B-171124, MAR 15, 1971

B-171124: Mar 15, 1971

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WHERE THE BASIS UPON WHICH WMC'S BID WAS REJECTED WAS ITS FAILURE TO SPECIFY WHICH OF NINE TYPES OF TEMPERATURE CONTROLS LISTED IN ITS BROCHURE IT WOULD FURNISH BUT THE TECHNICAL PERSONNEL HAD NO DIFFICULTY IN DETERMINING THAT ONLY ONE TEMPERATURE CONTROL MET THE SPECIFICATION AND WMC HAD PREVIOUSLY SUPPLIED THAT ITEM. THERE IS NO BASIS ON WHICH IT MAY BE SAID THAT WMC'S FAILURE TO COMPLY LITERALLY WITH THE DESCRIPTIVE LITERATURE REQUIREMENTS PRECLUDED AN ADEQUATE OR ACCURATE EVALUATION OF ITS BID. HAS DETERMINED THAT WMC SECOND LOW BIDDER SHOULD HAVE BEEN AWARDED THE CONTRACT. IT IS UNNECESSARY TO REVIEW ETC'S PROTEST. SECRETARY: REFERENCE IS MADE TO LETTERS DATED DECEMBER 17. THE SPECIFICATIONS PERTINENT TO THE PROTESTS ARE AS FOLLOWS: "3.2.8.2 INSTRUMENTATION. - THE CHAMBER SHALL BE PROVIDED WITH AN EXPLOSION-PROOF.

B-171124, MAR 15, 1971

BID PROTEST - BID RESPONSIVENESS DECISION CONCERNING PROTESTS BY LABORATORY & ENVIRONMENTAL EQUIPMENT CO., (L&E), LOW BIDDER, ENVIRONMENTAL TECHNOLOGY CORP., (ETC) THIRD LOW BIDDER, AND THE WEBBER MANUFACTURING CO., INC., (WMC) SECOND LOW BIDDER, AGAINST THE AWARD OF CONTRACT TO INDUSTRIAL REFRIGERATION CO., INC. (IRC) FOURTH LOW BIDDER, FOR THE MANUFACTURE AND DELIVERY OF THREE ENVIRONMENTAL TEST TEMPERATURE CHAMBERS. SINCE THE INVITATION REQUIRED THE BIDDERS TO SUBMIT LITERATURE ON A POSITIVE INDEX CHART MECHANISM AND L&E FAILED TO SUBMIT THE REQUIRED LITERATURE, THE COMP. GEN. VIEWS THE CONTRACTING OFFICER'S ACTION IN REJECTING ITS BID AS JUSTIFIED. HOWEVER, WHERE THE BASIS UPON WHICH WMC'S BID WAS REJECTED WAS ITS FAILURE TO SPECIFY WHICH OF NINE TYPES OF TEMPERATURE CONTROLS LISTED IN ITS BROCHURE IT WOULD FURNISH BUT THE TECHNICAL PERSONNEL HAD NO DIFFICULTY IN DETERMINING THAT ONLY ONE TEMPERATURE CONTROL MET THE SPECIFICATION AND WMC HAD PREVIOUSLY SUPPLIED THAT ITEM, THERE IS NO BASIS ON WHICH IT MAY BE SAID THAT WMC'S FAILURE TO COMPLY LITERALLY WITH THE DESCRIPTIVE LITERATURE REQUIREMENTS PRECLUDED AN ADEQUATE OR ACCURATE EVALUATION OF ITS BID. BECAUSE THE COMP. GEN. HAS DETERMINED THAT WMC SECOND LOW BIDDER SHOULD HAVE BEEN AWARDED THE CONTRACT, IT IS UNNECESSARY TO REVIEW ETC'S PROTEST. THE CONTRACT AWARDED TO IRC SHOULD BE TERMINATED AT AN EARLY DATE AND AWARD MADE TO WMC AS THE LOWEST RESPONSIVE BIDDER.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTERS DATED DECEMBER 17, 1970, AND JANUARY 4, 1971, WITH ENCLOSURES, FROM THE DEPUTY COMMANDER, PURCHASING, NAVAL SUPPLY SYSTEMS COMMAND, REPORTING ON THE PROTESTS OF THE LABORATORY & ENVIRONMENTAL EQUIPMENT CO., ENVIRONMENTAL TECHNOLOGY CORPORATION, AND THE WEBBER MANUFACTURING CO., INC., AGAINST THE ACTION OF THE NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PENNSYLVANIA, IN AWARDING A CONTRACT TO INDUSTRIAL REFRIGERATION CO., INC., UNDER INVITATION FOR BIDS NO. N00156- 70-B-0595, AS AMENDED.

