B-171239, DEC. 30, 1970

B-171239, DEC. 30, 1970

BID PROTEST - BIDDER RESPONSIVENESS - DEVIATIONS DENIAL OF PROTEST OF UNITED FABRICATING COMPANY, INC. LOW BIDDER, AGAINST THE REJECTION OF ITS BID ON AN ADVERTISED CONTRACT FOR AIR CONDITIONING EQUIPMENT FOR A DATA PROCESSING FACILITY IN THE ANNEX BUILDING OF THE LIBRARY OF CONGRESS. WHERE THE COVERING LETTER ACCOMPANYING A BID CONTAINED MATERIAL DEVIATIONS FROM THE SPECIFICATIONS, THE BID WILL BE REJECTED AS NONRESPONSIVE IN SPITE OF CLAIMS THAT THE LETTER WAS ONLY INTENDED TO DESCRIBE CERTAIN ADVANTAGES OF PROTESTANT'S EQUIPMENT AND THAT PROTESTANT WOULD MODIFY HIS EQUIPMENT TO CONFORM FULLY TO THE SPECIFICATIONS WHEN SUCH INTENTIONS ARE NOT APPARENT FROM THE FACE OF THE BID.

TO UNITED FABRICATING COMPANY, INC.:

YOUR LETTER OF OCTOBER 27, 1970, TO THE ACTING ARCHITECT OF THE CAPITOL PROTESTING AGAINST REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. 7071 HAS BEEN FORWARDED TO OUR OFFICE FOR A DECISION.

THE SUBJECT INVITATION WAS ISSUED ON SEPTEMBER 17, 1970, SOLICITING BIDS TO BE OPENED ON OCTOBER 8, 1970, FOR FURNISHING SELF-CONTAINED AIR CONDITIONING EQUIPMENT FOR A DATA PROCESSING FACILITY IN THE ANNEX BUILDING OF THE LIBRARY OF CONGRESS. ALTHOUGH YOU SUBMITTED THE LOW BID, IT WAS REJECTED AS NONRESPONSIVE.

THE INVITATION PROVIDED THAT THE EQUIPMENT OFFERED MUST BE IN ACCORDANCE WITH STATED DESIGN SPECIFICATIONS. IN THIS CONNECTION, THE INVITATION INCLUDED A REQUIREMENT FOR SUBMISSION OF CATALOG DATA, SPECIFICATIONS AND OTHER DETAILED INFORMATION SUFFICIENT TO DETERMINE WHETHER THE EQUIPMENT OFFERED MET THE REQUIREMENTS OF THE INVITATION AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH. YOUR BID WAS ACCOMPANIED BY A COVER LETTER WHICH REVIEWED THE SPECIFICATIONS OF THE EQUIPMENT YOU OFFERED, AS WELL AS BY OTHER DETAILED INFORMATION CONCERNING THE SPECIFICATIONS OF THE EQUIPMENT.

AFTER TECHNICAL EVALUATION OF YOUR BID, THE HEAD AIR CONDITIONING ENGINEER OF THE PROCURING ACTIVITY CONCLUDED THAT THE EQUIPMENT YOU OFFERED DID NOT MEET THE MINIMUM REQUIREMENTS SPECIFIED IN THE INVITATION. THE MOST CRITICAL DEVIATIONS ARE STATED TO BE THE FOLLOWING:

"(1) NO REFRIGERANT RECEIVERS AND RELIEF VALVES AS REQUIRED UNDER PARAGRAPH 3(H) OF OUR SPECIFICATIONS ARE PROVIDED IN THE AIR CONDITIONING UNITS OFFERED BY UNITED.

"(2) THE OFFERED UNITS EMPLOY A DIRECT-DRIVE MOTOR INSTEAD OF THE 'V' BELT DRIVE MOTOR SPECIFIED UNDER PARAGRAPH 4(A) OF OUR SPECIFICATIONS.

"OUR ENGINEERS ADVISE THAT SUCH RECEIVERS AND VALVES WERE SPECIFIED AND ARE ESSENTIAL FOR MAINTENANCE OPERATIONS BY PERSONNEL OF OUR OFFICE AND THAT THE SPECIFICATIONS IN THIS RESPECT DESCRIBE A MINIMUM REQUIREMENT; THEY ADVISE, FURTHERMORE, THAT THE 'V' BELT DRIVEN MOTOR WAS SPECIFIED AS AN ESSENTIAL REQUIREMENT TO PROVIDE ADJUSTMENT FLEXIBILITY TO ACCOMMODATE AVAILABLE AIR FLOW. ANOTHER FACTOR CONSIDERED UPON SPECIFYING A 'V' BELT DRIVEN MOTOR IS THE READY AVAILABILITY OF SUCH MOTORS FOR REPLACEMENT MAINTENANCE."

THESE AND OTHER LESS SIGNIFICANT DEVIATIONS WERE NOTED IN THE LETTER ACCOMPANYING YOUR BID. SUBSEQUENT TO THE TECHNICAL EVALUATION YOU CONFERRED WITH REPRESENTATIVES OF THE PROCURING ACTIVITY AND EXPLAINED THAT THE LETTER WAS ONLY INTENDED TO DESCRIBE CERTAIN ADVANTAGES AND CAPABILITIES OF YOUR EQUIPMENT ABOVE THE SPECIFIED FUNCTIONAL REQUIREMENTS AND THAT YOU COULD AND WOULD MODIFY YOUR EQUIPMENT TO FULLY CONFORM TO THE REQUIRED SPECIFICATIONS. THEREAFTER, YOU WERE ADVISED BY THE PROCURING ACTIVITY THAT NOTWITHSTANDING THE EXPLANATION OF THE INTENDED MEANING OF YOUR LETTER, THEY MUST CONSIDER IT AS QUALIFYING YOUR BID AND THEREBY RENDERING IT NONRESPONSIVE.

THE RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE FACTUAL DETERMINATION WHETHER EQUIPMENT OFFERED BY BIDDERS MEETS THOSE SPECIFICATIONS, IS PRIMARILY FOR THE ADMINISTRATIVE AGENCY CONCERNED, TO BE QUESTIONED BY OUR OFFICE ONLY WHEN ARBITRARY, CAPRICIOUS, OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. COMP. GEN. 251 (1936). IN THE INSTANT CASE, WE SEE NO SUCH BASIS FOR QUESTIONING THE ADMINISTRATIVE DETERMINATION THAT YOUR BID, AS QUALIFIED BY THE COVER LETTER, MATERIALLY DEVIATED FROM THE REQUIRED SPECIFICATIONS AND WAS NONRESPONSIVE. FURTHERMORE, IN AN ADVERTISED PROCUREMENT BIDS MUST CONFORM TO THE MATERIAL REQUIREMENTS OF THE INVITATION AT THE TIME BIDS ARE OPENED AND CANNOT BE MODIFIED THEREAFTER TO COMPLY WITH THE INVITATION REQUIREMENTS. 38 COMP. GEN. 819 (1959); 40 ID. 132 (1960). ONLY WHEN IT IS PATENTLY CLEAR ON THE FACE OF THE BID AS A WHOLE THAT THE BIDDER'S INTENT IS IN FACT TO CONFORM COMPLETELY TO THE SPECIFIED REQUIREMENTS CAN THE INDICATED DEVIATION BE DISREGARDED. B-166510, JUNE 10, 1969.

IN THE CIRCUMSTANCES REPORTED HERE, WE FIND NO BASIS TO OBJECT TO REJECTION OF YOUR BID OR AWARD OF THE CONTRACT TO ANOTHER BIDDER.