B-171313(2), MAY 26, 1971

B-171313(2): May 26, 1971

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WHOSE MODEL WAS PRICED LOWER THAN PROTESTANT'S. IT WAS THEREFORE PROPER TO USE THE FEDERAL SUPPLY SCHEDULE. TO COLE AND GRONER: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 15. EACH OF WHICH WAS ON THE FEDERAL SUPPLY SCHEDULE. SINCE THE FEDERAL SUPPLY SCHEDULE PRICE OF VU-DATA'S OSCILLOSCOPE WAS THE LOWER. A PURCHASE ORDER FOR THE ELEVEN ITEMS WAS ISSUED TO THAT FIRM. THE MODEL AS MODIFIED IS NOT LISTED IN THE FEDERAL SUPPLY SCHEDULE. THE ITEM PURCHASED UNDER THE ORDER WAS IDENTICAL TO THAT SET FORTH IN THE FEDERAL SUPPLY SCHEDULE EXCEPT FOR THE USE OF SOME DIFFERENT TYPES OF CONNECTORS. SINCE TEN OF THE ELEVEN OSCILLOSCOPES PURCHASED UNDER THE PURCHASE ORDER WERE NOT STANDARD ITEMS ON THE FEDERAL SUPPLY SCHEDULE.

B-171313(2), MAY 26, 1971

BID PROTEST - FEDERAL SUPPLY SCHEDULE DECISION DENYING PROTEST AGAINST AN ORDER ISSUED BY NASA UNDER A FEDERAL SUPPLY SCHEDULE CONTRACT FOR THE PURCHASE OF ELEVEN OSCILLOSCOPES FROM VU- DATA CORPORATION, WHOSE MODEL WAS PRICED LOWER THAN PROTESTANT'S. ALTHOUGH TEN OF THE REQUIRED ITEMS CALLED FOR DIFFERENT TYPES OF CONNECTORS, FOR COMPATIBILITY PURPOSES ONLY, THE DEVIATION DID NOT INCREASE THE COST TO THE GOVERNMENT AND DID NOT GIVE VU-DATA A COMPETITIVE ADVANTAGE. IT WAS THEREFORE PROPER TO USE THE FEDERAL SUPPLY SCHEDULE. FURTHER, TO PERMIT PROTESTANT TO REDUCE ITS PRICE AFTER AWARD WOULD DEFEAT THE VERY PURPOSE OF THE SCHEDULE.

TO COLE AND GRONER:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 15, 1971, AND OTHER CORRESPONDENCE, ON BEHALF OF AIKEN INDUSTRIES, INCORPORATED, AGAINST AN ORDER ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) DATED SEPTEMBER 11, 1970, UNDER FEDERAL SUPPLY SCHEDULE CONTRACT NO. GSOOS -81178 FOR THE PURCHASE OF ELEVEN OSCILLOSCOPES FROM VU-DATA CORPORATION, SAN DIEGO, CALIFORNIA.

THE FACILITIES SUPPORT BRANCH AT NASA'S GODDARD SPACE FLIGHT CENTER, IN SEEKING TO SATISFY A NEED TO PURCHASE ELEVEN OSCILLOSCOPES DETERMINED THAT AN OSCILLOSCOPE MANUFACTURED BY YOUR FIRM AND ONE PRODUCED BY VU-DATA, EACH OF WHICH WAS ON THE FEDERAL SUPPLY SCHEDULE, MET THE AGENCY'S REQUIREMENTS. SINCE THE FEDERAL SUPPLY SCHEDULE PRICE OF VU-DATA'S OSCILLOSCOPE WAS THE LOWER, A PURCHASE ORDER FOR THE ELEVEN ITEMS WAS ISSUED TO THAT FIRM.

THE DELIVERY ORDER, WHICH CALLED FOR ELEVEN MONITOR OSCILLOSCOPES VU DATA MODEL MS200A, CARRIED THE FOLLOWING NOTATION: "NOTE: TEN (10) EACH SHALL BE FURNISHED WITH TWO (2) EACH DEVTSCH DM 9606-PX CONNECTORS MOUNTED AND WIRED PER AMPEX 180-0456-01 AND LABELED 'J601 RECORD INPUT' AND 'J602 REPRODUCE INPUT'." THE MODEL AS MODIFIED IS NOT LISTED IN THE FEDERAL SUPPLY SCHEDULE. ACCORDING TO THE ADMINISTRATIVE REPORT HOWEVER, THE ITEM PURCHASED UNDER THE ORDER WAS IDENTICAL TO THAT SET FORTH IN THE FEDERAL SUPPLY SCHEDULE EXCEPT FOR THE USE OF SOME DIFFERENT TYPES OF CONNECTORS, FOR COMPATIBILITY PURPOSES ONLY, WHICH DID NOT INCREASE THE COST TO THE GOVERNMENT.

