B-167783, DEC. 8, 1969

B-167783, DEC. 8, 1969

SPECIFICATIONS--FAILURE TO FURNISH SOMETHING REQUIRED--ADDENDA ACKNOWLEDGMENT--WAIVER UNDER INVITATION FOR BIDS (IFB) FOR EQUIPMENT AND ENGINEERING SERVICES, FAILURE BY LOW BIDDER TO ACKNOWLEDGE RECEIPT OF IFB AMENDMENT, WHERE FIRST PART WAS ADMINISTRATIVELY EVALUATED UNDER ARMED SERVICES PROCUREMENT REGULATION 2-405 (IV) AS MINOR TECHNICAL SPECIFICATION CHANGE AND SECOND PART RESTATED NOTICE TO BIDDERS OF REQUIREMENT TO SUPPLY REVISED MANUAL IN LIEU OF REPLACEMENT PAGES IF CHANGES WERE ACCEPTED, MAY BE WAIVED AS MINOR IRREGULARITY, SINCE SPECIFICATION ISSUE IS OF A TECHNICAL NATURE WHICH IS DEFERRED TO AGENCY'S EXPERTISE AND, RESTATEMENT OF NOTICE TO BIDDERS DID NOT CHANGE IFB AND MAY BE WAIVED UNDER ASPR 2-405 (IV) WHICH AUTHORIZES WAIVER IF AMENDMENT HAS NO EFFECT OR TRIVIAL EFFECT ON PRICE, QUALITY, QUANTITY, DELIVERY OR STANDING OF BIDDERS.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTERS DATED SEPTEMBER 15, 1969, AND OCTOBER 3, 1969, WITH ENCLOSURES, FROM THE DIRECTOR OF CONTRACTS, NAVAL SHIP SYSTEMS COMMAND, REFERENCE OOJ:JHW:JAW, N00024-69-B-3659, SER 142, FURNISHING US WITH AN ADMINISTRATIVE REPORT AND PERTINENT DOCUMENTS, IN CONNECTION WITH THE SEVERAL PROTESTS FILED HERE IN CONNECTION WITH NAVAL SHIP SYSTEMS COMMAND'S INVITATION FOR BIDS (IFB) NO. N00024-69-B 3659 FOR ECHO SOUNDERS.

THIS IS A MULTI-YEAR PROCUREMENT, 100 PERCENT SET ASIDE FOR SMALL BUSINESS. THE IFB, CALLING FOR 86 AN/UQN-4 ( ( ECHO SOUNDERS WITH AT 200 ( ( (UGN SONAR TRANSDUCERS (MAGNETIC TYPE), AND ALLIED MAINTENANCE REPAIR PARTS AND ENGINEERING SERVICES, WAS ISSUED ON JUNE 25, 1969, WITH CLOSING DATE OF JULY 25, 1969. THE IFB WAS SENT TO 36 PROSPECTIVE BIDDERS; 11 BIDS WERE RECEIVED, WITH THE 4 LOW BIDDERS AS FOLLOWS:

SYSTREX CORPORATION $531,120.00

RAYSONICS, INCORPORATED 643,820.00

RADIATION SYSTEMS, INCORPORATED 655,045.00

CHESAPEAKE INSTRUMENT CORPORATION 758,746.70 SYSTREX FAILED TO TIMELY ACKNOWLEDGE RECEIPT OF AMENDMENTS 0004 AND 0005 TO THE IFB. RAYSONICS FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT 0005. RADIATION SYSTEMS TIMELY ACKNOWLEDGED RECEIPT OF ALL AMENDMENTS, BUT FAILED TO QUOTE A PRICE FOR ITEM 8, ALBEIT A PRICE WAS ENTERED IN A BLANK UNDER ITEM 8AA. CHESAPEAKE, FOURTH LOW BIDDER, TIMELY ACKNOWLEDGED RECEIPT OF ALL AMENDMENTS TO THE IFB AND BID ON ALL ITEMS.

THE ISSUES RAISED ARE WHETHER FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT 0004 (SYSTREX), OR AMENDMENT 0005 (SYSTREX AND RAYSONICS), OR FAILURE TO QUOTE A PRICE FOR ITEM 8 (RADIATION SYSTEMS) RENDERS THE BIDS OF SYSTREX, RAYSONICS, AND RADIATION SYSTEMS NONRESPONSIVE, WITH THE RESULT, AS URGED BY CHESAPEAKE, THAT CHESAPEAKE'S IS THE LOW RESPONSIVE BID.

