B-170693, DEC. 9, 1970

B-170693: Dec 9, 1970

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ARMY CORPS OF ENGINEERS THAT THEY WERE NONRESPONSIVE AND AWARD FOR A WATER QUALITY CONTROL MONITORING INSTRUMENTATION SYSTEM TO HONEYWELL. WHERE UNSOLICITED DESCRIPTIVE LITERATURE IS SUBMITTED WITH THE BID WITH A COVER LETTER STATING THAT NO EXCEPTIONS WERE TAKEN. JUDGING THAT ITS FAILURE TO PROVIDE THAT THE DISOLVED OXYGEN SYSTEM BE ACCURATE WITHIN OR - 0.20 MILLIGRAMS PER LITER OVER A TWO WEEK PERIOD WAS MATERIAL DEVIATION FROM THE ADVERTISED SPECIFICATIONS. INC.: THIS IS IN REPLY TO YOUR LETTERS OF AUGUST 20 AND SEPTEMBER 2. THE LOWEST BID WAS RECEIVED FROM YOUR FIRM. IT WAS REJECTED BY THE CONTRACTING OFFICER SINCE AN EVALUATION OF THE UNSOLICITED DESCRIPTIVE LITERATURE SUBMITTED WITH YOUR BID RESULTED IN THE DETERMINATION THAT YOU INTENDED TO DEVIATE MATERIALLY FROM THE ADVERTISED TECHNICAL SPECIFICATIONS.

B-170693, DEC. 9, 1970

BID PROTEST - BIDDER RESPONSIVENESS - UNSOLICITED LITERATURE DENIAL OF PROTEST BY AUTOMATED ENVIRONMENTAL SYSTEMS, INC., LOW BIDDER, AGAINST FINDING BY THE U.S. ARMY CORPS OF ENGINEERS THAT THEY WERE NONRESPONSIVE AND AWARD FOR A WATER QUALITY CONTROL MONITORING INSTRUMENTATION SYSTEM TO HONEYWELL, INC. WHERE UNSOLICITED DESCRIPTIVE LITERATURE IS SUBMITTED WITH THE BID WITH A COVER LETTER STATING THAT NO EXCEPTIONS WERE TAKEN, THEN CONTRACTING OFFICER PROPERLY EVALUATED THE LITERATURE AS PART OF THE BID, JUDGING THAT ITS FAILURE TO PROVIDE THAT THE DISOLVED OXYGEN SYSTEM BE ACCURATE WITHIN OR - 0.20 MILLIGRAMS PER LITER OVER A TWO WEEK PERIOD WAS MATERIAL DEVIATION FROM THE ADVERTISED SPECIFICATIONS, MAKING BID NONRESPONSIVE.

TO AUTOMATED ENVIRONMENTAL SYSTEMS, INC.:

THIS IS IN REPLY TO YOUR LETTERS OF AUGUST 20 AND SEPTEMBER 2, 1970, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO HONEYWELL, INC., UNDER SOLICITATION NO. DACW61-70-B-0109, ISSUED BY THE U.S. ARMY CORPS OF ENGINEERS (CORPS), PHILADELPHIA, PENNSYLVANIA.

THE SOLICITATION REQUESTED BIDS FOR FURNISHING AND INSTALLING A WATER QUALITY CONTROL MONITORING INSTRUMENTATION SYSTEM AT THE BELTZVILLE OUTLET WORKS AND THE DOWNSTREAM GAGING STATION, BELTZVILLE DAM AND RESERVOIR, LOCATED NEAR LEHIGHTON, PENNSYLVANIA. THE SOLICITATION ALSO PROVIDED FOR ONE YEAR OF MAINTENANCE SERVICES AS SPECIFIED THEREIN. THE LOWEST BID WAS RECEIVED FROM YOUR FIRM, BUT IT WAS REJECTED BY THE CONTRACTING OFFICER SINCE AN EVALUATION OF THE UNSOLICITED DESCRIPTIVE LITERATURE SUBMITTED WITH YOUR BID RESULTED IN THE DETERMINATION THAT YOU INTENDED TO DEVIATE MATERIALLY FROM THE ADVERTISED TECHNICAL SPECIFICATIONS.

YOU CONTEST THE VALIDITY OF THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR BID WAS NOT RESPONSIVE TO THE REQUIREMENTS STATED IN THE SOLICITATION, AND YOU ALSO CONTEND THAT, IN ANY EVENT, HONEYWELL'S BID SHOULD NOT HAVE BEEN ACCEPTED SINCE IT TOOK AN EXCEPTION TO A MATERIAL REQUIREMENT SPECIFIED IN THE SOLICITATION.

THE RECORD SHOWS THAT IN ADDITION TO THE BASIC BID DOCUMENT SETTING FORTH THE OFFERED CONTRACT PRICE, YOUR COMPANY SUBMITTED UNSOLICITED DESCRIPTIVE LITERATURE ENTITLED: "PROPOSALS NO. AES-123 - 24 JULY 1970, (S.I. 401, 088) - WATER QUALITY CONTROL MONITORING INSTRUMENTATION." THE INTRODUCTION READS AS FOLLOWS:

"THE FOLLOWING DESCRIBES A SYSTEM IMPLEMENTATION OF A WATER QUALITY MONITORING SYSTEM FOR THE BELTZVILLE DAM NEAR LEHIGHTON. AUTOMATED ENVIRONMENTAL SYSTEMS, INC. HAS PREPARED THIS DOCUMENT FOLLOWING DISCUSSIONS WITH THE CORPS OF ENGINEERS IN PHILADELPHIA, PENNSYLVANIA. THE DOCUMENT ASSUMES INTERFACING WITH EXISTING CONTRACTOR'S FACILITIES AND PROVIDES TURN-KEY OPERATION OF THE WATER QUALITY INSTALLATION."

YOU CONTEND THAT A COVER LETTER WAS SUBMITTED WITH YOUR BID WHEREIN IT IS STATED "WE HAVE TAKEN NO EXCEPTIONS WHATSOEVER." WHILE THE CORPS HAS ADVISED THIS OFFICE THAT NEITHER THE CONTRACTING OFFICER, NOR ANY OTHER GOVERNMENT OFFICIAL QUESTIONED IN CONNECTION THEREWITH, SAW YOUR COVER LETTER PRIOR TO AUGUST 19, 1970 (AFTER BID OPENING), IT IS THE CORPS' POSITION THAT EVEN IF THE LETTER HAD BEEN RECEIVED PRIOR TO BID OPENING, THE GOVERNMENT WOULD STILL HAVE BEEN OBLIGED TO EVALUATE THE LITERATURE WHICH INDICATED THAT YOU, IN FACT, INTENDED TO QUALIFY YOUR BID IN A MATERIAL WAY.

IN THIS REGARD WE HAVE EXPRESSED THE VIEW THAT WHERE A BIDDER ACCOMPANIES HIS BID WITH UNSOLICITED MATERIAL IT MUST BE CONSIDERED AS PART OF THE BID UNLESS THERE IS A CLEAR MANIFESTATION OF A CONTRARY INTENT IN THE BID OR IN THE UNSOLICITED MATERIAL, OR UNLESS THE EVIDENCE SHOWS THAT THE MATERIAL WAS FURNISHED FOR SOME OTHER SPECIFIC PURPOSE. UNSOLICITED LITERATURE AND THE BID MUST BE EVALUATED AS CONSTITUTING THE BIDDER'S WHOLE OFFER AND WE HAVE REJECTED THE ARGUMENT THAT AN OVERALL OFFER TO CONFORM, PER SE, CURES SPECIFIC DEVIATIONS. SEE 49 COMP. GEN. , B-169057, JUNE 17, 1970; 40 COMP. GEN. 432 (1961); B-166284, APRIL 14 AND MAY 21, 1969; AND B-169547, SEPTEMBER 17, 1970. IN THE PRESENT CASE WE FEEL THAT THE EVIDENCE PERMITS NO OTHER CONCLUSION THAN THAT THE LITERATURE SUBMITTED WITH YOUR BID WAS INTENDED AS A PART OF THAT BID, AND WE MUST THEREFORE AGREE WITH THE CORPS' POSITION THAT THE LITERATURE SUBMITTED WITH YOUR BID WOULD HAVE BEEN CONSIDERED A PART OF YOUR BID EVEN IF THE MISSING LETTER HAD BEEN RECEIVED WITH YOUR BID.

THE QUESTION THEN ARISES AS TO WHETHER, AFTER EVALUATING YOUR WHOLE OFFER, THE PRODUCT YOU OFFERED WOULD HAVE MET THE GOVERNMENT'S REQUIREMENTS AS SET FORTH IN THE SOLICITATION. THIS QUESTION HAS BEEN THE SUBJECT OF DETAILED CORRESPONDENCE BETWEEN YOUR FIRM AND THE CONTRACTING ACTIVITY. IT APPEARS FROM OUR REVIEW OF THE RECORD THAT THE CONTRACTING OFFICER VIEWED THE LACK OF COMMENT IN YOUR LITERATURE REGARDING CERTAIN GOVERNMENT REQUIREMENTS, AND ALSO CERTAIN EXPRESS STATEMENTS IN YOUR LITERATURE, AS INDICATING THAT YOUR EQUIPMENT WOULD NOT MEET THE SPECIFICATIONS AND THEREFORE WAS UNACCEPTABLE.

IN THIS CONNECTION, THE RECORD SHOWS THAT THE GOVERNMENT SPECIFICATIONS REQUIRED THAT THE CONDUCTIVITY SYSTEM BE ACCURATE WITHIN OR - 1% OVER A FOUR WEEK PERIOD AND THAT THE DISOLVED OXYGEN SYSTEM BE ACCURATE WITHIN OR - .20 MILLIGRAMS PER LITER OVER A TWO WEEK PERIOD. AS IT PERTAINS TO THE REFERENCED SYSTEMS, YOUR PROPOSAL SPECIFICALLY PROVIDES FOR ACCURACY WHICH DOES NOT MEET THE ADVERTISED SPECIFICATIONS. THE CONTRACTING OFFICER THEREFORE DETERMINED THAT THE EQUIPMENT OFFERED WAS MATERIALLY INADEQUATE AND UNACCEPTABLE IN THESE RESPECTS. SINCE WE AGREE WITH THE CONTRACTING OFFICER ON THIS POINT THE MANY ADDITIONAL POINTS RAISED BY THE CONTRACTING OFFICER IN HIS CORRESPONDENCE WITH YOUR COMPANY WHICH HE ALLEGES SUPPORTS HIS DETERMINATION THAT YOUR LITERATURE FAILED TO CONFORM TO THE GOVERNMENT'S SPECIFICATION, NEED NOT BE CONSIDERED IN OUR DECISION.

UNDER THE CIRCUMSTANCES, WE MUST CONCLUDE THAT YOUR BID MATERIALLY DIFFERED FROM THE ADVERTISED SPECIFICATIONS AND REGULATIONS, THAT IT WAS NONRESPONSIVE, AND PURSUANT TO THE APPLICABLE PROCUREMENT STATUTE AND REGULATIONS IT COULD NOT HAVE BEEN ACCEPTED AS SUBMITTED OR CHANGED AFTER OPENING TO MEET THE GOVERNMENT'S SPECIFICATION. SEE 10 U.S.C. 2305(C); ARMED SERVICES PROCUREMENT REGULATION SECS 2-301(A) AND 2 404.2(A) AND 17 COMP. GEN. 554, 558 (1938).

ACCORDINGLY, WE SEE NO BASIS FOR QUESTIONING THE REJECTION OF YOUR BID.

