B-144991, FEBRUARY 13, 1961, 40 COMP. GEN. 458

B-144991, FEBRUARY 13, 1961, 40 COMP. GEN. 458

CONTRACTS - SPECIFICATIONS - DEVIATIONS - INFORMAL V. SUBSTANTIVE THE MATERIALITY OF CERTAIN DETAILED ITEMS IN A SPECIFICATION, SUCH AS THE SIZE OF NUTS, BOLTS, AND RIVETS, IS A MATTER PRIMARILY WITHIN THE DISCRETION OF THE OFFICIALS OF THE PROCURING AGENCY AND WHEN A DETERMINATION IS MADE THAT SUCH SPECIFIC ITEMS ARE IMPORTANT BECAUSE OF THE NEED FOR INTERCHANGEABILITY OF SPARE PARTS AND FOR ACQUISITION OF ADDITIONAL PARTS THE MATERIALITY OF THE SPECIFIC ITEMS WILL BE REGARDED AS WITHIN THE REASONABLE DISCRETION OF THE PROCURING OFFICIALS AND A LOW BID WHICH DID NOT OFFER ITEMS IN STRICT COMPLIANCE WITH THE SPECIFICATIONS WAS PROPERLY REJECTED AS NONRESPONSIVE.

TO THE SECRETARY OF THE INTERIOR, FEBRUARY 13, 1961:

BY LETTER OF FEBRUARY 6, 1961, WITH ENCLOSURES, SIGNED BY THE ADMINISTRATIVE ASSISTANT SECRETARY, OUR ADVICE HAS BEEN REQUESTED AS TO THE RESPONSIVENESS OF THE LOW BID SUBMITTED BY HAWKER SIDDELEY BRUSH, INCORPORATED, UNDER INVITATION NO. 160, ISSUED OCTOBER 10, 1960, BY THE VIRGIN ISLANDS CORPORATION FOR THE PROCUREMENT OF A DIESEL ELECTRIC GENERATING UNIT.

THE GOVERNMENT, IN PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS TO THE INVITATION, RESERVES THE RIGHT TO WAIVE INFORMALITIES IN BIDS. PARAGRAPH B-15 OF THE SPECIFICATIONS PROVIDES: " BOLTS, NUTS, SCREWS, RIVETS, TAPS, PIPES, AND PIPE FITTINGS SHALL CONFORM TO UNITED STATES AND AMERICAN STANDARDS.' THE LOW BID WAS ACCOMPANIED BY A COVERING LETTER WHICH STATES THAT "THE EQUIPMENT OF U.K. ORIGIN WILL INCORPORATE FASTENING DEVICES CONFORMING TO BRITISH STANDARDS.' WE ARE ADVISED THAT AN ANALYSIS OF THE LOW BID SHOWS THAT ALL EXTERNAL FASTENING DEVICES, WHICH MUST CONNECT WITH OUTSIDE PIPES AND OTHER EQUIPMENT, CONFORM TO AMERICAN STANDARDS, BUT THOSE WITHIN THE UNIT OFFERED DO NOT CONFORM TO THOSE STANDARDS.

THE FIRST QUESTION PRESENTED FOR OUR CONSIDERATION IS WHETHER THE FAILURE OF THE EQUIPMENT OFFERED BY THE LOW BIDDER TO CONFORM COMPLETELY WITH THE QUOTED PROVISION OF THE INVITATION RENDERS THAT BID NONRESPONSIVE, OR WHETHER THE FAILURE MAY BE WAIVED AS AN INFORMALITY OR MINOR IRREGULARITY. THE REPORT STATES, AS THE CONTRACTING OFFICER'S VIEW, THAT COMPLIANCE WITH THE SPECIFICATION REQUIREMENT IS CONSIDERED OF GREAT IMPORTANCE IN TERMS BOTH OF INTERCHANGEABILITY OF SPARE PARTS AND OF OBTAINING ADDITIONAL SPARE PARTS. IT IS ALSO REPORTED THAT THE CORPORATION'S BOARD OF DIRECTORS SUPPORTS THE VIEW OF THE CONTRACTING OFFICER AND AGREES UNANIMOUSLY THAT THE CONTRACT SHOULD BE AWARDED TO THE NEXT LOW BIDDER, PROVIDED THAT SUCH AWARD IS NOT LEGALLY OBJECTIONABLE.