ITEM 8 AND 8AA, IN THE ORIGINAL SOLICITATION PROVIDED AS FOLLOWS: "ITEM NO.SCHEDULE

QUANTITY UNIT UNIT PRICE AMOUNT

SUPPLIES/SERVICES "8 CHANGE PAGES OF TECHNICAL

DOCUMENTATION 100 EA (SEE NOTE B) "8AA DATA FOR ITEM 8 (SEE DD

FORM NSP, SEE NOTE D

1423, EXHIBIT B HERETO)

($ ---------- (" NOTE B PROVIDED THAT OFFERORS SHOULD NOT QUOTE PRICES. NOTE D PROVIDED, INTER ALIA, THAT THE OFFEROR SHOULD QUOTE A TOTAL PRICE FOR ITEM 8AA, BUT INCLUDE THE AMOUNT IN THE UNIT AND TOTAL AMOUNT FOR ITEM 8.

AMENDMENT NO. 0001 TO THIS SOLICITATION MODIFIED THE SOLICITATION BY DELETING FROM ITEM 8 THE NOTATION "/SEE NOTE B)" AND SUBSTITUTING "IN LIEU THEREOF A SPACE FOR UNIT AND TOTAL PRICE FOR ITEM 8.' IT ALSO DIRECTED THE DELETION OF THE PARAGRAPH ENTITLED "NOTE B" IN ITS ENTIRETY.

AMENDMENT NO. 0002, INSOFAR AS IS MATERIAL HERE, EXTENDED THE BID OPENING DATE. AMENDMENT NO. 0003 IS NOT MATERIAL HERE. AMENDMENT NO. 0004 IN ADDITION TO FURTHER EXTENDING THE BID OPENING DATE, PROVIDED THAT "PARAGRAPH 2 ON PAGE 11 OF THE SCHEDULE IS AMENDED BY ADDING SUB PARAGRAPH C" WHICH IS AS FOLLOWS:

"C. IN MICROFILM REEL 00V3D, MADE AVAILABLE FOR EXAMINATION AS SPECIFIED IN PARAGRAPH 13 OF ATTACHMENT A, DOES NOT INCLUDE ANY DRAWINGS OF THE TR- 192B/UQN-1 TRANSDUCER. THE TR-192B/UQN-1 TRANSDUCER IS THE SAME AS THE AT -200G/UQN-1 EXCEPT THAT THE MATERIAL OF THE TR 192B/UQN-1 HOUSING AND ASSOCIATED METALLIC PARTS SHALL BE MADE OF NONMAGNETIC MATERIAL CONFORMING TO CLASS I OF MIL-S-17509 (SHIPS) DATED 1953 FEBRUARY 26.' THE AMENDMENT ALSO MADE CERTAIN REMARKS CONCERNING CHANGES AND REVISIONS IN REQUIRED MANUALS.

AMENDMENT NO. 0005 MODIFIED THE SOLICITATION AS FOLLOWS:

"ON SCHEDULE PAGE 20, ITEMS 5 AND 6 OF GOVERNMENT FURNISHED PROPERTY ARE MODIFIED TO DELETE THE WORDS -FOR EACH EQUIPMENT UNDER ITEMS 1 THRU 3 AND IF OPTION IS EXERCISED ITEM 13-". THIS MODIFICATION HAD THE EFFECT OF REDUCING THE GOVERNMENT'S OBLIGATION TO FURNISH COPIES OF PERFORMANCE STANDARDS SHEETS AND MAINTENANCE STANDARDS BOOKS FOR EACH EQUIPMENT TO FURNISHING ONLY COPY OF EACH SHEET AND BOOK FOR THE PROCUREMENT.

