B-167339(2), OCT. 9, 1969

B-167339(2): Oct 9, 1969

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DEFECTIVE REJECTION OF BID AS NONRESPONSIVE TO TECHNICAL REQUIREMENTS OF INVITATION FOR ELECTRO-HYDRAULIC TESTING MACHINE WAS PROPER SINCE EVALUATION DETERMINED CUMULATIVE EFFECT OF DEVIATIONS SET OUT IN BIDDER'S DESCRIPTIVE LITERATURE AND EXPLANATION OF SPECIFICATION CONFORMANCE AFFECTED SUBSTANCE OF BID. BECAUSE GENERAL ACCOUNTING OFFICE IS NOT EQUIPPED TO TECHNICALLY EVALUATE PROPOSALS OR DETERMINE CONFORMANCE TO SPECIFICATIONS. IT WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF CONTRACTING OFFICER. 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(2), OCT. 9, 1969

SPECIFICATIONS--DESCRIPTIVE DATA--DEFECTIVE REJECTION OF BID AS NONRESPONSIVE TO TECHNICAL REQUIREMENTS OF INVITATION FOR ELECTRO-HYDRAULIC TESTING MACHINE WAS PROPER SINCE EVALUATION DETERMINED CUMULATIVE EFFECT OF DEVIATIONS SET OUT IN BIDDER'S DESCRIPTIVE LITERATURE AND EXPLANATION OF SPECIFICATION CONFORMANCE AFFECTED SUBSTANCE OF BID. SINCE FEDERAL PROCUREMENT REGULATIONS PROVIDE FOR REJECTION OF BID AS NONRESPONSIVE WHICH FAILS TO CONFORM TO ESSENTIAL REQUIREMENTS, SUCH AS SPECIFICATIONS, DELIVERY SCHEDULE AND PERMISSIBLE ALTERNATES, DEVIATIONS DELIBERATELY TAKEN IN TECHNICAL SPECIFICATIONS MAY NOT BE WAIVED AS MINOR IRREGULARITIES. BECAUSE GENERAL ACCOUNTING OFFICE IS NOT EQUIPPED TO TECHNICALLY EVALUATE PROPOSALS OR DETERMINE CONFORMANCE TO SPECIFICATIONS, ABSENT EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION, IT WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF CONTRACTING OFFICER.

TO CGS SCIENTIFIC CORPORATION:

YOUR TELEGRAM OF JUNE 16 AND LETTER OF JUNE 20, 1969, PROTESTING THE AWARD OF A CONTRACT UNDER DEPARTMENT OF AGRICULTURE, FOREST SERVICE, INVITATION FOR BIDS NO. R6-69-178 HAS BEEN FORWARDED TO THIS OFFICE FOR CONSIDERATION AND DIRECT REPLY.

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: "BROCHURES "THE BIDDER SHALL SUBMIT DESCRIPTIVE LITERATURE, AS DESCRIBED BELOW, 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. LITERATURE SUBMITTED WILL INCLUDE THE FOLLOWING:

"A. SUFFICIENT TECHNICAL DATA, DRAWINGS, PHOTOGRAPHS, AND DESCRIPTIVE MATERIAL TO DESCRIBE COMPLETELY THE CHARACTERISTICS AND CAPABILITIES OF ALL ITEMS IN THE OFFERED SYSTEM. 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 CAPABILITY.' 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 LITERATURE BY THE CONTRACTING OFFICER, ALL UNSUCCESSFUL OFFERORS WERE ADVISED BY LETTERS DATED JUNE 13, 1969, THAT AWARD WAS BEING MADE TO MTS CORPORATION, MINNEAPOLIS, MINNESOTA. YOU WERE ADVISED OF THE BASES FOR THE REJECTION OF YOUR BID BECAUSE OF NONRESPONSIVENESS IN AN ENCLOSURE TO THAT LETTER. BY LETTER OF JUNE 20, 1969, YOU RESPONDED TO THE AGENCY'S REVIEW COMMENTS ON YOUR DESCRIPTIVE LITERATURE AND TOOK EXCEPTION TO THE TECHNICAL EVALUATION OF YOUR DESCRIPTIVE LITERATURE. TECHNICAL PERSONNEL OF THE PROCUREMENT AGENCY REVIEWED YOUR LETTER OF JUNE 20 AND THE RESULTS OF THEIR REVIEW HAVE BEEN FURNISHED TO OUR OFFICE PURSUANT TO THE ADVICE GIVEN YOU ON JUNE 19 IN RESPONSE TO YOUR PROTEST TELEGRAM OF JUNE 16. THERE ARE SET OUT BELOW FOR YOUR INFORMATION THE REVIEW COMMENTS OF THE CONTRACTING OFFICER ON THE CONTENTS OF YOUR JUNE 20 LETTER OF PROTEST. THE COMMENTS ARE REFERENCED TO PARTICULAR PARAGRAPHS OF THE TECHNICAL SPECIFICATION.

