B-135449, JULY 23, 1958, 38 COMP. GEN. 59

B-135449, JULY 23, 1958, 38 COMP. GEN. 59

CONTRACTS - SPECIFICATIONS - DEVIATIONS - DESCRIPTIVE LITERATURE WHERE AN UNSUCCESSFUL BIDDER ALLEGES THAT THE SUCCESSFUL BIDDER HAD AN UNFAIR COMPETITIVE ADVANTAGE OVER OTHER BIDDERS BECAUSE ONE OF ITS COMPONENT COMPANIES ASSISTED IN THE PREPARATION OF SPECIFICATIONS OF THE INVITATION AND MADE AN ENGINEERING EVALUATION OF THE BIDS BUT THE ADMINISTRATIVE REPORT INDICATES THAT ALL BIDDERS HAD ACCESS TO THE SAME INFORMATION, THAT RIGID PRECAUTIONS TO OFFER EQUAL ACCESS TO ALL INFORMATION WERE EXERCISED AND THAT THE BIDS WERE ANALYZED AND EVALUATED INDEPENDENTLY BY THE PROCUREMENT AGENCY, THE ALLEGATION OF UNFAIR ADVANTAGE IS WITHOUT MERIT. IN A PROCUREMENT BY ADVERTISING FOR COMPETITIVE BIDS AS DISTINGUISHED FROM PROCUREMENT BY NEGOTIATION BIDS MUST CONSTITUTE COMPLETE AND DEFINITE OFFERS, MUST BE RESPONSIVE IN ALL MATERIAL RESPECTS TO THE CONDITIONS OF THE INVITATION AND THE CONTRACT WHICH IS AWARDED MUST CONFORM TO THE INVITATION AND TO THE BID AS SUBMITTED. AN ADMINISTRATIVE PROCUREMENT REGULATION WHICH AFFORDS BIDDERS AN OPPORTUNITY TO CURE DEFICIENCIES RESULTING FROM MINOR INFORMALITIES OR IRREGULARITIES IN BIDS AND PERMITS THE WAIVER OF DEFICIENCIES IF NOT TO THE DISADVANTAGE OF THE GOVERNMENT IS NOT APPLICABLE TO DEVIATIONS WHICH AFFECT PRICE, QUANTITY OR QUALITY OF THE ARTICLES OFFERED OR TO INFORMALITIES OR IRREGULARITIES WHICH ARE OF SUBSTANCE AS DISTINGUISHED FROM FORM. THE REJECTION OF A BID BECAUSE OF DEFICIENCIES IN THE DESCRIPTIVE LITERATURE WHICH WAS REQUIRED BY AN INVITATION WHICH DID NOT CLEARLY ADVISE BIDDERS OF THE PURPOSE OF THE REQUIREMENT FOR THE SUBMISSION OF DESCRIPTIVE LITERATURE NOR THAT THE DATA WAS TO BE CONSIDERED AS AN INTEGRAL PART OF THE BID FOR EVALUATION PURPOSES IS NOT PROPER.

TO L. H. BUTCHER COMPANY, JULY 23, 1958:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 8, 1958, PROTESTING THE AWARD OF A CONTRACT TO THE GENERAL ELECTRIC COMPANY UNDER INVITATION NO. 451-58-114 ISSUED BY THE HANFORD OPERATIONS OFFICE, ATOMIC ENERGY COMMISSION, ON NOVEMBER 29, 1957.

YOUR PROTEST MAKES THE FOLLOWING MAJOR POINTS: FIRST, THAT GENERAL ELECTRIC HAD AN UNFAIR COMPETITIVE ADVANTAGE OVER OTHER BIDDERS BECAUSE OF THE FACT THAT GENERAL ELECTRIC, AS OPERATOR OF THE HANFORD PLANT, PREPARED THE SPECIFICATIONS OF THE INVITATION AND MADE AN ENGINEERING EVALUATION AND ANALYSIS OF THE BIDS RECEIVED; SECOND, THAT YOU WERE NOT GIVEN AN OPPORTUNITY TO EXPLAIN OR CORRECT ANY ALLEGED DEFICIENCIES IN YOUR BID AFTER BIDS WERE OPENED; AND THIRD, THAT YOUR BID DID IN FACT CONFORM TO THE REQUIREMENTS OF THE INVITATION AND SHOULD HAVE BEEN ACCEPTED AS THE LOWEST RESPONSIBLE BID.

WITH RESPECT TO YOUR FIRST CONTENTION, YOU ARE ADVISED THAT THE HANFORD WORKS IS OPERATED UNDER CONTRACT WITH THE AEC BY THE HANFORD ATOMIC PRODUCTS OPERATION, A COMPONENT OF THE GENERAL ELECTRIC COMPANY WHICH WAS FORMED FOR THE SOLE PURPOSE OF THIS WORK, AND WHICH IS STATED BY AEC TO BE FULLY SEGREGATED FROM AND INDEPENDENT OF GENERAL ELECTRIC'S COMMERCIAL OPERATIONS. UNDER THE OPERATING CONTRACT THE HAPO UNIT OF GENERAL ELECTRIC HAS THE RIGHT AND SOLE RESPONSIBILITY TO DECIDE WHETHER ANY PART OF THE PLANT IS SAFE FOR OPERATION. ACCORDINGLY, ALL DESIGN AND SPECIFICATIONS OF PROPOSED PLANT EQUIPMENT ADDITIONS ARE REVIEWED AND APPROVED BY HAPO, AND ALL SUCH EQUIPMENT IS INSPECTED AND APPROVED BY HAPO PRIOR TO INSTALLATION AND OPERATION. IT APPEARS TO BE YOUR BELIEF THAT THE GENERAL ELECTRIC COMPANY AS A BIDDER HAD ACCESS TO INFORMATION NOT AVAILABLE TO OTHER BIDDERS. THE AEC ADVISES US THAT IN ITS ADMINISTRATION OF THE HANFORD WORKS IT EXERCISES RIGID PRECAUTIONS TO ASSURE THAT EVERY BIDDER IS AFFORDED EQUAL ACCESS TO DRAWINGS, DESIGN INFORMATION, AND CONSULTATION WITH PROJECT ENGINEERS AND DESIGN PERSONNEL. AEC FURTHER STATES THAT YOU, OR ANY BIDDER WHO SO DESIRED, COULD HAVE, WITH THE SAME EFFORT AND AT THE SAME EXPENSE, OBTAINED ANY INFORMATION THAT WAS OR COULD HAVE BEEN OBTAINED BY GENERAL ELECTRIC AS A BIDDER. IN ITS REPORT OF JUNE 3, 1958, AEC STATES THAT ALL BIDDERS' PROPOSALS WERE ANALYZED AND EVALUATED INDEPENDENTLY BY ITS OWN ENGINEERS, AND THAT THE FINDINGS OF THE ENGINEERS OF BOTH AEC AND HAPO WERE IN AGREEMENT THAT THE THREE LOWEST BIDDERS FAILED TO FURNISH INFORMATION REQUIRED BY THE INVITATION AND THAT THEIR BIDS CONTAINED SPECIFIC VARIANCES FROM THE INVITATION SPECIFICATIONS. IN VIEW OF THE INFORMATION FURNISHED US BY THE COMMISSION WE CANNOT CONCLUDE THAT THE GENERAL ELECTRIC COMPANY GAINED AN UNFAIR ADVANTAGE OVER OTHER BIDDERS BY REASON OF THE CONNECTION OF THE COMPANY'S HAPO COMPONENT WITH THE PROCUREMENT.

