B-166685, AUG. 8, 1969

B-166685, AUG. 8, 1969

BID PROTEST - SPECIFICATION DEVIATIONS DECISION REAFFIRMING DECISION OF JUNE 16, 1969, DENYING PROTEST OF KEWAUNEE SCIENTIFIC EQUIPMENT CO. AGAINST REJECTION BY NATIONAL AERONAUTICS AND SPACE ADMINISTRATION OF BID FOR PROCUREMENT OF GAS PURIFICATION SYSTEM AS NONRESPONSIVE. FACT THAT BID INDICATED AN AFFIRMATION OF INTENT TO COMPLY WITH SPECIFICATIONS BUT AT SAME TIME CONTAINED SPECIFIC DEVIATIONS SUCH DEFECTS CANNOT BE WAIVED TO PERMIT CONSIDERATION OF BID.

TO KEWAUNEE SCIENTIFIC EQUIPMENT:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 24, 1969, REQUESTING RECONSIDERATION OF OUR DECISION, DATED JUNE 16, 1969, DENYING YOUR PROTEST UNDER INVITATION FOR BIDS NO. C-365643, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), LEWIS RESEARCH CENTER, CLEVELAND, OHIO, FOR THE PROCUREMENT OF TWO GLOVE BOX AND GAS RECIRCULATION PURIFICATION SYSTEMS WITH RELATED MANUALS AND TEST REPORTS. ON JANUARY 23, 1969, BIDS WERE OPENED AND NOTED AS FOLLOWS:

NAME AMOUNT KEWAUNEE

SCIENTIFIC CORP. $12,640.00 DREW FABRICATORS

20,043.00 VACUUM/ATMOSPHERES

CORP. 22,024.00 STAINLESS EQUIPMENT CO. 41,152.00 FOLLOWING AN EVALUATION OF YOUR BID PROCURING PERSONNEL DETERMINED THAT YOUR OFFER WAS NONRESPONSIVE TO THE REQUIREMENT STATED IN SPECIFICATION F. (1.) (B.) OF THE IFB, QUOTED IN PERTINENT PART BELOW, SINCE YOU OFFERED A CIRCULATOR PUMP WITH A 3CFM CIRCULATION RATE: "F. (1.) (B.)

THE CIRCULATOR PUMP SHALL BE A POSITIVE DISPLACEMENT TYPE CAPABLE OF VARIABLE CIRCULATION RATES UP TO 40 CFM.' WE UPHELD THIS DETERMINATION IN OUR JUNE 24 DECISION.

