B-155026, NOV. 6, 1964

B-155026, NOV. 6, 1964

TO THE HONORABLE, THE SECRETARY OF THE NAVY:

WE HAVE RECEIVED A LETTER DATED OCTOBER 6, 1964, SIGNED BY THE ACTING ASSISTANT CHIEF FOR PURCHASING OF THE BUREAU OF SUPPLIES AND ACCOUNTS, FORWARDING A REPORT ON THE PROTEST OF CRYO-SONICS, INCORPORATED, AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. 600-946-64 ISSUED BY THE UNITED STATES NAVY PURCHASING OFFICE ON MAY 18, 1964. THE PROCUREMENT, A SMALL BUSINESS SET-ASIDE, COVERS FORTY-ONE LIQUID NITROGEN RECHARGING SYSTEMS, PRIMARILY SKID MOUNTED, TO BE MANUFACTURED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-R-23746/WEP), AS MODIFIED. THE IDENTICAL ITEM IS NOW BEING PURCHASED FROM THE PROTESTANT UNDER CONTRACT NO. N 600-/19/61328.

IN A PROVISION ENTITLED "REQUIREMENT FOR DESCRIPTIVE LITERATURE" THE INVITATION STATES "FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS * * * WILL REQUIRE REJECTION OF THE BID.'

WHEN BIDS WERE OPENED ON JUNE 24, 1964, THE THREE LOWEST BIDS WERE DETERMINED TO BE:

CRYO-SONICS, INCORPORATED $ 190,514.96

HELIUM CORPORATION OF AMERICA 215,230.00

THE COSMODYNE CORPORATION 233,390.00

ON JUNE 29, 1964, THE BIDS WERE FORWARDED TO THE BUREAU OF NAVAL WEAPONS FOR TECHNICAL EVALUATION. BY LETTERS DATED JULY 6TH AND 10TH, 1964, THE COSMODYNE CORPORATION QUESTIONED THE RESPONSIVENESS OF THE TWO LOWER BIDS. THE BUREAU, IN AN ENDORSEMENT DATED JULY 29, 1964, TO THE NAVY PURCHASING OFFICE, DETERMINED THAT BOTH BIDS WERE INDEED NONRESPONSIVE BECAUSE OF CERTAIN TECHNICAL DEFECTS IN THE DESCRIPTIVE MATERIALS. THIS PROTEST FOLLOWED NOTIFICATION TO THE LOWEST BIDDER. IN A LETTER FROM THE BUREAU OF NAVAL WEAPONS TO THE NAVY PURCHASING OFFICE, DATED SEPTEMBER 4, 1964, THIS POSITION WAS OVERRULED AND THE CRYO-SONICS BID WAS HELD TO BE RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION.

THE ISSUE PRESENTED IS WHETHER OR NOT ANY OR ALL THE FOLLOWING DEVIATIONS OF THE CRYO-SONICS BID FROM THE TECHNICAL REQUIREMENTS OF THE SPECIFICATIONS CONSTITUTE SUCH MATERIAL VARIANCES AS TO RENDER THE BID NONRESPONSIVE AND UNACCEPTABLE:

(1) DRAWING (SCHEMATIC) NO. 106322 DOES NOT CONFORM TO PARAGRAPH 3.7.4.1 OF THE SPECIFICATION WHICH REQUIRES THE ELECTRIC POWER SUPPLY TO BE CONVERTIBLE TO 220 VOLTS A.C. "3-PHASE" IN THAT THE SYSTEM PORTRAYED ON THE DRAWING IS CONVERTIBLE TO 220 VOLTS A.C.'SINGLE PHASE.'

(2)THE DISCHARGE RELIEF VALVE REQUIRED BY PARAGRAPH 3.9.7 TO BE LOCATED ABOVE THE CHECK VALVE IS PLACED BY CRYO-SONICS DOWNSTREAM OF THE CHECK VALVE IN THE VAPORIZER DISCHARGE LINE.

