B-144646, FEB. 8, 1961

B-144646, FEB. 8, 1961

TO DAYSTROM, INCORPORATED:

BY LETTER OF DECEMBER 15, 1960, WITH ENCLOSURES, YOU HAVE PROTESTED THE REJECTION BY THE TENNESSEE VALLEY AUTHORITY OF YOUR BID UNDER INVITATION NO. 34-40581 IN FAVOR OF A LOWER BID SUBMITTED BY A BIDDER WHO YOU CONTEND DOES NOT MEET THE EXPERIENCE REQUIREMENTS STATED IN THE INVITATION.

THE INVITATION, ISSUED AUGUST 10, 1960, SOLICITED BIDS FOR CONTROL BOARDS AND CONTROL, METERING AND DATA LOGGING EQUIPMENT. BIDS WERE OPENED ON SEPTEMBER 6, 1960. THE TWO LOWEST BIDS WERE REJECTED AS NOT RESPONSIVE TO THE TERMS OF THE INVITATION. THE THIRD LOW BID AT $331,360 WAS FROM THE REPUBLIC FLOW METERS COMPANY. YOUR BID WAS FOURTH LOW AT $354,355. AFTER A DETERMINATION BY THE TVA BOARD THAT ITS BID CONFORMED TO THE SPECIFICATIONS AND THAT IT WAS FULLY CAPABLE OF PERFORMING IN ACCORDANCE WITH THE TERMS OF THE CONTRACT, AWARD WAS MADE TO REPUBLIC ON OCTOBER 20, 1960.

PARAGRAPH 2 OF THE SPECIAL CONDITIONS TO THE INVITATION STATED THAT TO BE CONSIDERED FOR AWARD A BIDDER MUST MEET DESIGNATED CRITERIA, INCLUDING A REQUIREMENT TO---

"* * * OFFER SOLID-STATE EQUIPMENT DESIGNED AND MANUFACTURED BY A COMPANY WHICH PRESENTLY HAS IN SUCCESSFUL OPERATION IN CONTINUOUS DUTY INDUSTRIAL PLANT OR CENTRAL STEAM-ELECTRIC GENERATING STATION APPLICATION OF CONTROL SYSTEMS SOLID-STATE ELECTRIC MINIATURE RECORDERS, CONTROLLERS, AND TRANSMITTERS SUCH AS THOSE SPECIFIED HEREIN.'

SPECIFICALLY, IT IS YOUR CONTENTION THAT THE SUCCESSFUL BIDDER FAILED TO MEET THE QUOTED REQUIREMENT.

WE HAVE BEEN ADVISED BY THE TVA THAT THE QUOTED REQUIREMENT WAS INTENDED TO APPLY ONLY TO AUXILIARY CONTROLS AND NOT TO THE COMBUSTION CONTROL AND FEEDWATER CONTROL SYSTEMS, WHICH LATTER WERE SPECIFICALLY COVERED BY ANOTHER OF THE STATED CRITERIA. IT IS STATED THAT THE ONLY CONTROL SYSTEM IN THE SPECIFICATIONS TO WHICH THE QUOTED REQUIREMENT COULD APPLY IS THE PULVERIZER AIR CONTROL, WHICH UNDER THE SPECIFICATIONS COULD "HAVE EITHER PNEUMATIC OR ELECTRONIC PILOTS AND PNEUMATIC CONTROL DRIVES.' SINCE THE SUCCESSFUL BIDDER OFFERED A PNEUMATIC SYSTEM THERE WOULD HAVE BEEN NO PURPOSE IN REQUIRING ITS MANUFACTURE BY A FIRM MEETING THE QUOTED REQUIREMENT AS TO EXPERIENCE WITH ELECTRONIC CONTROLS, AND APPLICATION OF THAT REQUIREMENT TO SUCH A SITUATION COULD NOT BE JUSTIFIED AS A PERMISSIBLE QUALIFICATION. IN OTHER WORDS, THE REQUIREMENT MAY PROPERLY BE APPLIED ONLY IN THE EVENT THE STIPULATED EXPERIENCE WOULD HAVE DIRECT AND IMMEDIATE APPLICATION TO THE SYSTEM PROPOSED TO BE FURNISHED. WE HAVE HELD THAT SPECIAL REQUIREMENTS OF AN INVITATION MUST BE GIVEN A REASONABLE INTERPRETATION EVEN THOUGH THIS MAY NOT CONFORM TO THE LITERAL LANGUAGE.

