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B-155034, NOVEMBER 24, 1964, 44 COMP. GEN. 302

B-155034 Nov 24, 1964
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CONTRARY TO THE NONRESTRICTIVE CLAUSE FULL AND FREE COMPETITION CONSISTENT WITH THE NEEDS OF THE GOVERNMENT REQUIRED BY 41 U.S.C. 253 (A) WAS PRECLUDED. A BID OFFERING IN ERROR TO SUPPLY FOR A PERIOD OF 1 YEAR SPARE REPAIR PARTS FOR EQUIPMENT REQUIRED TO BE IN CONTINUOUS OPERATION RATHER THAN THE MINIMUM 5 YEARS SPECIFIED BY THE INVITATION IS A NONRESPONSIVE BID AND THE ERROR MAY NOT BE CORRECTED TO MAKE THE BID RESPONSIVE. 1964: REFERENCE IS MADE TO THE LETTERS OF SEPTEMBER 14. THE IFB WAS ISSUED ON MAY 25. BIDS WERE OPENED AS SCHEDULED. WERE AS FOLLOWS: TABLE ANS. 584 AWARD FOR ITEM 30 WAS MADE TO ANS. FORMAL PROTEST AGAINST AWARD TO ANS WAS MADE BY PACKARD TO THE CONTRACTING OFFICER BY LETTER DATED JULY 20.

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B-155034, NOVEMBER 24, 1964, 44 COMP. GEN. 302

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - SPECIAL DESIGN FEATURES. CONTRACTS - MISTAKES - CORRECTION - NONRESPONSIVE BID WHEN AN INVITATION CONTAINS A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION, NOT INTENDED TO BE RESTRICTIVE, THAT GOES BEYOND THE MAKE AND MODEL OF THE BRAND NAME AND SPECIFIES PARTICULAR DESIGN FEATURES LATER DETERMINED TO BE NONESSENTIAL, THE EQUIPMENT OFFERED BY THE LOW BIDDER THAT DOES NOT CONFORM TO THE SPECIAL DESIGN FEATURES OF THE SPECIFICATIONS, EVEN THOUGH ELIMINATED, DOES NOT MEET THE EQUAL IN "ALL MATERIAL RESPECTS" REQUIREMENT OF FEDERAL PROCUREMENT REGULATION 1 1.307.7 (A), AND CONTRARY TO THE NONRESTRICTIVE CLAUSE FULL AND FREE COMPETITION CONSISTENT WITH THE NEEDS OF THE GOVERNMENT REQUIRED BY 41 U.S.C. 253 (A) WAS PRECLUDED; THEREFORE, THE AWARD SHOULD BE CANCELED, AND IN READVERTISING THE PROCUREMENT THE SPECIFICATIONS SHOULD ACCURATELY REFLECT THE ACTUAL NEEDS OF THE GOVERNMENT TO PERMIT FULL AND FREE COMPETITION BY ALL BIDDERS. A BID OFFERING IN ERROR TO SUPPLY FOR A PERIOD OF 1 YEAR SPARE REPAIR PARTS FOR EQUIPMENT REQUIRED TO BE IN CONTINUOUS OPERATION RATHER THAN THE MINIMUM 5 YEARS SPECIFIED BY THE INVITATION IS A NONRESPONSIVE BID AND THE ERROR MAY NOT BE CORRECTED TO MAKE THE BID RESPONSIVE, AND NEITHER MAY THE DEVIATION BE WAIVED AS A MINOR INFORMALITY OR IRREGULARITY, THE CONTINUOUS USE OF THE EQUIPMENT MAKING COMPLIANCE WITH THE 5-YEAR PROVISION TO FURNISH SPARE PARTS AN ESSENTIAL ELEMENT OF THE BID AND A MATERIAL REQUIREMENT IN DETERMINING THE RESPONSIVENESS OF THE BID.

