B-169800, JUN. 18, 1970

B-169800, JUN. 18, 1970

CONTRACTS--SPECIFICATIONS--DEVIATIONS--DESCRIPTIVE LITERATURE--LOW BIDDER LOW BIDDER'S PROTEST AGAINST REJECTION OF ITS BID FOR FAILURE TO MEET TECHNICAL REQUIREMENTS UNDER INVITATION INCLUDING REQUIREMENT FOR SUBMISSION OF DETAILED SHIP AND ENGINE SPECIFICATIONS IS DENIED SINCE PROTESTANT'S DESCRIPTIVE LITERATURE INCLUDED NUMBER OF DEVIATIONS FROM SOLICITATION'S TECHNICAL REQUIREMENTS WHICH, WHEN CONSIDERED CUMULATIVELY, WENT TO BID'S SUBSTANCE, REQUIRING REJECTION UNDER ASPR 2 404.2. MOREOVER, SINCE IT IS NOT GAO FUNCTION TO TECHNICALLY EVALUATE BIDS, SUCH EVALUATION BY TECHNICAL PERSONNEL WILL NOT BE QUESTIONED IN ABSENCE OF OVERRIDING EVIDENCE. SEE COMP. GEN. DECS. CITED.

TO GRAFTON BOAT CO; INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 11, 1970, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE GLADDING-HEARN SHIPBUILDING CORPORATION UNDER INVITATION FOR BIDS (IFB) NO. DACW61-70-B-0067, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, PHILADELPHIA, PENNSYLVANIA.

THE SUBJECT IFB, ISSUED ON MARCH 10, 1970, AND AS SUBSEQUENTLY AMENDED, SOLICITED BIDS FOR TWO 30-FOOT TENDERS TO BE FURNISHED AND DELIVERED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE SOLICITATION. PAGE 7 CONTAINED THE FOLLOWING PROVISIONS RESPECTING DESCRIPTIVE LITERATURE:

"IMPORTANT NOTE:

"AS A MINIMUM, THE DATA LISTED BELOW SHALL BE INCLUDED WITH EACH BID:

"1. DRAWINGS, CLEARLY DRAWN AND PRINTED, TO ACCURATE SCALE, PRESENTING FULLY THE DESIGN OF THE VESSEL, INCLUDING BUT NOT NECESSARILY LIMITED TO THE FOLLOWING:

"A. OUTBOARD PROFILE SHOWING PRINCIPAL DIMENSIONS SUCH AS OVER-ALL LENGTH, BREADTH, DEPTH AT THE SIDE, AND DESIGN DRAFT.

"B. INTERIOR ARRANGEMENT SHOWING MAJOR ITEMS OF EQUIPMENT.

"C. LONGITUDINAL AND VERTICAL SECTIONS THROUGH THE HULL WITH DIMENSIONS AND SCANTLINGS.

"D. FRAMING ARRANGEMENT, COMPARTMENTATION AND TANKAGE.

"E. ARRANGEMENT AND LOCATION OF ALL MACHINERY, EQUIPMENT AND OUTFIT.

THE ABOVE ARE TO BE REGARDED NOT NECESSARILY AS DRAWING TITLES BUT AS AREAS OF COVERAGE SHOWN ON THE DRAWINGS.

"2. DESCRIPTION OF THE FOLLOWING:

"A. PROPULSION ENGINE, INCLUDING MANUFACTURER'S PUBLISHED MODEL NUMBER, RATINGS, PERFORMANCE DATA AND ACCESSORIES.

"B. ELECTRICAL SYSTEM, INCLUDING ONE LINE DRAWING OF THE SYSTEM SHOWING ALTERNATOR, BATTERY, DISTRIBUTION PANEL (LIGHTING AND POWER) AND ALL ELECTRICAL LOADS (MOTORS, HEATERS, LIGHTS, ETC.)

"REQUIREMENT FOR DESCRIPTIVE LITERATURE (1960 OCT).

