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B-149265, OCT. 19, 1962

B-149265 Oct 19, 1962
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CONTAINED THE FOLLOWING PROVISION: "NOTE: AWARD WILL BE MADE ONLY TO A BIDDER WHOSE COMMERCIAL EQUIVALENTS OF THE EQUIPMENTS DESCRIBED IN THIS INVITATION HAVE. BIDDERS SHALL FURNISH WITH THEIR BIDS THE TYPE NUMBERS OF SUCH COMMERCIAL EQUIVALENTS WHICH ARE LISTED IN THE FCC "RADIO EQUIPMENT LIST. IF SUCH COMMERCIAL EQUIVALENTS ARE NOT SO LISTED. EXTENDED THE BID OPENING TO JUNE 8 AND SUBSTITUTED THE FOLLOWING FOR THE PROVISION QUOTED ABOVE: "AWARD WILL BE MADE ONLY TO A BIDDER WHO SUBMITS WITH HIS BID ACCEPTABLE DESIGNS OF THE PRODUCTS HE PROPOSES TO FURNISH UNDER ITEMS 1 AND 2 RESPECTIVELY. OR IS CURRENTLY PRODUCING. IF THE BIDDER HAS SUCH TYPE ACCEPTANCE FOR EQUIVALENT OF ITEM 1 OR 2 OR BOTH HE SHOULD FURNISH WITH HIS BID THE TYPE OR MODEL NUMBER OF EACH SUCH EQUIVALENT WHICH IS LISTED IN THE FCC "RADIO EQUIPMENT LIST.

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B-149265, OCT. 19, 1962

TO KARAS, EILERMAN AND MUMPOWER:

BY TELEGRAM OF JUNE 22 AND YOUR LETTER OF JULY 25, 1962, THERE HAS BEEN PROTESTED THE REJECTION OF THE BID SUBMITTED BY DARE, INCORPORATED, PURSUANT TO INVITATION FOR BIDS NO. 600-979-62-S, ISSUED APRIL 11, 1962, BY THE U.S. NAVY PURCHASING OFFICE FOR THE PROCUREMENT OF VARYING QUANTITIES OF COMMUNICATIONS EQUIPMENT WITH RELATED SPARE PARTS AND DATA.

AS ORIGINALLY ISSUED THE INVITATION PROVIDED THAT BIDS WOULD BE OPENED ON MAY 11, 1962, AND CONTAINED THE FOLLOWING PROVISION:

"NOTE: AWARD WILL BE MADE ONLY TO A BIDDER WHOSE COMMERCIAL EQUIVALENTS OF THE EQUIPMENTS DESCRIBED IN THIS INVITATION HAVE, PRIOR TO THE OPENING DATE OF BIDS, BEEN TYPE ACCEPTED BY THE FEDERAL COMMUNICATIONS COMMISSION FOR LICENSING UNDER RULES PART 10 OR 16 IN THE RADIO SERVICES OTHER THAN BROADCAST. BIDDERS SHALL FURNISH WITH THEIR BIDS THE TYPE NUMBERS OF SUCH COMMERCIAL EQUIVALENTS WHICH ARE LISTED IN THE FCC "RADIO EQUIPMENT LIST, PART C, EQUIPMENT ACCEPTABLE FOR LICENSING IN THE RADIO SERVICES OTHER THAN BROADCAST," DATED 9 FEBRUARY 1962. IF SUCH COMMERCIAL EQUIVALENTS ARE NOT SO LISTED, BIDDERS SHALL FURNISH WITH THEIR BIDS EVIDENCE OF SUCH TYPE ACCEPTANCE BY THE FEDERAL COMMUNICATIONS COMMISSION.'

HOWEVER, BID AMENDMENT NO. 1, ISSUED MAY 8, 1962, EXTENDED THE BID OPENING TO JUNE 8 AND SUBSTITUTED THE FOLLOWING FOR THE PROVISION QUOTED ABOVE:

"AWARD WILL BE MADE ONLY TO A BIDDER WHO SUBMITS WITH HIS BID ACCEPTABLE DESIGNS OF THE PRODUCTS HE PROPOSES TO FURNISH UNDER ITEMS 1 AND 2 RESPECTIVELY.