THE INVITATION, ISSUED ON JUNE 29, 1970, REQUESTED BIDS FOR THE MANUFACTURE AND DELIVERY OF THREE ENVIRONMENTAL TEST TEMPERATURE CHAMBERS WITH RELATED DATA, IN ACCORDANCE WITH NAVAL WEAPONS INDUSTRIAL SUPPORT OFFICE SPECIFICATION NO. 70-752. THE SPECIFICATIONS PERTINENT TO THE PROTESTS ARE AS FOLLOWS:

"3.2.8.2 INSTRUMENTATION. - THE CHAMBER SHALL BE PROVIDED WITH AN EXPLOSION-PROOF, POTENTIOMETER TYPE, PROGRAMED RECORDER-CONTROLLER HAVING A 12 INCH MINIMUM SIZE CHART WITH A POSITIVE INDEXING CHART MECHANISM. SEVEN DAY CHART CLOCK SHALL ALSO BE INCLUDED. THE RECORDER-CONTROLLER SHALL BE VISIBLE, INTEGRAL CAM PROGRAMMED, HAVE A MANUALLY ADJUSTABLE TEMPERATURE RANGE, AND OPERATE ON 110 VOLTS AC, 60 HERTZ. ALL INSTRUMENTATION, CONTROLS AND INDICATOR LIGHTS, EXCEPT WHERE OTHERWISE SPECIFIED, SHALL BE MOUNTED ON THE CHAMBER'S RIGHT SIDE." AMENDMENT 0003 TO THE INVITATION FOR BIDS, AMONG OTHER THINGS, CHANGED THE SPECIFICATION 70-752, PARAGRAPH 3.2.8.2, INSTRUMENTATION, AS FOLLOWS:

"(B) 3RD LINE - DELETE - 'WITH A POSITIVE INDEXING CHART MECHANISM'

SUBSTITUTE - 'HAVING A POSITIVE MECHANICAL INDEX FOR CHART LOCATION TO ASSURE CONTINUITY OF PRECISE TEMPERATURE VARIATIONS DURING CHART CHANGES ON PROGRAMMING OF ANY TEMPERATURE RUN'" IN ADDITION, THE INVITATION INCLUDED THE FOLLOWING REQUIREMENT FOR DESCRIPTIVE LITERATURE (SECTION 8.0 OF THE SPECIAL PROVISIONS):

"8302 IMPORTANT NOTICE TO BIDDERS

"YOUR ATTENTION IS INVITED TO THE FOLLOWING REQUIREMENTS FOR DESCRIPTIVE LITERATURE WHICH FORM A PART OF THE TERMS OF THIS INVITATION FOR BIDS. PARTICULAR ATTENTION IS INVITED TO PARAGRAPH 3.

"REQUIREMENT FOR DESCRIPTIVE LITERATURE

"1. DESCRIPTIVE LITERATURE AS SPECIFIED BELOW IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING OF BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. A MERE RESTATEMENT OF THE GOVERNMENT'S SPECIFICATIONS WILL NOT BE CONSIDERED IN COMPLIANCE WITH THIS DESCRIPTIVE LITERATURE REQUIREMENT. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCT THE BIDDER PROPOSES TO FURNISH.

"2. HOWEVER, THE REQUIREMENTS FOR FURNISHING DESCRIPTIVE LITERATURE MAY BE WAIVED AS TO A BIDDER IF (I) THE BIDDER STATES IN HIS BID THAT THE PRODUCT HE IS OFFERING TO FURNISH IS THE SAME AS A PRODUCT HE HAS PREVIOUSLY FURNISHED TO THE PURCHASING ACTIVITY UNDER A PRIOR CONTRACT AND THE BIDDER IDENTIFIES THE CONTRACT, AND (II) THE CONTRACTING OFFICER DETERMINES THAT SUCH PRODUCT MEETS THE REQUIREMENTS OF THIS INVITATION FOR BIDS.

