDANCE WITH SPECIFICATION NO. POD-P-255 (RE), 6-15-65, AMENDMENT 1, 11-19-65, AND AS FURTHER AMENDED BY DETAILS LISTED IN THE INVITATION. PARAGRAPH 3.1.2 OF THE SPECIFICATIONS, AS AMENDED, ENTITLED "BID DATA," PROVIDED:

EACH BIDDER SHALL FURNISH COMPLETE DESCRIPTIVE LITERATURE COVERING THE PROPOSED EQUIPMENT IDENTIFYING THE ELEVATING PLATFORM BY NAME AND MODEL NUMBER IF A STANDARD COMMERCIAL UNIT IS PROPOSED. LACK OF SPECIFIC AND COMPLETE INFORMATION WILL BE SUFFICIENT CAUSE FOR REJECTION OF THE BID. THE FOLLOWING INFORMATION MUST ACCOMPANY EACH BID:

(A) OVERALL DIMENSIONS OF PLATFORM--- INCLUDING WIDTH, LENGTH AND HEIGHT.

(B) DESCRIPTION OF BRIDGE PLATE--- INCLUDING WEIGHT AND PLAN OF ATTACHING TO PLATFORM.

(C)PLATFORM CAPACITY--- INCLUDING LIFT CAPACITY, OVERLOAD CAPACITY AND ROLLOVER CAPACITY.

(D) PLATFORM PERFORMANCE--- INCLUDING LOWERED HEIGHT, RAISED HEIGHT, LIFTING SPEED WITH FULL LOAD AND LOWERING SPEED UNLOADED.

(E) DESCRIPTION OF POWER UNIT--- INCLUDING OPERATING PRESSURE; MAKE, MODEL AND RATING OF OTOR; MAKE, MODEL AND RATING OF PUMP; BORE, STROKE AND ROD SIZE OF HYDRAULIC CYLINDER/S); AND A HYDRAULIC SCHEMATIC OF THE SYSTEM. THIS INFORMATION IS REQUIRED TO FACILITATE THE REVIEW OF BIDS AND TO ENSURE THE BIDDER UNDERSTANDS AND IS ABLE TO COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATION. ACCEPTANCE OF THE ABOVE DATA BY THE CONTRACTING OFFICER SHALL NOT BE CONSTRUED BY THE BIDDER AS WAIVING ANY OF THE REQUIREMENTS OF THIS SPECIFICATION.

BIDS WERE OPENED ON SEPTEMBER 9, 1968, AND THE ABSTRACT INDICATES THAT OF THE 10 BIDS RECEIVED, HYDRALIFTS SUBMITTED THE LOW BID AND SOUTHWORTH SUBMITTED THE SECOND LOWEST BID.

THE RECORD CONTAINS A STATEMENT AND CERTIFICATE OF AWARD DATED OCTOBER 16, 1968, WHICH OUTLINED THE THREE REASONS FOR REJECTION OF THE HYDRALIFTS BID AS NONRESPONSIVE. THE CONTRACTING OFFICER ADVISED THAT COMPANY BY LETTER DATED OCTOBER 21, 1968, THAT ITS BID WAS NONRESPONSIVE BECAUSE:

(1) THE ONE-AND-A-HALF HORSEPOWER MOTOR OFFERED WAS CONSIDERED INADEQUATE;

(2) THE SCHEMATIC OF THE HYDRAULIC CIRCUIT DID NOT INDICATE A PRESSURE RELIEF VALVE;

(3) AN OVERTRAVEL DEVICE WAS NOT SPECIFIED.

IT IS THE HYDRALIFTS' POSITION THAT THE POST OFFICE DEPARTMENT WAS IN ERROR IN REJECTING THE BID.

PARAGRAPH 3.4.1 OF THE SPECIFICATIONS, AS AMENDED, LISTED IN THE INVITATION, PROVIDED:

THE MOTOR SHALL BE TOTALLY ENCLOSED, RATED FOR INTERMITTENT DUTY, AND SHALL CONFORM TO FEDERAL SPECIFICATION CC-M-641. THE MOTOR SHALL BE THE TYPE II, DESIGNED FOR 3 PHASE, 60 CYCLE, 208-230/460 VOLT OPERATION. THE MOTOR SHALL HAVE OVERLOAD AND UNDERVOLTAGE PROTECTION AND SHALL BE OF SUFFICIENT SIZE TO MEET ALL PERFORMANCE REQUIREMENTS. A MAGNETIC STARTER SHALL BE FURNISHED COMPLETELY WIRED SO THAT THE ONLY WIRING REQUIRED ON INSTALLATION SHALL BE THAT OF CONNECTING TO THE POWER SOURCE.

