B-136580, JUL. 2, 1958

B-136580, JUL. 2, 1958

TO MR. R. E. MULARI, CHIEF, CIVIL AERONAUTICS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 26, 1958, WITH ENCLOSURES, REQUESTING A DECISION WHETHER THE BID OF THE PHILCO CORPORATION, PHILADELPHIA, PENNSYLVANIA, MAY BE CONSIDERED RESPONSIVE TO INVITATION NO. 8-2500B1, IN SPITE OF DEVIATIONS BETWEEN THE REQUIREMENTS OF THE SPECIFICATIONS AND THE DATA FURNISHED BY THE BIDDER UNDER THE FOLLOWING PROVISION OF THE INVITATION.

INVITATION PARAGRAPH I, ENTITLED "GENERAL INFORMATION," INSOFAR AS PERTINENT, STATES:

"PRIOR TO THE TIME SET FOR OPENING OF BIDS THE BIDDER MUST COMPLETE PARAGRAPH II OF THIS INVITATION AND FURNISH THE DATA REQUIRED BY SECTIONS 6 THROUGH 6.1.12 OF ATTACHED SPECIFICATION CAA-R-119A AS MODIFIED ON PAGE 9 HEREOF, FOR HIS BID TO BE CONSIDERED RESPONSIVE. * * *"

IT IS NOT SPECIFICALLY PROVIDED, HOWEVER, THAT THE DATA REQUIRED TO BE FURNISHED WILL CONSTITUTE A PART OF THE BID OR OF THE RESULTING CONTRACT, OR THAT FAILURE OF THE DATA FURNISHED TO CONFORM IN EVERY RESPECT WITH THE SPECIFICATIONS WILL BE CAUSE FOR REJECTION OF THE BID. IT IS FURTHER NOTED THAT SECTION 6.1 OF THE SPECIFICATIONS, IN ENUMERATING THE DATA TO BE FURNISHED, IN SEVERAL INSTANCES CONTAINS THE WORDS "TENTATIVE" OR "TYPICAL" AS QUALIFYING PARTICULAR REQUIREMENTS. ALSO, IN ITS LETTER OF JUNE 16, 1958, TO YOU, PHILCO CORPORATION POINTS OUT THAT IN CONNECTION WITH PAST PROCUREMENTS "IT HAS ON SEVERAL OCCASIONS BEEN POINTED OUT TO US EITHER VERBALLY OR BY SPECIFIC STATEMENTS IN YOUR INVITATIONS TO BID THAT TECHNICAL PROPOSALS SUCH AS THE ONE SUBMITTED IN THE INSTANT CASE ARE NOT TO BE CONTROLLING IN A CONTRACTOR'S PERFORMANCE AND THAT SUCH DOCUMENTS SHALL NOT FORM A PART OF ANY CONTRACT YOU MAY ISSUE.' YOUR REPORT DOES NOT QUESTION OR DISPUTE THAT SETTLEMENT.

IN VIEW OF THESE FACTS, WE ARE UNABLE TO CONSTRUE THE INVITATION AS PROVIDING FOR A CONTRACT ON THE BASIS OF THE DATA FURNISHED BY THE BIDDER RATHER THAN ON THE DETAILED SPECIFICATIONS INCLUDED IN THE BID; WE CONSIDER THE INVITATION RATHER AS REQUIRING THE FURNISHING BY THE BIDDERS OF TECHNICAL DATA AS A BASIS FOR DETERMINATION OF THEIR CAPABILITIES TO PERFORM ACCORDING TO THE GOVERNMENT'S REQUIREMENTS. AS TO THIS YOU STATE THAT THERE CAN BE NO QUESTION BUT THAT THE PHILCO CORPORATION IS TECHNICALLY CAPABLE OF BUILDING BML SYSTEMS TO MEET YOUR SPECIFICATIONS.

WE THEREFORE CONCLUDE THAT UNDER THE TERMS OF THE INVITATION A CONTRACT, WHICH WOULD REQUIRE PERFORMANCE ACCORDING TO THE STATED SPECIFICATIONS, MAY BE AWARDED TO THE PHILCO CORPORATION UNLESS ITS BID ON ITS FACE SHOWS THAT IT IS QUALIFIED BY THE DATA FURNISHED BY IT IN RESPONSE TO THE REQUIREMENTS OF THE INVITATION.

IN OUR VIEW THE BID DOES NOT CONTAIN SUCH A SHOWING, HOWEVER. IN YOUR REPORT YOU SUGGEST THAT THE BIDDER DOES NOT OFFER COMPLIANCE WITH THE SPECIFICATIONS, POINTING OUT THAT IN ITS LETTER OF TRANSMITTAL ACCOMPANYING THE BID IT STATED THAT ITS QUOTATION DEVIATED IN NO WAY FROM THE OPERATIONAL OBJECTIVES OF THE SPECIFIED SYSTEM. IN THE SAME LETTER, HOWEVER, IT WAS ALSO STATED THAT "IT IS BELIEVED THAT SUFFICIENT AND PROPER JUSTIFICATION HAS BEEN INCLUDED TO PROVE PHILCO'S ABILITY TO EXECUTE A CONTRACT IN ACCORDANCE WITH THE SPECIFICATION," AND THAT "WE CANNOT OVEREMPHASIZE THAT * * * WE ARE FULLY PREPARED TO MEET ALL OF YOUR SPECIFIC REQUIREMENTS.' WE THEREFORE HAVE NO DIFFICULTY IN CONSTRUING THIS LETTER--- WHICH IS A PART OF THE BID--- AS AN UNQUALIFIED OFFER TO MEET THE SPECIFICATIONS OF THE INVITATION.

FOR THE REASONS STATED WE FIND NO PROPER GROUND FOR REJECTION OF THE PHILCO BID UNLESS IT BE DETERMINED BY YOUR AGENCY THAT ITS TECHNICAL DATA IS SO DEFICIENT AS TO JUSTIFY SUBSTANTIAL DOUBT OF ITS ABILITY TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS.