B-170191, NOV. 25, 1970

B-170191: Nov 25, 1970

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REVIEW OF AWARD TO GENERAL ELECTRIC COMPANY BECAUSE DEVIATIONS INDICATES THAT AWARD WAS NOT PROPER. ALTHOUGH A CONTRACTING OFFICER WAS NOT OBLIGATED TO TEST THE PROTESTANT'S SAMPLE BECAUSE THE LETTER ACCOMPANYING THE BID WAS PROPERLY INTERPRETED AS AN EXCEPTION TO THE SPECIFICATIONS. THEREFORE REJECTION OF THE BID AS NONRESPONSIVE WAS NOT ERRONEOUS. COMPLIANCE BY THE DISTRICT OF COLUMBIA WITH THE FEDERAL PROCUREMENT REGULATIONS IS NOT MANDATORY. COMMISSIONER NO. 68-399 WITH RESPECT TO A CONTRACT REVIEW COMMITTE'S OVERSIGHT ON PROTESTS DOES NOT IN ITSELF REQUIRE CANCELLATION OF AN AWARD THAT WAS MADE BEFORE THE REVIEW COMMITTEE CONSIDERED A PROTEST. AN AWARD TO A BIDDER WHO TOOK MATERIAL EXCEPTIONS TO AND DEVIATED FROM TWO IMPORTANT REQUIREMENTS IN THE SPECIFICATIONS WAS NOT PROPER.

B-170191, NOV. 25, 1970

BID PROTEST - DEVIATIONS DENIAL OF PROTEST OF LOW BIDDER AGAINST REJECTION OF BID FOR FURNISHING PORTABLE RADIO TRANSMITTER RECEIVERS TO D.C. GOVERNMENT ON BASIS THAT SAMPLE FURNISHED DID NOT COMPLY WITH SPECIFICATIONS. HOWEVER, REVIEW OF AWARD TO GENERAL ELECTRIC COMPANY BECAUSE DEVIATIONS INDICATES THAT AWARD WAS NOT PROPER, BUT SINCE MOST OF EQUIPMENT HAS BEEN DELIVERED CANCELLATION OR TERMINATION WOULD NOT BE IN BEST INTEREST OF GOVERNMENT. ALTHOUGH A CONTRACTING OFFICER WAS NOT OBLIGATED TO TEST THE PROTESTANT'S SAMPLE BECAUSE THE LETTER ACCOMPANYING THE BID WAS PROPERLY INTERPRETED AS AN EXCEPTION TO THE SPECIFICATIONS, NEVERTHELESS A TEST OF THE SAMPLE INDICATED A FAILURE TO MEET THE REQUIREMENTS. THEREFORE REJECTION OF THE BID AS NONRESPONSIVE WAS NOT ERRONEOUS. COMPLIANCE BY THE DISTRICT OF COLUMBIA WITH THE FEDERAL PROCUREMENT REGULATIONS IS NOT MANDATORY. A VIOLATION OF AN ORDER OF THE D.C. COMMISSIONER NO. 68-399 WITH RESPECT TO A CONTRACT REVIEW COMMITTE'S OVERSIGHT ON PROTESTS DOES NOT IN ITSELF REQUIRE CANCELLATION OF AN AWARD THAT WAS MADE BEFORE THE REVIEW COMMITTEE CONSIDERED A PROTEST. AN AWARD TO A BIDDER WHO TOOK MATERIAL EXCEPTIONS TO AND DEVIATED FROM TWO IMPORTANT REQUIREMENTS IN THE SPECIFICATIONS WAS NOT PROPER.

TO STRASSER, SPIEGELBERG, FRIED, FRANK & KAMPELMAN:

REFERENCE IS MADE TO YOUR LETTERS DATED JUNE 30, JULY 17, AND SEPTEMBER 18, 1970, IN WHICH, ON BEHALF OF YOUR CLIENT, MICRO COMMUNICATIONS COMPANY, INC., (MICRO) YOU PROTEST AN AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. 58-109-0-0529-RB ISSUED BY THE DISTRICT OF COLUMBIA. THE INVITATION WAS ISSUED ON MAY 7, 1970, FOR THE PURCHASE OF 225 PORTABLE RADIO TRANSMITTER RECEIVERS AND 38 BATTERY CHARGERS FOR USE BY THE DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT. INVITATIONS WERE SENT TO 34 SUPPLIERS OF RADIO EQUIPMENT AND A TOTAL OF FOUR BIDS WERE RECEIVED. THE LOW BIDDER WAS THE HALLICRAFTERS COMPANY AND THE HIGH BIDDER WAS MOTOROLA COMMUNICATIONS & ELECTRONICS, INC. HALLICRAFTERS' BID TOOK EXCEPTION TO THE DELIVERY SCHEDULE AND CONSEQUENTLY WAS REJECTED AS NONRESPONSIVE. MOTOROLA'S SAMPLE DID NOT PASS THE INSPECTION TESTS AND WAS REJECTED. WITH REGARD TO THE TWO REMAINING BIDS, THAT OF YOUR CLIENT, MICRO, WAS LOWER IN PRICE THAN THAT OF GENERAL ELECTRIC COMPANY. HOWEVER, MICRO'S BID WAS ACCOMPANIED BY A LETTER DATED MAY 28, 1970, TAKING EXCEPTIONS TO THE SPECIFICATIONS IN SEVERAL AREAS. WE QUOTE FROM THAT LETTER IN PERTINENT PART, AS FOLLOWS:

"BECAUSE OF DIFFERENT CONCEPTS WE HAVE INTRODUCED INTO POLICE PERSONAL COMMUNICATION, EXCEPTIONS TO CERTAIN SPECIFICATIONS ARE IN ORDER. HOWEVER, IN THE AGGREGATE OUR OFFERING CAN SIGNIFICANTLY ENHANCE THE REQUIRED FUNCTIONS FOR THIS EQUIPMENT.

"THE FOLLOWING ARE THE DEVIATIONS:

PAGE 5, PART I, GENERAL

PARAGRAPH 2. A SINGLE MECHANICAL REED IS USED FOR ENCODE/DECODE. SOLID STATE SWITCHING IS USED TO CHANGE FROM DECODE TO ENCODE MODE. DUTY CYCLE FOR EIGHT HOURS USE WITH NICKEL CADMIUM BATTERY MEETS THE MORE REALISTIC 50 % RECEIVE FULL VOLUME, 45 % STANDBY, AND 5 % TRANSMIT.

PAGE 6, PART I, GENERAL

PARAGRAPH 1. THE UNIT PROPOSED IS 1-INCH BY 4-7/8-INCH BY 9-3/8-INCH FOR A TOTAL VOLUME NOT EXCEEDING 46 CUBIC INCHES.

PAGE 9, PART III, RECEIVER

ITEM 10. A SPEAKER-MIKE IS USED WITH A DIAMETER OF 1.75 INCHES."

IT APPEARS TO BE YOUR CONTENTION THAT ALTHOUGH THE COVERING LETTER DATED MAY 28, 1970, ACCOMPANYING YOUR CLIENT'S BID MAY HAVE APPEARED TO TAKE EXCEPTION TO THE INVITATION, IT IN FACT DID NOT DO SO. IN THAT REGARD, YOU STATE AS FOLLOWS IN YOUR LETTER OF JULY 17, 1970:

" *** MICRO WAS INFORMALLY ADVISED ON OR ABOUT JUNE 26, 1970, THAT THE PROCUREMENT OFFICER ALSO WAS CONSIDERING THE POSSIBILITY OF REJECTING THE MICRO BID AS BEING NONRESPONSIVE TO TWO SPECIFICATION REQUIREMENTS IN THE INVITATION. ON JUNE 26, 1970, MICRO HAND-DELIVERED TO THE PROCUREMENT OFFICER A LETTER OF CLARIFICATION OF ITS BID ON THE TWO SPECIFICATION REQUIREMENTS IN WHICH MICRO ALLEGEDLY TOOK EXCEPTIONS IN ITS BID. SAID LETTER CLARIFIED THE MICRO BID BY STATING THAT MICRO ALWAYS INTENDED TO MEET THESE TWO SPECIFICATION REQUIREMENTS *** ."

THEREAFTER, IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT YOUR CLIENT'S LETTER DATED JUNE 26, 1970, DID NOT CURE ITS LETTER OF EXCEPTION DATED MAY 28, 1970, AND THE CONTRACTING OFFICER DECLARED YOUR CLIENT'S BID NONRESPONSIVE.

YOU CLAIM IN YOUR LETTER DATED JULY 17, 1970, THAT YOUR CLIENT'S BID SUBMITTED ON OR BEFORE BID OPENING ON JUNE 1, 1970, DID NOT INDICATE THAT ANY SPECIFICATION REQUIREMENTS WOULD NOT BE MET; THAT MICRO CAN MEET THESE SPECIFICATION REQUIREMENTS; AND THAT MICRO WILL MEET THE SPECIFICATION REQUIREMENTS IN QUESTION.

WITH RESPECT TO WHETHER MICRO'S BID INDICATED THAT ANY OF THE SPECIFICATION REQUIREMENTS WOULD NOT BE MET, IT IS OUR OPINION THAT THE PORTION OF THE MAY 28 LETTER QUOTED ABOVE MUST BE INTERPRETED TO MEAN THAT THE ITEMS YOU PROPOSED TO FURNISH WOULD NOT COMPLY WITH THE REQUIREMENTS SET OUT IN THE INVITATION. ADDITIONALLY, EVEN IF IT HAD GIVEN AN OVERALL OFFER TO COMPLY WITH THE SPECIFICATIONS, WHETHER YOUR CLIENT WAS RESPONSIVE STILL WOULD HAVE REMAINED HIGHLY QUESTIONABLE. ON THAT POINT, THIS OFFICE HAS STATED IN B-166778, JULY 9, 1969, THE FOLLOWING:

"WHETHER AN OVERALL OFFER TO COMPLY CURES A SPECIFIC DEVIATION FROM A SPECIFICATION REQUIREMENT HAS BEEN PREVIOUSLY CONSIDERED BY OUR OFFICE AND THE RULE IS 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-166284, APRIL 14, 1969. SEE ALSO 40 COMP. GEN. 432. *** ."

AS A RESULT OF YOUR CLIENT'S LETTER ACCOMPANYING ITS BID, WHICH MADE IT NONRESPONSIVE, THE CONTRACTING OFFICER HAD NO DUTY TO TEST YOUR CLIENT'S EQUIPMENT. HOWEVER, IT APPEARS THE CONTRACTING OFFICER CHOSE TO TEST THE SAMPLE WHICH WAS REQUIRED TO BE SUBMITTED WITH MICRO'S BID. AS INDICATED IN THE REPORT FURNISHED TO THIS OFFICE BY THE DISTRICT OF COLUMBIA THE SAMPLE FURNISHED BY MICRO WAS FOUND TO BE A 100-MILLIWATT UNIT THAT WOULD NOT MEET THE SPECIFICATIONS OF THE IFB, WHICH REQUIRED A 500-MILLIWATT AUDIO OUTPUT.

YOU CONTEND IN YOUR LETTER DATED SEPTEMBER 18, 1970, THAT MICRO FURNISHED A BID SAMPLE WITH A 500-MILLIWATT OUTPUT; THAT IT WAS THE SPEAKER-MIKE TRANSDUCER WHICH HAD ONLY A 100-MILLIWATT OUTPUT; AND THAT MICRO DID NOT FAIL TO COMPLY WITH THE SPECIFICATION REQUIREMENTS WHEN IT FURNISHED A BID SAMPLE WITH A 100-MILLIWATT OUTPUT SPEAKER-MIKE TRANSDUCER SINCE NO SPECIFICATION WAS SET FORTH ON THIS PROCUREMENT FOR THE TRANSDUCER.