"(A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, DIMENSIONS, WEIGHT AND DETAILED DESCRIPTION OF MAJOR COMPONENTS AND ACCESSORY EQUIPMENT.

"(B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BIDS, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS."

BID OPENING WAS ON APRIL 21, 1970, AND THE BIDS RECEIVED WERE AS FOLLOWS:

BIDDER UNIT PRICE TOTAL PRICE GRAFTON BOAT CO; INC.

$22,615 $45,230 GLADDING-HEARN SHIPBUILDING CORP. 24,750 49,500 MOOREHEAD MARINE CORP. 32,477 64,954 MARINE ACOUSTICAL SERVICES, INC. 47,352 94,704 WHILE GRAFTON'S BID WAS LOW, IT WAS REJECTED AS NONRESPONSIVE BECAUSE YOUR DESCRIPTIVE LITERATURE DEVIATED FROM THE TECHNICAL REQUIREMENTS OF THE SPECIFICATIONS. AS YOU WERE ADVISED BY THE PROCURING ACTIVITY, AWARD OF CONTRACT NO. DACW61-70-C-0198 WAS MADE TO GLADDING-HEARN ON MAY 8, 1970.

YOU HAVE PROTESTED AGAINST THE AWARD TO BOTH THE PROCURING ACTIVITY AND OUR OFFICE ON THE BASES THAT YOU WERE THE LOW BIDDER AND THAT THE PROCURING ACTIVITY'S REJECTION OF YOUR BID FOR YOUR "FAILURE TO MEET TECHNICAL REQUIREMENTS" APPEARS TO BE UNWARRANTED.

YOUR DESCRIPTIVE LITERATURE SUBSTANTIALLY QUALIFIED THE REQUIREMENTS OF THE SPECIFICATIONS. THE LITERATURE SUBMITTED WITH YOUR BID REVEALED THE FOLLOWING MATERIAL DEVIATIONS REFERENCED TO THE PARTICULAR PARAGRAPHS OF THE TECHNICAL PROVISIONS OF THE IFB:

"(1) MINIMUM DECK PLATING THICKNESS IS REQUIRED TO BE 3/16" (.1875) (TP 2.06)9 GRAFTON'S DESIGN OFFERS 10-GAGE (.1345) IN A SUBSTANTIAL NUMBER OF AREAS AND 3/16" IN OTHERS. CONSEQUENTLY, SUCH PROPOSAL IS INFERIOR AND UNACCEPTABLE.

"(2) THE SPECIFICATIONS REQUIRE THAT 'THE ENGINE SHALL BE COOLED BY A CLOSED FRESH WATER COOLING SYSTEM UTILIZING A KEEL COOLER.' (TP 2.19). FURTHERMORE, ON PAGE 7, THEREOF, THEY STATE: 'AS A MINIMUM, THE DATA LISTED BELOW SHALL BE INCLUDED WITH EACH BID: ...

E. ARRANGEMENT AND LOCATION OF ALL MACHINERY, EQUIPMENT AND OUTFIT.' GRAFTON FAILED TO INCLUDE ANY EVIDENCE OF AN INTENT TO FURNISH THIS IMPORTANT ITEM OF EQUIPMENT.

"(3) SPECIFICATIONS REQUIRE THAT 'THE TENDER SHALL BE CONSTRUCTED AND OUTFITTED IN ACCORDANCE WITH THE BEST COMMERCIAL MARINE PRACTICE FOR SIMILAR BOATS' (TP 2.05). GRAFTON'S BID DOES NOT PROVIDE FOR A WATERTIGHT SUBDIVISION. CONSEQUENTLY, IT IS NOT IN ACCORDANCE WITH THE QUOTED SPECIFICATION REQUIREMENT AND IS NOT ACCEPTABLE.