YOUR SECOND POINT APPEARS TO BE BASED PRINCIPALLY UPON THE PROVISIONS OF SECTION 5.64 OF THE AEC PROCUREMENT REGULATIONS, WHICH STATE THAT BIDDERS SHALL BE GIVEN THE OPPORTUNITY TO CURE DEFICIENCIES RESULTING FROM MINOR INFORMALITIES OR IRREGULARITIES IN THEIR BIDS, OR THAT SUCH DEFICIENCIES MAY BE WAIVED IF NOT TO THE DISADVANTAGE OF THE GOVERNMENT. WE NOTE THAT THE SUPPORTING STATEMENT SUBMITTED WITH YOUR LETTER OF MARCH 8, 1958, CONTAINS STATEMENTS THAT MR. SHARTS OF YOUR COMPANY WAS LED TO BELIEVE AT THE BID OPENING THAT THERE WOULD BE A "BID EVALUATION" MEETING IN ABOUT TWO WEEKS, AND THAT SUCH A PROCEDURE IS COMMONLY USED BY OTHER GOVERNMENT AGENCIES TO OBTAIN THE MOST ADVANTAGEOUS CONTRACTS. YOU APPEAR TO HAVE EXPECTED THAT YOU WOULD BE PERMITTED TO "CLARIFY ANY MINOR DISCREPANCIES" IN YOUR BID AT THIS MEETING. WE ARE INFORMED THAT MR. MONOHAN, REPUBLIC ELECTRICAL AND DEVELOPMENT COMPANY, STATED AT A MEETING ON FEBRUARY 26, 1958, THAT HIS COMPANY INTENDED AT SUCH A "BID EVALUATION" MEETING TO DESCRIBE THE EQUIPMENT PROPOSED TO BE FURNISHED. MR. MONTGOMERY OF REPUBLIC ELECTRICAL IS SAID TO HAVE INDICATED THAT OTHER FEDERAL AGENCIES ALLOWED A PERIOD OF NEGOTIATION TO CLARIFY THE INTENT OF BIDDERS' SPECIFICATIONS. SIMILAR VIEWS APPEAR TO HAVE BEEN EXPRESSED BY MR. SHARTS AT A SUBSEQUENT MEETING WITH AEC ON FEBRUARY 28, 1958.

WE BELIEVE THAT SOME MISUNDERSTANDING MAY HAVE EXISTED ON THE PART OF YOUR COMPANY AS TO CERTAIN FUNDAMENTAL DIFFERENCES BETWEEN GOVERNMENT PROCUREMENT BY FORMAL ADVERTISED PROCEDURES AND BY NEGOTIATIONS. IF A PROCUREMENT IS NEGOTIATED UNDER STATUTES PERMITTING PROCUREMENT IN THIS MANNER, SUCH AS THE ARMED SERVICES PROCUREMENT ACT OF 1947, 10 U.S.C. 6301, OR THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 41 U.S.C. 201 NOTE, IT IS ENTIRELY POSSIBLE THAT AFTER PROPOSALS HAVE BEEN SUBMITTED NEGOTIATIONS MAY TAKE PLACE WITH BIDDERS LOOKING TOWARD CLARIFICATION OF THEIR BIDS, REDUCTION IN THEIR BID PRICES, AND OTHER FACTORS AFFECTING THE ULTIMATE CONTRACT TO BE AGREED UPON. HOWEVER, IN THE CASE OF PROCUREMENT BY ADVERTISING FOR COMPETITIVE BIDS, WHICH IS THE STANDARD METHOD OF GOVERNMENT PROCUREMENT, BIDS MUST CONSTITUTE COMPLETE AND DEFINITE OFFERS, MUST BE RESPONSIVE IN ALL MATERIAL RESPECTS TO THE CONDITIONS OF THE INVITATION, AND THE CONTRACT AWARDED MUST CONFORM TO THE INVITATION AND BID AS SUBMITTED.