"2. PARAGRAPH 200.2 - SYSTEM RESPONSIBILITY. THE INVITATION STATES THAT -THE SUPPLIER SHALL ASSUME COMPLETE RESPONSIBILITY FOR UNLOADING, UNCRATING, INSTALLING, CONNECTING TO WATER AND POWER, INTERCONNECTING THE COMPONENTS, CHECKING, AND ACCEPTANCE TESTING OF THE MACHINE.-

* ** * * * * "THE BIDDER'S STATEMENT OF INTENT RELATIVE TO THIS PARAGRAPH IS -CGS SERVICE ENGINEERS WILL REVIEW THE FIELD INSTALLATION AND INSTRUCT YOUR PERSONNEL IN THE OPERATION AND MAINTENANCE OF THE TESTING MACHINE.- THE BIDDER DID NOT RESPOND BY PARAGRAPH NUMBER, BUT THIS IS THE ONLY APPARENT RESPONSE WHICH RELATES TO PARAGRAPH 200.2 IN THE INVITATION. HERE THE BIDDER EXPRESSES INTENT TO REVIEW THE INSTALLATION. THERE IS NO CLEAR STATEMENT THAT THE BIDDER WILL MAKE THE INSTALLATION. THIS CAUSES A REASONABLE DOUBT AS TO THE ACTUAL INTENT IN THE BIDDER'S RESPONSE, AND TO ALLOW HIM A SECOND OPPORTUNITY TO CLARIFY HIS BID WOULD NOT BE PROPER. FAILURE TO CLEARLY INDICATE COMPLIANCE WITH THE SPECIFICATION IS A DEFECT WHICH GOES TO THE SUBSTANCE OF THE BID.

"3. PARAGRAPH 200.3 - WARRANTY. THE INVITATION CALLS FOR A WARRANTY TO FULLY COVER COSTS OF PARTS AND LABOR FOR ONE YEAR AFTER ACCEPTANCE OF THE EQUIPMENT. IT ALSO REQUIRED DESCRIPTION OF AN ESTABLISHED SERVICE PROGRAM FOR FUTURE MAINTENANCE WHICH COULD BE SEPARATELY CONTRACTED.

