B-167339(1), OCT. 9, 1969

B-167339(1): Oct 9, 1969

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DESCRIPTIVE LITERATURE REJECTION OF BID AS NONRESPONSIVE TO TECHNICAL REQUIREMENTS OF INVITATION FOR ELECTRO-HYDRAULIC TESTING MACHINE WAS PROPER BECAUSE ACCOMPANYING DESCRIPTIVE DATA SUBSTANTIALLY QUALIFIED TECHNICAL SPECIFICATION. SINCE IT IS NOT GENERAL ACCOUNTING OFFICE FUNCTION TO TECHNICALLY EVALUATE PROPOSALS OR DETERMINE BID'S COMPLIANCE WITH SPECIFICATIONS ABSENT OVERRIDING EVIDENCE SUCH EVALUATION WILL NOT BE QUESTIONED. INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 25. CLOSED LOOP UNIVERSAL TESTING MACHINE AND WAS ISSUED ON MAY 15. FOREST SERVICE REVIEW OF THESE DOCUMENTS DOES NOT SIGNIFY ACCEPTANCE OF THE EQUIPMENT OR THAT ANY PART OF THE EQUIPMENT SPECIFICATIONS WILL BE WAIVED.

B-167339(1), OCT. 9, 1969

SPECIFICATIONS--DEVIATIONS--DESCRIPTIVE LITERATURE REJECTION OF BID AS NONRESPONSIVE TO TECHNICAL REQUIREMENTS OF INVITATION FOR ELECTRO-HYDRAULIC TESTING MACHINE WAS PROPER BECAUSE ACCOMPANYING DESCRIPTIVE DATA SUBSTANTIALLY QUALIFIED TECHNICAL SPECIFICATION, TENDERED WARRANTY SUBSTANTIALLY DEVIATING FROM ADVERTISED REQUIREMENTS, CUMULATIVE EFFECT OF DEVIATIONS GOING TO SUBSTANCE OF BID. BECAUSE FEDERAL PROCUREMENT REGULATIONS PROVIDE FOR REJECTION OF BID AS NONRESPONSIVE WHICH FAILS TO CONFORM TO ESSENTIAL REQUIREMENTS, SUCH AS SPECIFICATIONS, DELIVERY SCHEDULE OR PERMISSIBLE ALTERNATES, DEVIATIONS DELIBERATELY TAKEN IN TECHNICAL SPECIFICATIONS MAY NOT BE WAIVED AS MINOR IRREGULARITY. SINCE IT IS NOT GENERAL ACCOUNTING OFFICE FUNCTION TO TECHNICALLY EVALUATE PROPOSALS OR DETERMINE BID'S COMPLIANCE WITH SPECIFICATIONS ABSENT OVERRIDING EVIDENCE SUCH EVALUATION WILL NOT BE QUESTIONED.

TO GILMORE INDUSTRIES, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 25, 1969, AND LETTERS OF JUNE 26 AND AUGUST 20, 1969, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. R6-69-178, ISSUED BY THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE, NORTHWEST REGION, PORTLAND, OREGON, TO MTS SYSTEMS CORPORATION, MINNEAPOLIS, MINNESOTA.

THE INVITATION REQUESTED BIDS ON ONE AXIAL LOAD, ELECTRO-HYDRAULIC, CLOSED LOOP UNIVERSAL TESTING MACHINE AND WAS ISSUED ON MAY 15, 1969, WITH BID OPENING SET FOR JUNE 9, 1969. SECTION 280 OF THE TECHNICAL SPECIFICATION PROVIDED, IN PERTINENT PART, AS FOLLOWS: "BROCHURES "THE BIDDER SHALL SUBMIT DESCRIPTIVE LITERATURE * * * FOR ALL COMPONENTS TO BE FURNISHED. FOREST SERVICE REVIEW OF THESE DOCUMENTS DOES NOT SIGNIFY ACCEPTANCE OF THE EQUIPMENT OR THAT ANY PART OF THE EQUIPMENT SPECIFICATIONS WILL BE WAIVED. THE LITERATURE SHALL BE USED TO EVALUATE THE BID AND FAILURE TO SUBMIT THE LITERATURE TO THE BID ISSUING OFFICE BY THE TIME SET FOR BID OPENING SHALL CAUSE REJECTION OF YOUR BID AS BEING NON-RESPONSIVE. * * *

