B-141363, MAR. 3, 1960

B-141363: Mar 3, 1960

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TO FERRACUTE MACHINE COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 28. WHEREIN YOU WERE ADVISED THAT YOUR PROTEST AGAINST THE ACTION OF THE DEPARTMENT OF THE NAVY. THE SUBSTANCE OF YOUR REQUEST FOR RECONSIDERATION OF OUR DECISION IS THAT OUR OFFICE HAS ACCEPTED THE ADMINISTRATIVE REPORT RELATIVE TO THE REASONS FOR THE CANCELLATION OF INVITATION NO. WE ARE NOT IN A POSITION TO ANALYZE THE RELATIVE MERITS OF AVAILABLE TYPES OF EQUIPMENT. OR OTHER TECHNICAL ENGINEERING DETERMINATION WHICH ARE WITHIN NEITHER OUR SPECIAL AREA OF COMPETENCE NOR OUR SPHERE OF AUTHORITY. WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WE HAVE NO REASON TO QUESTION THE CORRECTNESS OF THE ADMINISTRATIVE ACTION IN CANCELLING INVITATION NO.

B-141363, MAR. 3, 1960

TO FERRACUTE MACHINE COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 28, 1960, REQUESTING RECONSIDERATION OF OUR DECISION OF JANUARY 14, 1960, B-141363, WHEREIN YOU WERE ADVISED THAT YOUR PROTEST AGAINST THE ACTION OF THE DEPARTMENT OF THE NAVY, IN AWARDING A CONTRACT TO W. E. SHIPLEY UNDER INVITATION NO. IFB-156 -112-60, FURNISHED NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ACTION TAKEN BY THE ADMINISTRATIVE OFFICE.

THE SUBSTANCE OF YOUR REQUEST FOR RECONSIDERATION OF OUR DECISION IS THAT OUR OFFICE HAS ACCEPTED THE ADMINISTRATIVE REPORT RELATIVE TO THE REASONS FOR THE CANCELLATION OF INVITATION NO. IFB-156-383-59. SINCE OUR OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS, WE ARE NOT IN A POSITION TO ANALYZE THE RELATIVE MERITS OF AVAILABLE TYPES OF EQUIPMENT, OR OTHER TECHNICAL ENGINEERING DETERMINATION WHICH ARE WITHIN NEITHER OUR SPECIAL AREA OF COMPETENCE NOR OUR SPHERE OF AUTHORITY. HENCE, IN DISPUTES OF FACT BETWEEN A PROTESTER AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. UNDER THE CIRCUMSTANCES, WE HAVE NO REASON TO QUESTION THE CORRECTNESS OF THE ADMINISTRATIVE ACTION IN CANCELLING INVITATION NO. IFB-156-383-59.

AS POINTED OUT IN OUR DECISION OF JANUARY 14, 1960, THE BULLETIN FURNISHED WITH YOUR BID NOTED 10 DIFFERENT MODELS OF PRESSES, HAVING 37 VARIED CAPACITIES AND DID NOT INDICATE WHICH PRESS WAS OFFERED. YOU CONTEND THAT THE CONTRACTING OFFICER SHOULD HAVE ASKED YOU TO CLARIFY YOUR BID. TO MAINTAIN THE INTEGRITY OF THE COMPETITIVE BID SYSTEM, IT WOULD HAVE BEEN PREJUDICIAL TO ALL OTHER BIDDERS TO PERMIT YOU TO FURNISH DATA OR INFORMATION AFTER THE BID OPINION, ESPECIALLY SINCE THE MISSING INFORMATION WENT TO THE IDENTIFICATION OF THE EQUIPMENT WHICH YOU WERE OFFERING. THIS WOULD HAVE CONSTITUTED A MODIFICATION OF THE BID AFTER OPENING UNDER THE CLEAR AND EXPRESS TERMS OF THE INVITATION, THE REQUIRED DATA WAS TO BE SUBMITTED WITH THE BID AND "FAILURE TO FURNISH SUCH DESCRIPTIVE DATA WITH THE BID, OR THE FURNISHING OF DESCRIPTIVE DATA THAT IS NOT IN COMPLETE COMPLIANCE WITH THE REQUIREMENTS OF THIS CLAUSE AND THE SPECIFICATIONS AS SET FORTH IN THE SCHEDULE, WILL RESULT IN THE REJECTION OF THE BID AS NONRESPONSIVE.'

TO PROPERLY EVALUATE THE BIDS FOR THE TOOLS REQUIRED, THE PROCUREMENT OFFICE CONSIDERED IT NECESSARY THAT BIDDERS NOT ONLY AGREE TO MEET THE SPECIFICATIONS, BUT ESTABLISH BY SPECIFIC DESCRIPTION HOW THEY WOULD BE MET. IN NO RESPECT DID YOUR BID CLEARLY ESTABLISH WHAT PRESS, OF THE SEVERAL COVERED BY THE CIRCULAR SUBMITTED, YOU INTENDED TO FURNISH, OR IN WHAT WAY IT WOULD BE MODIFIED TO MEET THE SPECIFICATION, EXCEPT AS STATED IN THE LETTER ACCOMPANYING YOUR BID, WHICH CLEARLY DID NOT EMBRACE ALL REQUIRED CHANGES.

IN OUR VIEW, THE REQUIREMENTS OF THE INVITATION PUT THE BURDEN UPON EACH BIDDER TO FURNISH WITH HIS BID ADEQUATE INFORMATION FOR THE CONTRACTING OFFICER TO DETERMINE THE CONFORMITY OF THE ARTICLE OFFERED WITH THE SPECIFICATIONS. WE DO NOT FEEL THAT THE CONTRACTING OFFICER WAS UNDER ANY OBLIGATION TO ATTEMPT TO PICK OUT FROM SEVERAL MODELS OR SIZES OF MACHINES DESCRIBED IN A CIRCULAR THE ONE WHICH APPEARED TO COME CLOSEST TO THE SPECIFICATIONS, OR THAT IT WOULD HAVE BEEN PROPER FOR HIM TO DO SO. IN FACT, WE DO NOT BELIEVE THAT ACCEPTANCE OF YOUR BID AS SUBMITTED WOULD HAVE CREATED A VALID CONTRACT BECAUSE OF THE LACK OF DEFINITENESS AS TO WHAT IT WOULD HAVE CALLED FOR.

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