B-174019, MAR 17, 1972

B-174019: Mar 17, 1972

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COMPLIANCE WITH THE PURPOSE RATHER THAN THE LITERAL LANGUAGE OF AN IFB REQUIREMENT IS NOT NECESSARILY PREJUDICIAL TO CONSIDERATION OF A BID FOR AWARD. 39 COMP. IS REQUIRED TO RELY ON THE OPINION OF THE PROCURING ACTIVITY. PETTIT & EVERS: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 22. WAS NOT BASED ON THE ACCEPTANCE OF THE APPLICABILITY OF THE SCALING CONVENTION AS A SUBSTITUTE FOR SUPPLYING IMPEDANCE DATA ON EACH MODEL ANTENNA OFFERED AS REQUIRED BY THE IFB. SINCE THE COAST GUARD ENGINEERING SUPPORT PERSONNEL WERE NOT ABLE TO SUPPLY ANY FIGURES FOR THE ANTENNAS THEMSELVES (BECAUSE NO FIGURES WERE PROVIDED BY THE TCI BID PACKAGE). WE ALSO CONCLUDED THAT YOU HAD NOT OVERCOME THE COAST GUARD'S ASSURANCES THAT THERE WAS SUFFICIENT DATA IN THE LOW BID TO SATISFACTORILY VERIFY THE ANTENNA'S COMPLIANCE WITH THE IFB SPECIFICATIONS THROUGH AN INTERPOLATIVE PROCESS.

B-174019, MAR 17, 1972

BID PROTEST - RESPONSIVENESS - LITERAL COMPLIANCE WITH THE SPECIFICATIONS - DISPUTED TECHNICAL OPINIONS DECISION SUSTAINING PRIOR DENIAL OF A PROTEST OF GRANGER ASSOCIATES AGAINST AWARD OF A CONTRACT TO TCI UNDER AN IFB ISSUED BY THE COAST GUARD. COMPLIANCE WITH THE PURPOSE RATHER THAN THE LITERAL LANGUAGE OF AN IFB REQUIREMENT IS NOT NECESSARILY PREJUDICIAL TO CONSIDERATION OF A BID FOR AWARD. 39 COMP. GEN. 595, 597 (1960). FURTHER, PROTESTANT HAS FAILED TO OVERCOME THE COAST GUARD'S ASSURANCES THAT THE ANTENNA'S COMPLIANCE WITH THE SPECIFICATIONS COULD BE SATISFACTORILY VERIFIED THROUGH AN INTERPOLATIVE PROCESS. TCI DID FAIL TO SUPPLY IMPEDANCE DATA, BUT IT SHOULD NOT BE PENALIZED FOR HAVING RELIED ON THE GOVERNMENT'S WRITTEN ASSURANCES. WITH REGARD TO THE REMAINDER OF GRANGER'S CONTENTIONS, WHERE A TECHNICAL DISPUTE EXISTS THE COMP. GEN. IS REQUIRED TO RELY ON THE OPINION OF THE PROCURING ACTIVITY. ACCORDINGLY, THE PRIOR DENIAL MUST BE AFFIRMED.

TO MILLER, GROEZINGER, PETTIT & EVERS:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 22, 1971, AND SUBSEQUENT COMMUNICATIONS, ON BEHALF OF GRANGER ASSOCIATES, REQUESTING RECONSIDERATION OF OUR DECISION OF DECEMBER 15, 1971, WHICH CONCLUDED THAT WE COULD FIND NO LEGAL OBJECTION TO THE AWARD MADE UNDER INVITATION FOR BIDS NO. CG-14175-A, ISSUED BY THE UNITED STATES COAST GUARD.

YOU CONTEND THAT THE RECORD CONTRADICTS OUR CONCLUSION THAT TCI FURNISHED SUFFICIENT IMPEDANCE AND PATTERN DATA TO PERMIT EVALUATION OF THE OV5 ANTENNA, AND SPECIFICALLY THAT "SCALING" COULD NOT BE PROPERLY ACCOMPLISHED. IN THIS REGARD, OUR DECISION OF DECEMBER 15, 1971, WAS NOT BASED ON THE ACCEPTANCE OF THE APPLICABILITY OF THE SCALING CONVENTION AS A SUBSTITUTE FOR SUPPLYING IMPEDANCE DATA ON EACH MODEL ANTENNA OFFERED AS REQUIRED BY THE IFB. TO THE CONTRARY, SINCE THE COAST GUARD ENGINEERING SUPPORT PERSONNEL WERE NOT ABLE TO SUPPLY ANY FIGURES FOR THE ANTENNAS THEMSELVES (BECAUSE NO FIGURES WERE PROVIDED BY THE TCI BID PACKAGE), WE CONCLUDED THAT THERE HAD NOT BEEN LITERAL COMPLIANCE WITH THE CITED IFB REQUIREMENT. HOWEVER, WE ALSO CONCLUDED THAT YOU HAD NOT OVERCOME THE COAST GUARD'S ASSURANCES THAT THERE WAS SUFFICIENT DATA IN THE LOW BID TO SATISFACTORILY VERIFY THE ANTENNA'S COMPLIANCE WITH THE IFB SPECIFICATIONS THROUGH AN INTERPOLATIVE PROCESS. WE ARE NOT ABLE TO DISAGREE. IT IS WELL ESTABLISHED THAT THE FACTUAL DETERMINATION WHETHER ITEMS OFFERED MEET THE APPLICABLE SPECIFICATIONS IS PROPERLY THE FUNCTION OF THE PROCURING AGENCY AND NOT SUBJECT TO QUESTION BY OUR OFFICE UNLESS THE AGENCY HAS ACTED ARBITRARILY. 17 COMP. GEN. 554 (1938). FURTHER, IT IS OUR POSITION THAT IF THE PURPOSE OF THE DATA IS REASONABLY CLEAR AND APPEARS TO BE SUBSTANTIALLY MET BY THE MATERIAL SUBMITTED WITH THE BID, FAILURE TO CONFORM TO THE LITERAL LANGUAGE OF THE IFB REQUIREMENT IS NOT PREJUDICIAL TO THE CONSIDERATION OF THE BID FOR AWARD. 39 COMP. GEN. 595, 597 (1960).

YOUR SECOND CONTENTION CONCERNS TCI'S FAILURE TO SUPPLY IMPEDANCE DATA FOR THE OV1 MF ANTENNA. YOU STATE THAT OUR "DECISION FAILS TO DECIDE WHETHER IN FACT THE IFB REQUIRED THE SUBMISSION OF SUCH DATA FOR THE OV1 MF ANTENNA ... ." HOWEVER, THE PERTINENT QUESTION WITH REGARD TO TCI'S FAILURE TO SUPPLY THE IMPEDANCE DATA FOR THE OV1 MF ANTENNA IS WHETHER IT WAS PROPER FOR TCI TO RELY ON THE WRITTEN ASSURANCES FROM THE PROCURING AGENCY BEFORE BID OPENING THAT THE DATA IN QUESTION WAS NOT REQUIRED. RELIANCE UNDER THESE CIRCUMSTANCES APPEARS REASONABLE. IN ANY EVENT, SUCH RELIANCE SHOULD NOT BE USED AS A TRAP TO ELIMINATE A LOW BIDDER. SINCE WE NOTED THAT GRANGER ASSOCIATES WERE NOT ADVISED OF THE INTERPRETATION PLACED ON THIS REQUIREMENT BY THE COAST GUARD, WE NOTIFIED THE COAST GUARD TO INSTITUTE A PROCEDURE TO ASSURE COMPLIANCE WITH FEDERAL PROCUREMENT REGULATIONS 1-2.207(D) IN FUTURE PROCUREMENTS.