TO THE ADMINISTRATOR OF VETERANS AFFAIRS, VETERANS ADMINISTRATION, NOVEMBER 24, 1964:

REFERENCE IS MADE TO THE LETTERS OF SEPTEMBER 14, 1964, AND OCTOBER 9, 1964, AND ENCLOSURES, FROM THE DIRECTOR, SUPPLY SERVICE, IN RESPONSE TO OUR REQUEST FOR A REPORT CONCERNING THE PROTEST OF PACKARD INSTRUMENT COMPANY, INC., AGAINST AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. 64-39 ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, BEDFORD, MASSACHUSETTS.

THE IFB WAS ISSUED ON MAY 25, 1964, WITH AN OPENING DATE OF JUNE 19, 1964. BIDS WERE OPENED AS SCHEDULED, AND THE THREE BIDS RECEIVED ON ITEM 30, A LIQUID SCINTILLATION SPECTROMETER, WERE AS FOLLOWS:

TABLE

ANS, INC. $12,470

NUCLEAR-CHICAGO CORPORATION 12,508

PACKARD INSTRUMENT COMPANY, INC. 12,584

AWARD FOR ITEM 30 WAS MADE TO ANS, INC., ON JULY 2, 1964. FORMAL PROTEST AGAINST AWARD TO ANS WAS MADE BY PACKARD TO THE CONTRACTING OFFICER BY LETTER DATED JULY 20, 1964, WHEREIN IT WAS STATED THAT THE EQUIPMENT OFFERED BY ANS DID NOT MEET THE SPECIFICATIONS REQUIRED BY THE BID. AS A RESULT OF PACKARD'S PROTEST, ANS HAS BEEN INSTRUCTED NOT TO DELIVER THE EQUIPMENT PENDING OUR DECISION.

PURSUANT TO PARAGRAPH 1-1.307-4 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), ITEM 30 WAS DESCRIBED IN THE INVITATION AS FOLLOWS:

TRICARB LIQUID SCINTILLATION SPECTROMETER, 2 CHANNEL, PACKARD MODEL 3214- -- OR EQUAL--- SHALL MEET THE FOLLOWING SPECIFICATIONS: MATCHED 13-DYNODE PHOTOMULTIPLIER TUBES MOUNTED IN SPECIALLY DESIGNED OPTICAL CHAMBER. COINCIDENCE RESOLVING TIME TO BE APPROXIMATELY 35 NANOSECONDS. PREAMPLIFIERS, OUTPUT PULSES FROM PHOTOMULTIPLIER ARE TO BE COMBINED IN A SUMMATION CIRCUIT. ENTIRELY SEPARATE CHANNELS, WITH PRECISION ATTENUATION, LINEAR AMPLIFICATION, DUAL DISCRIMINATOR ANALYSIS, AND SCALERS FOR EACH CHANNEL. PRECISION ATTENUATION IN EACH CHANNEL-10 OR 100 PERCENT RANGE SWITCH, 10 POSITION COARSE ADJUSTMENT AND CONTINUOUS CALIBRATED FINE ADJUSTMENT. EACH CHANNEL SHALL BE PROVIDED WITH NONOVERLOADING LINEAR AMPLIFIER ADJUSTED FOR A GAIN OF 100. RISE TIME SHALL BE APPROXIMATELY 15 NANOSECONDS. MAXIMUM AMPLIFIER OVERLOAD APPROXIMATELY 400X UNDER ANY EXTREME OF PULSE INPUT. RECOVERY TIME AT THIS MAXIMUM OVERLOAD 0.4 MICROSECOND. EACH CHANNEL OPERATION TO BE NARROW, WIDE AND INTEGRAL MODES. NARROW WINDOW POSITIONS OF 2 PERCENT, 4 PERCENT AND 8 PERCENT ARE TO BE PROVIDED. IN WIDE WINDOW POSITION BOTH UPPER AND LOWER LEVELS OF DISCRIMINATION SHALL BE CONTROLLED BY TENTURN PRECISION HELICAL POTENTIOMETERS. EACH CHANNEL TO BE PROVIDED WITH 6- DIGIT HIGH SPEED SCALER. RESOLVING TIME FOR PULSE PAIRS IS 50 NANOSECONDS. 5 DIGIT ELECTRONIC TIMER WITH SELECTOR SWITCH PROVIDING TIMING IN EITHER HUNDREDTHS OF A MINUTE OR TENTHS OF A SECOND. PROVISION FOR EXTERNAL STANDARDIZATION ACCESSORY. BUILT IN AUTOMATIC BACKGROUND SUBTRACTION. LOW ACTIVITY SAMPLE REJECT. GRADED SHIELDING OF CADMIUM AND COPPER AND 2 INCHES OF LEAD SHIELDING IN ALL DIRECTIONS AROUND THE OPTICAL CHAMBER AND PHOTOMULTIPLIERS. GAMMA COUNTING CAPABILITY THROUGH ADDITION OF APPROPRIATE DETECTOR. SAMPLE CHANGER, DETECTOR AND SHIELD SHALL BE MOUNTED IN A PRECISION TEMPERATURE CONTROLLED FREEZER. AUTOMATIC CONTROL UNIT AND SPECTROMETER ARE TO BE MOUNTED IN AN OVERHEAD RACK ON WHEELS. 200 SAMPLE CHANGER WITH INDEXING TIME OF 0.4 SECONDS FROM ONE SAMPLE TO THE NEXT. EMPTY SAMPLE POSITIONS ARE AUTOMATICALLY BY-PASSED. AUTOMATIC PROGRAMMING SHALL BE PROVIDED FOR GROUPS OF SAMPLES. COST SHALL INCLUDE COMPLETE INSTALLATION, INCLUDING ALL NECESSARY TEST TO CONFORM TO REQUIREMENTS AND SAFETY STANDARDS AND TRAINING OF OPERATORS.