"EACH BIDDER MUST SUBMIT WITH HIS BID ACCEPTABLE DESIGNS OF THE PRODUCTS HE PROPOSES TO FURNISH UNDER ITEMS 1 AND 2 RESPECTIVELY. THE DESIGNS REQUIRED TO BE SUBMITTED AS AFORESAID SHALL CONSIST OF PLANS OR DRAWINGS INCLUDING OR SUPPLEMENTED WITH OTHER TECHNICAL DATA, SUCH AS AN INSTRUCTION BOOK, A PARTS LIST, BILL OF MATERIALS, DISSERTATION, TABLE OF WEIGHTS AND, IF AVAILABLE, PHOTOGRAPHS AND TEST DATA, AS THE BIDDER DEEMS APPROPRIATE. IN THE EVENT A BIDDER HAS PRODUCED, OR IS CURRENTLY PRODUCING, UNDER A BUREAU OF SHIPS CONTRACT EQUIPMENTS COMPARABLE TO ITEM 1 OR ITEM 2 OR BOTH, THE DESIGN INFORMATION RESPECTIVELY REQUIRED TO BE FURNISHED WITH RESPECT TO SUCH ITEM/S) MAY BE SUBMITTED IN THE FORM OF REFERENCES CLEARLY IDENTIFYING PLANS, DRAWINGS, INSTRUCTION BOOKS OR OTHER INFORMATION PREVIOUSLY SUBMITTED IN ACCORDANCE WITH THE REQUIREMENTS OF THE AFOREMENTIONED CONTRACT/S) TOGETHER WITH APPROPRIATE REVISIONS, MODIFICATIONS OR ADDITIONS TO SUCH PREVIOUSLY SUBMITTED INFORMATION.

"TO BE ACCEPTABLE THE DESIGNS REQUIRED AS AFORESAID MUST SHOW MECHANICAL AND ELECTRICAL CHARACTERISTICS, INCLUDING PARTS AND MATERIALS WITH SUFFICIENT CLARITY, COMPLETENESS AND DETAIL AND MUST BE SO PREPARED AS TO (I) ENABLE A THOROUGH EVALUATION OF THE CHARACTERISTICS, PERFORMANCE AND QUALITY OF THE PROPOSED PRODUCT TO BE MADE, (II) PROVIDE ASSURANCE, AS A MATTER OF ENGINEERING JUDGMENT, THAT A PRODUCT BUILT IN ACCORDANCE WITH THE SUBMITTED DESIGN CAN REASONABLY BE EXPECTED TO MEET THE REQUIREMENTS OF THE APPLICABLE SPECIFICATIONS, AS SET FORTH AND MODIFIED IN THIS INVITATION FOR BIDS, AND (III) PERMIT A SOUND ENGINEERING DETERMINATION TO BE MADE THAT THE PRODUCTS PROPOSED TO BE FURNISHED UNDER ITEMS 1 AND 2 RESPECTIVELY FULLY MEET THE TECHNICAL REQUIREMENTS FOR TYPE ACCEPTANCE BY THE FEDERAL COMMUNICATIONS COMMISSION FOR LICENSING UNDER RULES PART 10 OR 16 IN THE RADIO SERVICES OTHER THAN BROADCAST. IF THE BIDDER HAS SUCH TYPE ACCEPTANCE FOR EQUIVALENT OF ITEM 1 OR 2 OR BOTH HE SHOULD FURNISH WITH HIS BID THE TYPE OR MODEL NUMBER OF EACH SUCH EQUIVALENT WHICH IS LISTED IN THE FCC "RADIO EQUIPMENT LIST, PART C, EQUIPMENT ACCEPTABLE FOR LICENSING IN THE RADIO SERVICE OTHER THAN BROADCAST" DATED 9 FEBRUARY 1962 OR, IF NOT SO LISTED, OTHER EVIDENCE OF SUCH TYPE ACCEPTANCE BY THE FEDERAL COMMUNICATIONS COMMISSION. FAILURE TO SUBMIT DESIGNS REQUIRED AS ABOVE PROVIDED OR THE UNACCEPTABILITY OF ANY DESIGN SUBMITTED SHALL RESULT IN REJECTION OF THE RELATED BID AS NON-RESPONSIVE.