WITH RESPECT TO THE ACCEPTANCE OF THE NEXT LOW BID, YOU ARGUE THAT HONEYWELL DID NOT PROVIDE FOR POTENTIOMETERS TO FACILITATE REPLACEMENT OF TEMPERATURE COMPENSATORS. YOU ALLEGE THAT IF HONEYWELL HAS TO SUPPLY THIS EQUIPMENT, A MAJOR REDESIGN OF ITS HARDWARE WOULD BE REQUIRED. IN THIS REGARD THE CONTRACTING OFFICER HAS ADVISED THAT THE EQUIPMENT TO BE FURNISHED BY HONEYWELL CONTAINS POTENTIOMETERS WHICH ARE LOCATED APPROPRIATELY WITH REGARD TO THEIR ADJUSTMENT FUNCTION. HONEYWELL TOOK NO EXCEPTION TO THIS REQUIREMENT IN ITS BID AND IT IS STATED THAT HONEYWELL WILL EQUIP EACH OF THE FIVE ANALYZERS IN THE SYSTEM WITH FOUR POTENTIOMETERS WHICH WILL BE USED FOR ZERO, SPAN, HIGH AND LOW TEST SIGNAL ADJUSTMENT. WHILE HONEYWELL DID STATE IN ITS BID THAT ITS "SENSORS ASSEMBLIES DO NOT HAVE POTENTIOMETERS ... ," THIS WAS NOT CONSIDERED MATERIAL SINCE THE INVITATION DID NOT REQUIRE THAT SENSOR ASSEMBLIES BE EQUIPPED WITH POTENTIOMETERS.

IN VIEW THEREOF, THE ONLY REMAINING BASIS FOR YOUR PROTEST RELATES TO THE FACT THAT HONEYWELL'S BID INDICATED IT WOULD NOT SUPPLY ONE SPARE POTENTIOMETER FOR EACH OF THE FIVE ANALYZERS REQUIRED IN THE INVITATION. HONEYWELL HAS EXPLAINED THAT SPARE POTENTIOMETERS FOR ITS ANALYZERS WERE NOT RECOMMENDED IN ITS PUBLISHED MANUFACTURER'S LIST FOR THE REASON THAT THE LIFE EXPECTANCY OF THESE POTENTIOMETERS IS EQUAL TO OR GREATER THAN THE LIFE OF THE ANALYZER ITSELF, AND THAT ITS EXCEPTION WAS THEREFORE INTENDED TO PREVENT THE GOVERNMENT FROM MAKING AN UNNECESSARY PURCHASE. THE CORPS HAS ADVISED THAT THE TOTAL COST FOR FIVE SPARE POTENTIOMETERS, HONEYWELL PART NO. 667587-501, IS $171.00.

WE BELIEVE THAT HONEYWELL'S FAILURE TO COMPLY WITH THE REQUIREMENT FOR SPARE POTENTIOMETERS HAS A NEGLIGIBLE EFFECT UPON THE OPERATION, QUANTITY AND GENERAL CHARACTERISTICS OF THE TOTAL SYSTEM AND ALSO UPON THE PROCUREMENT'S COST OF $36,812, SINCE THE ITEMS ARE APPARENTLY UNNECESSARY AND ARE, IN ANY EVENT, AVAILABLE ON THE OPEN MARKET FOR A TOTAL COST OF $171.00. SEE 44 COMP. GEN. 753 (1965) AND B-159725, DECEMBER 23, 1966. MOREOVER, WE FIND THAT ACCEPTANCE OF HONEYWELL'S BID DID NOT PREJUDICE OTHER BIDDERS SINCE NO LOWER BID WAS ACCEPTABLE AND THE NEXT HIGHEST BID EXCEEDED HONEYWELL'S PRICE BY MORE THAN $11,000.00. IN THESE CIRCUMSTANCES, IT IS OUR OPINION THAT HONEYWELL'S EXCEPTION TO THE SPECIFICATION MAY PROPERLY BE VIEWED AS A MINOR DEVIATION. ACCORDINGLY, WE WILL NOT OBJECT TO THE ACCEPTANCE OF HONEYWELL'S BID.

FOR THE REASONS STATED, YOUR PROTEST MUST BE DENIED.