B-174364, JAN 18, 1972

B-174364: Jan 18, 1972

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THE PROCUREMENT ACTIVITY'S DETERMINATION OF NONRESPONSIVENESS WAS CLEARLY JUSTIFIED. PROTESTANT'S CONTENTION THAT THE MCCARTHY BID WAS NONRESPONSIVE RESTS ON A TECHNICAL AMBIGUITY. THE QUOTED SENTENCE WAS INTENDED TO SATISFY THE REQUIREMENTS UNDER ITEM 1-I AND THE PROTEST IS ACCORDINGLY DENIED. THE IFB WAS ISSUED MAY 17. FIVE BIDS WERE RECEIVED AND OPENED ON JUNE 7. WERE REJECTED AS NONRESPONSIVE. AWARD IS PROPOSED TO THE NEXT LOW BIDDER. IT IS WELL RECOGNIZED THAT A BID MUST BE RESPONSIVE TO ALL OF THE MATERIAL REQUIREMENTS OF AN IFB AND A DEVIATION FROM ANY OF THESE REQUIREMENTS REQUIRES REJECTION OF A BID AS NONRESPONSIVE. CANNOT BE SUPPLIED UNTIL THE SYSTEM IS ENGINEERED TO SATISFY ON SITE CONDITIONS SUCH AS TERRAIN.

B-174364, JAN 18, 1972

BID PROTEST - NONRESPONSIVENESS DECISION DENYING A PROTEST BY CHESTER ELECTRONIC LABORATORIES, INC., AGAINST THE AWARD OF A CONTRACT TO MCCARTHY MANUFACTURING COMPANY, INC., UNDER AN IFB ISSUED BY THE BUREAU OF PROCUREMENT, DEPARTMENT OF GENERAL SERVICES, WASHINGTON, D.C. SINCE PROTESTANT'S OFFER DID NOT COMPLY WITH THE SPECIAL CONDITIONS REQUIRED BY ITEM 1-IV OF THE SOLICITATION, THE PROCUREMENT ACTIVITY'S DETERMINATION OF NONRESPONSIVENESS WAS CLEARLY JUSTIFIED. FURTHERMORE, PROTESTANT'S CONTENTION THAT THE MCCARTHY BID WAS NONRESPONSIVE RESTS ON A TECHNICAL AMBIGUITY. THE QUOTED SENTENCE WAS INTENDED TO SATISFY THE REQUIREMENTS UNDER ITEM 1-I AND THE PROTEST IS ACCORDINGLY DENIED.

TO CHESTER ELECTRONIC LABORATORIES, INC.:

WE REFER TO YOUR TELEGRAM OF OCTOBER 19, 1971, AND SUBSEQUENT CORRESPONDENCES, PROTESTING AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS (IFB) 58-510-1-0361-RB/1 ISSUED BY THE BUREAU OF PROCUREMENT, DEPARTMENT OF GENERAL SERVICES, DISTRICT OF COLUMBIA.

THE IFB WAS ISSUED MAY 17, 1971, CONTEMPLATING SEPARATE AWARDS FOR TWO DISTINCT SYSTEMS. ITEM 1, THE SUBJECT OF THIS PROTEST, ENCOMPASSED THE FURNISHING AND INSTALLATION OF A "SYSTEM, DIAL ACCESS LEARNING, COMPUTER," ON A "BRAND NAME OR EQUAL" BASIS. FIVE BIDS WERE RECEIVED AND OPENED ON JUNE 7, 1971. THE LOW BID OF VISUAL EDUCOM AND THE SECOND LOW BID OF CHESTER ELECTRONIC LABORATORIES, INC. (CHESTER), WERE REJECTED AS NONRESPONSIVE. AWARD IS PROPOSED TO THE NEXT LOW BIDDER, MCCARTHY MANUFACTURING COMPANY, INC. (MCCARTHY).

THE REPORT DATED NOVEMBER 19, 1971, FROM THE ACTING PROCUREMENT OFFICER, D.C., LISTS EIGHT REASONS FOR THE REJECTION OF THE CHESTER BID. HOWEVER, IT IS WELL RECOGNIZED THAT A BID MUST BE RESPONSIVE TO ALL OF THE MATERIAL REQUIREMENTS OF AN IFB AND A DEVIATION FROM ANY OF THESE REQUIREMENTS REQUIRES REJECTION OF A BID AS NONRESPONSIVE.