THE INVITATION ALSO INCLUDED THE CLAUSE REQUIRED BY FPR 1-1.307-6 INFORMING BIDDERS THAT THE ,BRAND NAME OR EQUAL" DESCRIPTION WAS INTENDED TO BE DESCRIPTIVE BUT NOT RESTRICTIVE, AND TO INDICATE THE QUALITY AND CHARACTERISTICS THAT WOULD BE SATISFACTORY IN THE PRODUCT OFFERED, AND THAT BIDS OFFERING "EQUAL" PRODUCTS WOULD BE CONSIDERED FOR AWARD IF IT WAS DETERMINED THAT SUCH PRODUCTS WERE EQUAL IN ALL "MATERIAL" RESPECTS TO THE BRAND NAME PRODUCT REFERENCED IN THE INVITATION.

THE BID SUBMITTED BY PACKARD WAS FOR ITS MODEL 3214 AS DESCRIBED IN THE INVITATION, MAKING IT CLEARLY RESPONSIVE, BUT WAS $114 HIGHER THAN ANS. NUCLEAR-CHICAGO BID ON ITS MODEL 6274'S AND AS AN ALTERNATE, MODEL 6742, BOTH OF WHICH WERE PRICED HIGHER THAN ANS. THE RECORD DOES NOT INDICATE WHETHER NUCLEAR-CHICAGO'S BID WAS RESPONSIVE. ANS SUBMITTED ITS BID WITH A COVER LETTER DATED JUNE 15, 1964, ON ITS MODEL 1200. IN ADDITION TO THE LETTER, WHICH STATED THAT ITS MACHINE EQUALLED OR EXCEEDED THE SPECIFICATIONS AND DESCRIBED SOME OF ITS MORE IMPORTANT FEATURES, FIVE PAGES OF SPECIFICATIONS OF THE ANSITRON WERE SUBMITTED.

