B-166468, JULY 3, 1969, 49 COMP. GEN. 9

B-166468: Jul 3, 1969

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BID RESPONSIVENESS V BIDDER RESPONSIBILITY WHERE THE PROVISIONS OF AN INVITATION FOR COMMERCIAL INSTRUMENT LANDING SYSTEMS REQUIRED BIDDERS TO SUBMIT EVIDENCE THAT AN IDENTICAL EQUIPMENT COMPONENT HAD PREVIOUSLY BEEN INSTALLED AT LEAST AT ONE LOCATION AND HAD ACHIEVED THE LEVEL OF PERFORMANCE SPECIFIED ARE SO LOOSELY DRAWN THAT IT IS DIFFICULT TO DETERMINE WHETHER THE PROVISIONS AFFECT THE RESPONSIBILITY OF BIDDERS OR THE RESPONSIVENESS OF BIDS. AN AWARD MADE PURSUANT TO SECTION 1-2.407-8(B)(3) OF THE FEDERAL PROCUREMENT REGULATIONS BEFORE RESOLUTION OF A PROTEST WILL NOT BE DISTURBED ABSENT CLEAR AND CONVINCING EVIDENCE THE CONTRACTING OFFICIALS' INTERPRETATION THAT NOT ALL THE COMPONENTS OF THE EQUIPMENT MUST BE SITUATED AND CHECKED AT A SINGLE LOCATION OR THEIR DETERMINATION THAT THE EQUIPMENT WOULD MEET REQUIRED PERFORMANCE WAS IN ERROR.

B-166468, JULY 3, 1969, 49 COMP. GEN. 9

CONTRACTS -- SPECIFICATIONS -- AMBIGUOUS -- BID RESPONSIVENESS V BIDDER RESPONSIBILITY WHERE THE PROVISIONS OF AN INVITATION FOR COMMERCIAL INSTRUMENT LANDING SYSTEMS REQUIRED BIDDERS TO SUBMIT EVIDENCE THAT AN IDENTICAL EQUIPMENT COMPONENT HAD PREVIOUSLY BEEN INSTALLED AT LEAST AT ONE LOCATION AND HAD ACHIEVED THE LEVEL OF PERFORMANCE SPECIFIED ARE SO LOOSELY DRAWN THAT IT IS DIFFICULT TO DETERMINE WHETHER THE PROVISIONS AFFECT THE RESPONSIBILITY OF BIDDERS OR THE RESPONSIVENESS OF BIDS, AN AWARD MADE PURSUANT TO SECTION 1-2.407-8(B)(3) OF THE FEDERAL PROCUREMENT REGULATIONS BEFORE RESOLUTION OF A PROTEST WILL NOT BE DISTURBED ABSENT CLEAR AND CONVINCING EVIDENCE THE CONTRACTING OFFICIALS' INTERPRETATION THAT NOT ALL THE COMPONENTS OF THE EQUIPMENT MUST BE SITUATED AND CHECKED AT A SINGLE LOCATION OR THEIR DETERMINATION THAT THE EQUIPMENT WOULD MEET REQUIRED PERFORMANCE WAS IN ERROR.

TO THE FAIRFAX COUNTY CHAMBER OF COMMERCE, JULY 3, 1969:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 17, 1969, WITH ENCLOSURE, REQUESTING THAT OUR OFFICE INVESTIGATE THE PROTEST OF SCANWELL LABORATORIES, INC. (SCANWELL), AGAINST THE AWARD OF A CONTRACT TO AIRBORNE INSTRUMENTS LABORATORY (AIL) UNDER INVITATION FOR BIDS (IFB) NO. WA5M-9- 0366B1, ISSUED BY THE FEDERAL AVIATION ADMINISTRATION (FAA).

