B-182006, JAN 28, 1975

B-182006, JAN 28, 1975

1. BID IGNORING ONE REQUIREMENT OF SPECIFICATION BECAUSE BIDDER FELT IT LESS IMPORTANT THAN, AND CONTRADICTORY TO, OTHER REQUIREMENTS WAS CORRECTLY FOUND NONRESPONSIVE; RISK THAT BID MIGHT BE FOUND NONRESPONSIVE DUE TO BIDDER'S INTERPRETATION OF ALLEGED AMBIGUITY WAS ASSUMED BY BIDDER IN ITS FAILURE TO REQUEST CLARIFICATION OF ALLEGED AMBIGUITY PRIOR TO BID OPENING. 2. WHERE BIDDER ALLEGES THAT NO ONE CAN FURNISH RECORDER WITH REQUIRED PRINT WHEEL AS RECORDER WILL NOT MEET CONTINUOUS RECORDING REQUIREMENT OF SPECIFICATION AND THAT, CONSEQUENTLY, CONTRACTOR'S OFFER OF RECORDER WITH PRINT WHEEL WAS NONRESPONSIVE, SINCE ALLEGED AMBIGUITY IN SPECIFICATION WAS APPARENT PRIOR TO BID OPENING ANY PROTEST ON THAT MATTER AFTER BID OPENING IS UNTIMELY AND NOT FOR CONSIDERATION. 3.WHERE BIDDER HAS BY ITS BID BOUND ITSELF TO MEET ALL REQUIREMENTS OF SPECIFICATION, FACT THAT STATEMENT MADE IN RESPONSE TO PROTEST MAY, ALTHOUGH WE DO NOT AGREE, POSSIBLY BE INCONSISTENT WITH SPECIFICATION IS OF NO IMPORT AS BIDDER HAS BOUND ITSELF TO COMPLY WITH SPECIFICATION IN PERFORMANCE OF CONTRACT.

RISE, INC.:

INVITATION FOR BIDS NO. DACW66-74-B-0096 WAS ISSUED BY THE CORPS OF ENGINEERS, MEMPHIS DISTRICT, FOR THE PROCUREMENT OF A DREDGE INSTRUMENTATION AND PRODUCTION METERING SYSTEM TO MEASURE, DISPLAY, AND RECORD THE FLOW VELOCITY AND DENSITY AND THE SOLIDS FLOW RATE IN THE DREDGE PIPE OF THE DUSTPAN DREDGE BURGESS. OF THE SEVEN BIDS RECEIVED, THE THREE LOWEST BIDS WERE DETERMINED TO BE NONRESPONSIVE TO THE SPECIFICATION, AND AWARD WAS MADE TO THE FOURTH LOW BIDDER, THE TEXAS NUCLEAR CORPORATION (TNC). RISE, INC., THE SECOND LOW BIDDER, PROTESTS THE REJECTION OF ITS BID AND THE AWARD TO TNC.

THE RISE PROTEST IS PRIMARILY BASED UPON THE CONTENTION THAT THE CONTRACTING ACTIVITY USED A RIGIDLY LITERAL INTERPRETATION OF ONE PORTION OF THE SPECIFICATION TO REJECT THE RISE BID, EVEN THOUGH WHAT IT OFFERED ACCOMPLISHED THE DESIRED FUNCTION, WHILE IT SIMULTANEOUSLY USED A VERY BROAD INTERPRETATION OF ANOTHER SPECIFICATION REQUIREMENT TO PERMIT THE ACCEPTANCE OF THE TNC BID. SPECIFICALLY, THE PROVISION ALLEGEDLY INTERPRETED TOO LITERALLY STATES AS FOLLOWS:

"D. RECORDER: *** THE RECORDER SHALL BE CAPABLE OF 3 (OR MULTIPLES THEREOF) INPUTS WITH 3 (OR 6) DISCRETE NUMBERS ON THE PRINT WHEEL SUCH THAT THE CHANNEL NUMBER WILL BE IDENTIFIED ON THE RECORDER CHART. ***"