"3. REJECTION OF THE BID WILL RESULT IF:

"A. THE DESCRIPTIVE LITERATURE FAILS TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THE INVITATION.

"B. THE DESCRIPTIVE LITERATURE CONSISTS OF A MERE RESTATEMENT OF THE GOVERNMENT'S SPECIFICATIONS.

"C. THE DESCRIPTIVE LITERATURE IS RECEIVED AFTER THE TIME SET FOR OPENING OF BIDS, EXCEPT THAT IF THE DESCRIPTIVE LITERATURE 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.

"D. THE BID IMPOSES A RESTRICTION ON THE DISCLOSURE OF SUFFICIENT INFORMATION TO PERMIT COMPETING BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF PRODUCTS OFFERED OR THOSE ELEMENTS OF THE BID WHICH RELATE TO QUANTITY, PRICE AND DELIVERY TERMS.

"DESCRIPTIVE LITERATURE REQUIREMENTS

"DESCRIPTIVE DATA: IS REQUIRED FOR SPECIFICATION ITEM PARA. 3.2.8.2 INSTRUMENTATION AS FOLLOWS:

"THE TYPE OF PROGRAMMED RECORDER CONTROLLER TO BE PROVIDED, INCLUDING A DESCRIPTION OF THE POSITIVE INDEX CHART MECHANISM."

EIGHT BIDS WERE OPENED ON AUGUST 26, 1970. THE BIDS WERE AS FOLLOWS:

ITEM 1

BIDDER (3 EACH) TOTAL

LABORATORY & ENVIRONMENTAL

EQUIPMENT CO. $27,633 $ 82,899

WEBBER MANUFACTURING CO., INC. 31,000 93,000

ENVIRONMENTAL TECHNOLOGY

CORPORATION 33,295 99,885

INDUSTRIAL REFRIGERATION CO.,

INC. 34,985 104,955

STANDARD ENVIRONMENTAL CABINET

CORP. 40,868 122,604

UNITED FILCO CORP. 49,950 149,850

TENNY ENGR., INC. 51,910 155,730

AMERICAN RESEARCH CORP. 54,200 162,600

BY TELEGRAM DATED AUGUST 27, 1970, ADDRESSED TO THE PROCURING ACTIVITY, THE ENVIRONMENTAL TECHNOLOGY CORPORATION, THE THIRD LOWEST BIDDER, PROTESTED THE MAKING OF AN AWARD TO ANY BIDDER OTHER THAN ENVIRONMENTAL ON THE GROUNDS THAT THE LOWER-PRICED BIDDERS FAILED TO CONFORM TO THE REQUIREMENTS OF THE INVITATION WITH RESPECT TO DESCRIPTIVE LITERATURE AND ACKNOWLEDGING ALL AMENDMENTS.

THE PROTEST WITH RESPECT TO THE AMENDMENT ACKNOWLEDGMENT APPARENTLY HAD REFERENCE TO THE FAILURE OF THE LOW BIDDER TO ACKNOWLEDGE THE AMENDMENTS ON STANDARD FORM 33. HOWEVER, SUCH FAILURE WAS PROPERLY CONSIDERED AS A MINOR IRREGULARITY SINCE SIGNED AMENDMENTS WERE SUBMITTED WITH THE BID.

THE EIGHT BIDS WERE REFERRED TO THE NAVAL ORDNANCE INDUSTRIAL EQUIPMENT SUPPORT DEPARTMENT (NOIESD) FOR TECHNICAL EVALUATION. NOIESD DETERMINED THAT OF THE FIRST FOUR BIDDERS, THE BIDS OF LABORATORY & ENVIRONMENTAL EQUIPMENT CO. AND ENVIRONMENTAL TECHNOLOGY CORPORATION WERE NONRESPONSIVE TO THE DESCRIPTIVE LITERATURE REQUIREMENT AND THAT THE BIDS OF THE WEBBER MANUFACTURING CO. AND INDUSTRIAL REFRIGERATION CO. COMPLIED WITH THE REQUIREMENTS OF THE INVITATION INCLUDING DESCRIPTIVE LITERATURE. NOIESD RECOMMENDED THAT THE CONTRACT BE AWARDED TO THE WEBBER MANUFACTURING CO., THE SECOND LOWEST BIDDER.