YOU CONTEND THAT, SINCE TEN OF THE ELEVEN OSCILLOSCOPES PURCHASED UNDER THE PURCHASE ORDER WERE NOT STANDARD ITEMS ON THE FEDERAL SUPPLY SCHEDULE, THE PROCUREMENT OF THE MODIFIED STANDARD ITEMS IS ARBITRARY AND UNLAWFUL. WITH RESPECT TO THE SIGNIFICANCE OF THE MODIFICATION, YOU ARGUE THAT THE DE MINIMIS DOCTRINE "APPLIES TO QUESTIONS OF MINIMAL DAMAGE AND TRANSACTIONS BETWEEN ONE PERSON AND ANOTHER, NOT TO TRANSACTIONS BETWEEN A PERSON AND A SOVEREIGN", CITING UNITED STATES V LAMB, 294 F. SUPP. 419 (E.D. TENN. 1968), A CRIMINAL CASE IN WHICH THE DEFENDANT SAWED OFF A SHOTGUN BARREL ONE-TENTH INCH LESS THAN PERMITTED BY STATUTE WITHOUT MEETING CERTAIN REQUIREMENTS. THE COURT CONCLUDED THAT ALTHOUGH THE DEVIATION FROM THE PERMISSIBLE BARREL LENGTH WAS MINIMAL, THE STATUTE WAS ONE OF EXACTITUDE AND THE COURT HAD NO DISCRETION TO APPLY THE DE MINIMIS RULE IN THAT CRIMINAL PROCEEDING.

THE DE MINIMIS RULE IS FREQUENTLY APPLIED IN GOVERNMENT PROCUREMENT. FACT THE BIDDING REGULATIONS PERMIT THE WAIVER OF "MINOR" DEVIATIONS. THAT REGARD, NASAPR 2.405 STATES IN PART AS FOLLOWS:

"2.405 MINOR INFORMALITIES OR IRREGULARITIES IN BIDS. A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM, AND NOT OF SUBSTANCE, OR PERTAINS TO SOME IMMATERIAL OR INCONSEQUENTIAL DEFECT OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION FOR BIDS, THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. THE DEFECT OR VARIATION IN THE BID IS IMMATERIAL AND INCONSEQUENTIAL WHEN ITS SIGNIFICANCE AS TO PRICE, QUANTITY, QUALITY, OR DELIVERY IS TRIVIAL OR NEGLIGIBLE WHEN CONTRASTED WITH THE TOTAL COST OR SCOPE OF THE SUPPLIES OR SERVICES BEING PROCURED. THE CONTRACTING OFFICER SHALL EITHER GIVE THE BIDDER AN OPPORTUNITY TO CORRECT ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID OR SHALL WAIVE SUCH DEFICIENCY, WHICHEVER IS TO THE ADVANTAGE OF THE GOVERNMENT." IT IS WELL ESTABLISHED THAT THIS OFFICE HAS UPHELD PROVISIONS SUCH AS NASAPR 2.405. SEE 40 COMP. GEN. 132 (1960). ALSO SEE B-170191, NOVEMBER 25, 1970, AND 49 COMP. GEN. 541 (1970).

THE ADMINISTRATIVE OFFICE CONTENDS, AND THIS DOES NOT APPEAR TO BE DISPUTED, THAT THE MODIFICATION DOES NOT AFFECT THE COST OF THE ITEM NOR DOES IT OTHERWISE GIVE VU-DATA A COMPETITIVE ADVANTAGE. ACCORDINGLY, WE FIND THAT THE CHANGES IN THE ITEM HAD NO EFFECT ON THE PROPRIETY OF THE USE OF THE FEDERAL SUPPLY SCHEDULE.

YOU ALSO CONTEND THAT THE AWARD WAS IMPROPER BECAUSE YOUR CLIENT WAS NOT SOLICITED WITH RESPECT TO THE PARTICULAR NASA PROCUREMENT AND THAT AIKEN MIGHT WELL HAVE OFFERED NASA A PRICE LESS THAN THAT SHOWN IN THE FEDERAL SUPPLY SCHEDULE HAD IT BEEN SO SOLICITED. IN THAT REGARD, SECTION 101- 26.408-5 OF TITLE 41 OF THE CODE OF FEDERAL REGULATIONS PROVIDES FOR A VOLUNTARY REDUCTION IN THE PRICE LISTED IN A FEDERAL SUPPLY SCHEDULE OF THIS TYPE, TO BE APPLICABLE THEREAFTER FOR THE DURATION OF THE CONTRACT PERIOD. HOWEVER, THERE IS NOTHING IN THE RECORD TO INDICATE THAT YOUR CLIENT DID IN FACT REDUCE ITS PRICE UNDER ITS APPLICABLE CONTRACT BEFORE THE ORDER WAS PLACED WITH VU-DATA. BOTH AIKEN AND VU-DATA WERE ON THE FEDERAL SUPPLY SCHEDULE AS THE RESULT OF AN ADEQUATE SOLICITATION. PERMIT YOUR CLIENT TO REDUCE ITS PRICE AFTER THE ORDER TO VU-DATA, AND THEREBY REQUIRE THE GOVERNMENT TO CANCEL THE ORDER AND PROCURE FROM YOUR CLIENT AS YOU SUGGEST, WOULD DEFEAT THE VERY PURPOSE OF THE FEDERAL SUPPLY SCHEDULE.

CONSEQUENTLY, IT IS OUR DECISION THAT THE PURCHASE ORDER WAS PROPERLY MADE AND YOUR PROTEST MUST, THEREFORE, BE DENIED.