(3) A CRYO-SONICS DRAWING INDICATING OUTER DIMENSIONS OF THE UNIT SHOWS A SPECIFIED HEIGHT OF 40 1/8 INCHES WHEREAS THE SPECIFICATION STIPULATES A HEIGHT DIMENSION OF 40 INCHES.

IT IS A WELL ESTABLISHED RULE THAT PUBLIC OFFICERS MAY NOT ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH ADVERTISED SPECIFICATIONS. 43 COMP. GEN. 209; 34 IBID. 82. WERE THE SPECIFICATIONS IN THE INVITATION FOR BIDS TO VARY MATERIALLY FROM THE CONTRACT ULTIMATELY AWARDED, THE RESULTING AGREEMENT WOULD BE, IN EFFECT, AN AWARD CONSUMMATED WITHOUT COMPETITIVE BIDDING AND THEREFORE INVALID. PRESTEX INCORPORATED V. UNITED STATES, 320 F.2D 367 (1963).

FURTHERMORE A NONRESPONSIVE BID MAY NOT BE CORRECTED AFTER BID OPENING IN ORDER TO MAKE THE BID RESPONSIVE. 40 COMP. GEN. 132; 38 IBID. 819. THE ALLOWANCE OF CORRECTION AFTER OPENING IN ORDER TO MAKE A BID RESPONSIVE WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF AN ENTIRELY NEW BID AND WOULD BE DETRIMENTAL TO THE COMPETITIVE BIDDING PROCESS.

A BIDDER'S FAILURE TO COMPLY WITH A PROPERLY PHRASED INVITATION PROVISION CALLING FOR THE SUBMISSION OF DESCRIPTIVE LITERATURE MUST OFTEN BE REGARDED AS A MATERIAL DEPARTURE FROM THE REQUIREMENTS OF THE INVITATION WHICH NECESSITATES THE REJECTION OF THE BID AS NONRESPONSIVE. 40 COMP. GEN. 132; 38 IBID. 59; 36 IBID. 415.

BUT WE DO NOT BELIEVE ANY OF THE ENUMERATED DISCREPANCIES BETWEEN THE DESCRIPTIVE MATERIALS SUBMITTED BY CRYO-SONICS AND APPLICABLE SPECIFICATIONS NEED BE VIEWED AS RENDERING THE BID DEFECTIVE. WHERE THE ONLY FAIR IMPLICATION TO BE DRAWN FROM A BIDDER'S DESCRIPTIVE DATA IS AN INTENTION TO COMPLY WITH CERTAIN SPECIFIC DETAILS OF THE SPECIFICATION'S REQUIREMENTS, THE PRESENCE OF CONFLICTING AND CONTRADICTORY BITS OF INFORMATION WITH RESPECT TO THESE SAME DETAILS WILL NOT VITIATE THE BID. CF. 39 COMP. GEN. 595, 598.

THE FIRST VARIANCE LISTED ABOVE IS AN EXAMPLE OF THE APPLICATION OF THIS RULE. THE RECORD SHOWS THE OPINION OF TECHNICAL PERSONNEL OF THE BUREAU OF NAVAL WEAPONS TO BE THAT A PERSON REASONABLY SKILLED IN THE RELEVANT TECHNOLOGY WOULD DEDUCE FROM THE DRAWING AS SUBMITTED, AND FROM THE COMPONENT CONFIGURATION SHOWN THEREON, THE BIDDER'S INTENTION TO SUPPLY AN ELECTRICAL SYSTEM CONVERTIBLE TO 200 VOLTS A.C. "3 PHASE.' THE OPINION IS EXPRESSED THAT THE "SINGLE PHASE" DESCRIPTION IS TECHNICALLY INCONSISTENT WITH THE CONTEXT OF THE DRAWING. IN SUBSCRIBING TO THIS CONCLUSION WE NEED NOT EVEN CONSIDER PROTESTANT'S CHARACTERIZATION OF THE DESCRIPTION AS A DRAFTSMAN'S ERROR INADVERTENTLY COMMITTED BY A FORMER EMPLOYEE OF THE BIDDER OR THAT THE MOTOR PRESENTLY BEING FURNISHED BY CRYO-SONICS, INCORPORATED, UNDER ITS EXISTING CONTRACT FOR THE SAME EQUIPMENT IS OF A 220 VOLT, 3 PHASE TYPE. TO FURTHER SUPPORT THE INFERENCE OF THE BIDDER'S TRUE INTENT IT IS REPORTED THAT A SIMPLE PHASE MOTOR WOULD COST CONSIDERABLY MORE THAN THE 3-PHASE MOTOR REQUIRED BY PARAGRAPH 3.7.4.1.