FEDERAL SPECIFICATION CC-M-641, CITED ABOVE, COVERS TWO TYPES OF MOTORS, TYPE I, SINGLE-PHASE MOTORS, AND TYPE II, POLYPHASE MOTORS. WITHIN TYPE II--- CALLED FOR IN THE SPECIFICATIONS--- THERE ARE THREE CLASSES OF MOTORS, TWO OF WHICH PERMIT HORSEPOWER RATINGS OF 1/2 HP TO 200 HP, THE THIRD PERMITTING HORSEPOWER RATINGS OF 20 TO 200 HP. THE INVITATION DID NOT SPECIFY WHICH HORSEPOWER RATING WAS REQUIRED, IF INDEED IT WAS INTENDED TO RESTRICT THE SOLICITATION TO ANY PARTICULAR HORSEPOWER RATING.

HYDRALIFTS OFFERED A 207 SERIES, 1-1/2-HP MOTOR, MODEL NO. MTE J207T- 3154E, THREE-PHASE, 60 CYCLE, 208 VOLT SUPPLY. THE CONTRACTING OFFICER HAS REPORTED THAT A MOTOR OF THAT SIZE IS INADEQUATE, RELYING UPON DESCRIPTIVE DATA ATTACHED TO HYDRALIFTS' BID TO SUPPORT HIS CONCLUSION. THE DESCRIPTIVE DATA, HOWEVER, DID NOT REFER TO THE EXACT MOTOR NUMBER OFFERED, BUT IT DID FURNISH GENERAL PERFORMANCE CHARACTERISTICS OF OTHER MODELS IN THE 207 SERIES. ON THE OTHER HAND, HYDRALIFTS HAS INFORMED US THAT THE MOTOR OFFERED IS MADE SPECIFICALLY FOR ITS VERTICAL LIFTS AND IS ADEQUATE TO OPERATE THE LIFT SATISFACTORILY.

THE CONTRACTING OFFICER ARRIVED AT HIS DETERMINATION THAT A MOTOR LARGER THAN 1-1/2 HP WAS REQUIRED THROUGH ANALOGY BY COMPARING THE J207T-3154E AND THE RELATED MODELS DESCRIBED IN THE HYDRALIFTS LITERATURE. HYDRALIFTS SPECIFIED IN ITS ATTACHED DETAILED DRAWING THAT ITS PUMP AND MOTOR WOULD OPERATE AT 1,500 POUNDS PER SQUARE INCH (PSI) AND WOULD PUMP 2.25 GALLONS PER MINUTE (GPM). THE CONTRACTING OFFICER APPLIED THESE FIGURES TO THE CHARTS AND TABLES IN THE DESCRIPTIVE LITERATURE AND CONCLUDED THEREFROM THAT A MOTOR OF ABOUT 2.1 HP WOULD BE NECESSARY TO PUMP 2.25 GPM AT 1,500 PSI.

HOWEVER, THIS ANALYSIS WAS MADE ON THE BASIS THAT THE INVITATION REQUIRED THESE MOTOR CHARACTERISTICS. THERE IS NOTHING IN THE INVITATION THAT REQUIRES THE PUMP AND MOTOR TO BE CAPABLE OF OPERATING AT 2.25 GPM OR 1,500 PSI. IT IS REPORTED BY THE PROCUREMENT AGENCY THAT ITS CALCULATIONS SHOWED THAT AT LEAST 2.25 GPM WOULD BE REQUIRED FOR THE PUMP, BUT SUCH REQUIREMENT WAS NOT INCLUDED IN THE SPECIFICATIONS. THERE IS NOTHING IN THE RECORD THAT 1,500 PSI IS THE MINIMUM PRESSURE UNDER WHICH THE LIFT WILL OPERATE PROPERLY.

THE PROCUREMENT AGENCY CONCLUDED, IN EFFECT, THAT BECAUSE THE HYDRALIFTS MOTOR DOES NOT APPEAR CAPABLE OF PUMPING 2.25 GPM AT 1,500 PSI, THE MOTOR IS NOT "OF SUFFICIENT SIZE TO MEET ALL PERFORMANCE REQUIREMENTS.' HOWEVER, THIS ASSUMES THAT FOR SATISFACTORY PERFORMANCE IT IS NECESSARY TO PUMP THE STATED NUMBER OF GALLONS PER MINUTE AT THE STATED PRESSURE. THEREFORE, THE DETERMINATION OF THE MOTOR'S INADEQUACY DEPENDED ON A STANDARD OF EVALUATION NOT SPECIFIED IN THE INVITATION OR OTHERWISE FURNISHED TO BIDDERS.

