B-168668, FEB. 18, 1970

B-168668: Feb 18, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

A BIDDER WHO OFFERED A CATALOG MODEL RATHER THAN ITEM MANUFACTURED TO SPECIFICATIONS AND WHO IN LETTER ACCOMPANING BID STATED THAT "NO EXCEPTIONS" WERE TAKEN BUT THEN STATED HOW CATALOG ITEM WOULD MEET SPECIFICATIONS HAD BID PROPERLY REJECTED FOR FAILURE TO CONFORM TO REQUIREMENTS. SECRETARY: REFERENCE IS MADE TO A LETTER DATED DECEMBER 17. THE SUBJECT INVITATION WAS ISSUED ON AUGUST 11. THE BIDS WERE OPENED ON SEPTEMBER 3. THREE BIDS WERE RECEIVED. 20 DAYS) WAS REJECTED AS BEING NONRESPONSIVE. WAS THE NEXT LOW BIDDER AT $15. 734 AND THAT COMPANY WAS AWARDED THE CONTRACT ON OCTOBER 16. STANDARD WAS NOTIFIED OF THE AWARD TO PROFEXRAY BY LETTER DATED OCTOBER 16. STANDARD CONTENDS THAT ITS BID SHOULD NOT HAVE BEEN REJECTED SINCE ITS LETTER OF TRANSMITTAL CLEARLY STATED THAT IT TAKES NO EXCEPTIONS TO THE SPECIFICATIONS.

B-168668, FEB. 18, 1970

BID PROTEST--DEVIATIONS DECISION TO SECRETARY OF ARMY DENYING PROTEST OF STANDARD X-RAY SALES CORPORATION AGAINST REJECTION OF BID FOR FURNISHING X-RAY APPARATUS ON BASIS OF NONRESPONSIVENESS. A BIDDER WHO OFFERED A CATALOG MODEL RATHER THAN ITEM MANUFACTURED TO SPECIFICATIONS AND WHO IN LETTER ACCOMPANING BID STATED THAT "NO EXCEPTIONS" WERE TAKEN BUT THEN STATED HOW CATALOG ITEM WOULD MEET SPECIFICATIONS HAD BID PROPERLY REJECTED FOR FAILURE TO CONFORM TO REQUIREMENTS.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 17, 1969, FROM MAJOR GENERAL ROLAND B. ANDERSON, DIRECTOR OF MATERIEL ACQUISITION, OFFICE OF THE ASSISTANT SECRETARY, TRANSMITTING A DOCUMENTED REPORT AND REQUESTING OUR DECISION CONCERNING THE PROTEST BY STANDARD X-RAY SALES CORPORATION (STANDARD) AGAINST THE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. DADA15-70-B-0019.

THE SUBJECT INVITATION WAS ISSUED ON AUGUST 11, 1969, BY THE PURCHASING AND CONTRACTING BRANCH, WALTER REED ARMY MEDICAL CENTER, WASHINGTON, D. C; AND CALLED FOR THE FURNISHING OF AN X-RAY APPARATUS, 300 MA. (MILLIAMPERE), 125 KVP, IN ACCORDANCE WITH FEDERAL SPECIFICATION GG-X- 635D, DATED AUGUST 13, 1968, AS SPECIFIED IN THE INVITATION. THE BIDS WERE OPENED ON SEPTEMBER 3, 1969, AND THREE BIDS WERE RECEIVED. STANDARD'S BID OF $11,917 (LESS 2 PERCENT, 20 DAYS) WAS REJECTED AS BEING NONRESPONSIVE. PROFEXRAY DIVISION, LITTON MEDICAL PRODUCTS, INC; WAS THE NEXT LOW BIDDER AT $15,734 AND THAT COMPANY WAS AWARDED THE CONTRACT ON OCTOBER 16, 1969.

STANDARD WAS NOTIFIED OF THE AWARD TO PROFEXRAY BY LETTER DATED OCTOBER 16, 1969. BY LETTER DATED OCTOBER 20, 1969, STANDARD PROTESTED THE AWARD TO THE CONTRACTING OFFICER. STANDARD CONTENDS THAT ITS BID SHOULD NOT HAVE BEEN REJECTED SINCE ITS LETTER OF TRANSMITTAL CLEARLY STATED THAT IT TAKES NO EXCEPTIONS TO THE SPECIFICATIONS.

THE RECORD INDICATES THAT STANDARD ENCLOSED WITH THEIR BID A LETTER WHICH STATED IN PERTINENT PART AS FOLLOWS:

"ON ITEM 1 OF THE ABOVE, WE INTEND TO FURNISH THE FOLLOWING EQUIPMENT:

"1 CATALOGUE #S-6087X: STANDARD VR-300 GENERATOR WITH 1 1/20 TO 8SECOND TIMER AND SOLID STATE TIMER AND CONTACTOR ASSEMBLY; 1 TUBE PROTECTIVE DEVICE; 1 CATALOGUE #S-5695 ULTIMA FLOOR TO CEILING TUBE STAND; * * *" THE LETTER CONTINUED BY IDENTIFYING CERTAIN OTHER DEVICES WHICH WOULD BE PROVIDED, IDENTIFYING SOME BY CATALOG NUMBER. THE LETTER THEN STATED THE FOLLOWING:

"THE EQUIPMENT WHICH WE PROPOSE TO FURNISH WILL MEET FEDERAL SPECIFICATION GG-X-635D. WE TAKE NO EXCEPTIONS.

