B-146168, JUN. 30, 1961

B-146168, JUN. 30, 1961

TO THE MANAGER, HANFORD OPERATIONS OFFICE, UNITED STATES ATOMIC ENERGY COMMISSION:

WE HAVE YOUR TELEGRAM OF JUNE 22 AND LETTER OF JUNE 16, 1961, WITH ENCLOSURES, YOUR REFERENCE GC:AEM, REQUESTING AN ADVANCE DECISION IN YOUR CAPACITY AS CONTRACTING OFFICER AS TO THE PROPER DISPOSITION OF THE LOW BID SUBMITTED BY THE BINGHAM PUMP COMPANY IN RESPONSE TO INVITATION FOR BIDS NO. 451-61-58-1 ISSUED APRIL 24, 1961, FOR 12 SUBMERSIBLE RAW WATER PUMPS AND ASSOCIATED SERVICES.

UPON OPENING OF BIDS ON MAY 17, 1961, AS SCHEDULED, THE LOW BID WAS FOUND TO BE THAT OF THE BINGHAM COMPANY AT $309,077. THE OTHER THREE BIDS RANGED TO A HIGH OF $502,800. THE INVITATION PROVIDES AT PAGES 4 AND 5 IN MATERIAL PARTS AS FOLLOWS:

"MATERIAL TO BE FURNISHED WITH BID: IN ORDER THAT YOUR BID MAY BE PROPERLY EVALUATED IT MUST BE ACCOMPANIED BY:

"F. DESCRIPTION OF TEST FACILITIES AND PROPOSED TEST PROCEDURE.

"YOUR BID WILL BE DEEMED TO BE QUALIFIED BY THIS DESCRIPTIVE LITERATURE AND DATA SO THAT IF THE INFORMATION DOES NOT CONFORM TO THE REQUIREMENTS OF THIS INVITATION, YOUR BID WILL BE DEEMED TO BE NON RESPONSIVE. THIS INFORMATION IS AN INTEGRAL PART OF YOUR BID AND FAILURE TO SUBMIT THE INFORMATION PRIOR TO BID OPENING WILL CAUSE YOUR BID TO BE REJECTED.'

THE LOW BID DID NOT CONTAIN ADEQUATE DESCRIPTIVE DATA ON THE FACILITIES FOR PERFORMING CERTAIN OF THE REQUIRED MOTOR TESTS AND FOR THE FACILITIES FOR PERFORMING REQUIRED TESTS ON THE MOTOR POWER CABLE. YOU HAVE NOTED IN PARAGRAPHS 3 AND 4 OF YOUR LETTER OF JUNE 16 THAT THE REQUIREMENT TO DESCRIBE THE TEST FACILITIES AND PROPOSED TEST PROCEDURES WAS INSERTED IN THE INVITATION IN ANTICIPATION THAT BIDS MIGHT BE RECEIVED FROM FOREIGN SUPPLIES AS TO WHOSE ABILITY TO PERFORM THE REQUIRED TESTS THERE WOULD BE LITTLE OR NO INFORMATION READILY AVAILABLE. YOU FURTHER POSED THE POSSIBILITY, SINCE THE BIDDER RATHER THAN THE RESPONSIVENESS OF THE BID, THAT THE LOW BIDDER MAY BE PERMITTED TO PROVIDE THE MISSING INFORMATION AFTER BID OPENING.

WE HAVE CONSISTENTLY TAKEN THE POSITION IN THE PAST SEVERAL YEARS THAT THE CONTRACTING OFFICER MAY INSERT ANY REQUIREMENTS IN THE INVITATION WHICH ARE REASONABLY RELATED TO THE PURPOSES OF THE PROCUREMENT AND THAT WE WILL REQUIRE THE ENFORCEMENT OF THOSE REQUIREMENTS, PROVIDING THEY ARE CLEARLY SPELLED OUT AND THE BIDDERS ARE MADE AWARE OF THE CONSEQUENCES OF FAILURE TO CONFORM BY THE TERMS OF THE INVITATION. THUS WE HAVE HELD, WITH CERTAIN EXCEPTIONS NOT RELEVANT TO THE PRESENT INQUIRY, THAT THE FAILURE TO COMPLY WITH THE DESCRIPTIVE LITERATURE REQUIREMENT, WHERE THE DATA REQUIREMENTS ARE MADE PART OF THE BID AND BIDDERS ARE CLEARLY ADVISED THAT FAILURE TO CONFORM WILL RESULT IN REJECTION, IS A SUBSTANTIVE REQUIREMENT WHICH CANNOT BE WAIVED. 40 COMP. GEN. 132, 135; 37 COMP. GEN. 763, 765. WE ARE AWARE OF NO REASON WHY THAT RULE IS NOT EQUALLY FOR APPLICATION IN THIS INSTANCE.

AS NOTED ABOVE, YOU SUGGEST THE POSSIBILITY THAT THE LOW BIDDER SHOULD BE PERMITTED TO FURNISH THE REMAINING DATA AT ANY TIME PRIOR TO AWARD ON THE PREMISE THAT THE DATA REQUIRED ARE TO BE USED FOR A DETERMINATION OF RESPONSIBILITY RATHER THAN RESPONSIVENESS. THE PURPOSE OF THE DESCRIPTIVE DATA REQUIREMENT WHICH IS BY THE TERMS OF THE INVITATION MADE A PART OF THE BID, AND WHICH THEREFORE GOES TO THE MATTER OF RESPONSIVENESS, MAY WELL BE TO GIVE ASSURANCE TO THE CONTRACTING AGENCY THAT THE BIDDER IS COMPLETELY COGNIZANT OF, AND CAPABLE OF PERFORMING, THE MATERIAL REQUIREMENTS OF THE SPECIFICATIONS. IT IS OUR POSITION THAT THE CONTRACTING OFFICER MAY MAKE THE DATA A MATTER OF RESPONSIVENESS AND BY USE OF THE LANGUAGE OF THE INVITATION QUOTED ABOVE DID SO IN THIS CASE. SEE 36 COMP. GEN. 415.

THEREFORE, THE BINGHAM PUMP COMPANY BID MAY NOT BE REGARDED AS RESPONSIVE TO THE TERMS OF THE INVITATION AND SHOULD BE REJECTED.