ORDINARILY WE DO NOT QUESTION A PROCUREMENT AGENCY'S DECISION TO REJECT AN OFFER WHEN IT HAS FOUND, AS A FACTUAL MATTER, THAT THE EQUIPMENT OFFERED DOES NOT MEET THE GOVERNMENT'S ADVERTISED REQUIREMENTS. THE SIMPLE REASON FOR THIS POLICY IS THAT WE LACK THE TECHNICAL COMPETENCY TO REVIEW SUCH A DETERMINATION. FOR THIS REASON, WE ARE UNABLE TO DECIDE FACTUALLY WHETHER A 1-1/2-HP MOTOR IS SUFFICIENT TO MEET THE PERFORMANCE TESTS OUTLINED IN SECTION 4 OF THE SPECIFICATIONS.

HOWEVER, WE ARE OF THE OPINION THAT THE DETERMINATION MADE BY THE PROCUREMENT AGENCY THAT THE MOTOR WAS INADEQUATE WAS BASED ON UNADVERTISED STANDARDS AND THEREFORE WAS IN CONTRAVENTION OF THE ESTABLISHED PRINCIPLES GOVERNING FORMAL ADVERTISING. SEE 44 COMP. GEN. 392, 393, WHERE A PERTINENT QUOTATION FROM 36 COMP. GEN. 380, 385, HELD:

THE "BASIS" OF EVALUATION WHICH MUST BE MADE KNOWN IN ADVANCE TO THE BIDDERS SHOULD BE AS CLEAR, PRECISE AND EXACT AS POSSIBLE. IDEALLY, IT SHOULD BE CAPABLE OF BEING STATED AS A MATHEMATICAL EQUATION. IN MANY CASES, HOWEVER, THAT IS NOT POSSIBLE. AT THE MINIMUM, THE BASIS" MUST BE STATED WITH SUFFICIENT CLARITY AND EXACTNESS TO INFORM EACH BIDDER PRIOR TO BID OPENING, NO MATTER HOW VARIED THE ACCEPTABLE RESPONSES, OF OBJECTIVELY DETERMINABLE FACTORS FROM WHICH THE BIDDER MAY ESTIMATE WITHIN REASONABLE LIMITS THE EFFECT OF THE APPLICATION OF SUCH EVALUATION FACTOR ON HIS BID IN RELATION TO OTHER POSSIBLE BIDS. BY THE TERM "OBJECTIVELY DETERMINABLE FACTORS" WE MEAN FACTORS WHICH ARE MADE KNOWN TO OR WHICH CAN BE ASCERTAINED BY THE BIDDER AT THE TIME HIS BID IS BEING PREPARED. FACTORS WHICH ARE BASED ENTIRELY OR LARGELY ON A SUBJECTIVE DETERMINATION TO BE ANNOUNCED BY REPRESENTATIVES OF THE CONTRACTING AGENCY AT THE TIME OF OR SUBSEQUENT TO THE OPENING OF BIDS VIOLATE THE PRINCIPLE FOR THE REASON THAT THEY ARE NOT DETERMINABLE BY THE BIDDER AT THE TIME HIS BID IS BEING PREPARED.

IT IS A NON SEQUITUR TO SAY THAT BECAUSE A BIDDER'S PRODUCT APPARENTLY CANNOT DO WHAT HE SAYS IT CAN DO, THE PRODUCT THEREFORE CANNOT DO WHAT THE GOVERNMENT WANTS IT TO DO, WHEN THERE IS NO SHOWING OF A REASONABLE RELATIONSHIP BETWEEN WHAT THE BIDDER HAS REPRESENTED AND WHAT THE PROCUREMENT AGENCY DESIRES.

THE SECOND BASIS UPON WHICH THE HYDRALIFTS BID WAS DETERMINED TO BE NONRESPONSIVE WAS THE FAILURE TO SHOW ON THE HYDRAULIC SCHEMATIC DRAWING THE PRESSURE RELIEF VALVE. THE RELEVANT PORTION OF THE SPECIFICATIONS IS AS FOLLOWS:

3.4.4 PRESSURE-RELIEF VALVE--- A PRESSURE RELIEF VALVE SHALL BE PROVIDED TO ALLOW THE HYDRAULIC FLUID TO BYPASS THE POWER UNITS AND BE RETURNED TO THE RESERVOIR WHEN THE UNIT IS OVERLOADED. THE RELIEF PRESSURE SHALL BE AS LOW AS IS PRACTICABLE COMMENSURATE WITH REQUIREMENTS AND NOT HIGHER THAN 120 PERCENT OF THE RATED LOAD IN ORDER TO AVOID DAMAGE TO THE MOTOR AND HYDRAULIC SYSTEM.

