B-167309(1), NOV. 3, 1969

B-167309(1): Nov 3, 1969

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WARRANTIES LOW BIDDER WHO FAILED TO SUBMIT DESCRIPTIVE LITERATURE REQUIRED BY INVITATION FOR SOLID-STATE LASER AND WHO PROTESTED AWARD ON BASIS SUCH FAILURE WAS MINOR DEVIATION UNDER FEDERAL PROCUREMENT REGULATIONS BUT WHO QUALIFIED 12-MONTH WARRANTY REQUIREMENT BY ADDING ALTERNATE LIMITATION OF 500 HOURS AND SUBSTITUTED RESPONSIBILITY FOR TESTING EQUIPMENT AT FINAL TEST DETERMINATION IS DENIED PROTEST SINCE QUALIFICATIONS OF LIABILITY ARE NOT MINOR TECHNICALITIES OR INFORMALITIES WHICH CAN BE WAIVED IN GOVERNMENT'S INTEREST AND FAILURE TO ACCEPT RESPONSIBILITY FOR TESTING EQUIPMENT AT FINAL TEST DETERMINATION IS MORE THAN INSIGNIFICANT DEVIATION FROM INVITATION'S REQUIREMENTS. SUCH EXCEPTIONS WERE SUFFICIENT TO REQUIRE BID REJECTION AND MAKE IT UNNECESSARY TO PASS UPON QUESTION OF DESCRIPTIVE LITERATURE.

B-167309(1), NOV. 3, 1969

BIDS--QUALIFIED--WARRANTIES LOW BIDDER WHO FAILED TO SUBMIT DESCRIPTIVE LITERATURE REQUIRED BY INVITATION FOR SOLID-STATE LASER AND WHO PROTESTED AWARD ON BASIS SUCH FAILURE WAS MINOR DEVIATION UNDER FEDERAL PROCUREMENT REGULATIONS BUT WHO QUALIFIED 12-MONTH WARRANTY REQUIREMENT BY ADDING ALTERNATE LIMITATION OF 500 HOURS AND SUBSTITUTED RESPONSIBILITY FOR TESTING EQUIPMENT AT FINAL TEST DETERMINATION IS DENIED PROTEST SINCE QUALIFICATIONS OF LIABILITY ARE NOT MINOR TECHNICALITIES OR INFORMALITIES WHICH CAN BE WAIVED IN GOVERNMENT'S INTEREST AND FAILURE TO ACCEPT RESPONSIBILITY FOR TESTING EQUIPMENT AT FINAL TEST DETERMINATION IS MORE THAN INSIGNIFICANT DEVIATION FROM INVITATION'S REQUIREMENTS. SUCH EXCEPTIONS WERE SUFFICIENT TO REQUIRE BID REJECTION AND MAKE IT UNNECESSARY TO PASS UPON QUESTION OF DESCRIPTIVE LITERATURE.

TO LASER DIODE LABORATORIES, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 23, 1969, AND SUPPORTING LETTER DATED JULY 3, 1969, PROTESTING REJECTION OF YOUR BID AND AWARD OF A CONTRACT TO ANY OTHER FIRM RELATIVE TO INVITATION FOR BIDS (IFB) NO. 21- 1969-4 WHICH WAS ISSUED BY THE U.S. DEPARTMENT OF AGRICULTURE - FOREST SERVICE, BERKELEY, CALIFORNIA.

THE INVITATION, DATED MAY 21, 1969, SOLICITED BIDS FOR A SOLID-STATE LASER TO CONFORM TO SPECIFICATIONS WHICH WERE BASICALLY PERFORMANCE TYPE. ALTHOUGH YOUR BID OF $5,400 WAS THE APPARENT LOW BID, AWARD WAS MADE AT THE HIGHER PRICE OF $5,500 TO RCA ELECTRONIC COMPONENTS ON JUNE 19, 1969. IN A LETTER DATED JUNE 23, 1969, THE CONTRACTING OFFICER FORMALLY NOTIFIED YOU THAT YOUR BID WAS REJECTED AND GAVE AS THE REASON FOR REJECTION YOUR FAILURE TO SUBMIT AS PART OF YOUR BID THE DESCRIPTIVE LITERATURE REQUIRED BY THE IFB. THE ADMINISTRATIVE REPORT NOTES, HOWEVER, THAT YOU ALSO FAILED TO INDICATE MAKE AND MODEL OF THE OFFERED PRODUCT SPECIFIED IN THE IFB AND, FURTHER, THAT YOU TOOK EXCEPTION TO SEVERAL OF THE CONDITIONS AND SPECIFICATIONS.

YOU CONTEND THAT THE FAILURE TO SUBMIT SUFFICIENT DESCRIPTIVE LITERATURE IS A MINOR DEVIATION WITHIN THE MEANING OF FEDERAL PROCUREMENT REGULATION (FPR) 1-2.405, AND YOU CONTEND THAT THE DEFICIENCY EITHER SHOULD HAVE BEEN WAIVED BY THE CONTRACTING OFFICER OR YOU SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO CURE THE DEFICIENCY. WHILE YOUR POSITION REGARDING THE REQUIREMENT FOR DESCRIPTIVE LITERATURE APPEARS TO HAVE SOME MERIT, WE FIND IT UNNECESSARY TO PASS UPON THE QUESTION HERE SINCE THE RECORD SHOWS THAT YOUR BID WAS NOT RESPONSIVE TO SEVERAL OTHER MATERIAL CONDITIONS AND SPECIFICATIONS OF THE INVITATION.

A REVIEW OF THE RECORD SHOWS THAT YOU QUALIFIED THE TWELVE-MONTH WARRANTY REQUIREMENT IN THE INVITATION BY ADDING TO IT THE ALTERNATIVE LIMITATION OF 500 HOURS, WHICHEVER SHOULD OCCUR FIRST. EXCEPTION WAS ALSO TAKEN TO THE INSPECTION AND ACCEPTANCE PROVISIONS. IN THE LATTER CONNECTION THE IFB READ AS FOLLOWS: "2. THE CONTRACTOR WILL DELIVER THE EQUIPMENT AT THE LOCATION SPECIFIED ON THE SF-36. HE WILL INSTALL THE EQUIPMENT AND PERFORM A FINAL TEST DEMONSTRATION OF THE EQUIPMENT IN THE PRESENCE OF THE CONTRACTING OFFICE AND/OR HIS REPRESENTATIVE, TO ASSURE THE EQUIPMENT MEETS ALL THE CONTRACT REQUIREMENTS AND OPERATES CORRECTLY. SHOULD THE EQUIPMENT NOT MEET THE CONTRACT REQUIREMENTS, THE CONTRACTOR WILL BE REQUIRED TO CORRECT DEFICIENCIES BEFORE THE EQUIPMENT IS ACCEPTED AND FINAL PAYMENT IS MADE.' YOUR BID DELETED THE PRECEDING AND SUBSTITUTED THE FOLLOWING: "2. THE EQUIPMENT WILL BE DELIVERED TO THE LOCATION SPECIFIED ON THE SF-36. THE EQUIPMENT WILL BE TESTED BY THE U.S. FOREST SERVICE TO ASSURE THAT THE EQUIPMENT MEETS ALL THE CONTRACT REQUIREMENTS AND OPERATES CORRECTLY. SHOULD THE EQUIPMENT NOT MEET THE CONTRACT REQUIREMENTS, THE CONTRACTOR WILL BE REQUIRED TO CORRECT DEFICIENCIES BEFORE THE EQUIPMENT IS ACCEPTED AND FINAL PAYMENT IS MADE.'

WE HAVE CONSISTENTLY HELD THAT THE QUALIFICATIONS OF LIABILITY ARE NOT MINOR TECHNICALITIES OR INFORMALITIES WHICH CAN BE WAIVED IN THE INTERESTS OF THE GOVERNMENT. 30 COMP. GEN. 179; B-153193, DATED APRIL 8, 1964; SEE ALSO B-154972, DATED OCTOBER 8, 1964. WE ALSO BELIEVE THAT YOUR FAILURE TO ACCEPT RESPONSIBILITY FOR THE TESTING OF THE EQUIPMENT AT A FINAL TEST DEMONSTRATION IS MORE THAN AN INSIGNIFICANT DEVIATION FROM THE INVITATION'S REQUIREMENTS. UNDER AN ADVERTISED PROCUREMENT ALL BIDDERS MUST SUBMIT BIDS WHICH ARE BASED UPON THE SAME SPECIFICATIONS, AND ALL BIDS MUST BE EVALUATED ON THE SAME BASIS. AND WHEN WAIVER OF CERTAIN PROVISIONS OF AN INVITATION FOR BIDS MIGHT RESULT IN A COMPETITIVE ADVANTAGE TO ONE OR MORE BIDDERS, SUCH PROVISIONS MUST BE CONSIDERED MATERIAL PROVISIONS WHICH MAY NOT BE WAIVED.

IT IS OUR OPINION THAT THE TWO PROVISIONS SET OUT ABOVE TO WHICH YOUR BID TOOK EXCEPTION WERE MATERIAL PROVISIONS AND THAT WAIVER WOULD HAVE BEEN PREJUDICIAL TO OTHER BIDDERS. IT FOLLOWS THAT THESE EXCEPTIONS IN YOUR BID WERE SUFFICIENT TO REQUIRE ITS REJECTION.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED. WE ARE, HOWEVER, ADVISING THE DEPARTMENT OF AGRICULTURE BY LETTER OF TODAY, COPY ENCLOSED, OF THE DEFICIENCIES PERTAINING TO THE DESCRIPTIVE LITERATURE REQUIREMENT IN THIS PROCUREMENT SO THAT THEY MAY BE CORRECTED IN FUTURE PROCUREMENTS.