B-166895, FEBRUARY 2, 1970, 49 COMP. GEN. 459

B-166895: Feb 2, 1970

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WHO IS NOT RESPONSIBLE FOR THE PREPARATION AND SUBMISSION OF BIDS. WHICH WAS ONLY INTENDED AS A SIGNAL THAT THE TRANSMISSION OF THE AMENDMENT HAD BEEN RECEIVED. IS NOT EQUIVALENT TO AN ACCEPTANCE OF THE TERMS OF THE AMENDMENT BY AN INDIVIDUAL RESPONSIBLE FOR BINDING THE BIDDER. UNDER THE RULE OF AGENCY THAT INFORMATION FURNISHED TO A CLERK OR ANYONE ACTING IN A MINISTERIAL CAPACITY IS NOT IMPUTED TO ANOTHER. THE REJECTION OF THE LOW BID WAS PROPER. WHOSE BID WAS REJECTED FOR FAILURE TO ACKNOWLEDGE A MATERIAL AMENDMENT TO THE INVITATION. WAS NEITHER PREJUDICIAL TO THE BIDDER NOR IN DEROGATION OF SECTION 1-2.407-8 OF THE FEDERAL PROCUREMENT REGULATIONS. THE SECTION IS NOT SPECIFIC THAT A BIDDER AFFECTED BY A PROTEST IS TO BE NOTIFIED IN EVERY CASE.

B-166895, FEBRUARY 2, 1970, 49 COMP. GEN. 459

CONTRACTS -- SPECIFICATIONS -- ADDENDA ACKNOWLEDGMENT -- BY OTHER THAN AUTHORIZED PERSONNEL THE IMMEDIATE REPLY TO THE RECEIPT OF A MATERIAL AMENDMENT TO AN INVITATION BY A TWX OPERATOR OF THE LOW BIDDER, WHO IS NOT RESPONSIBLE FOR THE PREPARATION AND SUBMISSION OF BIDS, AND WHICH WAS ONLY INTENDED AS A SIGNAL THAT THE TRANSMISSION OF THE AMENDMENT HAD BEEN RECEIVED, IS NOT EQUIVALENT TO AN ACCEPTANCE OF THE TERMS OF THE AMENDMENT BY AN INDIVIDUAL RESPONSIBLE FOR BINDING THE BIDDER, AND UNDER THE RULE OF AGENCY THAT INFORMATION FURNISHED TO A CLERK OR ANYONE ACTING IN A MINISTERIAL CAPACITY IS NOT IMPUTED TO ANOTHER, THE REJECTION OF THE LOW BID WAS PROPER. CONTRACTS -- PROTESTS -- NOTICE -- TO CONTRACTORS THE FAILURE OF THE CONTRACTING OFFICER TO NOTIFY THE LOW BIDDER, WHOSE BID WAS REJECTED FOR FAILURE TO ACKNOWLEDGE A MATERIAL AMENDMENT TO THE INVITATION, OF A PROTEST PRIOR TO A CONTRACT AWARD TO THE LOWEST RESPONSIVE BIDDER, WAS NEITHER PREJUDICIAL TO THE BIDDER NOR IN DEROGATION OF SECTION 1-2.407-8 OF THE FEDERAL PROCUREMENT REGULATIONS. THE SECTION IS NOT SPECIFIC THAT A BIDDER AFFECTED BY A PROTEST IS TO BE NOTIFIED IN EVERY CASE, BUT SPEAKS ONLY OF "APPROPRIATE CASES," AND STATES AN EXAMPLE THAT CONTEMPLATES SITUATIONS WHERE THE AWARD MIGHT NOT BE CONSUMMATED WITHIN THE ACCEPTANCE PERIOD PROVIDED BY THE OFFER, AND NOT SITUATIONS WHERE THE BID IS NOT ELIGIBLE FOR AN AWARD.

TO SMATHERS, MERRIGAN & O'KEEFE, FEBRUARY 2, 1970:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6, 1970, AND PRIOR CORRESPONDENCE, PROTESTING ON BEHALF OF SOLITRON DEVICES, INC., AGAINST THE REJECTION OF ITS LOW BID SUBMITTED UNDER COAST GUARD INVITATION FOR BIDS CG-90,528-A.