ALTHOUGH YOU ASSERT THAT YOUR SYSTEM WILL ATTAIN THE PERFORMANCE LEVEL SPECIFIED IN SECTION F OF THE SPECIFICATION WITH A CIRCULATOR PUMP OF LESS THAN 40 CFM CAPACITY, THE DECISION WAS BASED UPON THE STATEMENT OF THE PROCURING ACTIVITY THAT THE ABOVE-QUOTED REQUIREMENT WAS IMPOSED BECAUSE MOISTURE REMOVAL IN THE MOLECULAR SIEVE BED REQUIRED A CIRCULATION RATE OF 20 TO 40 CFM. YOUR STATEMENT NEITHER DISPUTES THAT REQUIREMENT NOR EXPLAINS HOW IT COULD BE MET WITH THE PUMP OFFERED BY YOU. IT IS WELL ESTABLISHED THAT THE DETERMINATION OF THE GOVERNMENT'S MINIMUM NEEDS, AND THE SUBSEQUENT DETERMINATION OF WHETHER A GIVEN PRODUCT CONFORMS TO THE SPECIFICATIONS, ARE PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY. 17 COMP. GEN. 554. SINCE OUR OFFICE DOES NOT POSSESS AN ENGINEERING STAFF, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE PROCURING ACTIVITY IN THESE MATTERS, ABSENT SUFFICIENT EVIDENCE INTRODUCED BY A BIDDER TO SHOW THAT ITS CONCLUSION IS WITHOUT SUBSTANTIAL SUPPORT, WHICH HAS NOT BEEN SUBMITTED IN THE SUBJECT CASE. IF YOU WERE CERTAIN THAT SPECIFICATION F. (1.) (B.) OVERSTATED THE MINIMUM NEED OF THE GOVERNMENT, WE BELIEVE IT WAS YOUR DUTY TO REQUEST CONFIRMATION OR CLARIFICATION OF THIS POINT FROM THE PROCURING OFFICE BEFORE YOU SUBMITTED YOUR BID, IN ACCORD WITH SOLICITATION INSTRUCTIONS AND CONDITIONS NO. 3 OF THE IFB, QUOTED AS FOLLOWS: "3. EXPLANATION TO OFFERORS. ANY EXPLANATION DESIRED BY AN OFFEROR REGARDING THE MEANING OR INTERPRETATION OF THE SOLICITATION, DRAWINGS, SPECIFICATIONS, ETC., MUST BE REQUESTED IN WRITING AND WITH SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH OFFERORS BEFORE THE SUBMISSION OF THEIR OFFERS. ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING. ANY INFORMATION GIVEN TO A PROSPECTIVE OFFEROR CONCERNING A SOLICITATION WILL BE FURNISHED TO ALL PROSPECTIVE OFFERORS AS AN AMENDMENT OF THE SOLICITATION, IF SUCH INFORMATION IS NECESSARY TO OFFERORS IN SUBMITTING OFFERS ON THE SOLICITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED OFFERORS.' YOUR FAILURE TO REQUEST SUCH CONFIRMATION IN THE MANNER SET FORTH IN THE SOLICITATION PRECLUDES YOUR CONCERN FROM OBTAINING MODIFICATION OF SPECIFICATION F. (1.) (B.) BECAUSE SUCH ACTION WOULD BE UNFAIR TO THOSE CONCERNS WHICH BID IN STRICT CONFORMITY WITH THE REQUIREMENT.

YOU ALSO MAINTAIN THAT YOU INADVERTENTLY INCLUDED TERMS WHICH DIRECTLY CONFLICTED WITH VARIOUS STANDARD FORM PROVISIONS OF THE IFB, BUT URGE THAT SUCH DEFECT SHOULD BE WAIVED IN VIEW OF YOUR SIGNATURE ON THE IFB CONTAINING THE STANDARD CLAUSES. WE CANNOT ASSENT TO SUCH A VIEW, BECAUSE THE LETTER WHICH INCLUDED THE CONFLICTING TERMS ALSO CONTAINED YOUR SIGNATURE. WHEN A BID AT ONE AND THE SAME TIME INDICATES AN AFFIRMATION BY THE BIDDER OF HIS INTENT TO COMPLY WITH THE SPECIFICATIONS AND THEN STATES SPECIFIC DEVIATIONS FROM THOSE SPECIFICATIONS, THE BID MUST BE REGARDED AS AMBIGUOUS, AND THEREFORE CANNOT BE CONSIDERED FOR AWARD. 166284, MAY 21, 1969. EXTRANEOUS EXPLANATIONS SUBMITTED BY A BIDDER IN AN ATTEMPT TO RESOLVE SUCH AMBIGUITY AFTER BID OPENING ARE NOT ACCEPTABLE. 45 COMP. GEN. 221.

WITH RESPECT TO YOUR CONTENTION THAT THE HEAD OF THE ELECTROCHEMICALS FUNDAMENTALS SECTION OF THE ELECTROCHEMISTRY BRANCH OF THE LEWIS RESEARCH CENTER ERRONEOUSLY STATED THE PERFORMANCE CHARACTERISTICS OF THE HERMETICALLY SEALED POSITIVE DISPLACEMENT PUMP, INSTALLED AT THE CENTER, WE SEE NO BASIS ON WHICH WE COULD REJECT THE SPECIFIC STATEMENT THAT THE PARTICULAR PUMP HAS BEEN IN SERVICE FOR 4 YEARS, OR 30,000 HOURS OF OPERATION, WITHOUT LEAKAGE PROBLEMS, MERELY ON THE BASIS OF YOUR GENERAL STATEMENT THAT THERE IS NO SUCH THING AS A COMPLETELY LEAK PROOF PUMP OF THIS TYPE.

FOR THE REASONS SET FORTH ABOVE WE MUST REAFFIRM OUR DENIAL OF YOUR PROTEST.