"ITEMS 1 AND 2 SHALL BE IN ACCORDANCE WITH THE CONTRACTOR'S ACCEPTABLE DESIGNS FOR SAID ITEMS RESPECTIVELY, EXCEPT THAT IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN SUCH DESIGN AND THE REQUIREMENTS OF THE APPLICABLE SPECIFICATIONS, AS SET FORTH AND MODIFIED IN THIS INVITATION FOR BIDS, THE LATTER SHALL GOVERN, AND THE AWARD SHALL IDENTIFY THE ACCEPTABLE DESIGNS.'

BIDS WERE OPENED ON JUNE 8 AND IT WAS DETERMINED BY THE CONTRACTING AGENCY TO MAKE AWARD ON A QUANTITY OF 1,239 MOBILE FM TRANSMITTER RECEIVERS (ITEM 1), 377 FIXED STATION TRANSMITTERS AND RECEIVERS (ITEM 2), AND 119 REMOTE CONTROL CONSOLES (ITEM 3). BIDS RECEIVED FOR THE DESIGNATED QUANTITIES WERE AS FOLLOWS:

CHART

BIDDER PRICE DISCOUNT COMCO (BID NO. 2) $673,704.40 1/2 PERCENT--- 20 DAYS DARE 714,296.30 NONE GENERAL ELECTRIC 752,655.91 NONE COMCO (BID NO. 1) 776,541.40 1/2 PERCENT--- 20 DAYS MOTOROLA 779,089.80 NONE

THE TWO LOW BIDS WERE REJECTED AS NONRESPONSIVE AND AWARD WAS MADE TO THE THIRD LOW BIDDER, GENERAL ELECTRIC, ON JULY 30, 1962. THE DARE BID WAS REJECTED FOR FAILURE TO MEET THE DESCRIPTIVE DATA REQUIREMENTS OF THE AMENDMENT. THE DETAILED REASONS FOR THE REJECTION OF THE DARE BID ARE STATED IN A REPORT FROM THE DEPARTMENT OF THE NAVY TRANSMITTED BY LETTER OF SEPTEMBER 26, SIGNED BY THE ASSISTANT SECRETARY (INSTALLATIONS AND LOGISTICS), AS FOLLOWS:

"DARE SUBMITTED THE MODEL NUMBERS OF ITS STANDARD PRODUCT EQUIVALENTS OF THE MOBILE AND FIXED STATION TRANSCEIVERS CALLED FOR BY THE INVITATION. IT ALSO SUBMITTED A NUMBER OF PIECES OF TECHNICAL DATA WHICH IT LATER SAID WAS THE SAME DATA REQUIRED BY THE FCC FOR LICENSING (TYPE ACCEPTANCE). THIS DATA WAS SO INCOMPLETE THAT NO EVALUATION THEREOF COULD BE MADE AGAINST SPECIFICATION REQUIREMENTS. NONE OF THE PIECES OF DATA SUBMITTED WAS IDENTIFIED AS TO WHETHER IT WAS APPLICABLE TO MOBILE OF FIXED STATION EQUIPMENT THOUGH INTERNAL EVIDENCE ON ONE OR TWO PIECES OF DATA INDICATED THESE PIECES PERTAINED TO MOBILE UNITS. THE DATA WASN-T EVEN IDENTIFIED WITH RESPECT TO THE MODELS CITED BY DARE AS ITS COMMERCIAL EQUIVALENTS, NOR WERE THE VARIOUS PIECES CORRELATED AMONG THEMSELVES. NO MECHANICAL CHARACTERISTICS WERE SHOWN. A SCHEMATIC, APPARENTLY FOR RECEIVER, WAS EXTREMELY SIMPLIFIED, AND NO VALUES OR RATINGS FOR THE COMPONENTS IN THE SCHEMATIC WERE GIVEN. TYPES WERE GIVEN FOR ONLY A PORTION OF THE TRANSISTOR COMPLEMENT. IN SUM, THE DATA SUBMITTED WHOLLY FAILED TO MEET THE PROVISIONS OF THE INVITATION FOR COMPLETENESS, CLARITY, AND DETAIL, THEREBY RENDERING DARE'S BID NON-RESPONSIVE IN ACCORDANCE WITH THE SPECIFIC TERMS OF THE INVITATION. ACCORDINGLY, DARE'S BID HAD TO BE, AND WAS, REJECTED.'