PACKARD HAS STATED, IN LETTERS DATED JULY 20, AUGUST 21, SEPTEMBER 24, AND OCTOBER 19, 1964, AND IN A CONFERENCE WITH REPRESENTATIVES OF OUR OFFICE, THE BASIS OF ITS CONTENTION THAT THE ANSITRON DOES NOT MEET THE SPECIFICATIONS OF THE INVITATION AND IS NOT "EQUAL.' CONTRARY TO THE SPECIFICATIONS, IT IS STATED BY PACKARD THAT THE ANSITRON DOES NOT HAVE PRECISION ATTENUATION FOR EACH CHANNEL; THAT WITHOUT SUCH PRECISION ATTENUATION, IT DOES NOT HAVE THE RANGE SWITCH, COARSE ADJUSTMENT OR CONTINUOUS CALIBRATED FINE ADJUSTMENT CALLED FOR; THAT IT DOES NOT HAVE A LINEAR AMPLIFICATION SYSTEM, BUT A LOGARITHMIC AMPLIFIER; THAT IT DOES NOT HAVE A SEPARATE AMPLIFIER FOR EACH CHANNEL, BUT ONE AMPLIFIER SERVING ALL CHANNELS; AND THAT IT DOES NOT HAVE A DETECTOR, ALL AS CALLED FOR IN THE ITEM 30 SPECIFICATIONS SET OUT ABOVE. NOTHING IN THE ADMINISTRATIVE REPORT REFUTES ANY OF THE ABOVE ALLEGED DEVIATIONS FROM THE SPECIFICATIONS IN THE EQUIPMENT OFFERED BY ANS. IT SHOULD ALSO BE POINTED OUT THAT PACKARD STATES IN ITS LETTER OF JULY 20, THAT HAD IT KNOWN AT THE TIME ITS BID WAS SUBMITTED THAT AN INSTRUMENT WITH DIFFERENT SPECIFICATIONS WOULD BE ACCEPTABLE, IT COULD HAVE SUBMITTED A BID ON AN INSTRUMENT COMPARABLE TO THE ANSITRON BUT AT A CONSIDERABLY LOWER PRICE.

WE HAVE ALSO RECEIVED A LETTER DATED NOVEMBER 11, 1964, FROM JAMES O- CONNER SHEA, ATTORNEY FOR ANS, IN RESPONSE TO OUR LETTER OF OCTOBER 28, 1964, TO ANS EXTENDING IT THE OPPORTUNITY TO SUBMIT EVIDENCE RELATIVE TO THE PROTEST. ALTHOUGH EXCEPTION IS TAKEN THEREIN TO CERTAIN OF PACKARD'S CONTENTIONS, NOT DISPUTED ARE ITS CONTENTIONS THAT THE ANSITRON DOES NOT CONFORM TO THE SPECIFICATIONS WITH RESPECT TO PRECISION ATTENUATION FOR EACH CHANNEL, RANGE SWITCH AND ADJUSTMENTS, LINEAR AMPLIFICATION, AND GAMMA DETECTOR. WITH RESPECT TO THESE DEFICIENCIES, IT IS STATED THAT THEY ARE NOT RELEVANT TO THE PROBLEM UNDER CONSIDERATION AS "THE IMPORTANT THING IS WHETHER OR NOT THE MACHINE ORDERED PROVIDES WHAT THE CONSUMER WANTS.'

THE CONTRACTING OFFICER STATED IN HIS INITIAL REPORT, DATED AUGUST 27, 1964, THAT AWARD WAS MADE TO ANS "AS THE LOW RESPONSIVE BIDDER MEETING SPECIFICATIONS * * * AFTER A DETAILED STUDY AND EVALUATION OF ALL BIDS IN CONSULTATION WITH THE ASSOCIATE CHIEF OF STAFF * * *.' IN THAT REPORT, AS WELL AS THE REPORT OF SEPTEMBER 2, HE HAS ALSO SUBMITTED TO JUSTIFY HIS ACTION VARIOUS INFORMATION AND TESTIMONIALS, APPARENTLY SOLICITED AFTER AWARD TO ANS AND THE PROTEST BY PACKARD, REGARDING THE SATISFACTORY PERFORMANCE OF THE ANSITRON AT OTHER INSTITUTIONS AND FACILITIES. FURTHER REPORT WAS SUBMITTED BY HIM UNDER DATE OF OCTOBER 5, 1964, INCLUDING A MEMORANDUM FROM THE ASSOCIATE CHIEF OF STAFF AT THE HOSPITAL, TO REBUT CONTENTIONS MADE IN PACKARD'S LETTER OF SEPTEMBER 24. THIS REPORT AND THE MEMORANDUM RECOGNIZE THAT THE AMPLIFICATION SYSTEM CALLED FOR IN THE SPECIFICATIONS AND THAT OFFERED IN THE ANS PRODUCT ARE DIFFERENT, BUT ONLY IN MINOR DETAILS OF DESIGN, CONSTRUCTION, AND IN FEATURES WHICH DO NOT AFFECT ITS SUITABILITY FOR THE PERFORMANCE DESIRED. FURTHERMORE, IT IS CONTENDED THAT THE "OR EQUAL" AND "DESCRIPTIVE BUT NOT RESTRICTIVE" CLAUSES OF THE INVITATION SAVE THE ANS BID FROM BEING DISQUALIFIED IN SPITE OF THE OBVIOUS DIFFERENCES.