IT IS TRUE, AS STATED IN SECTION 5.64 OF THE AEC PROCUREMENT REGULATIONS, THAT MINOR DEFICIENCIES OR DEVIATIONS IN BIDS MAY BE CURED OR WAIVED. HOWEVER, A DEVIATION MAY NOT BE CONSIDERED MINOR IF IT AFFECTS EITHER THE PRICE, QUANTITY, OR QUALITY OF THE ARTICLES OFFERED. INFORMALITIES OR IRREGULARITIES IN BIDS WHICH MAY BE WAIVED MUST BE THOSE MERELY OF FORM AND NOT OF SUBSTANCE. FOR EXAMPLE, IT WAS HELD IN 30 COMP. GEN. 179 THAT A LOW BIDDER'S FAILURE TO INCLUDE A $6 VALVE IN ITS BID OF OVER $1,900 ON POWER PLANTS SHOULD NOT HAVE BEEN PERMITTED TO BE CURED AFTER BID OPENING. AS WAS STATED IN 17 COMP. GEN. 554, 558--- 559---

* * * TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENT PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. AS WAS SAID BY THE COURT IN CITY OF CHICAGO V. MOHR, 216 ILL. 320; 74 N.E. 1056--- * * * WHERE A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--- A DIRECT VIOLATION OF LAW--- AND CANNOT BE TOO STRONGLY CONDEMNED.

IT IS CLEAR, THEREFORE, IN VIEW OF THE ABOVE-STATED PRINCIPLES, THAT YOUR BID WAS PROPERLY REJECTED IF, AS SUBMITTED, IT FAILED IN ANY MATERIAL RESPECT TO CONFORM TO THE TERMS AND CONDITIONS OF THE INVITATION.

THE THIRD GROUND OF YOUR PROTEST IS THAT YOUR BID IN FACT CONFORM TO THE REQUIREMENTS OF THE INVITATION. IN THIS CONNECTION, THE AEC HAS LISTED THE FOLLOWING DEVIATIONS FROM THE INVITATIONS IN YOUR BID.

1. YOU OFFERED TRANSFORMERS WITH TOP MOUNTED BUSHINGS AND NO TERMINAL BOXES, WHILE THE INVITATION REQUIRED SIDEWALL BUSHINGS ENCLOSED IN TERMINAL BOXES.

2. YOUR BID DID NOT OFFER TO FURNISH A TRANSFORMER HOTTEST SPOT TEMPERATURE RELAY, AS REQUIRED.

3. YOU DID NOT OFFER TO FURNISH A LOW-VOLTAGE A-C BUSWAY, AS REQUIRED.

4. YOU SHOWED THE D-C CURRENT MEASURING TRANSDUCTORS TO BE FURNISHED BY THE GOVERNMENT RATHER THAN BY YOU, AS REQUIRED.

5. YOU FAILED TO FURNISH THE INFORMATIONAL DATA REQUIRED BY ADDENDUM NO. 1 TO THE INVITATION.

IT IS MATERIAL TO NOTE AT THE OUTSET THAT THE FIRST FOUR DEVIATIONS LISTED ABOVE ARE BASED ON INFORMATION OR LACK OF INFORMATION IN THE MATERIAL REQUIRED BY ADDENDUM NO. 1 TO BE FURNISHED WITH THE BID. OTHER WORDS, THESE FOUR MATTERS MAY BE CONSIDERED AS DEVIATIONS FROM THE INVITATION ONLY IF THE MATERIAL FURNISHED UNDER ADDENDUM NO. 1 IS AN INTEGRAL PART AND QUALIFICATION OF YOUR OFFER UNDER THE REST OF THE INVITATION. SO FAR AS THE REST OF YOUR BID IS CONCERNED, IT SAYS SIMPLY THAT YOU OFFER TO FURNISH A DIRECT CURRENT POWER SUPPLY IN ACCORDANCE WITH HAPO SPECIFICATIONS HWS-6189 AND HWS-8005-S, AND DRAWING NO. SK-1-2952. IT IS STATED BY THE AEC IN CONNECTION WITH THE SPECIFICATIONS OF THE INVITATION AS FOLLOWS:

SINCE THIS POWER SUPPLY SYSTEM IS A SPECIALLY ENGINEERED UNIQUE UNIT, SPECIFICATIONS WHICH WOULD ELIMINATE THE NECESSITY FOR ANY ENGINEERING ON THE PART OF THE BIDDER WOULD NECESSARILY BE RESTRICTIVE IN THAT THE PARTICULAR MAKE AND MODEL FOR EACH COMPONENT WOULD HAVE HAD TO BE SPECIFIED.

IN ORDER TO PERMIT PROCUREMENT THROUGH COMPETITIVE BID, THE SPECIFICATIONS WERE MADE SUFFICIENTLY FLEXIBLE TO ALLOW THE BIDDER THE WIDEST POSSIBLE SELECTION OF COMPONENTS AMONG THE VARIOUS MANUFACTURERS' PRODUCTS. THIS PROCEDURE NECESSARILY PLACED SOME ENGINEERING RESPONSIBILITY ON THE BIDDER FOR INTEGRATION AND BALANCING OF THE SYSTEM AND PROVIDING THE REQUIRED CONTROLS SUITABLE TO THE PARTICULAR COMPONENTS SELECTED AND THEIR ARRANGEMENT. THEREFORE, SINCE THIS WAS A UNIQUE APPLICATION AND COMPARABLE COMPONENTS MANUFACTURED BY DIFFERENT CONCERNS VARY TO SOME DEGREE, WE CONSIDERED IT IMPERATIVE THAT, PRIOR TO AWARD, WE BE ASSURED THAT THE BIDDER UNDERSTOOD THE PROBLEMS INVOLVED AND THE SPECIFICATIONS. SUCH ASSURANCE WE BELIEVED COULD ONLY BE GAINED BY AN EVALUATION OF THE SYSTEM OFFERED SUFFICIENT IN SCOPE TO DETERMINE THAT IT WAS A BALANCED ACCEPTABLE UNIT. ACCORDINGLY, WE SPECIFICALLY STIPULATED, IN THE INVITATION TO BID, THAT EACH BIDDER MUST FURNISH WITH HIS QUOTATION, CATALOGS, BULLETINS, DRAWINGS OR DATA SHEETS FURNISHING THE FOLLOWING INFORMATION ON THE EQUIPMENT HE PROPOSED TO FURNISH:

1. DIMENSIONAL AND PERFORMANCE DATA, ILLUSTRATIVE CUTS, ETC.

2. SPECIFICATIONS.

3. APPROXIMATE OUTLINE DIMENSION PRINTS AND APPROXIMATE WEIGHTS.

IN ORDER TO STRESS THE IMPORTANCE OF FURNISHING THIS INFORMATION A NOTE WAS ADDED WHICH WARNED THE BIDDERS THAT "FAILURE TO SUPPLY THIS INFORMATION WILL BE CAUSE FOR REJECTION OF THE BID.'

IT IS APPARENT FROM THIS STATEMENT THAT THE SPECIFICATIONS OF THE INVITATION WERE NOT CONSIDERED ADEQUATE, BY THEMSELVES, TO DESCRIBE THE EQUIPMENT NEEDED BY THE AEC IN SUFFICIENT DETAIL TO ENABLE A PROPER EVALUATION TO BE MADE OF THE BIDS RECEIVED. THIS FACT DOES NOT APPEAR TO HAVE BEEN REALIZED BY THE AEC UNTIL AFTER THE INVITATION HAD BEEN ISSUED, MAKING IT NECESSARY A FEW DAYS LATER TO ISSUE ADDENDUM NO. 1 WHICH REQUIRED THE FURNISHING OF DESCRIPTIVE DATA WITH BIDS. IT IS UNFORTUNATE THAT THE REASONS NOW GIVEN BY THE AEC AS TO REASONS FOR THE REQUIREMENT AND THE PURPOSE FOR WHICH SUCH DESCRIPTIVE DATA WERE TO BE USED WERE NOT DISCLOSED TO BIDDERS BY THE ADDENDUM.

WE ARE OF THE OPINION THAT ADDENDUM NO. 1 DID NOT SPECIFY THE NATURE AND EXTENT OF THE DESCRIPTIVE MATERIAL ASKED FOR WITH SUFFICIENT PARTICULARITY TO PUT BIDDERS ON NOTICE OF WHAT WAS DESIRED, NOR DID IT ADVISE BIDDERS THAT SUCH MATERIAL WOULD BE CONSIDERED AS AN INTEGRAL PART AND QUALIFICATION OF THEIR BIDS. IT IS PERHAPS SIGNIFICANT THAT THE THREE LOWEST BIDS OF THE SIX RECEIVED WERE DISQUALIFIED BECAUSE OF INFORMATION OR THE LACK OF INFORMATION FURNISHED IN RESPONSE TO ADDENDUM NO. 1. ALSO, WHILE IT IS NOT CLEAR FROM THE RECORD, IT IS POSSIBLE THAT THE ADEQUACY OF THE THREE HIGHEST BIDS IN THIS RESPECT WAS DUE TO THE FACT THAT THEIR REPRESENTATIVES CONSULTED PERSONALLY WITH PROJECT ENGINEERS AS TO THE EXTENT OF AND THE PURPOSE TO BE SERVED BY THE DESCRIPTIVE DATA. ADDENDUM NO. 1 REQUIRED THE FURNISHING OF THREE SETS OF DATA, NAMELY,

1. MATERIAL TO BE FURNISHED BY EACH BIDDER WITH THE QUOTATION, INCLUDING "ILLUSTRATIVE" CUTS AND "APPROXIMATE OUTLINE DIMENSION PRINTS AND APPROXIMATE WEIGHTS.'

2. APPROVAL DATA, TO BE FURNISHED BY THE SUCCESSFUL BIDDER 30 DAYS AFTER RECEIPT OF PURCHASE ORDER, WHICH WAS TO BE MORE DETAILED.

3. CERTIFIED DATA, TO BE FURNISHED 30 DAYS AFTER RETURN OF APPROVAL DATA, WHICH WAS TO BE IN COMPLETE DETAIL.

IN OUR LETTER OF MARCH 25, 1958, TO THE AEC WE REQUESTED SPECIFICALLY TO BE ADVISED WHETHER THE MATERIAL TO BE FURNISHED WITH THE BID WAS EXPECTED TO BE IN AS MUCH DETAIL AS THE APPROVAL DATA AND CERTIFIED DATA TO BE SUPPLIED LATER BY THE SUCCESSFUL BIDDER. THE AEC IN ITS REPLY DATED JUNE 3, 1958, STATED THAT IT DID NOT REQUIRE OR EXPECT FULLY DETAILED DRAWINGS AND ENGINEERING DATA TO BE SUBMITTED WITH BIDS BUT THAT IT DID EXPECT TO BE FURNISHED

* * * BULLETINS OR CATALOGS SPECIFYING THE MAKE AND MODEL OF COMPONENTS PROPOSED TO BE INCORPORATED INTO THE SYSTEM TOGETHER WITH THE MANUFACTURER'S SPECIFICATIONS GIVING A DESCRIPTION OF THE EQUIPMENT, ITS DIMENSIONS AND WEIGHT, CAPACITY, RATINGS, AND OPERATING DATA, AND ILLUSTRATIVE CUTS OF THE EQUIPMENT; ALL OF WHICH ARE NORMALLY INCLUDED IN THE MANUFACTURER'S CATALOGS AND LITERATURE. IN EVENT THE BIDDER FOR ANY REASON DID NOT HAVE READILY AVAILABLE OR COULD NOT OBTAIN MANUFACTURER'S CATALOGS AND LITERATURE HE WAS GIVEN THE ALTERNATE CHOICE OF FURNISHING THIS INFORMATION IN THE FORM OF BULLETINS, DRAWINGS OR DATA SHEETS. ALSO EXPECTED PRELIMINARY ENGINEERING DATA ON HOW THE BIDDER INTENDED TO COORDINATE THE COMPONENTS AND CONTROLS INTO AN INTEGRATED SYSTEM. WE ALSO REQUESTED TO BE ADVISED WHETHER BIDDERS WERE SPECIFICALLY TOLD THAT THEIR BIDS WOULD BE EVALUATED ON THE BASIS OF THE DESCRIPTIVE MATERIAL FURNISHED WITH THEIR BIDS. THE AEC FAILED TO ANSWER THIS QUESTION IN ITS REPORT AND WE BELIEVE IT TO BE A FAIR ASSUMPTION FROM THE REPORT THAT IF SUCH ADVICE WAS GIVEN BIDDERS IT WAS GIVEN ONLY ORALLY TO THOSE WHO CONSULTED PERSONALLY WITH THE PROJECT ENGINEERS.

IT IS OUR VIEW THAT ALL BIDDERS ARE ENTITLED TO BE INFORMED BY THE INVITATION ITSELF AS TO THE PURPOSE INTENDED TO BE SERVED BY DESCRIPTIVE DATA REQUIRED TO BE SUBMITTED WITH BIDS, AND PARTICULARLY WHETHER ALL DETAILS OF SUCH DATA ARE GOING TO BE CONSIDERED AS AN INTEGRAL PART OF THEIR BIDS FOR EVALUATION PURPOSES. IF THE DESCRIPTIVE MATERIAL IS TO BE SO CONSIDERED, IT BECOMES ESSENTIALLY A PART OF THE SPECIFICATIONS AND BIDDERS SHOULD BE NOTIFIED OF THAT FACT. IN THE INSTANT CASE, IT SEEMS CLEAR THAT THE COMMENDABLE DESIRE OF THE AEC NOT TO RESTRICT COMPETITION RESULTED IN THE FORMULATION OF INVITATION SPECIFICATIONS WHICH WERE NOT ADEQUATE AS A BASIS FOR BID EVALUATION, AND THAT THIS DEFICIENCY WAS ATTEMPTED TO BE REMEDIED BY REQUIRING THE SUBMISSION OF ADDITIONAL DATA WITH THE BIDS. HOWEVER, THE INVITATION AND THE ADDENDA THERETO DID NOT MAKE CLEAR TO BIDDERS EITHER THE EXTENT OF DETAIL DESIRED OR THAT THE ADDITIONAL DATA REQUIRED WOULD BE USED FOR DETERMINING THE CONFORMITY OF THE BIDS WITH THE SPECIFICATION REQUIREMENTS.

IN VIEW OF THIS DEFICIENCY IN THE INVITATION DOCUMENTS, WE DO NOT BELIEVE THAT YOUR BID SHOULD HAVE BEEN CONSIDERED UNRESPONSIVE TO THE INVITATION AS WRITTEN. ON THE OTHER HAND, THE AEC WAS NOT BOUND TO ACCEPT ANY BID, AND COULD PROPERLY HAVE REJECTED ALL BIDS AND READVERTISED UNDER MORE CLEARLY STATED TERMS IF IT DID NOT FEEL THAT THE LOW BID OFFERED COMPLIANCE WITH ITS ACTUAL NEEDS. SINCE AN AWARD WAS ACTUALLY MADE TO GENERAL ELECTRIC, CALLING FOR DELIVERY OF THE EQUIPMENT WITHIN 26 WEEKS THEREAFTER, OR BY ABOUT THE LAST WEEK OF AUGUST 1958, WE ASSUME THAT FABRICATION OF THE EQUIPMENT MUST NOW BE CONSUMED IN PROCURING THE EQUIPMENT THROUGH READVERTISING, WE DO NOT FEEL THAT CANCELLATION OF THE CONTRACT ENTERED INTO WOULD BE IN THE INTEREST OF THE GOVERNMENT.

A COPY OF THIS LETTER IS BEING SENT TO THE ATOMIC ENERGY COMMISSION FOR ITS GUIDANCE IN FUTURE PROCUREMENT.