A CONTRACT REVIEW BOARD CONSISTING OF FIVE CONTRACTING OFFICERS REVIEWED THE BIDS, THE TECHNICAL EVALUATIONS, AND THE OPINION OF COUNSEL FOR THE CENTER AND DETERMINED UNANIMOUSLY THAT THE BIDS OF THE THREE LOWEST BIDDERS, LABORATORY & ENVIRONMENTAL EQUIPMENT CO., WEBBER MANUFACTURING CO., AND ENVIRONMENTAL TECHNOLOGY CORPORATION WERE NOT RESPONSIVE TO THE DESCRIPTIVE LITERATURE REQUIREMENTS OF THE INVITATION AND RECOMMENDED THAT THE CONTRACT BE AWARDED TO THE INDUSTRIAL REFRIGERATION CO., THE FOURTH LOWEST BIDDER. ON OCTOBER 22, 1970, A CONTRACT FOR FURNISHING THE ENVIRONMENTAL TEMPERATURE CHAMBERS WAS AWARDED TO THE INDUSTRIAL REFRIGERATION CO.

BY TELEGRAM DATED OCTOBER 26, 1970, TO OUR OFFICE, LABORATORY & ENVIRONMENTAL EQUIPMENT CO., THE LOWEST BIDDER, PROTESTED THE AWARD ON THE GROUND THAT IT WAS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. IN A LETTER DATED NOVEMBER 5, 1970, THE ATTORNEY FOR LABORATORY & ENVIRONMENTAL EQUIPMENT CO. STATED THAT HIS CLIENT HAD BEEN ADVISED THAT ITS BID WAS REJECTED AS NONRESPONSIVE BECAUSE IT HAD FAILED TO SUBMIT WITH ITS BID THE REQUESTED DESCRIPTIVE LITERATURE. THE ATTORNEY CONTENDS THAT THE DESCRIPTIVE LITERATURE IS NOT ONLY UNNECESSARY BUT THAT IT WAS NOT AVAILABLE TO HIS CLIENT; THAT IT IS COMMON KNOWLEDGE IN GOVERNMENT CIRCLES AND PRIVATE INDUSTRY THAT ONLY ONE MANUFACTURER, HONEYWELL, INC., MAKES THE REQUIRED RECORDER CONTROLLER AND POSITIVE INDEX CHART MECHANISM; THAT THE DESCRIPTIVE LITERATURE PERTAINING TO THE PROGRAMMED RECORDER CONTROLLER PUBLISHED BY HONEYWELL IS OUT OF DATE AND HAS NOT BEEN PUBLISHED BY, OR AVAILABLE FROM, HONEYWELL SINCE MAY 1970; AND THAT NEITHER HONEYWELL NOR ANY OTHER COMPANY EVER PUBLISHED DESCRIPTIVE LITERATURE ON A POSITIVE INDEX CHART MECHANISM OR ANY TYPE OF MECHANICAL INDEX MECHANISM.

BY LETTERS DATED NOVEMBER 16 AND 30, 1970, WEBBER MANUFACTURING CO., THE SECOND LOWEST BIDDER, THROUGH ITS ATTORNEY, PROTESTED THE REJECTION OF ITS BID AND THE AWARD OF THE CONTRACT TO THE INDUSTRIAL REFRIGERATION CO., THE FOURTH LOWEST BIDDER. WEBBER CONTENDS THAT IT HAS COMPLIED WITH THE REQUIREMENT FOR DESCRIPTIVE LITERATURE BY FURNISHING ITS BROCHURE NO. 6900 AND THAT IT HAS PREVIOUSLY FURNISHED TO THE NAVAL AIR ENGINEERING CENTER THE IDENTICAL ITEM UNDER CONTRACT NO. N00156-70-C-1135 DATED AUGUST 14, 1969.

BY LETTER DATED NOVEMBER 3, 1970, THE ENVIRONMENTAL TECHNOLOGY CORPORATION PROTESTED THE REJECTION OF ITS BID AND THE AWARD OF A CONTRACT TO THE INDUSTRIAL REFRIGERATION CO. THE CORPORATION CONTENDS THAT ITS BID WAS RESPONSIVE TO THE DESCRIPTIVE LITERATURE REQUIREMENTS.