WHILE THE PREPARATION OF SPECIFICATIONS STATING THE NEEDS OF THE GOVERNMENT AND THE FACTUAL DETERMINATION AS TO WHETHER EQUIPMENT OFFERED BY A BIDDER CONFORMS TO THOSE SPECIFICATIONS IS PRIMARILY WITHIN THE DISCRETION OF THE ADMINISTRATIVE AGENCY CONCERNED, 38 COMP. GEN. 190; 35 ID. 174, IT IS THE FUNCTION OF THE GENERAL ACCOUNTING OFFICE TO INSURE THAT PROCUREMENTS ARE MADE IN ACCORDANCE WITH APPLICABLE LAW AND THAT THERE IS A PROPER EXERCISE OF THE ADMINISTRATIVE DISCRETION.

WITH REGARD TO "BRAND NAME OR EQUAL" PROCUREMENTS, FPR -1-.307-7 (A) PROVIDES THAT WHERE THE PRODUCT OFFERED DIFFERS FROM THE BRAND NAME, THE BID SHALL BE CONSIDERED FOR AWARD WHERE THE CONTRACTING OFFICER DETERMINES THAT THE OFFERED PRODUCT IS EQUAL IN "ALL MATERIAL RESPECTS TO THE PRODUCTS REFERENCED" AND 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.' WHERE, AS HERE, THE CONTRACTING AGENCY, IN A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION, GOES BEYOND THE MAKE AND MODEL OF THE BRAND NAME AND SPECIFIES PARTICULAR DESIGN FEATURES RATHER THAN PERFORMANCE REQUIREMENTS, IT MUST BE PRESUMED THAT THE FEATURES STATED WERE REGARDED AS MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT, AT LEAST AT THE TIME THE SPECIFICATIONS WERE DRAWN AND BIDS SOLICITED. UNDER SUCH CIRCUMSTANCES, EVEN THOUGH IT LATER APPEARS THAT ANOTHER PRODUCT OFFERED MAY BE OTHERWISE SUITABLE FOR THE INTENDED USE, IT MAY NOT BE CONSIDERED ,EQUAL" TO THE BRAND NAME PRODUCT UNLESS IT CONFORMS TO THE PARTICULAR DESIGN FEATURES SPECIFIED. SEE B- 149824, OCTOBER 12, 1962. IN THE PRESENT CASE, IT IS CLEAR THAT THE ANSITRON DID NOT CONFORM TO THE SPECIFICATIONS REQUIRING PRECISION ATTENUATION AND LINEAR AMPLIFICATION, AND POSSIBLY IN OTHER RESPECTS. SINCE THESE WERE SPECIFIED REQUIREMENTS, EVEN THOUGH IT LATER DEVELOPED THAT THEY WERE NOT ESSENTIAL TO THE PERFORMANCE DESIRED, THE OFFERED PRODUCT WAS NOT ,EQUAL IN ALL MATERIAL ASPECTS.' THE AWARD WAS THEREFORE IMPROPERLY MADE TO ANS.

MOREOVER, CONTRARY TO THE INTENT OF THE CLAUSE THAT THE SPECIFICATIONS WERE DESCRIPTIVE AND NOT RESTRICTIVE, IT MAY WELL BE THAT THE SPECIFICATIONS HERE WERE SUCH AS TO PRECLUDE THE FULL AND FREE COMPETITION, CONSISTENT WITH THE NEEDS OF THE GOVERNMENT, REQUIRED BY 41 U.S.C. 253 (A). ANY BIDDER OTHER THAN PACKARD WAS PUT IN THE POSITION OF HAVING HIS BID DECLARED NONRESPONSIVE IF HE DID NOT USE THE AMPLIFICATION SYSTEM REQUIRED BY THE SPECIFICATIONS. CERTAINLY THE GOVERNMENT IS NOT REQUIRED TO PURCHASE A SPECTROMETER UTILIZINGAN AMPLIFICATION SYSTEM WHICH DOES NOT MEET ITS REQUIREMENTS. ON THE OTHER HAND, IF SOMETHING OTHER THAN A LINEAR AMPLIFICATION SYSTEM IS CAPABLE OF PRODUCING THE STANDARD OF PERFORMANCE REQUIRED, AS WAS APPARENTLY DETERMINED TO BE THE CASE HERE, THEN THE SPECIFICATIONS SHOULD NOT BE SO RESTRICTED. WHILE WE UNDERSTAND IT WAS NOT INTENDED IN DRAWING THE SPECIFICATIONS TO RESTRICT COMPETITION, WE THINK THAT THIS IS, IN EFFECT, WHAT RESULTED.

FURTHERMORE, WE NOTE ANOTHER DEFICIENCY IN THE BID SUBMITTED BY ANS WHICH IN AND OF ITSELF WOULD APPEAR TO JUSTIFY REJECTION. WE REFER TO SPECIAL CONDITION NO. 4 WHICH READS, AS FILLED IN BY ANS, AS FOLLOWS:

REPAIR PARTS: AS THIS EQUIPMENT IS REQUIRED IN THE CONTINUOUS OPERATION OF OUR HOSPITAL, IT IS NECESSARY THAT THE SUCCESSFUL BIDDER BE IN A POSITION TO IMMEDIATELY FURNISH REPLACEMENT PARTS. THE PARTS CAN BE OBTAINED AT (PLEASE SPECIFY LOCAL REPRESENTATIVES NAME, ADDRESS, AND TELEPHONE NUMBER) ANS, INC., 36 MAIN ST., WALLINGFORD, CONNECTICUT CO 5- 1531. BIDDER OFFERS TO SUPPLY SPARE PARTS FOR EQUIPMENT OFFERED HEREIN FOR A PERIOD OF ONE YEAR. (MINIMUM 5 YEARS)