* * * * * * * "THE BIDDER STATES, UNDER SHEET TITLED WARRANTY, APPARENT INTENT TO WARRANT THE EQUIPMENT FREE OF DEFECTS. THIS IS LIMITED BY THE STATEMENT WHICH SAYS -ALL EQUIPMENT SHOULD BE RETURNED TO THE FACTORY PREPAID.- "IN THIS SAME PARAGRAPH, THE BIDDER DISCUSSES HIS RESPONSIBILITY UNDER WARRANTY FOR DAMAGE TO THE MACHINE CAUSED BY IMPROPER OPERATION. IS NOT CLEAR WHETHER THE REQUIREMENT TO RETURN ALL EQUIPMENT TO THE FACTORY PREPAID RELATES TO DEFECTIVE EQUIPMENT, EQUIPMENT DAMAGED THRU MISUSE, OR BOTH. IF THIS LIMITATION AFFECTS THE WARRANTY FOR REPAIRS, IT THEN IMPOSES A COST BURDEN ON THE GOVERNMENT FOR WHICH THE BID CONTAINS NO BASIS FOR EVALUATION. SINCE SUCH COST MAY POTENTIALLY EXCEED $200.00, IT IS MY DETERMINATION THIS IS A SUBSTANTIAL DEFECT.'THE BIDDER STATES THE WARRANTY IS LIMITED TO ONE YEAR FROM DATE OF SHIPMENT. THERE WILL BE A PERIOD OF TIME FROM DATE OF SHIPMENT UNTIL THE COMPONENTS ARE FULLY ASSEMBLED AND ACCEPTED AS OPERATIONAL. THE EXACT AMOUNT OF TIME THIS MAY TAKE IS UNKNOWN, BUT THIS IS A LIMITATION OF THE GOVERNMENT'S WARRANTY PROTECTION. THIS POTENTIALLY MIGHT RESULT IN A REPAIR CHARGE EARLIER THAN THE ONE YEAR FROM DATE OF ACCEPTANCE THE INVITATION SPECIFIES. THE BIDDER INDICATES SERVICE CHARGES OF $150.00 PER DAY PLUS TRAVEL EXPENSES AND PER DIEM FOR FUTURE SERVICE. IN VIEW OF A POTENTIAL COST OF THIS NATURE OCCURRING PRIOR TO ONE YEAR FROM DATE OF ACCEPTANCE, IT IS MY DETERMINATION THAT THIS IS A DEFECT THAT GOES TO THE SUBSTANCE OF THE BID.

"4. PARAGRAPH 223 - ACCURACY. THIS INVITATION SPECIFIES THE OVERALL SYSTEM ACCURACY FOR -LOAD - 0.5 PERCENT OF INDICATED LOAD, OR 0.2 PERCENT OF FULL SCALE OF THE RANGE SELECTED, WHICHEVER IS GREATER.

* * * * * * * "THE BIDDER'S PROPOSAL INDICATES ACCURACY AS 0.5 PERCENT OF FULL SCALE, OR 2 1/2 TIMES THE INVITATION REQUIREMENT. THIS DOES NOT MEET THE REQUIREMENT. THE DISPLACEMENT IS LISTED BY THE BIDDER AS 1.0 PERCENT OF FULL SCALE FOR THE RANGE SELECTED. THE INVITATION REQUIRES 0.5 PERCENT WHICH DOES NOT MEET THE SPECIFICATION: THE BIDDER STATES THESE VALUES IN TERMS OF MAXIMUM VALUES AND THEN LIMITS THIS BY THE STATEMENT THAT - TYPICALLY THE COMBINATION IS LESS THAN ONE HALF THE MAXIMUM VALUES.- "IN EVALUATING THE BID, THE EXACT PROPOSED ACCURACY IS UNKNOWN. THE ACCURACIES DO NOT MEET THE SPECIFICATION, BUT THIS IS LIMITED BY THE INDICATION THAT TYPICALLY THE COMBINATION WILL MEET THE SPECIFICATION. THE BIDDER COULD UNDOUBTEDLY CLARIFY HIS INTENT IF AN OPPORTUNITY WERE AFFORDED HIM. THIS WOULD HAVE THE EFFECT OF PROVIDING HIM A SECOND CHANCE TO STATE HIS BID IN A RESPONSIVE MANNER AND WOULD NOT BE PROPER. IT IS MY DETERMINATION THAT THIS IS A DEFECT WHICH GOES TO THE SUBSTANCE OF THE BID.

"5.PARAGRAPH 231 - DIMENSION AND GENERAL REQUIREMENTS. THE INVITATION SPECIFIES THAT AN EMERGENCY STOP SWITCH BE ON THE LOAD FRAME.'THE EMERGENCY STOP SWITCH ON THE LOAD FRAME IS CONSIDERED A NECESSARY SAFETY ITEM. THERE WILL BE TIMES WHEN THE OPERATOR MAY BE AT THE FRAME AND THE LOCATION OF THE CONTROL PANEL AS MUCH AS 12 FEET AWAY. HOWEVER, THE COSTS INVOLVED IN MOUNTING SUCH A SWITCH, REGARDLESS OF WHERE MOUNTED, WOULD BE NOMINAL. ACCORDINGLY, IT IS MY DETERMINATION THAT ALTHOUGH THIS IS A DEVIATION FROM THE SPECIFICATION IT IS NOT ONE THAT GOES TO THE SUBSTANCE OF THE BID.