IT IS QUITE APPARENT FROM PARAGRAPH 3.1.2 THAT THERE IS NO SPECIFIC REQUIREMENT THAT THE HYDRAULIC SCHEMATIC DRAWING SHOW IN DETAIL EACH AND EVERY COMPONENT. HOWEVER, THE HYDRALIFTS DRAWING OF THE PUMP-AND MOTOR COMBINATION, ON WHICH THE HYDRAULIC SCHEMATIC ALSO APPEARS, CLEARLY SHOWS THAT A PRESSURE RELIEF VALVE IS OFFERED AS PART OF THE POWER SYSTEM.

THE FOREGOING IS ANOTHER ILLUSTRATION OF A FACTUAL DISPUTE WITH WHICH WE DO NOT NORMALLY INTERFERE. HOWEVER, THE DISQUALIFICATION OF HYDRALIFTS FOR FAILURE TO SHOW THE PRESSURE RELIEF VALVE ON THE HYDRAULIC SCHEMATIC REPRESENTED AGAIN AN EVALUATION NOT CONTEMPLATED OR PROVIDED FOR IN THE INVITATION. FURTHERMORE, WE DO NOT PERCEIVE, NOR ARE WE INFORMED, OF ANY PARTICULAR ADVANTAGE WHICH WOULD ACCRUE TO THE GOVERNMENT IF HYDRALIFTS HAD SHOWN THE PRESSURE RELIEF VALVE ON ITS HYDRAULIC SCHEMATIC. RATHER, IT IS QUITE EVIDENT THAT THE PRESSURE RELIEF VALVE WAS AN INTEGRAL PART OF THE PUMP-AND-MOTOR UNIT OFFERED BY HYDRALIFTS. UNDER THESE CIRCUMSTANCES, REJECTION FOR FAILURE TO SHOW THE PRESSURE RELIEF VALVE WAS UNWARRANTED. 44 COMP. GEN. 392, 393, SUPRA.

THE THIRD REASON WHY THE HYDRALIFTS BID WAS REJECTED WAS FAILURE TO SPECIFY AN OVERTRAVEL DEVICE. IT IS FURTHER REPORTED THAT HYDRALIFTS INTENDED TO USE A HYDRAULIC PRESSURE RELIEF VALVE AS AN OVERTRAVEL DEVICE AND THAT THIS WAS UNACCEPTABLE AS NOT IN ACCORD WITH GOOD ENGINEERING PRACTICE. THE REPORT ALSO STATES THAT OVERTRAVEL PROTECTION WAS INTENDED TO BE OBTAINED BY ELECTRICAL LIMIT SWITCHES.

IT IS THE HYDRALIFTS' POSITION THAT THE INVITATION DID NOT REQUIRE AN OVERTRAVEL DEVICE TO BE SPECIFIED IN THE BID; THAT THE BID DATA REQUIREMENTS OF PARAGRAPH 3.1.2 DID NOT REQUIRE BIDDERS TO SUBMIT ANY INFORMATION CONCERNING OVERTRAVEL DEVICES, AND THAT ITS PRODUCT DOES IN FACT INCLUDE AN OVERTRAVEL DEVICE. HYDRALIFTS FURTHER CLAIMS THAT THE STATEMENT THAT ELECTRICAL LIMIT SWITCHES WERE INTENDED FOR OVERTRAVEL PROTECTION IS IN CONFLICT WITH PARAGRAPH 3.4.1 OF THE SPECIFICATIONS.