WHILE YOUR ARGUMENT WITH RESPECT TO THE SPEAKER-MIKE TRANSDUCER APPEARS TO BE CORRECT, THE SPECIFICATION DID REQUIRE THAT THE AUDIO OUTPUT BE "NOT LESS THAN 500 MILLIWATTS." THE MANNER IN WHICH THIS WAS TO BE ACCOMPLISHED WAS IRRELEVANT. THE FACT REMAINS THAT THE SAMPLE YOUR CLIENT SUBMITTED DID, WHEN TESTED, DISPLAY AN AUDIO OUTPUT OF SIGNIFICANTLY LESS THAN 500 MILLIWATTS. IN ADDITION, THE LITERATURE ACCOMPANYING THE OFFERED ITEM STATED THAT SUCH UNIT HAD AN OUTPUT OF ONLY 100 MILLIWATTS. ALTHOUGH YOUR CLIENT TYPED ON THE PRINTED SPECIFICATION SHEET, WHICH IT SUPPLIED WITH ITS SAMPLE, THAT A 500 MILLIWATT OUTPUT WAS AVAILABLE, THERE WAS NO INDICATION THAT MICRO CLEARLY INTENDED TO DELIVER A UNIT WITH A 500- MILLIWATT OUTPUT. IN VIEW OF THE FOREGOING, WE ARE UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER'S ACTION IN REJECTING MICRO'S BID AS NONRESPONSIVE WAS ERRONEOUS.

YOU ALSO ALLEGE THAT YOU PROTESTED TO THIS OFFICE PRIOR TO AWARD AND ALTHOUGH THE CONTRACTING OFFICER HAD ACTUAL KNOWLEDGE OF THE PROTEST, HE NEVERTHELESS MADE AN AWARD OF THE CONTRACT. YOU ALLEGE THAT THE AWARD MADE TO GENERAL ELECTRIC COMPANY IS IMPROPER SINCE THE CONTRACTING OFFICER VIOLATED THE REGULATION SET FORTH IN FPR 1-2.407 8(B)(3) WHICH STATES AS FOLLOWS:

"WHERE A PROTEST HAS BEEN LODGED WITH THE PROCURING AGENCY, THE VIEWS OF GAO REGARDING THE PROTEST SHOULD BE OBTAINED BEFORE AWARD WHENEVER SUCH ACTION IS CONSIDERED TO BE DESIRABLE. WHERE IT IS KNOWN THAT A PROTEST AGAINST THE MAKING OF AN AWARD HAS BEEN LODGED DIRECTLY WITH GAO, A DETERMINATION TO MAKE AWARD UNDER SECTION 1-2.407-8(B)(4) MUST BE APPROVED AT AN APPROPRIATE LEVEL ABOVE THAT OF THE CONTRACTING OFFICER, IN ACCORDANCE WITH AGENCY PROCEDURES. WHILE AWARD NEED NOT BE WITHELD PENDING FINAL DISPOSITION BY GAO OF A PROTEST, A NOTICE OF INTENT TO MAKE AWARD IN SUCH CIRCUMSTANCES SHALL BE FURNISHED GAO, AND FORMAL OR INFORMAL ADVICE SHOULD BE OBTAINED CONCERNING THE CURRENT STATUS OF THE CASE PRIOR TO MAKING THE AWARD."

THE ISSUE THEREFORE IS WHETHER THE FEDERAL PROCUREMENT REGULATIONS ARE APPLICABLE TO DISTRICT OF COLUMBIA PROCUREMENT AND, IF SO, WHETHER COMPLIANCE WITH THOSE REGULATIONS IS MANDATORY TO THE EXTENT THAT IF NOT COMPLIED WITH, A SUBSEQUENT AWARD IN VIOLATION THEREOF WILL BE CONSIDERED ILLEGAL. IN SUPPORT OF YOUR POSITION YOU CITE A NUMBER OF GAO CASES WHICH STATE THAT THE PROCUREMENT PROCEDURES APPLICABLE TO THE DISTRICT OF COLUMBIA SHOULD BE COMPARABLE TO, AND IN ACCORDANCE WITH, THOSE BINDING UPON THE FEDERAL PROCUREMENT OFFICERS. WHILE THOSE CASES DO INDICATE THAT WHERE THE DISTRICT OF COLUMBIA IS WITHOUT ITS OWN PROCUREMENT REGULATIONS, THIS OFFICE BELIEVES D.C. PROCUREMENTS SHOULD BE GENERALLY GUIDED BY THE FEDERAL PROCUREMENT REGULATIONS, WE DO NOT CONSIDER COMPLIANCE WITH THE FEDERAL PROCUREMENT REGULATIONS MANDATORY IN D.C. PROCUREMENTS. SEE 44 COMP. GEN. 539 (1965). IN FACT, ON PAGE 542 OF THAT CASE, THIS OFFICE HELD AS FOLLOWS:

"THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS A LEGAL ENTITY SEPARATE AND DISTINCT FROM THE EXECUTIVE AGENCIES OF THE UNITED STATES. THUS, *** IT DOES NOT APPEAR THAT THE *** FEDERAL PROCUREMENT REGULATIONS HAVE MANDATORY APPLICATION TO ACTIONS BY THE DISTRICT OF COLUMBIA *** ."

ON PAGE 543 OF THAT SAME CASE, WE STATED AS FOLLOWS:

" *** WE DO NOT CONSIDER THE CRITERIA SET FORTH IN *** FEDERAL PROCUREMENT REGULATIONS AS HAVING MANDATORY APPLICATION TO PROCUREMENTS MADE BY THE DISTRICT OF COLUMBIA. *** ."

THE CONCEPT THAT THE DISTRICT OF COLUMBIA IS A LEGAL ENTITY SEPARATE AND DISTINCT FROM THE UNITED STATES GOVERNMENT HAS BEEN STATED AS RECENTLY AS JANUARY 16, 1970, IN B-168704. FURTHER INDICATION THAT THE CONGRESS OF THE UNITED STATES DID NOT INTEND THE D.C. GOVERNMENT TO BE BOUND BY THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 AND THE FEDERAL PROCUREMENT REGULATIONS PROMULGATED THEREUNDER IS THE FACT THAT REORGANIZATION ORDER NO. 29, AS SET FORTH IN THE APPENDIX, TITLE I, DISTRICT OF COLUMBIA CODE (1967), IN PART SETS FORTH THE FOLLOWING:

"PART I

PROCUREMENT OFFICE. (A) THERE IS ESTABLISHED IN THE DEPARTMENT OF GENERAL ADMINISTRATION, DISTRICT OF COLUMBIA GOVERNMENT, UNDER THE DIRECTION AND CONTROL OF THE DIRECTOR OF GENERAL ADMINISTRATION, A PROCUREMENT OFFICE *** ." IN PART IV THEREOF, IT STATES IN PART AS FOLLOWS:

"(B) THE FUNCTIONS OF THE PROCUREMENT OFFICE SHALL BE TO:

"(3) PURCHASE, IN ACCORDANCE WITH SUCH INSTRUCTIONS AS THE DIRECTOR OF GENERAL ADMINISTRATION MAY FROM TIME TO TIME GIVE, SURPLUS AND EXCESS FEDERAL PERSONAL PROPERTY FOR DEPARTMENTS AND OFFICES OF THE DISTRICT OF COLUMBIA GOVERNMENT.

"(5) CREATE AND ADOPT, SUBJECT TO THE APPROVAL OF THE DIRECTOR OF GENERAL ADMINISTRATION, THE MOST SIMPLIFIED PURCHASING PROCEDURES IN THE INTEREST OF ECONOMIZING ON ADMINISTRATIVE COSTS AND EXPEDITING ACTION."

WITH REGARD TO YOUR ALLEGATION THAT THE CONTRACTING OFFICER VIOLATED ONE OF THE D.C. PROCUREMENT REGULATIONS BY NOT SUBMITTING THE PROTEST TO THE D.C. CONTRACT REVIEW COMMITTEE PRIOR TO AWARD, THE ADMINISTRATIVE REPORT POINTS OUT THAT ORDER OF THE COMMISSIONER NO. 68 399 MERELY STATES THAT THE CONTRACT REVIEW COMMITTEE SHALL REVIEW AND MAKE RECOMMENDATIONS WITH REGARD TO PROTESTS BUT IT DOES NOT STATE WHEN THE REVIEW AND RECOMMENDATIONS MUST BE MADE.