ALTHOUGH THE ADMINISTRATIVE REPORTS PREVIOUSLY MENTIONED MAKE NO REFERENCE TO THE FACT THAT THE BID AS SUBMITTED OFFERED TO SUPPLY SPARE PARTS FOR 1 YEAR RATHER THAN THE MINIMUM OF 5, A TELEGRAM AND LETTER FROM ANS, DATED JUNE 30, 1964, SOME 11 DAYS AFTER BID OPENING, CORRECTING THIS DISCREPANCY, APPEAR TO BE IN RESPONSE TO A CONTRACT BY THE CONTRACTING ACTIVITY ADVISING OF SUCH DISCREPANCY. IN THIS CONNECTION, MR. SHEA STATES IN HIS LETTER OF NOVEMBER 11 THAT THIS DISCREPANCY RESULTED FROM A TYPOGRAPHICAL ERROR, WHICH WAS CORRECTED AS SOON AS IT WAS DISCOVERED. RESPONSE TO OUR INQUIRY OF OCTOBER 28, 1964, THE CONTRACTING OFFICER HAS SUBMITTED A LETTER DATED NOVEMBER 10, 1964, CONCERNING THIS MATTER. IT IS THEREIN STATED THAT THE FAILURE OF THE ANS BID TO COMPLY WITH THE 5-YEAR MINIMUM WAS NOTED AT THE BID OPENING AND CALLED TO THE ATTENTION OF ITS REPRESENTATIVE, WHO EXPLAINED THAT THEY HAD CONFUSED THIS PROVISION WITH SPECIAL CONDITION NO. 5, WHICH CALLS FOR A MINIMUM 1 YEAR GUARANTEE ON ALL ITEMS. WE DO NOT AGREE WITH THE CONTRACTING OFFICER'S STATEMENT THAT ANS'S INTERPRETATION OF SPECIAL CONDITION NO. 4 TO MEAN THAT "FREE" PARTS WILL BE AVAILABLE FOR A GIVEN NUMBER OF YEARS WAS REASONABLE BECAUSE OF AMBIGUITY BETWEEN THE TWO PROVISIONS. SPECIAL CONDITION NO. 5 IS CLEARLY LABELED "GUARANTEE" AND SAYS THAT THE BIDDER GUARANTEES ALL ITEMS AGAINST DEFECTIVE DESIGN, MATERIAL, WORKMANSHIP, AND INEFFICIENT OPERATION, AND THAT CORRECTION AND REPLACEMENT UNDER SAID GUARANTEE WILL BE WITHOUT COST TO THE GOVERNMENT. ON THE OTHER HAND, SPECIAL CONDITION NO. 4 SPEAKS ONLY OF THE AVAILABILITY OF SUCH PARTS FOR A MINIMUM PERIOD AND IN NO WAY IMPORTS AN OBLIGATION ON THE PART OF THE BIDDER TO REPLACE SUCH PARTS "FREE.' NEITHER CAN WE AGREE WITH THE CONTRACTING OFFICER'S CONCLUSION THAT THIS WAS A MINOR INFORMALITY OR IRREGULARITY WHICH COULD EITHER BE CORRECTED BY THE BIDDER OR WAIVED BY HIM PURSUANT TO THE AUTHORITY IN FPR 1-2.405. SINCE THE REASON FOR REQUIRING BIDDERS TO AGREE TO FURNISH SPARE PARTS FOR A MINIMUM OF FIVE YEARS IS THAT THE EQUIPMENT MUST BE IN ,CONTINUOUS" USE AT THE HOSPITAL, COMPLIANCE WITH THIS PROVISION IS AN ESSENTIAL ELEMENT OF THE BID AND IS MATERIAL IN DETERMINING THE RESPONSIVENESS OF THE BID. THEREFORE, THE BID AS SUBMITTED MUST BE CONSIDERED NONRESPONSIVE. WE HAVE CONSISTENTLY HELD THAT AN ALLEGED ERROR MAY BE CORRECTED ONLY WHERE THE BID IS RESPONSIVE AND OTHERWISE PROPER FOR ACCEPTANCE. 38 COMP. GEN. 819. UNDER THESE CIRCUMSTANCES THE BID COULD NOT BE ACCEPTED AS SUBMITTED AND COULD NOT PROPERLY BE CORRECTED TO MAKE IT RESPONSIVE.

IN ACCORDANCE WITH THE FOREGOING, THE CONTRACT AWARDED TO ANS MUST BE CONSIDERED VOID AB INITIO, AND THE AWARD ACTION SHOULD THEREFORE BE CANCELED. SINCE IT APPEARS THAT THE NEEDS OF THE GOVERNMENT MAY BE MET BY EQUIPMENT WITH SPECIFICATIONS OTHER THAN AS ORIGINALLY ADVERTISED, WE SUGGEST THAT ALL NECESSARY STEPS BE TAKEN TO ASSURE THAT THE SPECIFICATIONS IN ANY READVERTISEMENT OF THIS PROCUREMENT BE SUCH AS TO ACCURATELY REFLECT ONLY THE ACTUAL NEEDS OF YOUR ADMINISTRATION, AND TO PERMIT FULL AND FREE COMPETITION BY ALL BIDDERS ON THAT BASIS.

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