"7. PARAGRAPH 243 - TRANSDUCER EXCITERS. THE INVITATION SPECIFIES THE TRANSDUCER EXCITERS TO BE D.C. TYPE. (THIS ALSO AFFECTS THE STROKE TRANSDUCERS IN PARAGRAPH 234 WHICH MUST ALSO BE D.C. TYPE.)

* * * * * * * "THIS BIDDER INDICATES THE INTENT TO USE A.C. TYPE EXCITERS. HE DOES NOT ALSO INDICATE USE OF A.C. STROKE TRANSDUCERS TO BALANCE THIS IN THE PARAGRAPH 234. THE D.C. EXCITERS SPECIFIED HAVE INTEGRAL CONVERTER, DEMODULATOR, AND 350 OHM BRIDGE. THIS IS NOT INCLUDED IN THE A.C. EXCITER, AND PROVISION IS NOT MADE IN THE BIDDER'S EXPLANATION. THE A.C. EXCITER IS NOT AN ACCEPTABLE RESPONSE TO THE INVITATION. THIS REQUIREMENT IS ONE THAT IS SUBSTANTIAL, AND THE EXCEPTION STATED BY THE BIDDER AS ONE THAT GOES TO THE SUBSTANCE OF THE BID.

"9. PARAGRAPH 280 - BROCHURES. THE INVITATION REQUIRED THAT CERTAIN INFORMATION BE SUPPLIED WITH THE BID. THIS INFORMATION IS NECESSARY FOR PROPER EVALUATION OF ANY PROPOSED MACHINE SUBMITTED TO DETERMINE THAT IT DOES COMPLY WITH THE SPECIFICATIONS. EACH BID SUBMITTED MUST BE EVALUATED FOR RESPONSIVENESS UPON THE INFORMATION SUBMITTED. THIS IS A REQUIREMENT WHICH GOES TO THE SUBSTANCE OF THE BID.'THE DATA REQUIRED IN SUBPARAGRAPHS A, C, E, AND F WAS NOT ALL INCLUDED. IN ADDITION, WE WERE UNABLE TO VERIFY COMPLIANCE WITH PARAGRAPH 221, 222, 232, AND 249 OF THE INVITATION.'IT WOULD NOT BE PROPER TO HAVE REQUESTED ADDITIONAL INFORMATION OR TO ALLOW THE BIDDER TO SUBMIT SUFFICIENT ADDITIONAL MATERIAL TO ESTABLISH THAT HIS BID WAS IN FACT RESPONSIVE. TO ALLOW THE SUBMISSION OF INFORMATION OR CLARIFICATION SO AS TO MAKE A NONRESPONSIVE BID INTO A RESPONSIVE BID IS NOT PERMITTED WITHIN THE COMPETITIVE BID SYSTEM. IT IS MY DETERMINATION THAT THIS DEFECT GOES TO THE SUBSTANCE OF THE BID.

"11. ONE ADDITIONAL FACTOR WHICH SHOULD BE CONSIDERED IN THIS DETERMINATION IS THE CONFLICT BETWEEN PARTS OF THE BIDDER'S PROPOSAL.

"A. IN LETTER OF JUNE 6, 1969, INCLUDED AS PART OF THE BID, CGS SCIENTIFIC CORPORATION STATED -NO EXCEPTIONS TO THE SYSTEM FUNCTIONAL REQUIREMENTS HAVE BEEN TAKEN ... .-

"B. FURTHER, UNDER PARAGRAPH 200 IN THE BIDDER'S PROPOSAL, THE BIDDER STATES: -CGS MEETS OR EXCEEDS THE REQUIREMENT (MER) UNLESS OTHERWISE NOTED BELOW.-