IT IS NOTED THAT THIS IS THE ONLY REFERENCE TO "PRINT WHEEL" IN THE INVITATION, AND IT IS IMMEDIATELY FOLLOWED BY A DEPENDENT CLAUSE -" SUCH THAT THE CHANNEL NUMBER WILL BE IDENTIFIED ON THE RECORDER CHART" WHICH, IT IS FELT, PUTS THE ENTIRE THRUST OF THE SENTENCE INTO IDENTIFYING THE CHANNELS ON THE RECORDER CHART. THIS IS ACCOMPLISHED, RISE CONTENDS, BY ITS OFFERED ITEM THROUGH SEPARATION OF VARIABLES ON THE CHART AND THROUGH DIFFERENT INK RECORDS. IT IS CONSEQUENTLY FELT THAT THE RECORDER OFFERED BY RISE, UNDER A LITERAL INTERPRETATION OF "ALL" THE SPECIFICATION REQUIREMENTS, CLEARLY MEETS THE SPECIFICATION CLOSER THAN ANY OTHER TYPE OF RECORDER AVAILABLE. FURTHER, IT IS STATED, THIS RECORDER IS TOP QUALITY AND WAS AT THE TIME BID SLIGHTLY MORE EXPENSIVE THAN THE MULTI- POINT-TYPE RECORDER. IN VIEW OF THIS, IT IS ALSO FELT THAT THE PRICE AND QUALITY OF THE RISE-PROPOSED RECORDER DO NOT AFFECT THE SUBSTANCE OF THE BID.

IN THIS RESPECT, IT IS ALSO NOTED THAT MULTI-POINT RECORDERS ARE NOTORIOUS FOR OVERPRINTING CHANNELS OF DATA THEREBY MAKING IT IMPOSSIBLE TO READ THE PRINT WHEEL CHANNEL NUMBER OR IDENTIFY THE VARIABLE. IT WAS TO AVOID THIS THAT THE ZERO AND SPAN ADJUSTMENTS WERE SPECIFIED. THUS, IT IS CLAIMED, READIBILITY OF VARIABLE VALUES AND IDENTIFICATION ARE AN "ESSENTIAL REQUIREMENT" TO THE SYSTEM, NOT A POINT WHEEL.

THE INVITATION FURTHER PROVIDES IN THIS PARAGRAPH OF THE SPECIFICATION THAT:

"THE RECORDER WILL BE INSTALLED WITH THE INPUTS BRIDGED SO THAT THE THREE VARIABLES, I.E., VELOCITY, DENSITY, AND SOLIDS FLOW RATE, WILL BE CONTINUOUSLY RECORDED IN AN ENDLESS SEQUENCE. ***"

IT IS THE CONTENTION OF RISE THAT PRINT WHEEL OR MULTI-POINT CHART RECORDERS ARE NEVER OFFERED BY ANY MANUFACTURER AS ANYTHING OTHER THAN CYCLIC, PERIODIC TIME CYCLE PRINTING. NEVER ARE THEY OFFERED AS CONTINUOUS. THE FASTEST NORMAL CYCLE USUALLY CONSIDERED PRACTICABLE FOR CONTINUOUS DUTY IS, ALLEGEDLY, FIVE SECONDS. ON THE SIX CHANNEL RECORDER SPECIFIED, CONSEQUENTLY, THIS WOULD MEAN 30 SECONDS BEFORE THE SAME POINT IS REPRINTED. THIS, IT IS CONCLUDED, CAN IN NO MANNER BE CALLED CONTINUOUS AND MEANS, OF COURSE, THAT IF THE SPECIFICATION IS INTERPRETED LITERALLY, AS WAS DONE IN RISE'S CASE, NO BID COULD BE FOUND RESPONSIVE. CONSEQUENTLY, ONLY A BROAD INTERPRETATION OF THE REQUIREMENT MADE POSSIBLE THE ACCEPTANCE OF THE TNC BID.