IN REGARD TO THE EVALUATION OF THE THREE LOWEST BIDS, THE CONTRACTING OFFICER STATED AS FOLLOWS:

"9. THE LOWEST BIDDER IN PRICE, LABORATORY & ENVIRONMENTAL EQUIPMENT COMPANY SUBMITTED ITS BID WITH A COVER LTR DTD. 20 JULY 1970 ENCLOSING A FOUR-PAGE BROCHURE, WHEREIN IT INDICATED (FIRST PAGE) THE TYPE OF CONTROLLER 'ALL SOLID STATE HONEYWELL PROPORTIONING CONTROLLERS,' BUT FAILED TO SET FORTH A 'DESCRIPTION OF THE POSITIVE INDEX CHART MECHANISM' AS REQUIRED BY THE 'DESCRIPTIVE LITERATURE CLAUSE' PAR. 2 SUPRA (PAGE 11 OF THE BID). IT MUST BE NOTED THIS BIDDER RETURNED THE FIRST 16 PAGES OF THE IFB, BUT FAILED TO RETURN THE FORM OF CLAUSES INCORPORATED BY REFERENCE, PARTS 1 AND 2, THE SPECIFICATIONS CONSISTING OF ELEVEN (11) PAGES AND DD FORM 1423 'CONTRACT DATA REQUIREMENTS LIST.' THE CONTRACTING OFFICER DEEMED THIS OMISSION A MINOR IRREGULARITY. NOIESD TECHNICAL REVIEW TEAM ADVISED THE CONTRACTING OFFICER THAT LABORATORY & ENVIRONMENTAL EQUIPMENT CO. WAS NONRESPONSIVE. ALTHOUGH THIS BIDDER, IN ITS BROCHURE PUBLISHED 'ALL SOLID STATE HONEYWELL PROPORTIONING CONTROLLERS,' IT FAILED TO SET FORTH A DESCRIPTION OF THE POSITIVE INDEX CHART MECHANISM. THE TECHNICAL EVALUATION BY NOIESD THAT NONE OF THE HONEYWELL SOLID STATE PROPORTIONING CONTROLLERS HAVE POSITIVE INDEX CHART MECHANISM SINCE THERE ARE NO RECORDING PROVISIONS AND NO CHART IS REQUIRED. HOWEVER, ALL HONEYWELL SOLID STATE PROGRAMMED RECORDER- CONTROLLERS DO HAVE A POSITIVE INDEX CHART MECHANISM. THE LOWEST BIDDER, LABORATORY & ENVIRONMENTAL EQUIPMENT CO. SHOWS NO EVIDENCE OF A PROGRAMMED RECORDER CONTROLLER IN THE BROCHURE PROVIDED WITH ITS BID.

"10. THE SECOND LOWEST BIDDER, WEBBER MFG. CO. SUBMITTED A COVER LETTER DATED 20 JULY 1970 AND STATED 'OUR BROCHURE NO. 6900 IS ENCLOSED FOR YOUR REFERENCE. THIS PUBLISHED PRINTED BROCHURE CONSISTS OF FORTY FOUR (44) PAGES. ON PAGE 35 NINE (9) TYPES OF TEMPERATURE CONTROLS ARE ILLUSTRATED. THERE IS NO SELECTION INDICATED BY THE BIDDER; THERE IS NO DESCRIPTION OF THE POSITIVE INDEX CHART MECHANISM. FURTHER, ALTHOUGH THIS BIDDER, WEBBER PREVIOUSLY SUPPLIED THE GOVERNMENT WITH A TEMPERATURE CONTROL, A HONEYWELL PROGRAMMED RECORDER-CONTROLLER THAT MET THE REQUIREMENTS OF THE PRESENT SPECIFICATION, *** WEBBER FAILED TO INDICATE SUCH FACT AS IS REQUIRED BY THE IFB. ALTHOUGH NOIESD TECHNICAL REVIEW CONCLUDED WEBBER WAS RESPONSIVE, THE CONTRACTING OFFICER DEEMED THE FINAL INTERPRETATION AS A QUESTION OF LAW AND CONCLUDED WEBBER WAS NONRESPONSIVE FOR (1) FAILING TO INDICATE THE TYPE OF PROGRAMMED RECORDER-CONTROLLER AND (2) FAILED TO INCLUDE A DESCRIPTION OF THE POSITIVE INDEX CHART MECHANISM. THE MERE FACT THAT GOVERNMENT PERSONNEL KNEW WHAT WAS DELIVERED IN A PRIOR CONTRACT MET THE PRESENT SPECIFICATIONS DOES NOT OBLIGATE WEBBER UNQUALIFIEDLY TO MAKE THE SAME DELIVERY OF THE REQUIRED CONTROLLER UNDER THE PRESENT IFB.

