B-172079, MAY 21, 1971

B-172079: May 21, 1971

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THE OFFER TO SUPPLY SCALES AS BEFORE WAS PROPERLY REJECTED AS NONRESPONSIVE. TO DETECTO SCALES INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 4. THE SOLICITATION WAS FOR THE SUPPLY OF AN ESTIMATED QUANTITY OF 150 SPECIAL AIRPORT SCALES OF 100 POUND CAPACITY. THESE SCALES WERE TO BE SUPPLIED IN ACCORDANCE WITH POST OFFICE DEPARTMENT (POD) SPECIFICATION POD-S 145BRE). TWO BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION AND WERE OPENED AS SCHEDULED ON JANUARY 7. ATTACHED TO YOUR BID WAS A LETTER IN WHICH YOU STATE: "IN RESPONSE TO THE SUBJECT SOLICITATION WE OFFER OUR FOLLOWING PROPOSAL. EXCEPT THIS SCALE WILL BE SUPPLIED WITH A PENDULUM MECHANISM AS PER YOUR SPECIFICATIONS.". THE BASIS OF TRINER'S PROTEST WAS THAT YOUR BID WAS NONRESPONSIVE SINCE YOU HAD STATED THAT THE 150 SCALES WHICH YOU OFFERED TO SUPPLY WERE THE SAME AS SCALES SUPPLIED UNDER PREVIOUS CONTRACTS WITH POD.

B-172079, MAY 21, 1971

BID PROTEST - NONRESPONSIVE BID - DEVIATIONS DENIAL OF PROTEST OF DETECTO SCALES, INC., LOW BIDDER, AGAINST THE AWARD OF A CONTRACT TO TRINER SCALE AND MANUFACTURING COMPANY UNDER IFB ISSUED BY THE POST OFFICE DEPARTMENT FOR AIRPORT SCALES. PROTESTANT, WHO HAD PREVIOUSLY SUPPLIED SUCH ITEMS, SUBMITTED A BID TO PROVIDE SCALES AS BEFORE WITH A NEW PENDELUM AS CALLED FOR IN THE INVITATION. AS THE SOLICITATION CALLED FOR MATERIAL CHANGES IN THE SCALES TO BE PROVIDED, THE OFFER TO SUPPLY SCALES AS BEFORE WAS PROPERLY REJECTED AS NONRESPONSIVE.

TO DETECTO SCALES INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 4, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER FIRM ON MARCH 3, 1971, UNDER INVITATION FOR BIDS NO. 3110, ISSUED DECEMBER 8, 1970, BY THE POST OFFICE DEPARTMENT, WASHINGTON, D.C.

THE SOLICITATION WAS FOR THE SUPPLY OF AN ESTIMATED QUANTITY OF 150 SPECIAL AIRPORT SCALES OF 100 POUND CAPACITY. THE GOVERNMENT RESERVED THE RIGHT TO ORDER MORE OR LESS, AS REQUIRED, DURING THE CONTRACT PERIOD ENDING JUNE 30, 1972. THESE SCALES WERE TO BE SUPPLIED IN ACCORDANCE WITH POST OFFICE DEPARTMENT (POD) SPECIFICATION POD-S 145BRE), DATED NOVEMBER 3, 1969, AND FEDERAL SPECIFICATION AAA-S 121D(1), DATED OCTOBER 24, 1967. TWO BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION AND WERE OPENED AS SCHEDULED ON JANUARY 7, 1971. YOUR FIRM SUBMITTED THE LOW BID OF $55,765.50, WHILE TRINER SCALE AND MANUFACTURING COMPANY (TRINER), SUBMITTED THE OTHER BID OF $57,000.

ATTACHED TO YOUR BID WAS A LETTER IN WHICH YOU STATE:

"IN RESPONSE TO THE SUBJECT SOLICITATION WE OFFER OUR FOLLOWING PROPOSAL. ONE HUNDRED AND FIFTY (150) DETECTO MODEL 2200 (V). SUPPLIED ON P.O.D. CONTRACTS 8-1-00754, 7-1-00994 AND 7-1-01056, EXCEPT THIS SCALE WILL BE SUPPLIED WITH A PENDULUM MECHANISM AS PER YOUR SPECIFICATIONS."

BY TELEGRAM AND LETTER BOTH DATED JANUARY 11, 1971, TRINER PROTESTED TO POD AGAINST AWARD TO YOUR FIRM. THE BASIS OF TRINER'S PROTEST WAS THAT YOUR BID WAS NONRESPONSIVE SINCE YOU HAD STATED THAT THE 150 SCALES WHICH YOU OFFERED TO SUPPLY WERE THE SAME AS SCALES SUPPLIED UNDER PREVIOUS CONTRACTS WITH POD, THE SOLE EXCEPTION BEING THAT A PENDULUM MECHANISM WOULD BE SUPPLIED AS PER SPECIFICATIONS REFERENCED IN THE SUBJECT SOLICITATION. TRINER STATED THAT THE PREVIOUS CONTRACTS HAD DIFFERENT SPECIFICATIONS AND THAT YOUR BID WAS NONRESPONSIVE SINCE IT OFFERED TO SUPPLY SCALES IN ACCORDANCE WITH THE REQUIREMENTS OF THESE PREDECESSOR SPECIFICATIONS, WITH THE SINGLE EXCEPTION OF THE PENDULUM MECHANISM REQUIRED BY THE PRESENT SPECIFICATIONS. TRINER ALSO CONTENDED THAT, SINCE THE 150 UNITS SHOWN IN THE SOLICITATION WERE AN ESTIMATED QUANTITY WITH THE POD RESERVING THE RIGHT TO ORDER MORE, OR LESS, AS REQUIRED, YOU QUALIFIED YOUR BID IN SUCH RESPECT BY OFFERING ONLY SPECIFIC OR FIXED NUMBER OF SCALES.

ACCORDING TO THE RECORD, THE PREVIOUS CONTRACTS REFERRED TO IN THE LETTER WHICH ACCOMPANIED YOUR BID, DID CONTAIN REQUIREMENTS DIFFERING FROM THE REQUIREMENTS UNDER THE PRESENT SOLICITATION. SOME OF THE DIFFERENCES ARE AS FOLLOWS:

1. THE PRESENT SOLICITATION CONTAINED AN ADDED REQUIREMENT ON PAGE 6 THEREOF MODIFYING PARAGRAPH 5 OF SPECIFICATION POD-S-145BRE) BY A CHANGE TO THE READING FACE OF THE SCALES. PRIOR SPECIFICATIONS CONTAINED NO SUCH REQUIREMENT.

2. PARAGRAPH 13 OF SPECIFICATION POD-S-145BRE) CONTAINED A REQUIREMENT FOR CAM AND PENDULUM EQUILIBRATING ELEMENTS ONLY. TWO OF THE THREE PREVIOUS SPECIFICATIONS HAD ALSO ALLOWED SPRING TYPE.

3. PARAGRAPH 15 OF SPECIFICATION POD-S-145BRE) CONTAINED A REQUIREMENT FOR PACKING IN A SOLID WOOD CRATE OF PONDEROSA PINE. THE OLD SPECIFICATIONS REQUIRED ONLY CORRUGATED FIBERBOARD OR COMMERCIAL STANDARDS.

4. PAGE 7 OF THE PRESENT SOLICITATION CONTAINED A REQUIREMENT PERTAINING TO AN "EXPLODED VIEW" PAMPHLET ON THE ORDER OF AN OPERATOR'S MANUAL CONTAINING CERTAIN INFORMATION AND INSTRUCTIONS FOR MAINTENANCE AND REPAIR OF THE SCALE. NO SUCH REQUIREMENT WAS CONTAINED IN PRIOR CONTRACTS MENTIONED BY YOU.

FOLLOWING A REVIEW OF THE BID PACKAGES AND THE TRINER PROTEST, POD CONCLUDED THAT THE FOUR ABOVE-MENTIONED DIFFERENCES WERE MATERIAL. SINCE YOU SPECIFICALLY GUARANTEED ONLY TO SUPPLY THE PENDULUM MECHANISM, WHICH IS LISTED AS THE SECOND OF THE FOUR MATERIAL DIFFERENCES, THE AGENCY CONSIDERED THAT YOUR INTENT WAS SUSPECT AS TO SUPPLYING THE OTHER THREE CHANGED REQUIREMENTS. THE POD THEREFORE RECOMMENDED TO THE CONTRACTING OFFICER THAT YOUR BID BE REJECTED AS NONRESPONSIVE, AND YOUR BID WAS ACCORDINGLY REJECTED PURSUANT TO SECTION 1-2.404-2(A) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), WHICH STATES:

"(A) ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS, SUCH AS SPECIFICATIONS, DELIVERY SCHEDULE, OR PERMISSIBLE ALTERNATES THERETO, SHALL BE REJECTED AS NONRESPONSIVE."

IN THIS REGARD, THIS OFFICE HAS CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND THE FACTUAL QUESTION OF WHETHER PRODUCTS OFFERED MEET THE SPECIFICATIONS ARE MATTERS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED, TO BE QUESTIONED BY OUR OFFICE ONLY WHEN NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 38 COMP. GEN. 190, 191 (1958). ALSO, WE HAVE HELD THAT THERE IS NO AUTHORITY FOR WAIVING AS AN INFORMALITY OR MINOR IRREGULARITY A FAILURE OF A BID TO MEET ONE OR MORE OF THE ESSENTIAL OR MATERIAL REQUIREMENTS OF THE GOVERNMENT'S INVITATION FOR BIDS. 45 COMP. GEN. 365, 368 (1965).

THE TEST TO BE APPLIED IN DETERMINING THE RESPONSIVENESS OF A BID IS WHETHER THE BID AS SUBMITTED IS AN OFFER TO PERFORM, WITHOUT EXCEPTION, THE EXACT THING CALLED FOR IN THE INVITATION, AND WHETHER ACCEPTANCE WILL BIND THE CONTRACTOR TO PERFORM IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS THEREOF. B-160318, FEBRUARY 16, 1967. IN THE PRESENT CASE, SINCE YOUR BID WAS NOT AN UNQUALIFIED OFFER TO SUPPLY SCALES IN ACCORDANCE WITH THE SPECIFICATIONS, BUT RATHER AN OFFER TO SUPPLY SCALES WHICH DIFFERED MATERIALLY FROM THOSE DESCRIBED BY THE SPECIFICATIONS, WE CAN ONLY CONCLUDE THAT YOUR BID WAS NONRESPONSIVE.

MOREOVER, THIS OFFICE HAS CONSISTENTLY HELD THAT THE CONTRACT AWARDED TO A BIDDER MUST BE THE SAME CONTRACT OFFERED TO ALL BIDDERS. 49 COMP. GEN. 212, 214 (1969). IT IS APPARENT THAT ANY CONTRACT AWARDED TO YOU ON THE BASIS OF YOUR BID WOULD NOT BE THE SAME AS THE CONTRACT OFFERED TO TRINER, THE ONLY OTHER BIDDER, SINCE YOU WOULD NOT BE REQUIRED TO SUPPLY THE EXACT ARTICLE CALLED FOR BY THE PRESENT SPECIFICATIONS.

THE ADMINISTRATIVE DETERMINATION CONCERNING THE NONRESPONSIVENESS OF YOUR BID DOES NOT APPEAR TO HAVE BEEN ARBITRARY OR UNREASONABLE IN ANY RESPECT. ACCORDINGLY, WE FIND NO LEGAL BASIS FOR OBJECTING TO THE AWARDING OF THE CONTRACT TO TRINER. SINCE WE HAVE FOUND THAT YOUR BID WAS NONRESPONSIVE TO THE SPECIFICATIONS, WE DO NOT CONSIDER IT NECESSARY TO RULE ON TRINER'S CONTENTION THAT YOUR BID WAS ALSO QUALIFIED BY OFFERING A SPECIFIC NUMBER OF SCALES.