"A. * * * EACH BIDDER SHALL SUBMIT A PARAGRAPH RESPONSE TO THIS SPECIFICATION, IN THE SAME FORMAT, INDICATING CONFORMANCE OR EXCEPTION AND AN EXPLANATION OF THE PROPOSED SYSTEM'S PABILITY.' SIX BIDS WERE RECEIVED AS FOLLOWS:

CGS SCIENTIFIC CORPORATION $36,960

AMETEK TESTING EQUIPMENT SYSTEMS 47,615

MTS SYSTEMS CORPORATION 43,000

TINIUS OLSEN TESTING MACHINE COMPANY 28,355

GILMORE INDUSTRIES, INC. 37,900

PACIFIC SCIENTIFIC COMPANY 28,355

AFTER EVALUATION OF THE BIDS AND ACCOMPANYING DESCRIPTIVE DATA BY THE CONTRACTING OFFICER, ALL UNSUCCESSFUL OFFERORS WERE ADVISED BY LETTERS DATED JUNE 13, 1969, THAT AWARD WAS BEING MADE TO MTS CORPORATION. YOU WERE ADVISED OF THE BASES FOR THE REJECTION OF YOUR BID BECAUSE OF NONRESPONSIVENESS IN AN ENCLOSURE TO THAT LETTER.

YOUR DESCRIPTIVE LITERATURE SUBSTANTIALLY QUALIFIED THE REQUIREMENTS OF SECTION 200.3 OF THE TECHNICAL SPECIFICATION WHICH READ AS FOLLOWS: "WARRANTY - THE SUPPLIER SHALL WARRANT THE SYSTEM TO BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP FOR A PERIOD OF ONE FULL YEAR AFTER ACCEPTANCE OF THE EQUIPMENT. THIS WARRANTY SHALL FULLY COVER THE COSTS OF PARTS AND LABOR. IN ADDITION THE CONTRACTOR SHALL DESCRIBE, AND PRESENT EVIDENCE WITH HIS BID, OF AN ESTABLISHED SERVICE PROGRAM WITH WHICH IT IS AVAILABLE TO CONTRACT SEPARATELY FOR THE PREVENTATIVE MAINTENANCE AND EMERGENCY MAINTENANCE OF THE SYSTEM. THIS WARRANTY AND SERVICE PROGRAM INFORMATION SHALL BE SUBMITTED AS PART OF THE BIDDING MATERIALS SPECIFIED IN PARAGRAPH 280.' THE WARRANTY TENDERED IN YOUR DESCRIPTIVE LITERATURE WAS AS FOLLOWS: "NEW GILMORE EQUIPMENT, UNLESS OTHERWISE STATED, IS GUARANTEED AGAINST DEFECTS IN WORKMANSHIP AND MATERIAL FOR A PERIOD OF ONE YEAR FROM DATE OF SHIPMENT. SHOULD ANY SUCH DEFECTS BE FOUND, AND OUR COMPANY NOTIFIED WITHIN THAT PERIOD, PARTS AND ENGINEERING SERVICE FOR REPLACEMENT WILL BE FURNISHED FREE OF CHARGE, PROVIDED THE EQUIPMENT OWNER AGREES TO PAY ALL ENGINEER'S TRAVELING EXPENSES FROM AND TO HOME OFFICE. THIS APPLIES TO ALL BUT PORTABLE EQUIPMENT UNDER 200 POUNDS, WHICH MUST BE RETURNED TO GILMORE FOR REPAIR.'