THE INVITATION SOLICITED BIDS FOR 925 HIGH VOLTAGE, SOLID STATE, HALF WAVE RECTIFIER ASSEMBLIES FOR USE IN LORAN TRANSMITTERS. SECTION IID(1) OF THE SPECIFICATIONS, INCLUDED IN THE INVITATION SCHEDULE, DEALT WITH "DIODE COMPENSATION." A TELEGRAPHIC AMENDMENT OF THE INVITATION INSTRUCTED BIDDERS TO ADD A SINGLE WORD, "JUNCTION," AFTER THE WORD "DIODE" IN SECTION IID(1). THE ADDITION OF THE WORD, INDICATED BY BRACKETS BELOW, MADE THE SECTION READ AS FOLLOWS:

IF DIODES OTHER THAN CONTROLLED AVALANCHE TYPE ARE USED, EACH DIODE (JUNCTION) OF THE ASSEMBLY (STACK) SHALL HAVE ADEQUATE COMPENSATION BOTH RESISTIVE AND CAPACITIVE MEETING THE REQUIREMENTS LISTED ABOVE UNDER "PEAK REVERSE VOLTAGE" AND "PEAK SURGE CURRENT REQUIREMENTS."

SOLITRON'S BID IN THE TOTAL AMOUNT OF $91,482.50 WAS THE LOWEST RECEIVED. THE BID DID NOT ACKNOWLEDGE RECEIPT OF THE AMENDMENT AND IT WAS THEREFORE REJECTED. THE WESTINGHOUSE ELECTRIC CORPORATION SUBMITTED THE NEXT LOW BID IN THE AMOUNT OF $112,850 AND THE CONTRACT WAS AWARDED TO IT AS THE LOWEST RESPONSIVE BIDDER.

THE REJECTION OF THE SOLITRON BID HAS BEEN PROTESTED ON SEVERAL GROUNDS. IT IS CONTENDED THAT THE WORD "JUNCTION" WAS NOT A MATERIAL ADDITION TO THE SPECIFICATION AND THEREFORE THE FAILURE TO ACKNOWLEDGE THE AMENDMENT SHOULD NOT HAVE BEEN CONSIDERED AS A MATERIAL DEVIATION REQUIRING REJECTION. IT IS STATED THAT, IN ANY EVENT, THE GOVERNMENT TWX WHICH COMMUNICATED THE AMENDMENT WAS INSTANTANEOUSLY ACKNOWLEDGED BY SOLITRON BY RETURN TWX AND SUBSEQUENTLY BY LETTER. FURTHER, IT IS MAINTAINED THAT A SPECIFICATION SHEET FURNISHED BY SOLITRON WITH ITS BID STATING THAT "EACH CELL IS R-C COMPENSATED WITH 3 MEG OHM AND .001 UF" INDICATED THE INTENDED RESPONSIVENESS TO THE DIODE JUNCTION REQUIREMENT. FINALLY, IT IS STATED THAT, ALTHOUGH WESTINGHOUSE PROTESTED AGAINST AN AWARD TO SOLITRON, THE CONTRACTING OFFICER DID NOT NOTIFY SOLITRON OF THE PROTEST UNTIL AFTER AN AWARD HAD BEEN MADE. IT IS CONTENDED THAT THIS WAS PREJUDICIAL TO SOLITRON AND IN DEROGATION OF SECTION 1-2.407-8 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR).

THE COAST GUARD HAS REPORTED THAT IT HAS NO RECORD SHOWING THAT A LETTER ACKNOWLEDGING THE AMENDMENT WAS RECEIVED FROM SOLITRON OR THAT THE SPECIFICATION SHEET REFERRED TO ABOVE WAS PROVIDED WITH THE BID. THE LETTER AND THE SPECIFICATION SHEET THEREFORE ARE NOT FOR CONSIDERATION.

IN SUPPORT OF THE POSITION THAT THE WORD "JUNCTION" WAS NOT A MATERIAL ADDITION TO THE DIODE COMPENSATION REQUIREMENT, YOU FURNISHED AN ANALYSIS SHOWING THAT A DIODE HAS A SINGLE JUNCTION. YOU ALSO FURNISHED A LETTER FROM THE BUREAU OF STANDARDS WHICH SUPPORTED THE VIEW THAT THE WORD "JUNCTION" WAS NOT NECESSARY TO AN UNDERSTANDING OF WHAT WAS REQUIRED. HOWEVER, AS THE LETTER FROM THE BUREAU INDICATED THAT IT WAS BASED UPON A HYPOTHETICAL PROBLEM AND NOT UPON AN EXAMINATION OF THE ENTIRE SPECIFICATION, A COPY OF THE INVITATION SUBSEQUENTLY WAS FURNISHED TO THE BUREAU BY OUR OFFICE FOR COMMENT AND ADVICE. THE BUREAU ADVISED:

UPON EXAMINATION, PARAGRAPH II D.(1) OF THE SOLICITATION APPEARS TO REQUIRE A SPECIFIC PERFORMANCE IN TERMS NOT DEFINED AS WERE THOSE PRECEDING THE REFERENCED DESCRIPTION IN SENATOR HOLLAND'S REQUEST. PARAGRAPH II D.(1), THE WORD "DIODE" APPEARS FOR THE FIRST TIME IN THE SOLICITATION, WITHOUT HAVING BEEN PREVIOUSLY DEFINED, AND WITHOUT BEING DEFINED IN THAT PARAGRAPH. IN ENGINEERING USAGE, WITH NO FURTHER QUALIFICATION, THE WORD "DIODE" MAY REPRESENT (1) A SINGLE DIODE JUNCTION, (2) A SERIES COMBINATION OR A PARALLEL COMBINATION OF JUNCTIONS, OR (3) A SERIES PARALLEL COMBINATION OF JUNCTIONS. ADDING THE WORD "JUNCTION" AFTER "DIODE" IN THAT PARAGRAPH SERVES TO RESTRICT THE MEANING OF THE PARAGRAPH TO THAT SITUATION IN WHICH THE REQUIRED "COMPENSATION" IS TO BE APPLIED TO EACH JUNCTION. WITHOUT THE WORD "JUNCTION," IT IS POSSIBLE TO CONSTRUE THE MEANING OF THE PARAGRAPH AS PERMITTING THE REQUIRED "COMPENSATION" TO BE APPLIED TO COMBINATIONS OF MORE THAN ONE DIODE JUNCTION.

ACCORDINGLY, BASED ON THE ADDITIONAL DATA YOU HAVE PROVIDED, IF THE QUESTIONS TO WHICH WE PREVIOUSLY RESPONDED WERE APPLIED TO PARAGRAPH II D.(1) OF THE MENTIONED SOLICITATION AND IN CONTEXT WITH THE REMAINDER OF THE SPECIFICATION, THEN OUR ANSWERS WOULD BE:

(1) YES, "JUNCTION" ADDS MEANING TO THE EXTENT OF RESTRICTING COMPENSATION TO EACH DIODE JUNCTION.

(2) NO, "JUNCTION" IS NOT NECESSARY TO AN UNDERSTANDING OF WHAT IS CALLED FOR BY WAY OF COMPENSATING EACH JUNCTION, BUT ITS ADDITION PRECLUDES AN UNDERSTANDING THAT ALTERNATIVES TO EITHER CONTROLLED AVALANCHE DIODES OR SINGLE-JUNCTION COMPENSATION ARE ACCEPTABLE.

THE BUREAU HAS THUS INDICATED THAT THE WORD "JUNCTION" DOES SERVE TO RESTRICT THE DIODE COMPENSATION TO EACH JUNCTION. THE COAST GUARD HAS INDICATED THAT WITHOUT COMPENSATION FOR EACH INDIVIDUAL DIODE FUNCTION OF A STACK A SUDDEN REVERSE VOLTAGE TRANSIENT COULD SIMULTANEOUSLY DESTROY ALL DIODES IN A COMPENSATING LOOP. THE COAST GUARD BY MEANS OF THE AMENDMENT WAS LIMITING THE EFFECT OF SUCH A SUDDEN REVERSE VOLTAGE TRANSIENT BY SPECIFICALLY REQUIRING COMPENSATION AT EACH JUNCTION. INDICATED BY THE BUREAU, WITHOUT THE ADDITION OF THE WORD "JUNCTION," AN UNDERSTANDING THAT THE COMPENSATION COULD BE APPLIED TO COMBINATIONS OF MORE THAN ONE DIODE JUNCTION WAS POSSIBLE. WE THEREFORE VIEW THE ADDITION AS HAVING HAD A SIGNIFICANT EFFECT ON THE QUALITY OF THE ITEM ADVERTISED. ALSO, THE AMENDMENT WOULD APPEAR TO HAVE HAD MORE THAN A TRIVIAL EFFECT ON THE SPECIFICATION IN VIEW OF THE DIODE COMPENSATION PROTECTION SOUGHT TO BE OBTAINED. WE THEREFORE CONCLUDE THAT THE FAILURE TO ACKNOWLEDGE THE AMENDMENT RENDERED SOLITRON'S BID NONRESPONSIVE. CF. 47 COMP. GEN. 597 (1968).