RADIATION SYSTEMS CONTENDS THAT THE BID OF SYSTREX IS NONRESPONSIVE TO THE SOLICITATION BECAUSE IT FAILED TO TIMELY EXECUTE AND/OR RETURN AMENDMENTS WHICH MATERIALLY ALTERED THE SOLICITATION REQUIREMENTS. THIS LATTER RESPECT, RADIATION SYSTEMS REFERS TO THE SECOND PART OF AMENDMENT NO. 0004. THIS PART DELETES FROM DD FORM 1423, EXHIBIT A, ITEM A001AC, BLOCK 16 (REMARKS) THE ANGUAGE:

"IN THIS CASE PROVIDE REVISED MANUALS 2 PER EQUIPMENT, PLUS BULK QUANTITY OF 300. ITEM (8) CHANGES SHALL ALSO BE INCLUDED AS APPLICABLE". AND SUBSTITUTES IN LIEU THEREOF:

"IF ANY SUCH CHANGES ARE SO APPROVED UNDER MIL STANDARD 480, NOTWITHSTANDING THE PROVISION OF MIL-M-15071F REGARDING CHANGES AND REVISIONS, PROVIDE REVISED MANUALS, 2 PER EQUIPMENT PLUS BULK QUANTITY OF 300.' RADIATION SYSTEMS CONTENDS THIS CHANGE IS QUITE SUBSTANTIAL SINCE IT REQUIRES A COMPLETE REVISION OF THE MANUAL FOR EACH CHANGED PAGE WHEREAS THE ORIGINAL CLAUSE, UNDER MIL-M-15071F, REQUIRED A REVISED (OR NEW) MANUAL ONLY AFTER AN ACCUMULATION OF PAGES CONSTITUTING OVER 25 PERCENT OF THE PAGES OF THE MANUAL.

AS TO ITS FAILURE TO PRICE ITS BID ON ITEM 8, RADIATION SYSTEMS CONTENDS THAT ITEMS 8 AND 8AA ARE FACTUALLY ONE AND THE SAME, AND THAT THE INSERTION OF AN AMOUNT ON ITEM 8AA WAS TANTAMOUNT TO PRICING ITEM 8.

SYSTREX CONTENDS THAT ITS BID IS FULLY RESPONSIVE; THAT IT DID NOT RECEIVE AMENDMENT 0005 UNTIL THE DAY OF BID OPENING, AND THAT IT WAS RETURNED IMMEDIATELY; AND THAT SINCE THE AMENDMENT DID NOT AFFECT PRICE, QUALITY, OR QUANTITY, THE FAILURE TO TIMELY ACKNOWLEDGE RECEIPT SHOULD BE WAIVED AS A MINOR INFORMALITY.

CHESAPEAKE CONTENDS THAT AMENDMENTS 0004 AND 0005 HAVE AN EFFECT ON PRICE OF MORE THAN A MINOR NATURE; THAT 0004 INCREASED THE COST OF THE ITEM AND THAT 0005 REDUCED THE QUANTITY OF GOVERNMENT FURNISHED PRODUCTS ORIGINALLY CONTEMPLATED. CHESAPEAKE ALSO STATES THAT ITEM 8AA IS NOT A FIRM PRICE "SINCE IT IS PREPARED IN ACCORDANCE WITH PARAGRAPH 12 OF ATTACHMENT F (TO THE SOLICITATION PACKAGE) WHICH REQUIRES ESTIMATED PRICES DEVELOPED FOR INFORMATIONAL PURPOSES ONLY" AND THAT "THE INSTRUCTIONS OF THE IFB ON PAGE 7 TREAT ITEM 8AA AS A PARTIAL REQUIREMENT OF ITEM 8 BY REQUIRING THE AMOUNT OF ITEM 8AA TO BE INCLUDED -IN THE UNIT AND TOTAL AMOUNT OF ITEM 8-