THE INVITATION, ISSUED ON JANUARY 23, 1969, AND AMENDED JANUARY 28, SOLICITED BIDS FOR 10 INSTRUMENT LANDING SYSTEMS (ILS) CONSISTING OF "SINGLE EQUIPMENT LOCALIZER STATION, SINGLE EQUIPMENT GLIDE SLOPE STATION, TWO MARKER BEACON STATIONS (OUTER AND MIDDLE), AND REMOTE INDICATOR AND CONTROL EQUIPMENT." THE IFB, UNDER CLAUSE VIII ENTITLED "CERTIFICATION" (AS AMENDED), PROVIDED THAT:

CERTIFICATION THAT THE SYSTEM BID HAS ACHIEVED A CATEGORY I PERFORMANCE AT ONE OR MORE LOCATIONS WILL BE SUBMITTED WITH THE BID.

ALSO, ITEM NO. 1 OF THE IFB SCHEDULE PROVIDED THAT:

*** THE EQUIPMENT TO BE FURNISHED SHALL BE COMMERCIAL EQUIPMENT WHICH HAS BEEN MANUFACTURED IN ACCORDANCE WITH BEST COMMERCIAL PRACTICES. IT SHALL MEET ALL PERFORMANCE REQUIREMENTS IN ICAO ANNEX 10 APPLICABLE TO CATEGORY I ILS. TO BE RESPONSIVE TO THIS REQUEST, THE CONTRACTOR SHALL SUBMIT EVIDENCE THAT AN IDENTICAL EQUIPMENT COMPLEMENT AS THAT PROPOSED FOR THIS PROCUREMENT HAS PREVIOUSLY BEEN INSTALLED IN AT LEAST ONE LOCATION AND HAS ACHIEVED AT LEAST CATEGORY I PERFORMANCE AS CERTIFIED BY AN FAA FLIGHT CHECK (OR ANOTHER ICAO COUNTRY'S FLIGHT INSPECTION). THIS SHALL BE EVIDENCED BY THE SUBMISSION OF A CERTIFICATION FROM THE FLIGHT INSPECTION SOURCE.

IN ADDITION, CLAUSE II, "CONSIDERATION AND AWARD" (AS AMENDED), STATES:

*** ONLY BIDDERS WITH AN OPERATING ILS SYSTEM MEETING ICAO STANDARDS THAT HAS PREVIOUSLY BEEN INSTALLED IN AT LEAST ONE LOCATION AND HAS ACHIEVED AT LEAST CATEGORY I PERFORMANCE AS CERTIFIED BY FAA FLIGHT CHECK (OR ANOTHER ICAO COUNTRY'S FLIGHT INSPECTION) WILL BE CONSIDERED.

THE RECORD SHOWS THAT FOUR BIDS WERE RECEIVED FROM THE FOLLOWING COMPANIES AT THE PRICES INDICATED:

AIRBORNE INSTRUMENTS LABORATORY $674,393

SCANWELL LABORATORIES, INC. 931,470

WILCOX ELECTRIC COMPANY, INC. 1,035,086

STANDARD TELEPHONE AND CABLES, LTD. 1,086,974

BY LETTER DATED FEBRUARY 13, 1969, SCANWELL PROTESTED TO FAA THAT THE LOW BID OF AIL WAS NONRESPONSIVE AND, THEREFORE, FOR REJECTION FIRST, BECAUSE IT DID NOT INDICATE THAT AN "IDENTICAL EQUIPMENT COMPLEMENT" HAD PREVIOUSLY BEEN INSTALLED IN AT LEAST ONE LOCATION, AS REQUIRED BY THE IFB, AND SECOND, BECAUSE THE EVIDENCE SUBMITTED BY AIL WITH ITS BID DID NOT CONSTITUTE A PROPER FAA CERTIFICATION OF THE REQUIRED CATEGORY "I" PERFORMANCE. WITH RESPECT TO THE FIRST GROUND OF ITS PROTEST, SCANWELL POINTED OUT THAT WHILE AIL HAD INSTALLED AND OPERATED PARTIAL ILS SYSTEMS AT BLYTHE, CALIFORNIA, AND LATROBE, PENNSYLVANIA, WHICH CONSIDERED TOGETHER CONSISTED OF ALL OF THE COMPONENTS REQUIRED OF THE INSTANT SYSTEM, IT HAD NOT PREVIOUSLY INSTALLED AND OPERATED ALL OF THE REQUIRED COMPONENTS AS AN INTEGRATED SYSTEM AT A SINGLE LOCATION IN ACCORDANCE WITH THE IFB TERMS. SECOND, SCANWELL SET OUT SEVEN SPECIFIC REASONS WHY, IN ITS OPINION, THE FAA FLIGHT INSPECTION REPORT CERTIFYING CATEGORY "I" PERFORMANCE FOR THE BLYTHE, CALIFORNIA, INSTALLATION WAS NOT ADEQUATE TO JUSTIFY SUCH CERTIFICATION.

BECAUSE THE SUBJECT ILS SYSTEM WAS URGENTLY NEEDED, FAA DETERMINED, PURSUANT TO FEDERAL PROCUREMENT REGULATIONS 1-2.407-8(B)(3), THAT IT WAS NECESSARY TO MAKE AWARD TO AIL BEFORE RESOLUTION OF THE SCANWELL PROTEST AND SCANWELL WAS SO ADVISED BY LETTER DATED FEBRUARY 19, 1969, SCANWELL'S PROTEST WAS SUBSEQUENTLY ANSWERED BY FAA LETTER DATED MARCH 10, 1969, THE SUBSTANCE OF WHICH WAS THAT THE INVITATION REQUIREMENTS CALLING FOR PREVIOUS INSTALLATION OF AN IDENTICAL SYSTEM IN AT LEAST ONE LOCATION AND FOR THE ACHIEVEMENT OF CATEGORY "I" PERFORMANCE WERE INCLUDED IN THE INVITATION IN ORDER TO DETERMINE THE RESPONSIBILITY OF PROSPECTIVE CONTRACTORS ONLY (AS OPPOSED TO THE RESPONSIVENESS OF THEIR BIDS TO THE MATERIAL TERMS OF THE INVITATION). FAA ADVISED THAT, IN ANY EVENT, IT WAS NOT THE INTENT OF THE CONTRACTING OFFICER THAT ALL COMPONENTS OF THE SYSTEM BE SITUATED AND CHECKED AT A SINGLE LOCATION BECAUSE THE COMPONENTS, OR SUBSYSTEMS, OF THE ILS ARE CAPABLE OF BEING UTILIZED AND FLIGHT CHECKED INDEPENDENTLY; AND THAT THE FLIGHT CHECK REPORTS WERE SUFFICIENT, IN FAA'S OPINION, TO ESTABLISH AIL'S CAPACITY TO MEET CATEGORY "I" PERFORMANCE IN THE INSTANT PROCUREMENT.