ITEM 1-IV SPECIFIED "TV FRONT END EQUIPMENT, BLONDER TONGUE LABORATORIES, INC., OR EQUAL". CHESTER SUBMITTED ITS BID AS "EQUAL", BUT DID NOT LIST THE EQUIPMENT IT PROPOSED TO UTILIZE TO MEET THE SPECIFICATIONS. BY WAY OF EXPLANATION, CHESTER WROTE ON SEPTEMBER 24, 1971, TO THE BUREAU OF PROCUREMENT:

" *** THE SYSTEM SHALL BE IN TOTAL COMPLIANCE TO THE TECHNICAL AND FUNCTIONAL SPECIFICATIONS *** ACTUAL EQUIPMENT DATA, MODEL NUMBERS, ETC., CANNOT BE SUPPLIED UNTIL THE SYSTEM IS ENGINEERED TO SATISFY ON SITE CONDITIONS SUCH AS TERRAIN, SIGNAL STRENGTH, COCHANNEL INTERFERENCE, AND ADJACENT CHANNEL SIGNALS."

WITH RESPECT TO ITEM 1-IV, THE ADMINISTRATIVE REPORT OF NOVEMBER 19, 1971, NOTES THAT SPECIAL CONDITIONS 4 CAUTIONS BIDDERS TO VISIT THE SITE OF THE PROPOSED WORK TO FAMILIARIZE THEMSELVES WITH THE EXTENT OF THE WORK.

FURTHER, SPECIAL CONDITIONS 16 STATES:

" *** THE EVALUATION OF BIDS AND THE DETERMINATION OF EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE DISTRICT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE BUREAU OF PROCUREMENT. CAUTION TO BIDDERS. THE BUREAU OF PROCUREMENT IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE BUREAU OF PROCUREMENT. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE BUREAU OF PROCUREMENT TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE DISTRICT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. *** "

CHESTER DID NOT COMPLY WITH THE SPECIAL CONDITIONS.

IN THE ABSENCE OF ANY INDICATION OF THE PROPOSED EQUIPMENT FOR ITEM 1 IV, THE BID WAS NONRESPONSIVE, AND THE PROCUREMENT ACTIVITY WAS PRECLUDED FROM MAKING A DETERMINATION OF EQUIVALENCY. FURTHER, REGARDING YOUR ASSERTION THAT THE SUBMISSION OF A SIGNED BID WITHOUT ANY EXCEPTIONS AND A PROMISE TO CONFORM TO THE REQUIREMENTS OF THE IFB ARE SUFFICIENT TO SHOW COMPLIANCE WITH THE SPECIFICATIONS, WE HAVE HELD THAT SUCH AN OFFER DOES NOT CONFORM TO THE DESCRIPTIVE LITERATURE REQUIREMENT OF THE BRAND NAME OR EQUAL CLAUSE (SPECIAL CONDITIONS 16). 50 COMP. GEN. 193, 201 (1970), AND CASES CITED THEREIN. IN VIEW OF THE FOREGOING, WE DEEM THE QUESTION OF RESPONSIVENESS OF THE OTHER AREAS OF YOUR BID ACADEMIC.

YOU ALSO CONTEND THAT THE MCCARTHY BID WAS NONRESPONSIVE TO THE REQUIREMENTS OF ITEM 1-I, DIAL ACCESS SWITCH GEAR. SPECIFICALLY YOU ALLEGE THE MCCARTHY DESCRIPTIVE LITERATURE DID NOT SATISFY THE REQUIREMENT FOR 152 PROGRAMS WITH 100 PERCENT TRUNKAGE. IN THAT REGARD, YOU MAINTAIN THAT THE FOLLOWING STATEMENT FOUND ON PAGE 2 OF THE MCCARTHY DESCRIPTIVE LITERATURE SUPPORTS YOUR CONTENTION THAT MCCARTHY HAS NOT OFFERED THE REQUISITE 152 PROGRAM CHANNEL:

"THIS SYSTEM SHALL BE CAPABLE OF BEING EXPANDED TO ITS ULTIMATE CAPACITY (IN INCREMENTS OF 152 PROGRAM CHANNELS OR 10 ACCESS POINTS) BY THE ADDITION OF THE PROPER COMBINATION OF BASIC MODULES."

YOU CONTEND THAT, ALTHOUGH THE BID OFFERED A SWITCHING MATRIX TO HANDLE 152 PROGRAMS, THE QUOTED STATEMENT INDICATES ONLY THAT THE EQUIPMENT CAN BE EXPANDED TO 152 PROGRAMS, NOT THAT IT WILL BE SUPPLIED IN THAT CAPACITY. HOWEVER, IT SEEMS EVIDENT THAT THE QUOTED SENTENCE WAS NOT DEALING WITH THE NUMBER OF PROGRAMS TO BE SUPPLIED IN THE BASIC SYSTEM, BUT RATHER WAS INTENDED TO SATISFY THE REQUIREMENT OF ITEM 1-I OF THE IFB FOR EXPANSION BEYOND THE MINIMUM 152 PROGRAM CHANNELS. THE DIAGRAMS INCLUDED IN THE DESCRIPTIVE LITERATURE SHOW THE MATRIX MCCARTHY CAN USE TO ACCOMPLISH THE MINIMUM PROGRAM.

IN VIEW OF THE ABOVE, YOUR PROTEST IS DENIED.