EVEN ADOPTING THE LITERAL INTERPRETATION OF THE REQUIREMENT, THE TVA WOULD NOT HAVE BEEN JUSTIFIED IN REJECTING THE REPUBLIC BID IN FAVOR OF A HIGHER ONE. IN OUR DECISION B-140481, SEPTEMBER 8, 1959 (39 COMP. GEN. 173), WE CONSIDERED A SITUATION IN WHICH THE LOW RESPONSIVE BIDDER WHO FAILED TO MEET THE STIPULATED EXPERIENCE REQUIREMENTS WAS FOUND BY THE CONTRACTING AGENCY TO HAVE THE NECESSARY CAPABILITY (INCLUDING PLANT AND FINANCIAL CAPACITY, KNOW-HOW, EQUIPMENT AND MANPOWER) TO SUCCESSFULLY CARRY OUT THE CONTRACT IN ACCORDANCE WITH ITS TERMS. IN THAT SITUATION WE STATED---

"WHEN, AS IN THE PRESENT CASE, THERE APPEARS TO BE REASONABLE GROUND FOR DOUBT AS TO A LOW BIDDER'S LACK OF RESPONSIBILITY, EVEN THOUGH THE BIDDER MAY FAIL TO MEET SOME OF THE QUALIFICATIONS PRESCRIBED BY THE INVITATION, WE BELIEVE THAT REJECTION OF THE LOW BID AND AWARD TO ANY OTHER BIDDER SHOULD BE SUPPORTED BY A SPECIFIC DETERMINATION, BASED UPON CONSIDERATION OF THE QUALIFICATIONS OF THE PARTICULAR BIDDER, THAT THE LOW BIDDER WAS NOT A "RESPONSIBLE" BIDDER WITHIN THE MEANING OF THE STATUTE. IF SUCH A DETERMINATION CANNOT BE MADE, THE QUALIFICATIONS PRESCRIBED BY THE INVITATION MUST BE REGARDED AS UNREASONABLY RESTRICTIVE. * * *"

IN VIEW OF THE FACT THAT THE CONTRACTING AGENCY, WHICH IS PRIMARILY RESPONSIBLE FOR SUCH DETERMINATION, HAS FOUND THE SUCCESSFUL BIDDER TO BE FULLY QUALIFIED TO PERFORM THE CONTRACT, IT WOULD HAVE BEEN IMPROPER ON THE BASIS OF THE PRECEDENT ESTABLISHED IN THE CITED DECISION TO REJECT THAT FIRM'S BID FOR NON-COMPLIANCE WITH THE LITERAL LANGUAGE OF THE EXPERIENCE REQUIREMENT. THIS PRECEDENT, IF CONSIDERED APPLICABLE TO THE PRESENT SITUATION, ORDINARILY WOULD REQUIRE THE REJECTION OF ALL BIDS ON THE GROUND THAT SOME PROSPECTIVE SUPPLIERS MAY HAVE BEEN DISCOURAGED FROM BIDDING BY THE LANGUAGE OF THE EXPERIENCE PROVISION. IN THIS CASE, HOWEVER, SINCE THE AWARD HAS ALREADY BEEN MADE, AND THE PROVISION IS REASONABLY SUBJECT TO THE INTERPRETATION ADOPTED BY TVA, WE FIND NO PROPER BASIS TO SUPPORT A DETERMINATION THAT THE CONTRACT SHOULD BE CANCELLED. SEE 39 COMP. GEN. 834; B-139673, JUNE 26, 1959.

IN ANY EVENT, IT IS REPORTED BY THE TVA THAT YOUR BID WAS NOT RESPONSIVE, FOR THE SAME REASONS THAT REQUIRED THE REJECTION OF THE LOWER BID OF HAGAN CHEMICALS AND CONTROLS, INCORPORATED, SOME OF WHOSE EQUIPMENT WAS ALSO OFFERED BY YOU. HOWEVER, IN VIEW OF THE CONCLUSION REACHED WITH RESPECT TO THE AWARD MADE, IT IS UNNECESSARY TO CONSIDER THAT ASPECT OF THE MATTER.