WE ARE NOT CAPABLE OF CONSIDERING THE ACCEPTABILITY FROM AN ENGINEERING STANDPOINT OF PRESSURE RELIEF VALVES FUNCTIONING AS OVERTRAVEL DEVICES. HOWEVER, IT DOES NOT APPEAR TO US THAT ANY OVERTRAVEL DEVICE AS SUCH WAS REQUIRED UNDER THE TERMS OF THE SPECIFICATIONS. THE ONLY PROVISION RELATIVE TO OVERTRAVEL IN THE INVITATION WAS THAT CONTAINED IN PARAGRAPH 3.2.3 OF THE SPECIFICATIONS. THAT PROVISION READ: "THE PLATFORM SHALL BE CAPABLE OF MEETING THE SWAY, LEVELING, AND OVERTRAVEL TESTS OUTLINED IN SECTION 4.' HOWEVER, THE RELEVANT PROVISION IN SECTION 4 OF THE SPECIFICATIONS WAS DELETED FROM THE INVITATION. IT IS ALSO TO BE NOTED THAT BID DATA PROVISIONS OF PARAGRAPH 3.1.2 DO NOT REQUIRE THE FURNISHING OF ANY DATA ON OVERTRAVEL PROTECTION WHILE THEY DO REQUIRE INFORMATION ON LIFT CAPACITY, OVERLOAD CAPACITY, ROLLOVER CAPACITY, AND OTHER ASPECTS OF PLATFORM PERFORMANCE. IN SHORT, THERE WERE NO OVERTRAVEL TESTS TO BE MET NOR WAS ANY INFORMATION REQUIRED AS TO OVERTRAVEL PROTECTIVE MEASURES. BID MAY NOT BE REJECTED FOR FAILURE TO SPECIFY SOME FEATURE NOT REQUIRED BY THE INVITATION. SEE B-161111, MAY 26, 1967. IN THAT CASE WE SAID, INTER ALIA:

* * * IF TECHNICAL OR DESCRIPTIVE DATA WAS REQUIRED FOR BID EVALUATION PURPOSES, SUCH REQUIREMENT SHOULD HAVE BEEN INCLUDED IN THE ADVERTISED SPECIFICATIONS. SEE FPR 1-2.202-5 (D); 38 COMP. GEN. 59, 64.

WE THEREFORE HOLD THAT THE LOW BID OF HYDRALIFTS SHOULD NOT HAVE BEEN REJECTED FOR THE REASONS STATED IN THE NOVEMBER 12 REPORT.

IN ADDITION TO THE FOREGOING, WE NOTE THAT SOUTHWORTH INCLUDED AS PART OF ITS BID A PRICED QUOTATION FORM UPON WHICH IT LISTED SOME OF THE SALIENT FEATURES OF ITS LIFT. AT THE BOTTOM OF THIS FORM APPEARS THE FOLLOWING LANGUAGE: ALL NEGOTIATIONS, AGREEMENTS, AND CONTRACTS ARE MADE CONTINGENT UPON STRIKES, FIRES, ACCIDENTS, TRANSPORTATION DELAYS, GOVERNMENT REGULATIONS AND REQUIREMENTS BEYOND OUR CONTROL. WE RESERVE THE RIGHT TO CORRECT ERRORS IN QUOTATIONS OR ANY OTHER PERTINENT MATTER. THE PRICES STATED HEREIN ARE BASED UPON SELLER'S COST UNDER EXISTING LAWS. IF SUCH COSTS ARE INCREASED BY ANY FEDERAL OR STATE LEGISLATION, THE AMOUNT OF SUCH INCREASED COSTS SHALL BE ADDED TO THE PRICES STATED.

IT IS WELL-ESTABLISHED THAT "BIDS SO QUALIFIED AS TO RENDER INDEFINITE THE CONTRACT PRICE TO BE PAID ARE FOR REJECTION FOR UNCERTAINTY.' COMP. GEN. 614, 615 (1939). SEE, ALSO, FEDERAL PROCUREMENT REGULATIONS, SEC. 1-2.404-2 (B) (1). THE BID UNDER SUCH CIRCUMSTANCES CONTRAVENES THE REQUIREMENT THAT FIRM BIDS BE SUBMITTED. SEE B-164651, NOVEMBER 29, 1968. THEREFORE, SOUTHWORTH'S BID WAS CLEARLY NONRESPONSIVE SINCE IT DID NOT CONFORM TO THE INVITATION FOR BIDS AS REQUIRED BY 41 U.S.C. 253 (B). HENCE, THE CONTRACT WAS IMPROPERLY AWARDED TO THAT COMPANY.

THE DELIVERY OF THE ENTIRE QUANTITY OF LIFTS WAS SPECIFIED BY SOUTHWORTH AS 75 DAYS AFTER DATE OF AWARD AND THE CERTIFICATE OF AWARD WAS DATED OCTOBER 16, 1968. IT IS THEREFORE APPARENT THAT CANCELLATION OF THE CONTRACT AT THIS DATE WOULD NOT SERVE ANY USEFUL PURPOSE INSOFAR AS THE RIGHTS OF HYDRALIFTS ARE CONCERNED. HOWEVER, WE STRONGLY RECOMMEND THAT THE CIRCUMSTANCES OF THIS IRREGULAR AWARD BE REVIEWED SO AS TO PRECLUDE A RECURRENCE THEREOF.