"11. THE THIRD LOWEST BIDDER, ENVIRONMENTAL TECHNOLOGY, INC. SUBMITTED WITH ITS BID A COVER LETTER DTD. 26 AUGUST 1970 ENCLOSING A TYPED SHEET 'TECHNICAL LITERATURE REQUIRED' AND A ONE SHEET PRINTED BULLETIN OF THE 'ACCO BRISTOL SERIES 575 DYNAMASTER PROGRAM CONTROLLERS.' THE PRINTED BULLETIN SETS FORTH 2 TYPES - PNEUMATIC CONTROL OR ELECTRONIC CONTROL. THE BIDDER FAILED TO INDICATE THE TYPE AND, THEREBY, DID NOT UNQUALIFIEDLY OBLIGATE ITSELF TO DELIVER A DESIGNATED TYPE. ACCORDINGLY, THIS BIDDER MUST BE DEEMED NONRESPONSIVE."

THE REASON THE BID OF LABORATORY & ENVIRONMENTAL EQUIPMENT CO. WAS DETERMINED TO BE NONRESPONSIVE APPEARS TO INVOLVE THE ADEQUACY OF ITS DESCRIPTIVE LITERATURE. IT IS REPORTED THAT THE BROCHURE SUBMITTED BY THE COMPANY WITH ITS BID DESCRIBED "ALL SOLID STATE HONEYWELL PROPORTIONING CONTROLLERS" AND THAT THE TECHNICAL EVALUATION BY NOIESD OF THIS BID DISCLOSES THAT NONE OF THE HONEYWELL SOLID STATE PROPORTIONING CONTROLLERS HAVE POSITIVE INDEX CHART MECHANISM SINCE THERE ARE NO RECORDING PROVISIONS IN SUCH EQUIPMENT AND NO CHART IS REQUIRED. SINCE THE INVITATION REQUIRED THE BIDDER TO SUBMIT LITERATURE ON THE POSITIVE INDEX CHART MECHANISM AND SINCE LABORATORY & ENVIRONMENTAL EQUIPMENT CO. FAILED TO SUBMIT THE REQUIRED LITERATURE, WE THINK THAT THE ACTION OF THE CONTRACTING OFFICER IN REJECTING THAT COMPANY'S BID WAS JUSTIFIED. THE BASIS UPON WHICH WEBBER'S BID WAS REJECTED BY THE CONTRACTING OFFICER WAS ITS FAILURE TO SPECIFY ON PAGE 35 OF ITS NO. 6900 BROCHURE WHICH OF THE NINE TYPES OF TEMPERATURE CONTROLS LISTED THEREON IT WOULD FURNISH UNDER ITS BID. THE CONTRACTING OFFICER HAS STATED IN HIS REPORT THAT ALTHOUGH NOIESD TECHNICAL REVIEW CONCLUDED THAT WEBBER WAS RESPONSIVE, HE CONCLUDED THAT WEBBER WAS NONRESPONSIVE FOR (1) FAILING TO INDICATE THE TYPE OF PROGRAMMED RECORDER CONTROLLER AND (2) FAILING TO INCLUDE A DESCRIPTION OF THE POSITIVE INDEX CHART MECHANISM. THE CONTRACTING OFFICER HAS EXPRESSED THE OPINION THAT THE MERE FACT THAT GOVERNMENT PERSONNEL KNEW WHAT WAS DELIVERED UNDER A PRIOR CONTRACT MET THE PRESENT SPECIFICATIONS DID NOT OBLIGATE WEBBER UNQUALIFIEDLY TO MAKE THE SAME DELIVERY OF THE REQUIRED CONTROLLER UNDER THE PRESENT INVITATION. FOR THE REASONS SET OUT BELOW, WE CONCLUDE THAT THE REJECTION OF THIS LOW BID WAS NOT PROPER.