"(4) SPECIFICATIONS REQUIRE THAT 'THE TENDER SHALL BE ALL-WELDED STEEL CONSTRUCTION WITH AMPLE SCANTLINGS TO WITHSTAND RUGGED SERVICE AND OPERATION IN SURFACE ICE UP TO TWO INCHES THICK. THE VESSEL WILL BE SUBJECTED TO GROUNDING AND SHALL BE SUITABLY CONSTRUCTED.' GRAFTON'S DESIGN, WHICH UTILIZES CORRUGATED BOTTOM AND SIDE PLATING WITH NO LONGITUDINAL MEMBERS, AS WELL AS WEB FRAMES ON 36" CENTERS, IS INADEQUATE FOR THE DUTY AND SERVICE SPECIFIED.

"(5) THE SKETCH WHICH ACCOMPANIED THE CORPS OF ENGINEERS' SOLICITATION REQUIRES ROUND CORNERS ON THE HULL. GRAFTON'S DESIGN, WHICH OFFERS SQUARE CORNERS, IS UNACCEPTABLE FOR A TENDER WHICH IS TO BE USED FOR MANEUVERING BARGES AND OTHER FLOATING PLANT. THEREFORE, THE DESIGN IS NEITHER IN ACCORDANCE WITH THE CORPS DRAWING NOR 'IN ACCORDANCE WITH THE BEST COMMERCIAL MARINE PRACTICE FOR SIMILAR BOATS.' (TP 2.05).

"(6) THE SPECIFICATIONS (TP 2.03) STATE 'SIDES AND ENDS SHALL BE STRENGTHENED AND PROTECTED BY LARGE SIZE SPLIT PIPE GUARDS OF DOUBLE EXTRA HEAVY PIPE.' GRAFTON'S DRAWING 7010 OFFERS M-4 RUBBER FENDERS, AN INFERIOR AND UNACCEPTABLE DESIGN."

AS OUTLINED ABOVE, YOUR BID WAS DETERMINED TO BE NONRESPONSIVE TO THE TECHNICAL REQUIREMENTS OF THE IFB. IT WAS DETERMINED THAT THE CUMULATIVE EFFECT OF THE DEVIATIONS SET OUT IN YOUR DESCRIPTIVE LITERATURE REQUIRED REJECTION OF YOUR BID SINCE THE DEVIATIONS WENT TO THE SUBSTANCE OF YOUR BID. PARAGRAPH 2-404.2 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES IN PERTINENT PART:

"(A) ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS SHALL BE REJECTED.

"(B) ANY BID WHICH DOES NOT CONFORM TO THE SPECIFICATIONS CONTAINED OR REFERENCED IN THE INVITATION FOR BIDS SHALL BE REJECTED ***

"(D) ORDINARILY, A BID SHOULD BE REJECTED WHERE THE BIDDER ATTEMPTS TO IMPOSE CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT, SINCE TO ALLOW THE BIDDER TO IMPOSE SUCH CONDITIONS WOULD BE PREJUDICIAL TO OTHER BIDDERS. *** "

IT IS EVIDENT FROM THE TECHNICAL EVALUATION OF YOUR DESCRIPTIVE LITERATURE THAT THE DEVIATIONS WERE DELIBERATELY TAKEN AND, HENCE, MAY NOT BE WAIVED AS MINOR IRREGULARITIES. SEE 47 COMP. GEN. 496, 499 (1968).

IT IS NOT OUR FUNCTION TO TECHNICALLY EVALUATE BIDS, OR TO MAKE AN INDEPENDENT DETERMINATION IN THIS CASE AS TO WHETHER YOUR BID WAS IN COMPLIANCE WITH THE SPECIFICATIONS. SEE, GENERALLY, 17 COMP. GEN. 554 (1938); 19 ID. 587 (1939); 40 ID. 35 (1960). INDEED, WE ARE NOT EQUIPPED TO DO SO. IT DOES APPEAR THAT YOUR BID WAS EVALUATED BY TECHNICAL PERSONNEL OF THE PROCUREMENT AGENCY AND, IN THE ABSENCE OF OVERRIDING EVIDENCE, WE WILL NOT QUESTION SUCH EVALUATION. 36 COMP. GEN. 809 (1957); 43 ID. 77(1963).