WITH RESPECT TO THE SECOND ENUMERATED DEVIATION, IT IS NOW THE OPINION OF YOUR TECHNICAL PERSONNEL THAT THE PRESENCE OF A RELIEF DEVICE SOMEWHERE IN THE DISCHARGE LINE IS AN ESSENTIAL REQUIREMENT OF THE SPECIFICATIONS BUT THAT IT DOES NOT MATTER WHETHER THE VALVE IS PLACED ON ONE SIDE OF THE CHECK VALVE OR THE OTHER FROM THE STANDPOINTS OF SAFETY, COST, OR PERFORMANCE.

AS REGARDS THE THIRD DEVIATION WE UNDERSTAND THE POSITION OF YOUR DEPARTMENT TO BE THAT A HEIGHT OF 40 1/8 INCHES IS WITHIN NORMAL DIMENSIONAL MANUFACTURING TOLERANCES FOR THE KIND OF EQUIPMENT BEING PROCURED. FURTHERMORE, IT APPEARS PROTESTANT'S PRODUCT MAY ACTUALLY MEASURE 40 INCHES IN HEIGHT SINCE AN AFFIDAVIT IS SUBMITTED TO SHOW THE 40 1/8 INCH FIGURE WAS INSCRIBED ON THE DRAWING ONLY AFTER ONE OF BIDDER'S EMPLOYEES INFORMALLY PUT A MEASURING DEVICE TO A PROTOTYPE INTENDED FOR DELIVERY UNDER THE EARLIER CONTRACT LOCATED IN BIDDER'S PLACE OF BUSINESS AND MERELY MADE A ROUGH ESTIMATE OF THE RESULT WITHOUT REALIZING THE CONSEQUENCES OF HIS ACT.

WE ARE INFORMED BY YOUR DEPARTMENT THAT OTHER DEVIATIONS ALLEGED BY COSMODYNE TO EXIST IN CRYO-SONICS' BID ARE CONSIDERED EITHER NOT TO BE DEVIATIONS OR TO BE OF EVEN LESS MATERIALITY THAN THOSE DISCUSSED ABOVE. WE HAVE NO REASON TO DISAGREE WITH THESE CONCLUSIONS.

DEVIATIONS FROM THE TERMS OF A SPECIFICATION WHICH HAVE NO MORE THAN A NEGLIGIBLE EFFECT UPON THE PRICE, QUALITY, QUANTITY, OR DELIVERY SCHEDULE OF THE ITEM BEING PROCURED MAY BE WAIVED BY THE CONTRACTING OFFICER. COMP. GEN. 763, 765; 30 COMP. GEN. 179. COMPARE ARMED SERVICES PROCUREMENT REGULATION 1-1206.4/A) WHICH ENJOINS THAT BIDS SHALL NOT BE REJECTED BECAUSE OF MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE.

BY THE VIEW WE TAKE OF THIS PROTEST THE FIRST ENUMERATED VARIANCE NEED NOT BE REGARDED AS A DEVIATION AT ALL WHILE THE SECOND AND THIRD DEVIATIONS DO NOT GO TO THE SUBSTANCE OF THE INVITATION.

WE, THEREFORE, PERCEIVE NO LEGAL OBSTACLE TO THE ACCEPTANCE OF THE CRYO- SONICS BID AS SUBMITTED. THE ATTACHMENTS TO THE STATEMENT OF FACTS ARE RETURNED HEREWITH.