B-167584, OCT. 3, 1969

B-167584: Oct 3, 1969

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DESCRIPTIVE LITERATURE BID WHICH INCLUDED UNSOLICITED LITERATURE THAT INDICATED NONCONFORMANCE WITH SPECIFICATIONS WAS PROPERLY REJECTED AS NONRESPONSIVE EVEN THOUGH BIDDER CONTENDED BROCHURES WERE SUBMITTED TO SHOW FIRM'S CAPABILITIES AND WERE NOT INTENDED TO QUALIFY BID. BECAUSE SPECIFICATION ITEMS WERE DESCRIBED ITEM FOR ITEM IN BROCHURES ATTACHED TO BID AND WERE NONCONFORMING TO TECHNICAL SPECIFICATIONS. SINCE BASIS UPON WHICH BIDDER INTENDED TO BID WAS AMBIGUOUS. TO ASTRO-METRIX CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 28. AWARD WAS TO BE BY LOT AND THE ITEMIZED EQUIPMENT WAS REQUIRED TO BE IN ACCORDANCE WITH THE SPECIFICATIONS ON PAGES 8 THROUGH 25 OF THE INVITATION.

B-167584, OCT. 3, 1969

SPECIFICATIONS--DEVIATIONS--DESCRIPTIVE LITERATURE BID WHICH INCLUDED UNSOLICITED LITERATURE THAT INDICATED NONCONFORMANCE WITH SPECIFICATIONS WAS PROPERLY REJECTED AS NONRESPONSIVE EVEN THOUGH BIDDER CONTENDED BROCHURES WERE SUBMITTED TO SHOW FIRM'S CAPABILITIES AND WERE NOT INTENDED TO QUALIFY BID. BECAUSE SPECIFICATION ITEMS WERE DESCRIBED ITEM FOR ITEM IN BROCHURES ATTACHED TO BID AND WERE NONCONFORMING TO TECHNICAL SPECIFICATIONS, CONTRACTING OFFICER COULD NOT PROPERLY ACCEPT BID AS SUBMITTED, NOTWITHSTANDING OVERALL OFFER TO CONFORM. SINCE BASIS UPON WHICH BIDDER INTENDED TO BID WAS AMBIGUOUS, BIDDER MAY NOT EXPLAIN MEANING OF INTENDED BID TO ALTER RESPONSIVENESS BY EXTRANEOUS MATERIAL IN VIOLATION OF RULE THAT RESPONSIVENESS MUST BE ASCERTAINED FROM BID ITSELF.

TO ASTRO-METRIX CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 28, 1969, AND TO A COPY OF YOUR LETTER OF JULY 29, 1969, TO THE NAVY PURCHASING DEPARTMENT, WASHINGTON NAVY YARD, WASHINGTON, D.C., IN WHICH YOU PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. N00600-69-B-0458, ISSUED BY THE NAVY PURCHASING OFFICE.

THE INVITATION, ISSUED ON APRIL 18, 1969, SOLICITED BIDS ON A REQUIREMENT OF THE NAVAL SHIP SYSTEMS COMMAND, ANNAPOLIS, MARYLAND, FOR FOUR ITEMS OF POWER SUPPLIES, THREE ITEMS OF VOLTAGE REGULATORS AND THREE ITEMS OF POWER CONVERTERS COMPRISING IN ONE LOT A COMPLETE POWER SUPPLY SYSTEM. AWARD WAS TO BE BY LOT AND THE ITEMIZED EQUIPMENT WAS REQUIRED TO BE IN ACCORDANCE WITH THE SPECIFICATIONS ON PAGES 8 THROUGH 25 OF THE INVITATION. THE INVITATION DID NOT REQUEST BIDDERS TO FURNISH DESCRIPTIVE LITERATURE OR DATA WITH THEIR BIDS.

