B-167917, DEC. 16, 1969

B-167917: Dec 16, 1969

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ACCEPTANCE PREJUDICIAL TO OTHER BIDDERS LOW BID WHICH FAILED TO CONFORM TO SPECIFICATIONS WAS PROPERLY REJECTED AS NONRESPONSIVE TO TECHNICAL REQUIREMENTS OF INVITATION SINCE DEVIATIONS TO SPECIFICATIONS WENT TO SUBSTANCE OF BID AND. BECAUSE IT WAS EVIDENT FROM TECHNICAL EVALUATION OF BID THAT DEVIATIONS WERE DELIBERATELY TAKEN TO TECHNICAL SPECIFICATIONS. WHILE IT IS NOT GAO'S FUNCTION TO TECHNICALLY EVALUATE BIDS OR DETERMINE WHETHER PARTICULAR BID COMPLIES WITH SPECIFICATIONS AND ESTABLISHMENT OF SPECIFICATIONS TO REFLECT ACTUAL NEEDS OF GOVERNMENT IS ADMINISTRATIVE RESPONSIBILITY. GAO WILL NOT QUESTION DETERMINATION OF RESPONSIVENESS TO SPECIFICATIONS ABSENT EVIDENCE OF ABUSE OF SUCH DISCRETION.

B-167917, DEC. 16, 1969

SPECIFICATIONS--DEVIATIONS--ACCEPTANCE PREJUDICIAL TO OTHER BIDDERS LOW BID WHICH FAILED TO CONFORM TO SPECIFICATIONS WAS PROPERLY REJECTED AS NONRESPONSIVE TO TECHNICAL REQUIREMENTS OF INVITATION SINCE DEVIATIONS TO SPECIFICATIONS WENT TO SUBSTANCE OF BID AND, BECAUSE IT WAS EVIDENT FROM TECHNICAL EVALUATION OF BID THAT DEVIATIONS WERE DELIBERATELY TAKEN TO TECHNICAL SPECIFICATIONS, THEY MAY NOT BE WAIVED AS MINOR IRREGULARITIES, SUCH WAIVER BEING PREJUDICIAL TO RIGHTS OF OTHER BIDDERS. WHILE IT IS NOT GAO'S FUNCTION TO TECHNICALLY EVALUATE BIDS OR DETERMINE WHETHER PARTICULAR BID COMPLIES WITH SPECIFICATIONS AND ESTABLISHMENT OF SPECIFICATIONS TO REFLECT ACTUAL NEEDS OF GOVERNMENT IS ADMINISTRATIVE RESPONSIBILITY, GAO WILL NOT QUESTION DETERMINATION OF RESPONSIVENESS TO SPECIFICATIONS ABSENT EVIDENCE OF ABUSE OF SUCH DISCRETION.

TO INSTRUCTOMATIC, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1969, PROTESTING AN AWARD TO ANY BIDDER OTHER THAN VIRGINIA COMMUNICATIONS & SOUND, INC; UNDER INVITATION FOR BIDS NO. 58-457-0-0088-R, ISSUED BY THE DISTRICT OF COLUMBIA PROCUREMENT OFFICE, WASHINGTON, D. C; ON JULY 9, 1969.

THE INVITATION REQUESTED BIDS ON A LANGUAGE LABORATORY WITH INSTRUCTOR CONSOLE, SINGLE CHANNEL TAPE PLAYER, DUAL CHANNEL RECORD PLAYBACK PROGRAM MACHINE, AND OTHER COMPONENTS. THREE BIDS WERE RECEIVED AS FOLLOWS:

MPC EDUCATIONAL SYSTEMS, INC. $19,667.70

MCCARTHY MFG. CO; INC. 18,974.70

VIRGINIA COMMUNICATIONS & SOUND, INC. 18,744.00

THE LOWEST BID WAS SUBMITTED THROUGH YOUR DEALER, VIRGINIA COMMUNICATIONS & SOUND, INC. HOWEVER, IN EVALUATING THE BID WHICH OFFERED EQUIPMENT OF YOUR MANUFACTURE, SEVERAL MATERIAL DEFICIENCIES FROM THE SPECIFICATIONS WERE NOTED AS FOLLOWS:

SPECIFICATION REQUIREMENT VIRGINIA COMMUNICATIONS' BID 1. CONTROL CONSOLE COMPOSED OF 3 RUGGED 1. 2 UNITS

MODULAR UNITS 2. 439 SQUARE INCHES OF WRITING SURFACE 2. 396 SQUARE INCHES OF

ON CONSOLE WRITING SURFACE 3. HEAT AND VENTILATION SLOTS AROUND 3. NOT OFFERED

PERIMETER OF SIDE SECTION OF CONTROL

CONSOLE 4. OUTLINE OF THREADING PATH ON TAPE 4. NOT OFFERED

PLAYER PANEL, INCLUDING ARROWS TO

INDICATE DIRECTION OF TAPE MOVEMENT 5. ALL TAPE PLAYER CONTROLS IN ONE 5. SCATTERED CONTROLS

SWITCHBANK 6. ELECTRIC PUSH BUTTON SWITCH-TYPE 6. LEVER-TYPE CONTROLS

CONTROLS ON TAPE PLAYER 7. FAST WIND OF 1,200-FOOT REEL OF TAPE 7. SECONDS FAST WIND

IN NOT MORE THAN 40 SECONDS 8. CONTRACTOR RESPONSIBLE FOR COMPLETE 8. COVER LETTER STATED

INSTALLATION OF EQUIPMENT 110-VOLT WIRING TO

CONSOLE TO BE

FURNISHED BY

GOVERNMENT IT WAS THEREFORE DETERMINED THAT THE EQUIPMENT OFFERED BY VIRGINIA COMMUNICATIONS DID NOT MEET THE ADVERTISED SPECIFICATIONS. THE OPINION OF THE PROCUREMENT AGENCY, THE DEFICIENCIES ENUMERATED WERE SIGNIFICANT AND REPRESENTED DEPARTURES FROM THE ADVERTISED REQUIREMENTS TENDERED TO ALL POTENTIAL SUPPLIERS.

YOUR LETTER OF SEPTEMBER 11, 1969, STATES THAT YOU HAD BEEN ADVISED THAT THE PROCUREMENT OFFICE HAS MADE RECOMMENDATIONS THAT VIRGINIA COMMUNICATIONS' BID NOT BE ACCEPTED FOR SEVERAL REASONS WHICH YOU FEEL ARE TOTALLY INSUFFICIENT. IN SUPPORT OF YOUR POSITION THAT VIRGINIA COMMUNICATIONS SHOULD RECEIVE THE AWARD AS THE MOST ELIGIBLE BIDDER, YOU STATE:

"INSTRUCTOMATIC, INC. HAS BEEN IN BUSINESS FOR TEN YEARS EXCLUSIVELY SUPPLYING LANGUAGE LABORATORIES THROUGHOUT THE COUNTRY. WE ARE PRESENTLY THE SOLE SOURCE SUPPLIERS TO THE GENERAL SERVICES ADMINISTRATION AND HAVE QUALIFIED OURSELVES BEFORE THIS DEPARTMENT OF THE GOVERNMENT BOTH FINANCIALLY AND TECHNICALLY AND FEEL THAT IF THERE ARE ANY MINOR DEVIATIONS FROM SPECIFICATIONS THEY ARE NOTHING MORE THAN THE DIFFERENCES BETWEEN THE EQUIPMENT AS MANUFACTURED BY TWO SEPARATE COMPANIES. MENTIONED PREVIOUSLY, THESE DIFFERENCES MUST BE CONSIDERED BY ANY COMPETENT TECHNICAL JUDGE AS BEING TOTALLY INSUFFICIENT." IN B-160318, FEBRUARY 16, 1967, WE STATED:

"THE TEST TO BE APPLIED IN DETERMINING THE RESPONSIVENESS OF A BID IS WHETHER THE BID AS SUBMITTED IS AN OFFER TO PERFORM, WITHOUT EXCEPTION, THE EXACT THING CALLED FOR IN THE INVITATION, AND UPON ACCEPTANCE WILL BIND THE CONTRACTOR TO PERFORM IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS THEREOF. * * *"

AS OUTLINED ABOVE, THE BID WAS DETERMINED TO BE NONRESPONSIVE TO THE TECHNICAL REQUIREMENTS OF THE INVITATION. IT WAS ADMINISTRATIVELY DETERMINED THAT THE CUMULATIVE EFFECT OF THE DEVIATIONS FROM THE REQUIREMENTS OF THE SPECIFICATIONS REQUIRED REJECTION OF VIRGINIA COMMUNICATIONS' BID AS NONRESPONSIVE SINCE THE DEVIATIONS TO THE SPECIFICATIONS WENT TO THE SUBSTANCE OF THE BID.