YOUR THIRD CONTENTION DEALS WITH WHETHER THE REQUIREMENT FOR THE SUBMISSION OF IMPEDANCE DATA FOR THE BALUN OR MATCHING DEVICE FOR EACH ANTENNA WAS MET AND WHETHER TCI'S BID DATA DEMONSTRATED NORMALIZATION TO THE 50 OHM REQUIREMENT. THE COAST GUARD ENGINEERS WERE ABLE TO EVALUATE WHAT WAS SUBMITTED AS COMPLYING WITH THE DATA REQUIREMENT. ALTHOUGH GRANGER ASSOCIATES AND THE COAST GUARD ENGINEERS DISAGREE AS TO THE QUANTUM OF DATA NEEDED FOR VERIFICATION AND PROOF OF DESIGN, THE AGENCY INTERPRETATION APPEARS REASONABLE. HAVING REGARD FOR THE RANGE OF DISCRETION VESTED IN THE CONTRACTING OFFICER IN DECIDING THE SUFFICIENCY OF INFORMATION REQUIRED FOR DESIGN EVALUATION PURPOSES, WE CAN FIND NO LEGAL BASIS FOR REJECTING THE CONCLUSION OF COAST GUARD IN THIS SITUATION.

FINALLY, YOU CONTEND THAT TCI'S FAILURE TO STATE THE NUMBER OF INSULATORS TO BE PROVIDED IS MATERIAL IN LIGHT OF THE IFB REQUIREMENT THAT WIND LOADING ON INSULATORS BE TAKEN INTO ACCOUNT. THE REQUIREMENT TO TAKE INTO ACCOUNT WIND LOADING ON INSULATORS DOES NOT NECESSARILY DICTATE THE READING-IN OF A REQUIREMENT TO SHOW THE NUMBER OF INSULATORS TO BE PROVIDED. THE CONTENTION HINGES ON THE SIGNIFICANCE OF THE AREA OCCUPIED BY THE INSULATORS AND THEIR RESULTANT WIND LOAD EFFECT. IN THIS REGARD THE CONTRACTING OFFICER HAS RESPONDED AS FOLLOWS:

"IT IS STANDARD PRACTICE TO EXCLUDE INSIGNIFICANT FACTORS IN EVALUATION. THE DESIGN AND DATA SUBMITTED BY TCI INDICATED TECHNICAL EXPERTISE AND EFFICIENCY AND DID NOT REFLECT ANY DEPARTURES FROM ANTENNA DESIGN THAT WOULD REQUIRE A LARGER THAN NORMAL NUMBER OF INSULATORS. THEREFORE, THE WIND LOADING OF THE INSULATORS WOULD BE INSIGNIFICANT AND THERE WAS NO NEED FOR TCI TO SPECIFY THE NUMBER OF INSULATORS."

GRANGER HAS SUBMITTED THE FOLLOWING REBUTTAL:

"IT IS AGREED THAT IT IS STANDARD PRACTICE TO EXCLUDE INSIGNIFICANT FACTORS IN EVALUATION. HOWEVER, IN VIEW OF THE COAST GUARDS' EXPLICIT STATEMENT THAT INSULATORS BE INCLUDED AS A PART OF THE STRUCTURE SUBJECT TO WIND (PARAGRAPH 3.2.1 OF COAST GUARD SPECIFICATIONS), WHICH SHOWS THAT IT WAS CONSIDERED A SIGNIFICANT FACTOR IN THE PROCUREMENTS, IT IS OBVIOUSLY NECESSARY THAT TCI HAVE SHOWN THAT THEIR EFFECT WAS INSIGNIFICANT.

"GRANGER ASSOCIATES DOES NOT ACCEPT THE CONTENTION THAT THE WIND LOAD EFFECT OF THE GUY INSULATORS IS INSIGNIFICANT. IN SOME CASES, FOR THE VERTICALLY POLARIZED OMNI-DIRECTIONAL ANTENNAS (OV1, ETC) THE INSULATORS CONTRIBUTE APPROXIMATELY 20 PERCENT OF THE TOTAL EXPOSED EFFECTIVE DIAMETER OF A PARTICULAR GUY. (SEE SHEET 14 OF APPENDIXS C 3, C-4 AND C-5 OF GRANGER ASSOCIATES DATA SUBMITTED)."

IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY, WE MUST RELY ON THE TECHNICAL OPINION OF THE PROCURING ACTIVITY IN THE RESOLUTION OF THIS DISPUTE OVER THE SIGNIFICANCE OF THE INSULATORS.

ACCORDINGLY, OUR DECISION OF DECEMBER 15, 1971, IS SUSTAINED.