SIX BIDS WERE RECEIVED AND OPENED ON MAY 23, 1969. FIVE BIDS WERE RECEIVED ON THE TOTAL LOT IN THE FOLLOWING AMOUNTS:

CONSOLIDATED TRANSFORMERS UNLIMITED $ 74,450

ASTRO-METRIX CORPORATION 213,450

AVTEL CORPORATION 296,890

WANLESS INSTRUMENTS 370,250

INET POWER 432,976

IN EVALUATING THE BIDS, THE ADMINISTRATIVE OFFICE SUSPECTED AN ERROR IN THE LOW BID OF CONSOLIDATED BECAUSE OF THE PRICE DISPARITY AND SUBSEQUENTLY ALLOWED WITHDRAWAL OF THAT BID AFTER EVIDENCE OF MISTAKE WAS SUBMITTED.

YOUR BID, WHICH WAS SECOND LOWEST, WAS SUBMITTED WITH SIX UNSOLICITED BROCHURES (CATALOG PAGES) OF YOUR COMPANY ATTACHED. NO REFERENCE WAS MADE TO THE BROCHURES IN YOUR BID. HOWEVER, IT IS REPORTED THAT IN REVIEWING THE BIDS, TECHNICAL PERSONNEL OF THE PROCUREMENT AGENCY FOUND THAT THE EQUIPMENT DESCRIBED IN THESE BROCHURES COULD HAVE BEEN OFFERED AGAINST ALL OF THE ITEMS REQUIRED IN THE INVITATION AS FOLLOWS:

"BROCHURES APPLICABLE (INVITATION) ITEMS

A. NEW AMC SILICON CHARGERS 8-10

B. SINE-WAVE OUTPUT FREQUENCY

CONVERTERS/60 CPS 5-7

C. MILITARIZED FREQUENCY CONVERTERS 5-7

D. SINE-WAVE OUTPUT FREQUENCY

CONVERTERS/400 CPS (2 BROCHURES) 1-4

E. FREQUENCY CHANGERS 5-7" YOUR SUBMITTED BROCHURES, AS APPLIED TO THE SPECIFICATION REQUIREMENTS OF THE INVITATION, YIELDED THE FOLLOWING TECHNICAL ANALYSIS BY PROCUREMENT AGENCY PERSONNEL: "ACCORDING TO THESE BROCHURES THE ASTRO-METRIX POWER SUPPLY MUST BE CONNECTED TO A 4 WIRE WYE (A THREE PHASE, Y-SHAPED, CIRCUIT ARRANGEMENT), GROUNDED-NEUTRAL SYSTEM WHEREAS THE SPECIFICATION IN THE SOLICITATION REQUIRES THE POWER SUPPLY TO BE CONNECTED TO A 3 PHASE 3 WIRE CLOSED-DELTA, UNGROUNDED SYSTEM. FURTHER, PARAGRAPH 3.6.1 OF THE SPECIFICATION SPELLS OUT THE OVERVOLTAGES AND TRANSIENTS ASSOCIATED WITH 3 PHASE 3 WIRE, CLOSED-DELTA UNGROUNDED SYSTEMS WHICH ARE IN USE IN THE SHIPYARDS. IT IS A TECHNICAL FACT THAT THESE PHENOMENA CAN ONLY BE STOPPED BY SPECIAL TRANSFORMERS. THE BROCHURES INDICATE THAT ASTRO METRIX HAS ELIMINATED THE TRANSFORMERS AND NEW USES A 4 WIRE, WYE GROUNDED NEUTRAL SYSTEM. THIS IS UNACCEPTABLE BECAUSE THE POWER SUPPLY COULD NOT BE RUN SUCCESSFULLY AND PROTECTED. THERE WOULD NOT BE A NEUTRAL REFERENCE POINT FOR THE DETECTOR CIRCUIT TO SENSE, COMPARE AND ISOLATE TO GROUND ANY TRANSIENTS AND OVERVOLTAGES AS THEY OCCUR. TECHNICAL PERSONNEL HAVE STATED THAT IF POWER SUPPLIES LIKE THE ONES DESCRIBED IN THE BROCHURES WERE SUPPLIED, IT WOULD COST THE GOVERNMENT OVER $100,000 FOR SPECIAL DELTA/WYE TRANSFORMERS TO OPERATE THE POWER SUPPLIES SUCCESSFULLY AND SAFELY.'