IT SHOULD BE NOTED THAT ALL CONTRACTS FOR SUPPLIES AND SERVICES FOR THE DISTRICT OF COLUMBIA ARE REQUIRED TO BE MADE AFTER ADVERTISING FOR PROPOSALS. SEE SECTION 1-808 OF THE DISTRICT OF COLUMBIA CODE AND SECTION 3709, REVISED STATUTES OF THE UNITED STATES (41 U.S.C. 5), WHICH WAS MADE APPLICABLE TO THE DISTRICT OF COLUMBIA BY THE ACT OF JANUARY 27, 1894, 28 STAT. 33. ALTHOUGH THE FEDERAL PROCUREMENT REGULATIONS DO NOT SPECIFICALLY APPLY TO THE DISTRICT OF COLUMBIA, IN OUR OPINION, ITS PROVISIONS SET FORTH THE POLICIES AND PROCEDURES WHICH GENERALLY GOVERN COMPETITIVE BIDDING. SECTION 1-2.404-2 OF THOSE 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. * * *"

IN THIS REGARD, WE HAVE HELD THAT THE PROCUREMENT PROCEDURES APPLICABLE TO THE DISTRICT OF COLUMBIA SHOULD BE COMPARABLE TO, AND IN CONSONANCE WITH, THOSE BINDING UPON THE FEDERAL PROCUREMENT OFFICERS. SEE B-157951, FEBRUARY 1, 1966. IT IS EVIDENT FROM THE TECHNICAL EVALUATION OF THE BID THAT THE DEVIATIONS WERE DELIBERATELY TAKEN TO THE TECHNICAL SPECIFICATIONS AND, HENCE, MAY NOT BE WAIVED AS MINOR IRREGULARITIES. SEE 47 COMP. GEN. 496, 499 (1968). THEREFORE, AWARD IS PROPOSED TO BE MADE TO MCCARTHY MFG. CO; INC; AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER.

IT IS NOT OUR FUNCTION TO TECHNICALLY EVALUATE BIDS AND PROPOSALS, OR TO MAKE AN INDEPENDENT DETERMINATION AS TO WHETHER A PARTICULAR BID IS IN TECHNICAL COMPLIANCE WITH THE SPECIFICATION. SEE, GENERALLY, 17 COMP. GEN. 554 (1938); 19 ID. 587 (1939). WE HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY. IT HAS ALSO BEEN HELD THAT THE ADVERTISING STATUTES REQUIRE THAT EVERY EFFORT BE MADE TO DRAW SPECIFICATIONS IN SUCH TERMS AS WILL PERMIT THE BROADEST FIELD OF COMPETITION CONSISTENT WITH THE GOVERNMENT'S ACTUAL NEEDS. WHETHER A PARTICULAR BID MEETS THE ADVERTISED SPECIFICATIONS IN ALL MATERIAL RESPECTS IS A RESPONSIBILITY VESTED IN THE PROCUREMENT OFFICIALS, AND OUR OFFICE WILL NOT QUESTION A DETERMINATION OF RESPONSIVENESS TO SPECIFICATION IN THE ABSENCE OF EVIDENCE ESTABLISHING THAT THE PROCUREMENT OFFICIALS ABUSED THE DISCRETION VESTED IN THEM. WHILE YOU MAY DISAGREE WITH THE DETERMINATION REACHED HERE, WE FIND NO LEGAL BASIS TO QUESTION THE NONRESPONSIVENESS DETERMINATION MADE WITH RESPECT TO THE LOW BID OF VIRGINIA COMMUNICATIONS. CLEARLY, IN THE ORDERLY CONDUCT OF ITS PROCUREMENT FUNCTIONS, THE DISTRICT OF COLUMBIA MAY NOT BE PLACED IN THE POSITION OF HAVING TO SHARE SUCH DISCRETIONARY AUTHORITY WITH ONE OF ITS POTENTIAL SUPPLIERS.

IN THE CIRCUMSTANCES, THE ACCEPTANCE OF VIRGINIA COMMUNICATIONS' BID MAY BE ACCOMPLISHED ONLY BY A WAIVER OF THE SPECIFICATION REQUIREMENTS. HOWEVER, SUCH A WAIVER WOULD BE PREJUDICIAL TO THE RIGHTS OF THE OTHER BIDDERS IN VIEW OF THE MATERIALITY OF THE DEVIATIONS. 45 COMP. GEN. 365, 368 (1965).

ACCORDINGLY, YOUR PROTEST IS DENIED AND NO OBJECTION WILL BE RAISED BY OUR OFFICE IF AWARD IS MADE TO THE MCCARTHY MFG. CO; INC; AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER UNDER THE INVITATION.