YOU HAVE TAKEN THE POSITION THAT UNLESS EACH DIODE JUNCTION HAS RESISTIVE AND CAPACITIVE COMPENSATION, THE UNIT WILL NOT BE ABLE TO MEET THE PEAK REVERSE VOLTAGE AND PEAK SURGE CURRENT REQUIREMENTS IN THE SPECIFICATION. IN THAT REGARD, YOU REFER TO THE COAST GUARD REPORT THAT WITHOUT SUCH COMPENSATION FOR EACH INDIVIDUAL FUNCTION OF A STACK, A SUDDEN REVERSE VOLTAGE TRANSIENT COULD SIMULTANEOUSLY DESTROY ALL DIODES IN A COMPENSATING LOOP. YOU STATE, THEREFORE, THAT IF DIODE WERE INTERPRETED TO MEAN THE ENTIRE MODULE, AS OPPOSED TO A SINGLE JUNCTION, THE SPECIFICATION WOULD, IN EFFECT, BE ASKING BIDDERS TO ACHIEVE A TECHNICAL IMPOSSIBILITY. FROM THIS, YOU SUGGEST THAT IT WOULD HAVE TO FOLLOW THAT THE WORD "DIODE" IN SECTION IID(1) MEANT "DIODE JUNCTION" AND THAT THE AMENDMENT WAS SUPERFLUOUS SO THAT SOLITRON SHOULD NOT HAVE BEEN REJECTED IF THERE WAS A FAILURE TO ACKNOWLEDGE RECEIPT OF IT.

ALTHOUGH YOU INDICATE THAT YOU DO NOT BELIEVE THAT THE UNIT WILL BE ABLE TO WORK UNLESS EACH DIODE JUNCTION IS COMPENSATED, THERE IS NO ASSURANCE THAT INDUSTRIAL INGENUITY COULD NOT PRODUCE A WORKABLE UNIT WITH A COMBINATION OF DIODES WHICH IS COMPENSATED BY A SINGLE COMPENSATION NETWORK. FURTHER, THE COAST GUARD STATEMENT IS NOT A RECOGNITION THAT A COMBINATION OF DIODES COMPENSATED BY A SINGLE NETWORK WOULD NOT BE ABLE TO MEET THE ORIGINAL SPECIFICATION REQUIREMENTS. RATHER, WE UNDERSTAND SUCH STATEMENT TO MEAN THAT IF A SUDDEN REVERSE TRANSIENT VOLTAGE OCCURRED, SUCH VOLTAGE COULD DESTROY ALL THE DIODES IN A COMPENSATING LOOP, AND IT MAY BE INFERRED THAT IF EACH DIODE JUNCTION WAS INDIVIDUALLY COMPENSATED ALL OF THE DIODES WOULD NOT BE AFFECTED. IN ANY EVENT, EVEN IF YOU ARE CORRECT THAT THE UNIT WOULD NOT WORK WITHOUT INDIVIDUAL COMPENSATION, OTHER BIDDERS COULD HAVE CONTEMPLATED A SINGLE NETWORK SYSTEM IN THE ABSENCE OF THE AMENDMENT. IN THAT REGARD, IT SHOULD BE NOTED THAT THE AMENDMENT WAS ISSUED ONLY AFTER AN INQUIRY FROM THE WESTINGHOUSE ELECTRIC CORPORATION AS TO WHAT WAS INTENDED BY SECTION IID(1).