THE PREPARATION OF SPECIFICATIONS STATING THE NEEDS OF THE GOVERNMENT AND THE FACTUAL DETERMINATION AS TO WHETHER EQUIPMENT OFFERED BY A BIDDER CONFORMS TO THOSE SPECIFICATIONS IS PRIMARILY WITHIN THE JURISDICTION OF THE ADMINISTRATIVE AGENCY CONCERNED. 38 COMP. GEN. 190; 35 COMP. GEN. 175. IN DECIDING THE CONFORMITY OF THE EQUIPMENT OFFERED, THE CONTRACTING OFFICER MAY WAIVE MINOR VARIANCES NOT AFFECTING PRICE, QUALITY OR QUANTITY. 30 COMP. GEN. 179. THE VARIANCES FROM THE REQUIREMENTS OF THE INVITATION WHICH MAY BE WAIVED, PROVIDED SUCH WAIVER WOULD NOT WORK AN INJUSTICE ON OTHER BIDDERS, ARE THOSE MINOR INFORMALITIES OR DEFECTS OF FORM WHICH DO NOT GO TO THE SUBSTANCE OF THE BID. 37 COMP. GEN. 763, 765; B-139094, JULY 2, 1959. CLEARLY, THE DISTINCTION BETWEEN MINOR AND MATERIAL VARIANCES MUST DEPEND NOT ONLY UPON THE TYPE OF EQUIPMENT BEING PROCURED BUT ALSO UPON THE CIRCUMSTANCES IN WHICH THE EQUIPMENT WILL BE UTILIZED, INCLUDING SUCH CONSIDERATIONS AS THE IMPORTANCE OF CONTINUOUS OPERATION, THE AVAILABILITY OF SPARE PARTS AND MAINTENANCE SERVICES, AND SIMILAR FACTORS. SINCE THIS INFORMATION IS PECULIARLY WITHIN THE KNOWLEDGE OF THE ADMINISTRATIVE AGENCY, IT IS PROPER THAT THE OFFICIALS OF THAT AGENCY SHOULD EXERCISE A REASONABLE DEGREE OF DISCRETION IN DETERMINING WHAT IS MINOR AND WHAT IS NOT. SEE 43 AM. JUR., PUBLIC WORKS AND CONTRACTS, SECTION 40.

IN THE CASE OF HANNAN V. BOARD OF EDUCATION (1909 OKLAHOMA), 107 P. 646, THE COURT IN CONSIDERING WHETHER ADVERTISED SPECIFICATIONS WERE SUFFICIENTLY DEFINITE TO PERMIT COMPETITION ON A COMMON BASIS AS REQUIRED BY THE ADVERTISING STATUTES STATED, AT PAGE 654, THE FOLLOWING IN RESPONSE TO A QUESTION RAISED BY COUNSEL AS TO THE DEGREE OF DETAIL VALID SPECIFICATIONS WERE REQUIRED TO CONTAIN:

* * * NOW IF IT IS NECESSARY IN ORDER TO FURNISH A DEFINITE BASIS FOR A DEFINITE BID * * * TO SPECIFY THE SIZE OF THE BOLTS, RIVETS, ETC., THEN IT IS NECESSARY TO DO THIS IN ORDER TO COMPLY WITH THE STATUTE.

WE THINK IT MAY REASONABLY BE DEDUCED AS A COROLLARY TO THE PROPOSITION STATED BY THE COURT THAT WHERE IT IS DEEMED NECESSARY BY THE CONTRACTING AGENCY TO SPECIFY SUCH RELATIVELY FINITE DETAILS AS THE SIZE OF NUTS, BOLTS AND RIVETS, THOSE SIZES SHOULD, IN THE ORDINARY SITUATION, BE REGARDED AS MATERIAL. IN VIEW OF THE POSITION TAKEN BY THE ADMINISTRATIVE AGENCY AS TO THE MATERIALITY OF THE CITED SPECIFICATION PROVISION AND THE REASONABLE DEGREE OF DISCRETION WHICH MUST NECESSARILY REST WITH THAT AGENCY IN DETERMINING WHAT IS MATERIAL, WE CONCLUDE THAT THE LOW BID IS THIS INSTANCE HAS PROPERLY BEEN JUDGED NONRESPONSIVE AND SHOULD, THEREFORE, BE REJECTED. THE ABOVE ANSWER TO YOUR FIRST QUESTION MAKES IT UNNECESSARY TO CONSIDER THE OTHER QUESTIONS RAISED IN THE LETTER OF FEBRUARY 6.