AS A GENERAL RULE, A DATA REQUIREMENT, TOGETHER WITH LANGUAGE MAKING IT MANDATORY UPON THE CONTRACTING OFFICER TO REJECT BIDS WHICH FAIL TO COMPLY WITH SUCH REQUIREMENT, IS TO BE CONSTRUED AND ENFORCED AS WRITTEN. COMP. GEN. 132, 135 (1960). HOWEVER, AS STATED AT 39 COMP. GEN. 595, 597 (1960), IT MUST BE RECOGNIZED THAT AN AUTOMATIC REJECTION OF A BID BECAUSE OF A FAILURE TO CONFORM TO A PURELY TECHNICAL OR OVERLITERAL READING OF THE STATED REQUIREMENTS MAY BE AS ARBITRARY AS THE WAIVER OF NONRESPONSIVENESS TO A MATERIAL AND SUBSTANTIAL REQUIREMENT. IN THAT DECISION, WE HELD THAT IT WOULD BE PROPER TO EXAMINE INTO THE QUESTION WHETHER INFORMATION FURNISHED BY A BIDDER IN LIEU OF STRICT COMPLIANCE WITH THE DATA REQUIREMENTS OF THE INVITATION, TOGETHER WITH INFORMATION ALREADY AVAILABLE TO THE CONTRACTING AGENCY, WAS SUFFICIENT TO ACCOMPLISH THE SAME PURPOSES HAD THERE BEEN STRICT COMPLIANCE WITH THE TERMS OF THE INVITATION.

THE PRIMARY QUESTION IS WHETHER THE INFORMATION CONTAINED IN WEBBER'S BID, TOGETHER WITH THE INFORMATION ALREADY AVAILABLE TO THE CONTRACTING AGENCY, WOULD SATISFY THE PURPOSES OF THE DESCRIPTIVE LITERATURE PROVISIONS. PARAGRAPH 8302 OF THE INVITATION FOR BIDS REQUIRED THE SUBMISSION OF DESCRIPTIVE DATA ON THE TYPE OF PROGRAMMED RECORDER CONTROLLER TO BE PROVIDED, INCLUDING A DESCRIPTION OF THE POSITIVE INDEX CHART MECHANISM. IN ITS BID COVER LETTER, WEBBER STATED "WE PROPOSE TO FURNISH OUR MODEL AF-200-100 200X, WHICH WILL BE MANUFACTURED IN STRICT COMPLIANCE WITH YOUR SPECIFICATIONS." ALSO, WEBBER STATED "OUR BROCHURE NO. 6900 IS ENCLOSED FOR YOUR REFERENCE." ON PAGE 35 OF THE BROCHURE THERE ARE ILLUSTRATED NINE TYPES OF TEMPERATURE CONTROLS. THE CONTRACTING OFFICER HAS STRESSED IN HIS REPORT THE FACT NO SELECTION OF TEMPERATURE CONTROL WAS INDICATED BY WEBBER IN ITS BROCHURE AND THAT THERE IS NO DESCRIPTION OF THE POSITIVE INDEX CHART MECHANISM. WEBBER CONTENDS THAT ITEM NO. 4 ON PAGE 35 OF ITS DESCRIPTIVE LITERATURE CATALOG NO. 6900, SUBMITTED WITH ITS BID, IS THE ONLY ITEM WHICH MEETS THE REQUIREMENTS OF THE INVITATION; THAT THE OTHER EIGHT TEMPERATURE CONTROL ITEMS COULD NOT SATISFY THE REQUIREMENTS OF THE INVITATION; AND THAT THE NOIESD TECHNICAL REVIEW PERSONNEL READILY RECOGNIZED EXACTLY WHAT WEBBER PROPOSED TO FURNISH AND FOUND THE CORPORATION'S BID TO BE TECHNICALLY RESPONSIVE TO THE INVITATION.