AFTER REVIEWING YOUR BID, IT WAS DETERMINED THAT THE SUBMISSION OF THE BROCHURES LEFT YOUR INTENT TO CONFORM TO THE SPECIFICATIONS IN DOUBT OR, AT BEST, AMBIGUOUS. ACCORDINGLY, SINCE IT WAS DETERMINED THAT THE BROCHURES COULD BE INTERPRETED AS CONDITIONING YOUR BID AND IN VIEW OF THE TECHNICAL DETERMINATION THAT THE BROCHURES INDICATED NONCONFORMANCE WITH THE SPECIFICATIONS, YOUR BID WAS REJECTED AS NONRESPONSIVE AND AWARD WAS MADE TO THE NEXT LOW BIDDER, THE AVTEL CORPORATION.

IN YOUR PROTEST AGAINST THE REJECTION OF YOUR BID YOU CONTEND THAT YOU TOOK NO EXCEPTION TO THE SPECIFICATIONS OUTLINED IN THE INVITATION AND THAT THE BROCHURES WERE SENT WITH YOUR BID ONLY TO ACQUAINT THE PROCUREMENT OFFICE WITH YOUR CAPABILITIES AS A COMPANY AND WERE NOT INTENDED TO QUALIFY YOUR BID. MOREOVER, YOU CONTEND THAT IN A RECENT PROCUREMENT RESULTING IN AWARD OF CONTRACT NO. N00600-69-C-1119 TO YOUR FIRM, THE SAME BROCHURES WERE SUBMITTED WITH YOUR BID AND WERE NOT INTERPRETED THEN AS QUALIFYING YOUR BID AS NONRESPONSIVE SINCE CLARIFICATION WAS REQUESTED FROM YOU. YOU SUGGEST THAT THE SAME PROCEDURE SHOULD HAVE BEEN FOLLOWED IN THIS PROCUREMENT TO CLEAR UP ANY DOUBTS REGARDING YOUR BID.

WE CANNOT CONCLUDE THAT THE PROCUREMENT OFFICE ACTED INCORRECTLY IN REJECTING YOUR BID. THE PROBLEM PRESENTED IN YOUR PROTEST IS COMMON IN SITUATIONS WHERE A BIDDER ACCOMPANIES HIS BID WITH UNSOLICITED MATERAL WHICH DOES, OR MIGHT, QUALIFY THE BID. SINCE THE SPECIFIC ITEMS SOLICITED UNDER THE INVITATION WERE DESCRIBED ITEM BY ITEM IN THE CATALOG PAGES ATTACHED TO YOUR BID, AND WERE FOUND TO BE NONCONFORMING TO THE SPECIFICATIONS, THE CONTRACTING OFFICER COULD NOT PROPERLY ACCEPT YOUR BID AS SUBMITTED, NOTWITHSTANDING YOUR OVERALL OFFER TO CONFORM TO THE SPECIFICATIONS. THE OVERALL OFFER TO CONFORM TO THE SPECIFICATIONS, IN WHATEVER FORM, CAN CURE A SPECIFIC DEVIATION ONLY IN SITUATIONS WHERE THAT PROMISE OR OFFER MAKES IT PATENTLY CLEAR THAT THE OFFEROR DID IN FACT INTEND TO SO CONFORM. THE CRUX OF THE MATTER IS THE INTENT OF THE OFFEROR AND ANYTHING SHORT OF A CLEAR INTENTION TO CONFORM ON THE FACE OF THE BID REQUIRES REJECTION. SEE B-166284, APRIL 14, 1969.

IN THE PRESENT CASE, THE BASIS UPON WHICH YOU INTENDED TO BID WAS AT BEST AMBIGUOUS AND, AS SUCH, THE CONTRACTING OFFICER PROPERLY REJECTED YOUR BID. WHERE MORE THAN ONE POSSIBLE INTERPRETATION MAY REASONABLY BE REACHED FROM THE TERMS OF A BID, A BIDDER MAY NOT BE PERMITTED TO EXPLAIN THE ACTUAL MEANING OR BID INTENDED SINCE THIS WOULD AFFORD THE BIDDER THE OPPORTUNITY TO ALTER THE RESPONSIVENESS OF THE BID BY EXTRANEOUS MATERIAL. SEE 36 COMP. GEN. 705; 40 ID. 393; ID. 432; AND B 166284, SUPRA. ANY CLARIFICATION OR EXPLANATION OF THE BIDDER'S INTENTION BY EXTRANEOUS INFORMATION AFTER BID OPENING WOULD VIOLATE THE RULE THAT RESPONSIVENESS MUST BE ASCERTAINED FROM THE BID ITSELF. TO GIVE THE BIDDER AN OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY AGREEING TO ABIDE BY THE INVITATION, OR TO PRECLUDE AWARD BY INSISTING ON ADHERENCE TO ITS OFFER, PROVIDES AN UNFAIR ADVANTAGE OVER THOSE BIDDERS WHOSE BIDS CONFORMED IN EVERY WAY TO THE INVITATION AND WERE LEFT WITHOUT OPTIONS. SUCH AN ADVANTAGE IS CONTRARY TO THE PURPOSE OF THE STATUTES GOVERNING PUBLIC PROCUREMENT. 38 COMP. GEN. 819.

WITH RESPECT TO YOUR CONTENTION THAT YOU WERE PREVIOUSLY AWARDED CONTRACT NO. N00600-69-C-1119 BY THE SAME PROCUREMENT OFFICE AFTER YOU HAD SUBMITTED UNSOLICITED DESCRIPTIVE LITERATURE WITH YOUR BID, IT IS ADMINISTRATIVELY REPORTED THAT:

"IN THE SOLICITATION FROM WHICH ASTRO-METRIX RECEIVED CONTRACT N00600-69- C-1119 IN THE AMOUNT OF $5,150 THE REQUIREMENT WAS FOR ONE FREQUENCY CONVERTER. A SET OF SIX UNSOLICITED BROCHURES WAS ALSO FURNISHED WITH THAT BID AND TECHNICAL REVIEW FOUND THAT ONE BROCHURE NO. FC-400-P DESCRIBED THE REQUIRED ITEM AND THAT IT DID NOT CONFORM TO THE SPECIFICATION. HOWEVER, IT WAS DECIDED BY LEGAL PERSONNEL THAT THE SUBMISSION OF A COMPLETE SET OF BROCHURES, WHEN ONLY ONE ITEM WAS BEING PROCURED INDICATED THAT THE LITERATURE WAS GENERAL IN NATURE AND WAS NOT INTENDED AS A CONDITION TO THE BID. THEREFORE, THE BID WAS CONSIDERED RESPONSIVE BUT CONFIRMATION WAS OBTAINED FROM THE BIDDER TO ELIMINATE THE POSSIBILITY OF A MISTAKE IN BID OR A MISUNDERSTANDING OF THE ECIFICATION.'

WE FEEL THAT THE FOREGOING ADMINISTRATIVE EXPLANATION PRESENTS A TENUOUS DISTINCTION BETWEEN THE CIRCUMSTANCES OF THE PAST PROCUREMENT AND THE PRESENT ONE AND WE DO NOT VIEW THE ACTION TAKEN IN ACCEPTING YOUR BID IN THE PAST PROCUREMENT AS BEING CONSISTENT WITH PROPER PROCUREMENT PROCEDURES. IN ANY EVENT, SUCH IMPROPER ACTION MAY NOT BE ACCEPTED AS PRECEDENT FOR THE ACCEPTANCE OF YOUR BID IN THE PRESENT PROCUREMENT.