WITH REGARD TO THE FIRST PART OF AMENDMENT 0004, SPECIFYING THE USE OF NONMAGNETIC MATERIAL IN THE FABRICATION OF THE TR-192/UQN-1 TRANSDUCER, THE ENGINEERING PERSONNEL OF THE SHIP SYSTEMS COMMAND WERE OF THE OPINION THAT THERE IS NO DIFFERENCE OR ONLY A TRIVIAL DIFFERENCE BETWEEN SUPPLYING STAINLESS STEEL UNDER AISI 316 AS SPECIFIED IN THE PUBLICATION "TRANSDUCER REPAIR FACILITY DATA FOR AT-200G/UQN-1 TRANSDUCER" (ATTACHMENT E TO THE IFB) AND SUPPLYING CHROMIUM-NICKEL STEEL UNDER MIL-S-17509 (SHIPS) CALLED FOR BY THE AMENDMENT. HENCE, IT HAS BEEN ADMINISTRATIVELY RECOMMENDED THAT SYSTREX'S FAILURE TO TIMELY ACKNOWLEDGE THIS AMENDMENT BE WAIVED AS A MINOR IRREGULARITY IN ACCORDANCE WITH ASPR 2-405 (IV) WHICH AUTHORIZES WAIVER OF A BIDDER'S FAILURE TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION FOR BIDS IF THE AMENDMENT WOULD HAVE NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUALITY, QUANTITY, DELIVERY, OR THE RELATIVE STANDING OF BIDDERS. DUE TO THE TECHNICAL NATURE OF THIS ISSUE, WE FEEL CONSTRAINED TO DEFER TO THE AGENCY'S EXPERTISE IN SUCH MATTERS; IN VIEW OF THE ADMINISTRATIVE POSITION WITH RESPECT TO THE RESPONSIVENESS OF SYSTREX'S BID, WE ARE OF THE OPINION THAT SYSTREX'S FAILURE TO TIMELY ACKNOWLEDGE THE AMENDMENT MAY BE WAIVED AS A MINOR IRREGULARITY.

THE SECOND PART OF AMENDMENT 0004 REVISED ITEM A001AC OF THE DD FORM 1423, EXHIBIT A TO THE IFB (SEE QUOTES ABOVE) TO MAKE IT CLEAR THAT IF THE CONTRACTOR SUBMITS, UNDER MILITARY STANDARD 480, CHANGES TO THE EQUIPMENT THAT ARE APPROVED BY THE GOVERNMENT, HE IS REQUIRED TO PROVIDE COMPLETELY REVISED MANUALS NOTWITHSTANDING THE PROVISIONS OF MIL-M-15071F WHICH WOULD ALLOW REPLACEMENT PAGES TO BE INSERTED IF LESS THAN 25 PERCENT OF THE TOTAL PAGES OF THE MANUAL ARE AFFECTED. WE DO NOT AGREE WITH RADIATION SYSTEMS THAT THE CHANGE WAS SUBSTANTIAL. FOR PURPOSES OF CLARIFICATION THE AMENDMENT MERELY RESTATES THE NOTICE TO BIDDERS THAT, DESPITE THE PROVISIONS OF MIL-M-15071F, ANY CHANGE APPROVED UNDER MIL STANDARD 480 WOULD REQUIRE THE CONTRACTOR TO PROVIDE COMPLETELY REVISED MANUALS RATHER THAN REPLACEMENT PAGES. SINCE THIS PORTION OF AMENDMENT 0004 IN ACTUALITY DID NOT CHANGE THE IFB, SYSTREX'S FAILURE TO TIMELY ACKNOWLEDGE RECEIPT MAY PROPERLY BE WAIVED PURSUANT TO ASPR 2-405 (IV).

WITH RESPECT TO THE EFFECT OF AMENDMENT 0005, WE QUOTE FROM THE ADMINISTRATIVE REPORT:

"BEFORE AMENDMENT 0005 (ENCLOSURE (7) (, THE IFB REQUIRED THAT THE FOLLOWING BE SUPPLIED:

ITEM QUANTITY DESCRIPTION

1 84 ... AND ONE (1) EACH GOVERNMENT

FURNISHED PERFORMANCE STANDARDS

SHEET, NAVSHIPS 0967-324-1020

AND MAINTENANCE STANDARDS BOOK,

NAVSHIPS 0967-324-1030, WITH EXISTING

REVISIONS, IF ANY, AS SPECIFIED

HEREIN, PER EQUIPMENT

2 1 (SAME AS ABOVE)

3 1 (SAME AS ABOVE)

13 16 (SAME AS ABOVE) PAGE 20 OF THE SCHEDULE PROVIDED THAT THE GOVERNMENT WOULD FURNISH:

5. ONE (1) COPY OF PERFORMANCE STANDARDS SHEET, NAVSHIPS 0967-324 1020, WITH EXISTING REVISIONS, IF ANY, (FOR EACH EQUIPMENT UNDER ITEMS 1 THRU 3 AND (IF OPTION IS EXERCISED) ITEM 13.)

6. ONE (1) COPY OF MAINTENANCE STANDARDS BOOK, NAVSHIPS 0967-324 1039 (SIC), WITH EXISTING REVISIONS, IF ANY, (FOR EACH EQUIPMENT UNDER ITEMS 1 THRU 3 AND (IF OPTION IS EXERCISED) ITEM 13.) THE ABOVE IN PARENTHESIS WAS DELETED BY AMENDMENT 0005. THE EFFECT OF AMENDMENT 0005 WAS TO REDUCE THE NUMBER OF COPIES OF PERFORMANCE STANDARD SHEET, NAVSHIPS 0967-324- 1020, ONLY A SINGLE PAGE"

"ITEM, AND OF MAINTENANCE STANDARD BOOK, NAVSHIPS 0967-324-1030 (ENCLOSURE (14) ( TO BE FURNISHED BY THE GOVERNMENT FROM APPROXIMATELY 100 COPIES TO A SINGLE COPY. THE NUMBER OF COPIES OF THESE ITEMS THE BIDDER WAS REQUIRED TO SUPPLY WAS NOT CHANGED. THE CONTRACT DATA REQUIREMENT LIST, DD FORM 1423, (ENCLOSURE (1), EXHIBIT A) CALLED FOR THE FOLLOWING:

A001AN RE: PERFORMANCE STANDARD SHEETS "1 PER EQUIPMENT UNDER ITEMS 1, 2 AND 3 PLUS 500 BULK 30 DAYS AFTER DELIVERY OF 1ST PRODUCTION EQUIPMENT UNDER ITEM 3.'

A001AP RE: MAINTENANCE STANDARD BOOKS (SAME AS ABOVE)

"ALSO ITEMS EC01AB AND EC01AC OF THE DD FORM 1423 TOGETHER REQUIRE 16 ADDITIONAL COPIES OF THESE PUBLICATIONS OF THE OPTION UNDER ITEM 13 IS EXERCISED. THUS, UNDER THE ORIGINAL IFB, THE CONTRACTOR WOULD FURNISH 586 COPIES OF BOTH (602 COPIES OF THE OPTION IS EXERCISED) OF WHICH 86 COPIES (102 COPIES IF OPTION EXERCISED) WOULD BE SUPPLIED BY THE GOVERNMENT. AMENDMENT 0005 MADE NO CHANGE IN THE REQUIREMENT THAT THE CONTRACTOR FURNISH 586 (OR 602) COPIES. THE ONLY EFFECT OF AMENDMENT 0005 WAS TO REDUCE THE NUMBER TO BE SUPPLIED BY THE GOVERNMENT TO A SINGLE COPY OF EACH. AS A CONSEQUENCE, THE CONTRACTOR WOULD INCUR THE ADDITIONAL COST OF PRINTING AT MOST 601, RATHER THAN 500, COPIES OF BOTH ITEMS. THE EFFECT OF THE AMENDMENT IS TRIVIAL. THE NAVY PUBLICATIONS AND PRINTING SERVICE OFFICE ESTIMATES THAT THE PRICE DIFFERENCE FOR PRINTING 600, RATHER THAN 500, COPIES OF BOTH ITEMS WOULD BE APPROXIMATELY $12. IN VIEW OF THE FOREGOING WE ARE OF THE OPINION THAT THE DIFFERENCE OF APPROXIMATELY $12 IS A NEGLIGIBLE EFFECT ON PRICE AND SYSTREX'S AND RAYSONICS' FAILURE TO TIMELY ACKNOWLEDGE AMENDMENT 0005 MAY BE PROPERLY WAIVED UNDER ASPR 2-405 (IV). SEE 44 COMP. GEN. 753 (1965).

IN VIEW OF THE FACT THAT WE HAVE DECIDED THE BIDS OF SYSTREX (LOW BIDDER), AND RAYSONICS (NEXT LOWEST BIDDER) ARE RESPONSIVE TO THE INVITATION FOR BIDS. IT IS UNNECESSARY TO DECIDE WHETHER RADIATION SYSTEMS' FAILURE TO BID ON ITEM 8 IS CAUSE FOR DECLARING THEIR BID NONRESPONSIVE.