WHILE WE ARE INCLINED TO AGREE WITH YOUR POSITION THAT THE REGULATION MUST NECESSARILY CONTEMPLATE A REVIEW BEFORE AWARD, IT IS OUR OPINION THAT, EVEN IF THE CONTRACTING OFFICER'S ACTION IS DETERMINED TO CONSTITUTE A VIOLATION OF THE ORDER, THE ORDER MUST BE VIEWED AS AN INTERNAL PROCEDURAL REGULATION, THE VIOLATION OF WHICH IS NOT IN ITSELF SUFFICIENT TO REQUIRE THAT AN AWARD SHOULD BE CANCELLED.

YOU FURTHER ALLEGE THAT THE AWARD TO GENERAL ELECTRIC IS IMPROPER BECAUSE THE TRANSMITTAL LETTER WHICH GENERAL ELECTRIC FURNISHED WITH ITS BID TOOK MATERIAL EXCEPTIONS TO AND DEVIATED FROM TWO IMPORTANT REQUIREMENTS IN THE SPECIFICATIONS, AND THAT GENERAL ELECTRIC THEREFORE SUBMITTED A NONRESPONSIVE BID UPON WHICH A VALID AWARD COULD NOT BE ISSUED UNDER THE SPECIFIC TERMS OF THE INVITATION AND THE APPLICABLE PROCUREMENT REGULATIONS.

GENERAL ELECTRIC COMPANY IN FACT TOOK SPECIFIC EXCEPTION TO THE INVITATION AS TO FURNISHING AN ATTENUATOR SWITCH ON THE UNIT, AND AS TO FURNISHING VELCRON MATERIAL ON THE SPEAKER MICROPHONE. THE D.C. GOVERNMENT WAIVED THESE DEVIATIONS AS MINOR PRIOR TO AWARDING THE CONTRACT TO GENERAL ELECTRIC. IN DECIDING WHETHER SUCH WAIVER WAS PROPER, CONSIDERATION MUST BE GIVEN TO THE EFFECT WHICH THE BIDDER'S NONCOMPLIANCE WITH THE SPECIFICATIONS COULD BE EXPECTED TO HAVE UPON HIS PRODUCTION COST AND BID PRICE. IN THIS CONNECTION, WE HAVE BEEN ADVISED BY THE DISTRICT OF COLUMBIA (AND GENERAL ELECTRIC HAS NOT TAKEN EXCEPTION TO SUCH ADVICE) THAT THE COST OF THE TWO EXCEPTIONS TAKEN BY THE SUCCESSFUL BIDDER AMOUNTED TO ABOUT $10.00 PER UNIT. SINCE THE IFB CALLED FOR BIDS ON 225 UNITS, THE TOTAL COST BENEFIT ACCRUING TO GENERAL ELECTRIC WOULD AMOUNT TO APPROXIMATELY $2,250.00 FOR THE ENTIRE CONTRACT. IN THAT REGARD THIS OFFICE HAS HELD AS FOLLOWS IN 44 COMP. GEN. 753 (1965) AT PAGE 756:

"THE ONLY CASE CONSIDERED UNDER THE CURRENT PROVISIONS OF FPR 1-2.405 APPEARS TO BE B-155827, FEBRUARY 25, 1965. IN THAT CASE THE CONTRACTING OFFICER PROPOSED TO WAIVE AN EXCEPTION TAKEN BY THE LOW BIDDER TO A MINOR DETAIL OF THE SPECIFICATIONS ON THE GROUND THAT THE DEVIATION WOULD NOT AMOUNT TO MORE THAN $100 IN COST ON A $238,000 BID, BUT IT WAS HELD THAT A DELIBERATE EXCEPTION TO AN INVITATION REQUIREMENT SHOULD NEVER BE WAIVED AS TRIVIAL OR MINIMAL. IN REACHING THAT DECISION WE TOOK OCCASION TO REMARK THAT ONLY THOSE INFORMALITIES WHICH ARE DE MINIMIS SHOULD EVER BE WAIVED. WE BELIEVE THAT STATEMENT IS ENTIRELY CONSISTENT WITH OUR PRIOR DECISIONS AND IS A CORRECT RULE TO BE OBSERVED IN ALL CASES. "IT IS CLEAR FROM THE ABOVE SUMMARY THAT WE HAVE NEVER APPROVED WAIVER IN SUCH CIRCUMSTANCES AS ARE HERE PRESENT WHERE THE MAXIMUM POSSIBLE AMOUNT OF DEVIATION WAS AS MUCH AS $200. EXAMINATION OF THE COURT CASES COLLECTED IN 12 WORDS AND PHRASES UNDER THE HEADINGS 'DE MINIMIS' AND 'DE MINIMIS NON CURAT LEX' INDICATES THAT WHERE DOLLAR AMOUNTS ARE INVOLVED THE DE MINIMIS DOCTRINE HAS GENERALLY BEEN APPLIED ONLY WITH REFERENCE TO AMOUNTS OF THE SAME ORDER OF MAGNITUDE-THAT IS, UNDER ONE OR TWO HUNDRED DOLLARS.

"WHILE IN SEVERAL OF OUR DECISIONS REFERENCE HAS BEEN MADE TO THE TOTAL OR OVERALL COST OF THE WORK INVOLVED AS A FACTOR TO BE CONSIDERED IN DETERMINING WHETHER THE POSSIBLE COST EFFECT OF AN UNACKNOWLEDGED ADDENDUM WAS SO TRIVIAL AS TO JUSTIFY, WAIVER, WE BELIEVE THAT THE PROPER EFFECT OF THAT CRITERION SHOULD BE TO LIMIT RATHER THAN TO ENLARGE THE APPLICATION OF THE DE MINIMIS RULE. IN OTHER WORDS, WHILE AN AMOUNT IN THE VICINITY OF $100 MIGHT APPEAR TO BE TRIVIAL IN ITSELF, IF IN FACT IT WAS FAIRLY SUBSTANTIAL PART OF THE TOTAL COST, OR MORE THAN AN INSIGNIFICANT PART OF THE DIFFERENCE BETWEEN THE DEFECTIVE BID AND THE NEXT AVAILABLE BID, IT COULD NOT PROPERLY BE CONSIDERED AS JUSTIFYING A WAIVER OF THE DEFECT. THE OTHER HAND, WE WOULD NOT BE INCLINED IN THE ORDINARY CASE TO CONSIDER A POSSIBLE DEVIATION OF $1,000 OR MORE AS TRIVIAL OR INSIGNIFICANT IN THE AREA UNDER CONSIDERATION, NO MATTER HOW SMALL A FRACTION OF THE TOTAL COST OR BID DIFFERENCE IT MIGHT BE."

IN VIEW THEREOF, WE MUST AGREE WITH YOUR POSITION THAT GENERAL ELECTRIC'S BID PROPOSED MAJOR DEVIATIONS FROM THE SPECIFICATION REQUIREMENTS, AND THAT THE ACTION OF THE DISTRICT OF COLUMBIA CONTRACTING OFFICER IN WAIVING THE REQUIREMENTS FOR AN ATTENUATOR SWITCH AND VELCRON MATERIAL ON THE SPEAKER MICROPHONE WAS SO IMPROPER AS TO REFLECT UPON THE VALIDITY OF THE CONTRACT AWARDED TO GENERAL ELECTRIC.

HOWEVER, WE HAVE BEEN INFORMED BY THE D.C. GOVERNMENT PROCUREMENT OFFICE THAT ALL ITEMS CALLED FOR UNDER THE CONTRACT (WITH THE EXCEPTION OF FOUR RADIOS WHICH HAVE ALREADY BEEN SHIPPED AND ARE IN TRANSIT) HAVE BEEN DELIVERED AND ACCEPTED. WE MUST THEREFORE CONCLUDE THAT NEITHER CANCELLATION NOR TERMINATION OF THE CONTRACT AT ITS PRESENT STAGE OF COMPLETION WOULD BE PRACTICAL OR IN THE BEST INTEREST OF THE GOVERNMENT.

AS A RESULT OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.