ALTHOUGH IT HAS BEEN POINTED OUT THAT THE INVITATION CONTAINS A GUARANTY PROVISION WHICH WOULD AFFORD PROTECTION TO THE GOVERNMENT SINCE THE CONTRACTOR WOULD BE REQUIRED TO REPAIR OR REPLACE FOR A PERIOD OF 5 YEARS ANY ASSEMBLY WHICH HAS DEFECTS IN WORKMANSHIP OR OPERATES ABNORMALLY, THE DIODE COMPENSATION PROVISION OF THE AMENDMENT WOULD SEEM TO PROVIDE A MEANS FOR MINIMIZING DIODE MALFUNCTION. FURTHER, IT IS TO BE NOTED THAT, WHILE THE GUARANTY CLAUSE PROVIDES THAT THE CONTRACTOR WILL CORRECT THE DEFECTS BY REPAIR OR REPLACEMENT, THE TRANSPORTATION EXPENSES IN CONNECTION WITH THE RETURN AND REPAIR OR REPLACEMENT OF THE ASSEMBLY WOULD BE BORNE BY THE GOVERNMENT. THUS, WHILE THE INVITATION DOES PROVIDE FOR CORRECTION OF ASSEMBLY DEFECTS, SUCH PROVISION RELATES TO CONTRACT DEFECTS AND DOES NOT APPEAR TO HAVE BEEN INTENDED AS A SUBSTITUTE FOR THE SPECIFICATION REQUIREMENT RELATING TO DIODE COMPENSATION.

THE IMMEDIATE TWX REPLY TO SOLITRON THAT IS RELIED UPON AS A PROPER ACKNOWLEDGMENT OF THE TWX AMENDMENT WAS NOTHING MORE THAN THE TWX OPERATOR'S SIGNAL THAT THE TRANSMISSION HAD BEEN RECEIVED BY SOLITRON. THE BID HAD PREVIOUSLY BEEN SUBMITTED AND SIGNED FOR SOLITRON BY ITS DIVISION MANAGER. THE ACKNOWLEDGMENT OF RECEIPT OF THE AMENDMENT BY A TWX OPERATOR, WHO IS NOT ORDINARILY RESPONSIBLE FOR THE PREPARATION AND SUBMISSION OF BIDS, COULD HARDLY BE CONSIDERED AS EQUIVALENT TO AN ACCEPTANCE OF THE TERMS OF THE AMENDMENT BY AN INDIVIDUAL RESPONSIBLE FOR BINDING THE BIDDER TO ITS OFFER. IT IS A RULE OF AGENCY THAT INFORMATION FURNISHED TO A CLERK OR ANYONE ACTING IN A MINISTERIAL CAPACITY IS NOT IMPUTED TO ANOTHER. 3 AM. JUR. 2D AGENCY, SECTION 275. FURTHER, IT IS APPARENT THAT SOLITRON DID NOT CONSIDER THE ACTION OF ITS TWX OPERATOR AS CONSTITUTING A PROPER ACKNOWLEDGMENT, SINCE IT APPARENTLY ATTEMPTED TO ACKNOWLEDGE THE AMENDMENT SUBSEQUENTLY BY A LETTER FROM THE DIVISION MANAGER.

WITH REGARD TO THE FAILURE OF THE CONTRACTING OFFICER TO NOTIFY SOLITRON OF THE WESTINGHOUSE PROTEST AGAINST AN AWARD TO SOLITRON, FPR SEC. 1-2.407 -8 PROVIDES:

(1) IN APPROPRIATE CASES, NOTICE OF A PROTEST WILL BE GIVEN TO BIDDERS AFFECTED THEREBY. FOR EXAMPLE, WHEN A PROTEST AGAINST THE MAKING OF AN AWARD IS RECEIVED AND THE CONTRACTING OFFICER DETERMINES TO WITHHOLD THE AWARD PENDING DISPOSITION OF THE PROTEST, EACH BIDDER TO WHOM AWARD IS PROPOSED AND EACH BIDDER WHOSE BID MIGHT BECOME ELIGIBLE FOR AWARD SHOULD BE INFORMED OF THE PROTEST AND REQUESTED, BEFORE EXPIRATION OF THE TIME FOR ACCEPTANCE OF THEIR BIDS, TO EXTEND THE TIME FOR ACCEPTANCE (WITH CONSENT OF SURETIES, IF ANY) IN ORDER TO AVOID THE NEED FOR READVERTISEMENT. ***

THE REGULATION IS NOT SPECIFIC THAT THE BIDDER AFFECTED BY A PROTEST IS TO BE NOTIFIED IN EVERY CASE. RATHER THE REGULATION SPEAKS ONLY OF "APPROPRIATE CASES" AND THE EXAMPLE STATED THEREIN SEEMS TO CONTEMPLATE SITUATIONS WHERE THE AWARD MIGHT NOT BE CONSUMMATED WITHIN THE ACCEPTANCE PERIOD PROVIDED BY THE OFFER.

ACCORDINGLY, THE PROTEST IS DENIED.