THE DISTINCTION BETWEEN "RESPONSIBILITY" AND "RESPONSIVENESS" IMPLIED BY THE FAA LETTER TO SCANWELL IS AN IMPORTANT ONE BECAUSE OUR OFFICE HAS CONSISTENTLY HELD THAT THERE IS NO REQUIREMENT THAT BIDS FAILING TO MEET LITERAL RESPONSIBILITY REQUIREMENTS OF ADVERTISED INVITATIONS FOR BIDS BE REJECTED, AS WOULD BE THE CASE WITH BIDS DETERMINED TO BE NONRESPONSIVE TO MATERIAL INVITATION REQUIREMENTS, SO LONG AS THE CONTRACTING OFFICIALS ARE SATISFIED THAT THE BIDDER IN QUESTION IS IN FACT RESPONSIBLE. 45 COMP. GEN. 4. IT MAY GENERALLY BE STATED THAT INVITATION REQUIREMENTS WHICH CONCERN A BIDDER'S EXPERIENCE, I.E., HIS ORGANIZATION, TECHNICAL EXPERIENCE, KNOWLEDGE, SKILLS, "KNOW-HOW," EQUIPMENT, FACILITIES, AND GENERALLY CAPABILITY TO PERFORM IN ACCORDANCE WITH THE CONTRACT TERMS, ARE MATTERS OF RESPONSIBILITY. SEE 45 COMP. GEN. 4 (1965); 43 ID. 275 (1963); 41 ID. 737 (1962); 39 ID. 173 (1959). HOWEVER, OUR OFFICE HAS RECENTLY HELD THAT EXPERIENCE REQUIREMENTS WHICH ARE DIRECTED PRIMARILY TO THE PERFORMANCE HISTORY OF THE ITEM BEING PROCURED, RATHER THAN TO THE EXPERIENCE OF THE PROSPECTIVE CONTRACTOR, CONCERN RESPONSIVENESS WHERE SUCH INTENT IS CLEAR FROM THE INVITATION TERMS. SEE 48 COMP. GEN. 291, NOVEMBER 6, 1968.

THE ABOVE-QUOTED INVITATION PROVISIONS ARE LOOSELY DRAWN WITH THE RESULT THAT IT IS DIFFICULT TO DETERMINE WITH CERTAINTY FROM A READING OF THE THREE PROVISIONS TOGETHER WHETHER THEY AFFECT THE RESPONSIBILITY OF BIDDERS OR THE RESPONSIVENESS OF BIDS. THE PROVISIONS MAY BE SAID TO HAVE CONNOTATIONS RELATED TO BOTH RESPONSIBILITY AND RESPONSIVENESS IF READ WITHOUT REFERENCE TO THE OTHER PROVISIONS CONCERNING "EXPERIENCE." ALSO, WHILE THE LANGUAGE CONTAINED IN ITEM NO. 1 OF THE IFB SCHEDULE THAT AN "IDENTICAL EQUIPMENT COMPLEMENT" MUST HAVE BEEN INSTALLED IN AT LEAST ONE LOCATION, TAKEN ALONE, WOULD SEEM CLEARLY TO HAVE EXCLUDED THE AIL BID, THE REFERENCES IN CLAUSE II AND VIII APPEAR TO BE BROAD ENOUGH TO HAVE PERMITTED ITS CONSIDERATION FOR AWARD.

ACCORDINGLY, WHILE THE LACK OF PRECISION IN THE INSTANT IFB WAS UNFORTUNATE, WE CANNOT CONCLUDE THAT ANY BIDDERS WERE PREJUDICED THEREBY OR THAT THE FAA INTERPRETATION OF THE PROVISIONS WAS SO CLEARLY IN ERROR AS TO WARRANT ADVERSE ACTION BY OUR OFFICE.

WITH RESPECT TO THE SCANWELL CONTENTION THAT THE FAA FLIGHT INSPECTION REPORT SUBMITTED BY AIL FOR ITS BLYTHE, CALIFORNIA, INSTALLATION WAS NOT ADEQUATE TO JUSTIFY THE REQUIRED CATEGORY "I" PERFORMANCE, FAA IN ITS REPORT TO OUR OFFICE DATED APRIL 18, 1969, REACHES THE CONTRARY CONCLUSION, I.E., THAT THE QUESTIONED REPORT WAS SUFFICIENT TO ESTABLISH COMPLIANCE WITH CATEGORY "I" STANDARDS. IN CASES INVOLVING A DISPUTE OF FACT, SUCH AS THIS, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICIALS IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THE CONTRACTING OFFICIALS ARE IN ERROR. WE FIND NO SUCH EVIDENCE HERE.

IN ACCORDANCE WITH THE FOREGOING CONSIDERATIONS, WE FIND NO BASIS FOR DISTURBING THE AWARD MADE TO AIL.