"C. IN ALL SUBSEQUENT NUMERIC PARAGRAPHS THE BIDDER PREFACES THE MATERIAL -/MER).- "IT WOULD SEEM, AND THE RESPONSE FROM CGS ON JUNE 20 WOULD APPEAR TO SUPPORT THE VIEW, THAT IN THEIR BID CGS EXPRESSED INTENT TO COMPLY FULLY WITH ALL REQUIREMENTS OF THE INVITATION FOR BID. THEY INDICATE THE ONLY EXCEPTIONS TAKEN WERE RELATIVELY MINOR ITEMS OF LITTLE CONSEQUENCE IN THE FUNCTION OF THE MACHINE. THE ANALYSIS BY THE REGIONAL ENGINEER OF THEIR REMARKS * * * INDICATES THE EXCEPTIONS WERE NOT MINOR.'THE ANALYSIS OF THE CGS BID, AT THE TIME OF OPENING, HAD TO RELY UPON THE MATERIAL PRESENTED AS PART OF THEIR BID. IT WAS NOT APPARENT WITHIN THE BIDDING DOCUMENTS WHICH OF THE CONFLICTING STATEMENTS HAD PRIORITY OVER OTHER STATEMENTS, THE GENERAL STATEMENT OF -NO EXCEPTIONS' OR THE SPECIFIC ITEM DIFFERENCES. UNDER GENERALLY ACCEPTED RULES OF CONSTRUCTION IN CIRCUMSTANCES WHERE THERE IS A REASONABLE DOUBT AS TO INTENT OF A DOCUMENT, THE SPECIFIC STATEMENTS, DIRECTED TO INDIVIDUAL ITEMS WILL TAKE PRECEDENCE OVER A BROAD GENERALIZED STATEMENT WHEN THE TWO WERE IN CONFLICT. IN APPLYING THIS, THE BID PROPOSAL INDICATES IN MANY INSTANCES, AS DISCUSSED ABOVE IN 1 THROUGH 9, THAT THEY MEET OR EXCEED THE REQUIREMENT, AND THEN IMMEDIATELY PROCEED TO EXCEPT FROM, OR MODIFY THE SPECIFICATION. IT IS MY DETERMINATION FROM THIS, THAT THE BIDDER EXPRESSED POSITIVE DEVIATION FROM THE SPECIFICATION. IN SEVERAL INSTANCES THE DEVIATION EXPRESSED WAS SUCH AS TO GO TO THE SUBSTANCE OF THE BID. UPON THIS BASIS, THE BID IS NONRESPONSIVE. EVEN IF WE ALLOW THE GENERALIZED STATEMENT TO CONTROL OVER THE SPECIFIC RESPONSE, IT WOULD STILL LEAVE A CONFLICT AMONG THE RESPONSES TO THE REQUIREMENTS IN THE BID, AND A REASONABLE DOUBT AS TO THE EXACT INTENT OF THE BIDDER. UPON THIS BASIS THE BID IS NONRESPONSIVE.'

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 YOUR BID. SECTION 1 2.404- 2 OF THE FEDERAL PROCUREMENT REGULATIONS 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 DELIBERATELY TAKEN TO THE TECHNICAL SPECIFICATION AND, HENCE, MAY NOT BE WAIVED AS MINOR IRREGULARITIES. 47 COMP. GEN. 496, 499.

IT IS NOT OUR FUNCTION TO TECHNICALLY EVALUATE BIDS AND PROPOSALS, OR TO MAKE AN INDEPENDENT DETERMINATION AS TO WHETHER YOUR BID WAS IN ACCORDANCE WITH THE SPECIFICATION. SEE, GENERALLY, 17 COMP. GEN. 554; 19 ID. 587; 40 ID. 35. INDEED, WE ARE NOT EQUIPPED TO DO SO. MOREOVER, YOUR EXPRESSION OF OVERALL COMPLIANCE WITH THE TECHNICAL SPECIFICATION DID NOT OVERCOME THE CUMULATIVE EFFECT OF DEVIATIONS DELIBERATELY TAKEN TO THE SPECIFICATION. 41 COMP. GEN. 192; 43 ID. 77. THEREFORE, AND SINCE THERE IS NO OVERRIDING EVIDENCE THAT THE ADMINISTRATIVE ACTION TAKEN WAS ARBITRARY OR CAPRICIOUS, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY. 36 COMP. GEN. 809; 42 ID. 96.