FINALLY, TWO FURTHER POINTS REGARDING THE SUCCESSFUL BIDDER'S BID ARE NOTED. FIRST, MULTI-POINT RECORDERS, IT IS ALLEGED, USE A SINGLE MEASURING CIRCUIT COMMON TO ALL CHANNELS. SUCH A RECORDER, CONSEQUENTLY, DOES NOT PERMIT "PROVISIONS FOR ADJUSTING THE LOCATION OF A GIVEN VARIABLE ON THE CHART, AS WELL AS THE CHART SPAN OF ANY VARIABLE," AS REQUESTED IN THE SPECIFICATION. ANY ADJUSTMENT WILL CONSEQUENTLY AFFECT ALL CHANNELS EQUALLY. SECONDLY, THE SPECIFICATION PROVIDES THAT:

"THE ELECTRONIC EQUIPMENT INTERFACING THE RECORDER TO THE MASS FLOW MEASURING SYSTEM SHALL BE PROVIDED, EITHER WITHIN OR EXTERNAL TO THE RECORDER, WHICH SHALL CONTAIN PROVISIONS FOR ADJUSTING THE LOCATION OF A GIVEN VARIABLE ON THE CHART, AS WELL AS THE CHART SPAN OF ANY VARIABLE."

THE WORD "WHICH," IT IS CONTENDED, IS AN "ADJECTIVE" BEGINNING A DEPENDENT CLAUSE WHICH IN TURN REFERS TO THE NOUN IMMEDIATELY PRECEDING IT, I.E., "RECORDER." THE SUCCESSFUL BIDDER, HOWEVER, PROPOSES TO "INTEGRATE (THE) CIRCUITRY INTO THE SYSTEM" AND NOT INTO THE RECORDER AS REQUIRED BY THE SPECIFICATION. CONSEQUENTLY, THESE ARE FELT TO BE TWO OTHER INSTANCES WHERE THE SPECIFICATION REQUIREMENTS WERE LOOSELY CONSTRUED SO AS TO PERMIT ACCEPTANCE OF THE TNC BID.

WE ARE OF THE OPINION THAT THE RISE BID WAS PROPERLY REJECTED AS NONRESPONSIVE. THERE CAN BE NO ARGUMENT THAT THE SPECIFICATION CALLED FOR A RECORDER HAVING A PRINT WHEEL. THE FACT THAT THE PRINT WHEEL IS MENTIONED ONLY ONCE DOES NOT AFFECT SUCH A REQUIREMENT. UNDER THE PRESENT CIRCUMSTANCES, IF A BIDDER WERE TO BELIEVE THAT ITS RECORDER, WHICH HAD NO PRINT WHEEL, MORE CLEARLY MET THE SPECIFICATION THAN ANY OTHER TYPE OF RECORDER AVAILABLE, WE BELIEVE THAT IT WOULD BE INCUMBENT ON THAT BIDDER TO ADVISE THE CONTRACTING ACTIVITY OF ITS BELIEF SO THAT THE SPECIFICATION MIGHT BE REVISED AND THEREBY CLARIFIED SO AS TO INSURE THE PROCUREMENT OF AN ACCEPTABLE ITEM. FURTHER, WHERE A BIDDER CHOOSES TO IGNORE ONE REQUIREMENT OF A SPECIFICATION BECAUSE IT FEELS OTHER REQUIREMENTS TO BE MORE IMPORTANT, THAT BIDDER BY NOT REQUESTING A CLARIFICATION OF THE REQUIREMENTS HAS ASSUMED, WE BELIEVE, THE RISK THAT ITS BID MAY BE FOUND NONRESPONSIVE. B-176487, SEPTEMBER 28, 1972.

SECONDLY, WE CONSIDER THE ALLEGATIONS THAT AWARD COULD NOT PROPERLY BE MADE TO TNC. IT IS THE POSITION AND BELIEF OF THE CONTRACTING ACTIVITY THAT A PRINT WHEEL OR MULTI-POINT RECORDER HAS THE CAPABILITY TO RECORD CONTINUOUSLY IN AN ENDLESS CYCLE. WE MUST ACCEPT, AT LEAST, THE CONSEQUENCES OF SUCH A DETERMINATION. IT SEEMS APPARENT THAT THIS BELIEF WAS ORIGINALLY HELD BY THE ACTIVITY IN VIEW OF ITS REQUIRING BOTH A PRINT WHEEL AND THE CONTINUOUS RECORDING CAPABILITY. CONSEQUENTLY, AS NOTED BEFORE, IF THE CONTRADICTION IN REQUIREMENTS EXISTS AS RISE CONTENDS, THE CONTRADICTION WAS KNOWN BY RISE FROM THE OUTSET. TO ALLOW A BIDDER TO REMAIN SILENT ABOUT A POSSIBLE AMBIGUITY IN A SPECIFICATION UNTIL SUCH TIME AS BIDS HAVE BEEN DISCLOSED AND THEN TO ALLOW THE BIDDER TO ASSERT THE ALLEGED AMBIGUITY OR NOT TO ASSERT IT DEPENDING UPON THAT BIDDER'S STANDING VIS-A-VIS THE OTHER BIDDERS WOULD CREATE AN EXTREMELY UNDESIRABLE SITUATION. A PROTEST ON SUCH A MATTER COULD RAISE A QUESTION AS TO THE SINCERITY OF THE PROTEST; OPERATE AS A HINDRANCE TO THE PROCURING ACTIVITY IN OBTAINING URGENTLY NEEDED ITEMS; INCREASE THE ADMINISTRATIVE COSTS OF THE PROCUREMENT; AND COULD SERIOUSLY DETRACT FROM THE BENEFITS DERIVED BY THE GOVERNMENT FROM THE COMPETITION. CONSEQUENTLY, SINCE RISE COULD HAVE RAISED THE ISSUE PRIOR TO BID OPENING, BUT DID NOT DO SO, THIS PORTION OF THE PROTEST MUST BE CONSIDERED AS UNTIMELY RAISED AND NOT FOR CONSIDERATION. 4 C.F.R. 20.2(A) (1974) B-179519, DECEMBER 11, 1973; B- 174919, APRIL 17, 1972.

REGARDING THE CONTENTION THAT MULTI-POINT RECORDERS DO NOT PERMIT "ADJUSTING THE LOCATION OF A GIVEN VARIABLE ON THE CHART, AS WELL AS THE CHART SPAN OF ANY VARIABLE," WE NOTE THAT THE TNC BID DID NOT TAKE EXCEPTION TO THIS REQUIREMENT. CONSEQUENTLY, THE CONTRACTOR IS LEGALLY BOUND TO MEET THIS REQUIREMENT, AND, INDEED, HAS STATED THAT IT WILL.

THE CONTENTION THAT THE CONTRACTOR WILL PROVIDE AN ITEM WHOSE ELECTRONIC EQUIPMENT WILL NOT PROPERLY INTERFACE THE RECORDER TO THE MASS FLOW MEASURING SYSTEM IS ALSO WITHOUT MERIT. WHILE THE LANGUAGE OF THE ABOVE- QUOTED REQUIREMENT MAY NOT BE A MODEL OF CLARITY, WE BELIEVE THAT THE WORD "WHICH" REFERS BACK TO "ELECTRONIC EQUIPMENT." IN ANY EVENT, THE STATEMENT OF TEXAS NUCLEAR WITH WHICH RISE TAKES ISSUE IS NOT A PART OF THE CONTRACT UNDER WHICH TEXAS NUCLEAR IS BOUND TO PERFORM, BUT IS RATHER PART OF A STATEMENT SUBMITTED IN RESPONSE TO THE RISE PROTEST. AS TEXAS NUCLEAR TOOK NO EXCEPTION TO THIS PORTION OF THE SPECIFICATION IN ITS BID, THE CONTRACTING ACTIVITY SHOULD BE ABLE TO ENFORCE A STRICT COMPLIANCE WITH SPECIFICATION REQUIREMENTS.

FOR THE ABOVE REASONS, THE PROTEST IS DENIED.