B-145092, APR. 7, 1961
Highlights
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION: THERE IS ENCLOSED A COPY OF OUR LETTER OF TODAY TO WANG LABORATORIES. THIS PROTEST WAS THE SUBJECT OF A REPORT DATED MARCH 10. AS WILL BE NOTED. WE HAVE REJECTED THE PROTEST ON THE BASIS THAT THE BID OF WANG LABORATORIES. WAS NONRESPONSIVE TO THE TECHNICAL REQUIREMENTS OF THE INVITATION. IT IS APPARENT FROM THE RECORD THAT DATEX QUALIFIED ITS BID IN A MANNER WHICH AFFECTED THE PRICE OF THE SYSTEM OFFERED AND. ITS BID WAS LIKEWISE NONRESPONSIVE. WE DO NOT BELIEVE THAT THE QUALIFICATIONS INVOLVED WERE SUCH AS COULD HAVE BEEN CORRECTED AFTER OPENING BECAUSE THEY WENT TO THE FORM. WHILE PROPERLY BOTH BIDS SHOULD HAVE BEEN REJECTED BECAUSE OF NONRESPONSIVENESS WITHOUT AFFORDING ANY OPPORTUNITY TO DATEX TO CORRECT THE IRREGULARITIES IN ITS BID AFTER OPENING.
B-145092, APR. 7, 1961
TO ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION:
THERE IS ENCLOSED A COPY OF OUR LETTER OF TODAY TO WANG LABORATORIES, INC., WITH RESPECT TO THEIR PROTEST AGAINST THE AWARD OF A CONTRACT TO THE DATEX CORPORATION UNDER INVITATION FOR BIDS NO. A 3491. THIS PROTEST WAS THE SUBJECT OF A REPORT DATED MARCH 10, 1961, FROM THE ACTING DIRECTOR, PROCUREMENT AND SUPPLY.
AS WILL BE NOTED, WE HAVE REJECTED THE PROTEST ON THE BASIS THAT THE BID OF WANG LABORATORIES, INC., WAS NONRESPONSIVE TO THE TECHNICAL REQUIREMENTS OF THE INVITATION. HOWEVER, IT IS APPARENT FROM THE RECORD THAT DATEX QUALIFIED ITS BID IN A MANNER WHICH AFFECTED THE PRICE OF THE SYSTEM OFFERED AND, FOR THAT REASON, ITS BID WAS LIKEWISE NONRESPONSIVE. WE DO NOT BELIEVE THAT THE QUALIFICATIONS INVOLVED WERE SUCH AS COULD HAVE BEEN CORRECTED AFTER OPENING BECAUSE THEY WENT TO THE FORM, AS DISTINGUISHED FROM THE SUBSTANCE, OF THE BID AS CONTEMPLATED BY PARAGRAPH 2.404 (5) OF CHAPTER 8 OF THE NASA MANAGEMENT MANUAL. WHILE PROPERLY BOTH BIDS SHOULD HAVE BEEN REJECTED BECAUSE OF NONRESPONSIVENESS WITHOUT AFFORDING ANY OPPORTUNITY TO DATEX TO CORRECT THE IRREGULARITIES IN ITS BID AFTER OPENING, WE RECOGNIZE THAT PERFORMANCE OF THE CONTRACT BY DATEX HAS REACHED AN ADVANCED STATE AND THAT IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO DIRECT CANCELLATION OF THE CONTRACT. HAVE TAKEN THIS VIEW PRIMARILY ON THE BASIS OF THE STATEMENT IN THE REPORT THAT, HAD DATEX'S BID BEEN REJECTED, THE IRREGULARITIES IN ITS BID WOULD BE NEGOTIATED OUT AND A CONTRACT AWARDED TO IT PRESUMABLY UNDER 10 U.S.C. 2304 (A) (10) AND PARAGRAPH 3.210-2 (C) OF CHAPTER 18 OF THE NASA MANAGEMENT MANUAL.
WHILE WE CONCLUDE THAT THE EXISTING CONTRACT SHOULD STAND, WE SUGGEST THAT PROPER ADMINISTRATIVE STEPS BE TAKEN TO ASSURE COMPLIANCE WITH YOUR AGENCY'S PROCUREMENT REGULATIONS, 10 U.S.C. 2301 ET SEQ., AND APPLICABLE DECISIONS OF OUR OFFICE CONCERNING THE WAIVER OF SUBSTANTIAL DEVIATIONS FROM INVITATION REQUIREMENTS. SEE 30 COMP. GEN. 179; 36 ID. 251; ID. 535; 37 ID. 110; 38 ID. 253; ID. 612; 39 ID. 259.