ITEM 4 ON PAGE 35 OF THE BROCHURE SHOWS AN ILLUSTRATION OF A HONEYWELL "12" ELECTRONIC POTENTIOMETER, PROGRAMMED RECORDER CONTROLLER, WITH INTEGRAL CAM, VISIBLE, INDICATING, ADJUSTABLE." IN SUPPORT OF ITS CONTENTION THAT ITEM 4 ON PAGE 35 OF ITS NO. 6900 BROCHURE IS THE ONLY TEMPERATURE CONTROL WHICH WILL MEET THE REQUIREMENTS OF THE SPECIFICATIONS, WEBBER HAS SUBMITTED A COPY OF A LETTER DATED JANUARY 26, 1971, RECEIVED FROM HONEYWELL IN WHICH IT IS STATED:

"ITEM #4 IS THE ONLY ITEM APPLICABLE TO THE INSTRUMENTATION SPECIFIED IN THE BID. THIS SHOULD BE VERY OBVIOUS, BEYOND A DOUBT TO ANY TECHNICIAN CHARGED WITH THE RESPONSIBILITY FOR EVALUATING THE PROCUREMENT REQUIREMENTS OF THE PROPOSAL, SPECIFICALLY PARAGRAPH 3.2.8.2, AS AMENDED OF PAGE 8 OF THE SOLICITATION. NONE OF THE OTHER EIGHT (8) ITEMS ON PAGE 35 ARE APPLICABLE."

SINCE NOIESD TECHNICAL PERSONNEL HAVE DETERMINED THAT THE ENVIRONMENTAL CHAMBER, INCLUDING THE SPECIAL TEMPERATURE CONTROL, INVOLVED IN THE INSTANT INVITATION AND THE ENVIRONMENTAL CHAMBER WITH THE SPECIAL TEMPERATURE CONTROL PREVIOUSLY SUPPLIED BY WEBBER UNDER CONTRACT NO. N00156-70-C-1135 ARE IDENTICAL, WE SEE NO BASIS UPON WHICH IT MAY BE SAID THAT WEBBER'S FAILURE TO COMPLY LITERALLY WITH THE DESCRIPTIVE MATERIAL REQUIREMENTS PRECLUDED AN ADEQUATE OR ACCURATE EVALUATION OF ITS BID. NEITHER WOULD IT APPEAR THAT DOUBT EXISTED AS TO THE EXACT EQUIPMENT WEBBER WOULD BE BOUND TO SUPPLY UPON ACCEPTANCE OF ITS BID SINCE WEBBER BID ON THE BASIS OF "STRICT COMPLIANCE WITH YOUR SPECIFICATIONS." THE RECORD INDICATES THAT NOIESD TECHNICAL PERSONNEL HAD NO DIFFICULTY IN DETERMINING WHAT EQUIPMENT WEBBER PROPOSED TO FURNISH UNDER ITS BID. VIEW THEREOF, IT IS OUR OPINION THAT THE BID OF WEBBER SHOULD HAVE BEEN CONSIDERED AS RESPONSIVE AND THAT AWARD SHOULD HAVE BEEN MADE TO WEBBER AS THE LOWEST RESPONSIVE BIDDER.

IN A LETTER DATED JANUARY 29, 1971, THE INDUSTRIAL REFRIGERATION CO., THE SUCCESSFUL BIDDER UNDER THE SUBJECT INVITATION, MAINTAINED THAT THE BIDS OF LABORATORY & ENVIRONMENTAL EQUIPMENT CO., WEBBER MANUFACTURING CO., AND ENVIRONMENTAL TECHNOLOGY CORPORATION WERE NONRESPONSIVE TO THE DESCRIPTIVE LITERATURE REQUIREMENTS OF THE INVITATION. WE AGREE WITH INDUSTRIAL AS TO THE NONRESPONSIVENESS OF THE BID OF LABORATORY & ENVIRONMENTAL EQUIPMENT CO. SINCE THE WEBBER BID SHOULD NOT HAVE BEEN REJECTED, IT IS UNNECESSARY TO CONSIDER WHETHER THE BID OF ENVIRONMENTAL TECHNOLOGY CORPORATION WAS RESPONSIVE.

INDUSTRIAL HAS INDICATED THAT AS A RESULT OF THE PROTEST, IT STOPPED WORK UNDER THE CONTRACT ON NOVEMBER 24, 1970, AT WHICH DATE IT STATED IT HAD COMPLETED THE MAJORITY OF THE ENGINEERING FOR THE CONTRACT. IN VIEW THEREOF, AND SINCE INDUSTRIAL WAS NOT THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION, THE CONTRACT AWARDED TO IT SHOULD BE TERMINATED AT AN EARLY DATE AND AWARD SHOULD BE MADE TO WEBBER MANUFACTURING CO. AS THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION.