B-173244(1), AUG 10, 1972

B-173244(1): Aug 10, 1972

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WHICH HELD THAT THE BID SUBMITTED BY SCIENTIFIC SYSTEMS CORPORATION WAS NONRESPONSIVE TO AN IFB ISSUED FOR THE PROCUREMENT OF A PLANT GROWTH CHAMBER WITH AN INTERNAL WIDTH DIMENSION OF 96 INCHES. SINCE IT WAS NOT POSSIBLE TO DETERMINE THE CHAMBER DIMENSION OFFERED BY PROTESTANT FROM THE FACE OF HIS BID. THE BID WAS CLEARLY NONRESPONSIVE UNDER THE ESTABLISHED RULE THAT INFORMATION MAY NOT BE PROVIDED AFTER BID OPENING TO CLEAR UP AN AMBIGUITY IN THE BID. 38 COMP. TO SCIENTIFIC SYSTEMS CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF MARCH 3. IN THAT DECISION WE HELD THAT YOUR BID WAS NONRESPONSIVE BECAUSE IT OFFERED A PLANT GROWTH CHAMBER WITH AN INTERNAL WIDTH DIMENSION OF 90 INCHES. YOU CONTEND THAT OUR DECISION IS ERRONEOUS BECAUSE YOUR BID WAS IN FACT RESPONSIVE TO THE DIMENSION REQUIREMENTS OF THE IFB.

B-173244(1), AUG 10, 1972

BID PROTEST - NONRESPONSIVE BID - AMBIGUITY IN BID AFFIRMING DECISION OF FEBRUARY 22, 1972, WHICH HELD THAT THE BID SUBMITTED BY SCIENTIFIC SYSTEMS CORPORATION WAS NONRESPONSIVE TO AN IFB ISSUED FOR THE PROCUREMENT OF A PLANT GROWTH CHAMBER WITH AN INTERNAL WIDTH DIMENSION OF 96 INCHES. SINCE IT WAS NOT POSSIBLE TO DETERMINE THE CHAMBER DIMENSION OFFERED BY PROTESTANT FROM THE FACE OF HIS BID, THE BID WAS CLEARLY NONRESPONSIVE UNDER THE ESTABLISHED RULE THAT INFORMATION MAY NOT BE PROVIDED AFTER BID OPENING TO CLEAR UP AN AMBIGUITY IN THE BID. 38 COMP. GEN. 819 (1957).

TO SCIENTIFIC SYSTEMS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 3, 1972, ADDRESSED TO THE SECRETARY OF AGRICULTURE, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION, B-173244, FEBRUARY 22, 1972 (51 COMP. GEN. ). IN THAT DECISION WE HELD THAT YOUR BID WAS NONRESPONSIVE BECAUSE IT OFFERED A PLANT GROWTH CHAMBER WITH AN INTERNAL WIDTH DIMENSION OF 90 INCHES, CONTRARY TO THE INVITATION REQUIREMENT FOR A MINIMUM INTERNAL WIDTH DIMENSION OF 96 INCHES.

YOU CONTEND THAT OUR DECISION IS ERRONEOUS BECAUSE YOUR BID WAS IN FACT RESPONSIVE TO THE DIMENSION REQUIREMENTS OF THE IFB. IT IS YOUR POSITION THAT THE INTERNAL WIDTH DIMENSION SPECIFIED BY THE INVITATION REFERS TO THE SPACE BETWEEN THE INSIDES OF THE EXTERNAL WALLS, AND NOT THE SPACE BETWEEN THE AIR HANDLERS, WHICH ADJOIN THE EXTERNAL WALLS ON THE INSIDE OF THE CHAMBER. YOU STATE THAT YOUR POSITION IS SUPPORTED BY THE FACT THAT THE SOLICITATION REFERRED TO THE DIMENSIONS OF THE CHAMBER RATHER THAN TO THE "PLANT BED AREA" OR "WORK AREA." YOU ALSO POINT OUT THAT THE IFB ANTICIPATED USE OF FLUORESCENT LAMPS 96 INCHES LONG, AND THAT IT IS COMMON FOR THE ENDS OF SUCH LAMPS TO PRODUCE LESS ILLUMINATION THAN THE REST OF THE LAMPS. YOU STATE THAT FOR THIS REASON IT IS COMMON PRACTICE TO SHIELD THE BLACKENED ENDS OF THE TUBE WITH A WIDTH OF AIR HANDLERS ALONG THE INSIDE WALLS OF THE CHAMBER. YOU ALSO STATE THAT IF THE REQUIREMENT WAS FOR 96 INCHES OF SPACE BETWEEN THE AIR HANDLERS THERE WOULD BE "A DROP-OFF IN ILLUMINATION AT THE SIDE WALLS, RESULTING IN A LOSS OF GROWTH ENERGY TO PLANTS LOCATED AT THE ENDS OF THE PLANT BED."