"WE ARE ENCLOSING LITERATURE ON OUR ULTIMA 400 GENERATOR BECAUSE WE DO NOT HAVE OUR LATEST LITERATURE ON OUR CATALOGUE #S-6087XVR 300 GENERATOR.

THE CONTRACTING OFFICER DETERMINED THAT THE BID WAS NONRESPONSIVE ON THE BASIS THAT STANDARD HAD SUBMITTED AN OFFER OF ITS CATALOG MODEL NUMBER PRODUCT AGAINST A SOLICITATION CALLING FOR AN ITEM MANUFACTURED IN ACCORDANCE WITH A FEDERAL SPECIFICATION AND THAT STANDARD HAD FAILED TO COMPLY WITH THE REQUIREMENT SET FORTH AT PAGE 7 OF THE INVITATION WHICH REQUIRED BIDDERS TO "SUBMIT WITH THEIR BID, A DETAILED DRAWING SHOWING EQUIPMENT LAYOUT AND METHOD OF INSTALLATION THEY PROPOSE."

SINCE STANDARD ENCLOSED THE DESCRIPTIVE LITERATURE AND CLEARLY INCORPORATED IT IN ITS OFFER BY MEANS OF THE LETTER SUBMITTED WITH ITS BID, ACCEPTANCE OF THIS BID WOULD BIND THE BIDDER ONLY TO FURNISH WHAT WAS DESCRIBED IN THIS LITERATURE, AND IT WOULD NOT BE PROPER TO IGNORE SUCH LITERATURE EVEN THOUGH IT WAS NOT REQUIRED. SEE 46 COMP. GEN. 1, 6 (1966).

OUR OFFICE HAS HELD THAT AN 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-167584, OCTOBER 3, 1969.

IN THE PRESENT CASE, THE RECORD INDICATES THAT THE STATEMENT CONTAINED IN STANDARD'S LETTER THAT "WE TAKE NO EXCEPTIONS" WAS IN CONTRADICTION WITH OTHER STATEMENTS IN THE LETTER WHICH ATTEMPTED TO EXPLAIN HOW THE CATALOG ITEM QUALIFIED TO MEET THE FEDERAL SPECIFICATION.

THE RECORD INDICATES THAT THE BID AND SUPPORTING DOCUMENTS SUBMITTED BY STANDARD WERE EVALUATED FOR CONFORMANCE TO SPECIFICATIONS FOR THE X-RAY EQUIPMENT REQUIRED BY THE SUBJECT INVITATION AND THE CHIEF OF THE MAINTENANCE SECTION STATES THAT THE EQUIPMENT AS OFFERED BY STANDARD FAILED TO MEET THE SPECIFICATIONS ON THE FOLLOWING POINTS:

"A. THE SPECIFICATION STATED IN THE INVITATION FOR BID REQUIRED SEVEN RADIOGRAPHIC STATIONS (SMALL FOCUS 25-50-100; LARGE FOCUS 100-150-200- 300). THE BROCHURE AND LETTER EXPLAINING THE BID SUBMITTED BY STANDARD X- RAY SALES CORPORATION OFFERED SIX RADIOGRAPHIC STATIONS: SMALL FOCUS 25-50 -100; LARGE FOCUS 100-200-300. THE LARGE FOCUS 400 SHOWN IN THE BROCHURE WAS TO BE DELETED PER INSTRUCTIONS CONTAINED IN THE LETTER EXPLAINING THE BID. THERE IS NO OFFER TO SUPPLY A LARGE FOCUS 150 IN THE STANDARD X-RAY SALES CORPORATION BID.

"B. PARAGRAPH 3.4.1.3.3 FEDERAL SPECIFICATION GG-X-635D REQUIRED A TRANSVERSE STEREOSCOPIC SHIFT AND PARAGRAPH 3.4.1.3.4 REQUIRED A LONGITUDINAL STEREOSCOPIC SHIFT. THERE IS NO OFFER TO FURNISH THESE ITEM'S IN BID SUBMITTED BY STANDARD X-RAY SALES CORPORATION.

"C.PARAGRAPH 3 UNDER THE SUBJECT 'SCOPE' LISTED ON PAGE 7 OF 10 PAGES OF THE SOLICITATION REQUIRED A DETAILED DRAWING SHOWING EQUIPMENT LAYOUT AND METHOD OF INSTALLATION PROPOSED BY THE BIDDER. THE BID SUBMITTED BY STANDARD X-RAY SALES CORPORATION DID NOT INCLUDE ANY DRAWINGS.

"2. THE NUMBER OF RADIOGRAPHIC STATIONS, LONGITUDINAL STEREOSCOPIC SHIFT, HORIZONTAL STEREOSCOPIC SHIFT, AND DETAILED DRAWINGS ARE ALL ESSENTIAL REQUIREMENTS IN EVALUATING THIS BID."

SINCE THE EVALUATION OF STANDARD'S BID INDICATED THAT IT FAILED TO CONFORM TO CERTAIN MATERIAL REQUIREMENTS OF THE INVITATION, THE BID WAS PROPERLY REJECTED AS BEING NONRESPONSIVE.

ACCORDINGLY, THE PROTEST OF STANDARD X-RAY SALES CORPORATION IS DENIED.