IT IS EVIDENT THAT YOUR TENDERED WARRANTY REPRESENTED A SUBSTANTIAL DEVIATION FROM THE ADVERTISED WARRANTY REQUIREMENTS, ESPECIALLY AS TO YOUR ENGINEER'S TRAVELING EXPENSES AND THE LIMITATION AS TO PORTABLE EQUIPMENT UNDER 200 POUNDS. ADDITIONALLY, THE EVALUATION OF YOUR DESCRIPTIVE LITERATURE REVEALED THE FOLLOWING MATERIAL DEVIATIONS, REFERENCED TO PARTICULAR PARAGRAPHS OF THE TECHNICAL SPECIFICATION.'221 - GENERAL. COULD NOT VERIFY THAT THIS EQUIPMENT WILL BE CAPABLE TO ACCEPT LOAD CELLS UTILIZING A 350 OHM BRIDGE AND 2 TO 3 MV/V OUTPUT AS SPECIFIED IN THIS SECTION.'223 - ACCURACY. THE BIDDER'S RESPONSE DID NOT STATE THE RAM SPEED CONTROL ACCURACY THAT WILL BE PROVIDED. THE OVERALL STATIC LOAD MEASURING ACCURACY OF PLUS OR MINUS 0.20 PERCENT OF RANGE AND 0.5 PERCENT OF LOAD IS INCLUDING READOUT INSTRUMENTATION NOT DEPENDING UPON READOUT INSTRUMENTATION AS PER THE BIDDER'S PROPOSAL (PARAGRAPH 2.2.2).'231 - LOAD FRAME, ACTUATOR, LOAD CELLS. THIS SECTION REQUIRES A 48 INCH CLEAR SPACE BETWEEN THE UPPER AND LOWER PLATTENS. THE BIDDER'S PROPOSAL (PARAGRAPH 3.1.1) MENTIONS A 40 INCH OPENING. REVIEW OF THE FRAME DIMENSIONS SHOWS THAT THE SIZE OF THE OPENING IS VARIABLE BETWEEN 40 INCHES TO 66 INCHES DEPENDING UPON HOW IT IS ORDERED. IT COULD NOT BE VERIFIED WHETHER OR NOT THE FRAME WAS TO CONTAIN AN EMERGENCY STOP SWITCH.'232 - LOAD CELL. THIS SECTION REQUIRES AN ACCURACY OF 0.05 PERCENT - THE PROPOSAL SHOWS 0.10 PERCENT (PARAGRAPH 3.1.5), SIDE LOAD CAPACITY BEING PROPOSED IS 10 PERCENT OF RATED CAPACITY (SHEET 1 OF 2, GILMORE FATIGUE RATED LOAD CELL), WHICH A MINIMUM OF 20 PERCENT IS SPECIFIED.'280 - BROCHURES. THE BIDDER DID NOT PROVIDE A PARAGRAPH RESPONSE TO OUR SPECIFICATION IN THE SAME FORMAT AS OUR SPECIFICATION. BECAUSE OF THE FAILURE TO DO THIS, WE WERE UNABLE TO VERIFY COMPLIANCE WITH OUR SPECIFICATION IN ALL CASES. THE FOLLOWING SECTIONS ARE EXAMPLES OF INSTANCES WHERE COMPLIANCE COULD NOT BE CONFIRMED: 220, 223, 241, AND 245.'

YOUR LETTER OF AUGUST 20, 1969, COMMENTS UPON ALL OF THE ABOVE AND YOU MAINTAIN THAT YOUR BID WAS "CORRECT, PROPER, AND INTENDED TO COMPLY WHOLLY TO THE REQUIREMENTS AS OUTLINED IN IFB NO. R6-69-178.'

AS OUTLINED ABOVE, YOUR BID WAS DETERMINED TO BE NONRESPONSIVE TO THE TECHNICAL REQUIREMENTS OF THE INVITATION. IT WAS ADMINISTRATIVELY DETERMINED THAT THE CUMULATIVE EFFECT OF THE DEVIATIONS SET OUT IN YOUR DESCRIPTIVE LITERATURE REQUIRED REJECTION OF YOUR BID AS NONRESPONSIVE SINCE SUCH DEVIATIONS WENT TO THE SUBSTANCE OF THE BID. SECTION 1 2.404-2 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDES IN PERTINENT PART:

"/A) ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS, SUCH AS SPECIFICATIONS, DELIVERY SCHEDULE, OR PERMISSIBLE ALTERNATES THERETO, SHALL BE REJECTED AS NONRESPONSIVE.

"/B) ORDINARILY, A BID SHALL BE REJECTED WHERE THE BIDDER IMPOSES CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT SO AS TO GIVE HIM AN ADVANTAGE OVER OTHER BIDDERS. * * *"

IT IS EVIDENT FROM THE TECHNICAL EVALUATION OF YOUR DESCRIPTIVE LITERATURE THAT THE DEVIATIONS WERE DELIVERATELY TAKEN TO THE TECHNICAL SPECIFICATION AND, HENCE, MAY NOT BE WAIVED AS MINOR IRREGULARITIES. SEE 47 COMP. GEN. 496, 499.

PARAGRAPH 1.1.1 OF YOUR DESCRIPTIVE LITERATURE STATED: "THIS PROPOSAL DESCRIBES AN AXIAL LOAD, ELECTRO-HYDRAULIC, CLOSED LOOP, FATIGUE TEST MACHINE WHICH WILL MEET OR EXCEED THE SPECIFICATIONS OUTLINED IN IFB R6-69 -178. IF THERE APPEARS TO BE A CONFLICT BETWEEN THE U.S. FOREST SERVICE SPECIFICATIONS AND OUR PROPOSAL, THE U.S. FOREST SERVICE SPECIFICATIONS SHALL GOVERN.'

HOWEVER, IT WAS NOT APPARENT FROM YOUR BID WHETHER THE FOREST SERVICE SPECIFICATIONS WOULD GOVERN OR YOUR PROPOSAL. THE GENERAL RULE OF CONSTRUCTION FOLLOWED IN CIRCUMSTANCES WHERE THERE IS A REASONABLE DOUBT AS TO THE INTENT OF A DOCUMENT IS THAT A SPECIFIC STATEMENT DIRECTED TO INDIVIDUAL ITEMS WILL TAKE PRECEDENCE OVER A BROAD GENERAL STATEMENT WHEN THE TWO ARE IN CONFLICT. APPLICATION OF THIS CONSTRUCTION WOULD INDICATE YOUR DEVIATIONS WOULD HAVE TO BE CONSIDERED AS CONFLICTING WITH THE SPECIFICATIONS OF THE INVITATION. FURTHER, YOU HAVE STATED THAT A "CONFLICT" WOULD APPEAR TO HAVE EXISTED BETWEEN THE SPECIFICATIONS AND YOUR PROPOSAL. HOWEVER, IN YOUR BID WHERE DEVIATIONS ARE INDICATED, SUCH AS THE WARRANTY PROVISION AND THE LOAD CELL REQUIREMENTS, THERE WAS NOT A QUESTION OF YOUR APPARENT INTENT. IN THESE INSTANCES THERE WAS A CLEAR EXPRESSION THAT YOUR RESPONSE WAS SUBSTANTIALLY DIFFERENT THAN THE GOVERNMENT'S REQUIREMENT. THESE EXPRESS DEVIATIONS MADE YOUR BID NONRESPONSIVE. SEE FPR SEC. 1-2.404-2 (B) (5) AND 30 COMP. GEN. 179, 36 ID. 705, 42 ID. 96.

IT IS NOT OUR FUNCTION TO TECHNICALLY EVALUATE BIDS AND PROPOSALS, OR TO MAKE AN INDEPENDENT DETERMINATION IN THIS CASE AS TO WHETHER YOUR BID WAS IN COMPLIANCE WITH THE SPECIFICATIONS. SEE, GENERALLY, 17 COMP. GEN. 554; 19 ID. 587; 40 ID. 35. INDEED, WE ARE NOT EQUIPPED TO DO SO. IT DOES APPEAR THAT YOUR BID WAS EVALUATED BY TECHNICAL PERSONNEL OF THE PROCUREMENT AGENCY AND, IN THE ABSENCE OF OVERRIDING EVIDENCE, WE WILL NOT QUESTION SUCH EVALUATION. 36 COMP. GEN. 809; 43 ID. 77.