WE DO NOT AGREE WITH YOUR CONTENTIONS. WE THINK IT IS CLEAR THAT YOUR BID WAS NONRESPONSIVE ON ITS FACE, AND THAT THE INTERPRETATION OF THE SPECIFICATIONS THAT YOU URGE HERE IS NOT THE INTERPRETATION UPON WHICH YOU BASED YOUR BID. THE IFB SPECIFIED AN INTERNAL CHAMBER DIMENSION OF NOT LESS THAN 96 INCHES IN WIDTH. YOUR SPECIFICATION SHEET SUBMITTED WITH YOUR BID INDICATED AN INTERNAL DIMENSION OF 90 INCHES. EVEN IF WE ACCEPT YOUR INTERPRETATION OF THE WORD "DIMENSION" IN THE IFB AS REFERRING TO THE TOTAL SPACE INSIDE THE EXTERNAL CHAMBER WALLS, AND NOT JUST THE USABLE SPACE, WE BELIEVE YOUR BID WAS STILL NONRESPONSIVE FOR FAILING TO INCLUDE FIGURES REPRESENTING THIS DIMENSION. IT WAS ONLY AFTER ASSUMING THE THICKNESS OF THE WALLS OF YOUR CHAMBER, AND AFTER OBTAINING CLARIFICATION ON THIS POINT, THAT THE CONTRACTING OFFICER WAS ABLE TO DETERMINE, AFTER BID OPENING, THAT YOUR BID COMPLIED WITH THIS DIMENSION. SUCH ACTION VIOLATED THE WELL SETTLED RULE THAT TO BE ACCEPTED A BID MUST BE RESPONSIVE ON ITS FACE AND THAT INFORMATION CANNOT BE PROVIDED AFTER OPENING TO CLEAR UP AN AMBIGUITY IN THE BID AND THUS RENDER IT RESPONSIVE. 38 COMP. GEN. 819 (1957); 50 ID. 8 (1970).

FURTHERMORE, WE ARE STILL OF THE VIEW THAT THE INVITATION REQUIRED 96 INCHES OF USABLE SPACE BETWEEN THE AIR HANDLERS. WE THINK THIS WAS MADE REASONABLY CLEAR BY THE SPECIFICATION WRITER AT A MEETING IN OUR OFFICE AT WHICH YOU WERE REPRESENTED. TO VIEW THE SPECIFICATIONS OTHERWISE WOULD ALLOW A SUPPLIER TO FURNISH A PLANT GROWTH CHAMBER WITH LIMITED USABLE SPACE, DEPENDING UPON THE WIDTH OF THE AIR HANDLERS SO LONG AS THE SPACE BETWEEN THE OUTER WALLS WAS AT LEAST 96 INCHES. SUCH AN INTERPRETATION IS CLEARLY UNREASONABLE, AND WE DO NOT BELIEVE IT IS THE INTERPRETATION INTENDED BY THE DRAFTER OF THE SPECIFICATIONS.

ALTHOUGH YOUR COMMENTS WITH RESPECT TO THE FLUORESCENT LIGHTING TEND TO SUPPORT YOUR INTERPRETATION OF THE SPECIFICATIONS, IT IS BY NO MEANS CLEAR THAT ADEQUATE LIGHTING CANNOT BE PROVIDED FOR A CHAMBER WITH A WIDTH OF 96 INCHES OF USABLE SPACE. THE PROTESTOR HAS POINTED OUT THAT "BY USING CHAMBER WALLS WITH A SPECULAR FINISH, AS WAS SPECIFIED ON THIS CONTRACT *** DROP-OFF IN INTENSITY NEXT TO CHAMBER WALLS IS MINIMAL AND *** PLANTS GROWN NEXT TO THE WALLS ARE EQUAL TO THOSE GROWN IN THE CENTER OF THE CHAMBER." AND THE DEPARTMENT OF AGRICULTURE, IN COMMENTING ON YOUR MARCH 3 LETTER, HAS STATED THAT PLANTS "COULD EXHIBIT DIFFERENT GROWTH RESULTS" AND THAT THE ENDS OF FLUORESCENT LAMPS ARE "USUALLY" SHIELDED. WITH RESPECT TO YOUR STATEMENT REGARDING THE ABSENCE OF "PLANT BED AREA" OR "WORK AREA" TERMINOLOGY IN THE SPECIFICATIONS, YOU RECOGNIZE THAT USE OF SUCH LANGUAGE IS ONLY "SOMETIMES THE CASE," AND WE DO NOT BELIEVE IT IS OF SIGNIFICANCE HERE.

FINALLY, YOU ASSERT THAT THE DIMENSIONS OF YOUR CHAMBER ARE SUCH THAT YOU ACTUALLY OFFER MORE USABLE SPACE THAN IS REQUIRED BY THE IFB. YOU CLAIM THAT THIS FACTOR, ALONG WITH YOUR LOW PRICE, INDICATES THAT ACCEPTANCE OF YOUR BID WOULD BE MOST ADVANTAGEOUS TO THE GOVERNMENT.

IT HAS LONG BEEN THE POSITION OF OUR OFFICE THAT THE STRICT MAINTENANCE OF THE COMPETITIVE BIDDING PROCEDURES REQUIRED BY LAW IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENT PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. 17 COMP. GEN. 554 (1938). IF IT IS ADMINISTRATIVELY DETERMINED THAT THE NEEDS OF THE GOVERNMENT WOULD BEST BE SERVED BY A GROWTH CHAMBER OF LESS THAN 96 INCHES IN WIDTH, THEN IT IS INCUMBENT UPON THE PROCURING AGENCY TO PROCURE THE ITEM UNDER PROPER SPECIFICATIONS REFLECTING THE MINIMUM NEEDS OF THE GOVERNMENT.

ALTHOUGH OUR EARLIER DECISION DIRECTED CANCELLATION OF THE CONTRACT, WE ARE ADVISING THE SECRETARY OF AGRICULTURE BY LETTER OF TODAY (COPY ENCLOSED) THAT FOR REASONS STATED THEREIN WE WOULD NOT OBJECT TO A TERMINATION FOR THE CONVENIENCE OF THE GOVERNMENT.

THEREFORE, OUR DECISION OF FEBRUARY 22, 1972, IS MODIFIED ACCORDINGLY.