B-158299, APR. 19, 1966

B-158299, APR. 19, 1966

TO HY-GAIN ELECTRONICS CORPORATION:

WE REFER TO YOUR LETTER OF JANUARY 23, 1966, PROTESTING THE REJECTION BY THE NAVY PURCHASING OFFICE, WASHINGTON NAVY YARD, WASHINGTON, D.C., OF YOUR LOW BIDS UNDER INVITATIONS NOS. 600-1004-65 AND 600-1149-65, AS NONRESPONSIVE TO THE INVITATION DESCRIPTIVE LITERATURE PROVISIONS.

THE LATTER INVITATION, NO. 600-1149-65, ISSUED ON JUNE 30, 1965, SOUGHT BIDS ON 75 CONICAL MONOPOLE ANTENNAS, OF TWO TYPES, INTENDED FOR USE AT NAVAL COMMUNICATIONS SHORE STATIONS FOR HIGH FREQUENCY RADIO TRANSMISSION AND RECEPTION, PLUS ACCOMPANYING INSTALLATION DRAWING AND TECHNICAL MANUALS. ON THE AMENDED BID OPENING DATE, NOVEMBER 3, 1965, YOUR FIRM WAS FOUND TO BE THE LOWEST BIDDER. THE BID OF GRANGER ASSOCIATES WAS FOURTH LOWEST, BUT AS THE CONTRACTING OFFICER DETERMINED THE FIRST THREE BIDS, INCLUDING YOURS, WERE NONRESPONSIVE, HE AWARDED THE CONTRACT TO GRANGER ASSOCIATES ON JANUARY 25, 1966.

ACCORDING TO THE CONTRACTING OFFICER'S REPORT, YOUR BID LACKED CALCULATIONS AND DATA ESSENTIAL FOR DETERMINING ITS RESPONSIVENESS TO THE PERFORMANCE STANDARDS SET OUT IN THE PURCHASE DESCRIPTION, CONICAL MONOPOLE, H.F. ANTENNA, SER. 1460-446, REV.B, SEPTEMBER 10, 1965, HEREAFTER TERMED THE PURCHASE DESCRIPTION. PARAGRAPH 3.9.9 THEREOF, AS CONTAINED IN MODIFICATION 4 TO THE INVITATION, STIPULATED THAT CONFORMANCE OF THE ITEM BID WITH THE STANDARDS SET OUT IN 3.9.2, 3.9.5, 3.9.6 AND 3.9.7 OF THE PURCHASE DESCRIPTION WAS TO BE DETERMINED ON THE BASIS OF ELECTRICAL ANALYSIS AND DATA GATHERED FROM A MODEL TEST DONE ACCORDING TO PARAGRAPH 3.9.8.

THE PROVISION AT PAGE 5 OF THE INVITATION ENTITLED REQUIREMENT FOR DESCRIPTIVE LITERATURE D,"A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS.' PART (B) OF THE SAME PARAGRAPH NOTIFIED BIDDERS THAT FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE WOULD REQUIRE REJECTION OF THE BID, AND THE FOLLOWING PARAGRAPH IDENTIFIED THE REQUIRED LITERATURE AS, "LIST OF START-UP SPARES MAINTENANCE PROGRAM ELECTRICAL AND STRUCTURAL ANALYSIS AND RESULTS OF ANTENNA MODEL STUDY.'

THE CONTRACTING OFFICER FOUND THAT THE CALCULATIONS YOU SUBMITTED WERE INCOMPLETE AND DID NOT SATISFY THE CRITERIA OF PARAGRAPHS 3.9.8 AND 3.9.9 OF THE INVITATION, AND, IN LIGHT OF THE PROVISIONS DISCUSSED ABOVE, HE REJECTED YOUR BID AS NONRESPONSIVE.

IN YOUR LETTER OF JANUARY 23, 1966, YOU CONTEND THAT THE NAVY PURCHASING OFFICE DID NOT THOROUGHLY ANALYZE YOUR SUBMISSION. THE CONTRACTING OFFICER'S REPORT INDICATES THAT YOUR REPRESENTATIVES HELD A MEETING WITH PERSONNEL OF THE NAVY PURCHASING OFFICE ON THREE SEPARATE OCCASIONS TO DISCUSS YOUR BID; THAT YOUR BID WAS EXAMINED BY A COMMITTEE COMPOSED OF TWO ELECTRICAL ENGINEERS, A STRUCTURAL ENGINEER, AND A REPRESENTATIVE OF THE OPERATING ACTIVITY; AND THAT A FURTHER REVIEW OF YOUR BID WAS MADE BY THE REQUIRING ACTIVITY, IN ADDITION TO THE USUAL WORK DONE BY THE CONTRACTING OFFICE. IN VIEW OF THIS TIME AND EFFORT EXPENDED BY THE GOVERNMENT IN STUDYING AND DISCUSSING YOUR BID WE CANNOT AGREE WITH YOUR CONTENTION THAT YOUR BID WAS NOT THOROUGHLY ANALYZED.

YOUR FURTHER MAINTAIN THAT WHAT DEVIATIONS YOUR BID DID CONTAIN WERE MINOR IN NATURE, TRIVIAL, AND SUBJECT TO WAIVER UNDER SECTION 2 405 OF THE ARMED SERVICES PROCUREMENT REGULATION. HOWEVER, THAT SECTION OF ASPR PERMITS A WAIVER ONLY WHEN THE DEVIATION IS "MERELY A MATTER OF FORM OR IS SOME IMMATERIAL DEVIATION FROM THE EXACT REQUIREMENTS," WHICH HAS "NO EFFECT ON QUALITY.'

WE ARE ADVISED BY THE PROCUREMENT OFFICE THAT THE USE OF A PERFORMANCE TYPE SPECIFICATION COUPLED WITH THE DESCRIPTIVE LITERATURE REQUIREMENT WAS INTENDED TO BROADEN COMPETITION AMONG BIDDERS, WHO WERE PERMITTED TO BID EITHER ANTENNAS DESIGNED SPECIFICALLY FOR THIS CONTRACT OR CURRENT PRODUCTION ITEMS WHICH SATISFIED THE PERFORMANCE STANDARDS. HOWEVER, AS EXPLAINED IN PARAGRAPH SEVEN OF THE CONTRACTING OFFICER'S REPORT, THIS NECESSITATED EXTENSIVE MODEL TESTING AND ELECTRICAL ANALYSIS BECAUSE "PREVIOUS COSTLY FAILURES IN THE FIELD ATTEST TO THE NEED FOR THOROUGH EVALUATION OF FACTORS WHICH WILL AFFECT PERFORMANCE PRIOR TO THE PROCUREMENT OF THE REQUIRED ANTENNAS * * *.'

YOU ALSO CONTEND THAT THE BID SUBMITTED BY GRANGER ASSOCIATES, THE SUCCESSFUL BIDDER, CONTAINS NUMEROUS TECHNICAL DEVIATIONS. ENCLOSURE (6) OF THE CONTRACTING OFFICER'S REPORT DISCUSSES AND DENIES EACH OF YOUR CONTENTIONS REGARDING THE BID OF GRANGER ASSOCIATES.

THE ADEQUACY OF DESCRIPTIVE DATA SUBMITTED WITH A BID AND THE SIGNIFICANCE OF DEVIATIONS THEREIN OFTEN, AS IN THIS CASE, INVOLVE HIGHLY TECHNICAL ENGINEERING AND SCIENTIFIC ISSUES. IN THIS KIND OF SITUATION WE MUST RELY ON THE FINDINGS OF THE CONTRACTING AGENCY WHICH, AS INDICATED ABOVE, HAS UTILIZED SCIENTIFICALLY TRAINED PERSONNEL WHO THOROUGHLY ANALYZED THE TECHNICAL ASPECTS OF THE BIDS. AS WE STATED AT 43 COMP. GEN. 77, 80, A BIDDER'S COMPLIANCE WITH THE SPECIFICATIONS AND DESCRIPTIVE LITERATURE REQUIREMENTS OF AN INVITATION IS TO BE DECIDED PRIMARILY BY THE PROCURING AGENCY. IT DOES APPEAR THAT ALL BIDS WERE EVALUATED IN ACCORDANCE WITH THE ESTABLISHED PROCEDURE, AND THAT GRANGER ASSOCIATES WAS DULY SELECTED FOR AWARD THEREUNDER. SEE 35 COMP. GEN. 174 SUPPORTING AWARD MADE UPON AN AGENCY'S TECHNICAL EVALUATION OF BIDS WHERE NO FAVORITISM OR ARBITRARY OR CAPRICIOUS ACTION HAD BEEN SHOWN.

THEREFORE, WE CAN FIND NO ERROR IN THE AWARD OF THE CONTRACT FOR ANTENNA PROCUREMENT BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., UNDER IFB 600 -1149-65 TO GRANGER ASSOCIATES AS THE LOWEST RESPONSIVE BIDDER.

THE FACT THAT YOUR CORPORATION DID OR DID NOT GAIN A COMPETITIVE ADVANTAGE THROUGH YOUR INCOMPLETE DESCRIPTIVE LITERATURE IS NOT CONTROLLING, FOR ALTHOUGH SECTION 2.404.2 (D) OF ASPR MENTIONS THE EFFECT ON COMPETITION AS A REASON FOR REJECTING BIDS, PART (A) OF THAT SAME SECTION PERMITS REJECTION OF ANY BID WHICH,"FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS.' WE HAVE ALREADY ASCERTAINED ABOVE THAT COMPLIANCE WITH THE PERFORMANCE STANDARDS AND THE RELATED MATHEMATICAL ANALYSIS PARAGRAPHS OF THE PURCHASE DESCRIPTION WAS AN ESSENTIAL ELEMENT OF THE BID, AND THAT YOUR BID WAS INCOMPLETE IN THIS RESPECT. THEREFORE, YOUR BID FAILED TO CONFORM TO AN ESSENTIAL REQUIREMENT OF THE INVITATION FOR BIDS AS REQUIRED BY SECTION 2.404.2 (A) OF ASPR, AND SO MUST BE REJECTED; AND SECTION 2.404.2 (D) OF ASPR WHICH CONCERNS THE EFFECT OF COMPETITION IS OF NO RELEVANCE HERE.

IN YOUR LETTER OF JANUARY 23, 1966, YOU ALSO PROTESTED THE REJECTION OF YOUR BID UNDER IFB 600-1004-65 ISSUED JUNE 25, 1965, FOR 31 INVERTED CONE HIGH FREQUENCY ANTENNAS, WHICH ARE INTENDED FOR RADIO TRANSMISSION AND RECEPTION AT NAVAL COMMUNICATION SHORE STATIONS. ON THE AMENDED BID OPENING DATE, NOVEMBER 3, 1965, THREE BIDDERS RESPONDED, WITH TRYLON, INCORPORATED, SUBMITTING THE LOWEST PRICE, AND YOUR FIRM OFFERING THE SECOND LOWEST PRICE. AFTER DETERMINING THAT YOUR BID, AND THAT OF TRYLON, WERE NOT RESPONSIVE DUE TO INCOMPLETE ELECTRICAL ANALYSIS AND MATHEMATICAL CALCULATIONS, THE CONTRACTING OFFICER AWARDED THE CONTRACT TO GRANGER ASSOCIATES ON JANUARY 25, 1966. THE CONTRACTING OFFICER FOUND YOUR BID WAS INCOMPLETE HERE IN THE SAME RESPECTS AS IT WAS IN IFB 600-1149-65, WHICH WE HAVE DISCUSSED AT LENGTH ABOVE. AS THE INVITATIONS WERE THE SAME IN ALL MATERIAL RESPECTS, THE SAME PRINCIPLES OF LAW GOVERN, AND THE SAME RESULT, REJECTION OF YOUR BID AS NONRESPONSIVE, IS REACHED. SEE ALSO OUR LETTER OF TODAY, B-158299, TO TRYLON, INCORPORATED, SUPPORTING THE NAVY'S ACTION IN REJECTING TRYLON'S BID AS NONRESPONSIVE.

ACCORDINGLY, WE FIND NO BASIS TO QUESTION THE LEGALITY OF AWARDS UNDER THE TWO PROCUREMENTS.