IN YOUR LETTER OF JULY 25 YOU STATE THAT SINCE UNDER THE TERMS OF THE INVITATION CONFLICTS BETWEEN SPECIFICATIONS AND DESCRIPTIVE DATA WILL BE RESOLVED IN FAVOR OF THE FORMER, THE DESIGN DATA REQUIRED TO BE FURNISHED BY THE BIDDER COULD ONLY HAVE BEEN INTENDED TO SHOW RESPONSIBILITY AND NOT RESPONSIVENESS. IT IS FURTHER STATED IN YOUR LETTER THAT THE SUBSTITUTION OF THE DESCRIPTIVE DATA REQUIREMENT FOR THE FCC APPROVAL WHICH HAD BEEN USED IN PREVIOUS PROCUREMENTS MADE THE INVITATION MORE, RATHER THAN LESS, RESTRICTIVE. IN ADDITION, IT IS STATED THAT NO ADEQUATE STANDARDS WERE SET OUT IN THE INVITATION BY WHICH TECHNICAL PERSONNEL COULD DETERMINE WHETHER DESCRIPTIVE DATA SUBMITTED WERE ADEQUATE ENOUGH TO DETERMINE THE RESPONSIVENESS OF A BID. SPECIFICALLY, YOUR LETTER STATES WITH RESPECT TO THIS MATTER:

"THERE WERE NOT ADEQUATE STANDARDS BY WHICH THE TECHNICAL PERSONNEL COULD DETERMINE WHETHER A BID WAS RESPONSIVE, NOR WERE SUCH STANDARDS SUPPLIED. THE TECHNICAL PERSONNEL HAVE TO BE GUIDED AS TO THE STANDARDS OF THE INFORMATION REQUIRED BY ADEQUATE INSTRUCTION FROM BOTH THEIR LEGAL AND CONTRACTING DEPARTMENTS. THESE INSTRUCTIONS SHOULD HAVE BEEN CLEARLY SPELLED OUT FOR THE TECHNICAL PEOPLE; AND THE AMENDMENT, IN ORDER TO BE EFFECTIVE, SHOULD HAVE BEEN SPELLED FOR THE TECHNICAL PEOPLE IN DETAIL THE MINIMUM TYPE OF INFORMATION REQUIRED, RATHER THAN LEAVING THE BROAD DISCRETIONARY POWER AS TO WHAT THE MINIMUMS WERE WITH THE TECHNICAL PERSONNEL, WHO ARE UNEQUIPPED TO COPE WITH A LEGAL DECISION OF WHAT IS AND WHAT IS NOT SUFFICIENT MINIMUM INFORMATION.'

FOR THE FOREGOING REASONS YOU CONTEND THAT THE CONTRACT AWARDED PURSUANT TO THE INVITATION MUST BE REGARDED AS INVALID.

THE REASONS FOR SUBSTITUTING THE DESCRIPTIVE DATA REQUIREMENT FOR FCC TYPE ACCEPTANCE ARE SET OUT IN THE NAVY REPORT AS FOLLOWS:

"* * * MENTION HAS BEEN MADE ABOVE THAT AMENDMENT NO. 1 INCORPORATED IN THE INVITATION REQUIREMENTS FOR DESIGN DATA IN LIEU OF THE ORIGINAL REQUIREMENT FOR FCC TYPE ACCEPTANCE. THIS CHANGE BROADENED THE OPPORTUNITY FOR COMPETITION IN THAT SUFFICIENT TIME WAS ALLOWED FOR A RESPONSIBLE PROSPECTIVE SUPPLIER TO PREPARE AND SUBMIT ACCEPTABLE DESIGN DATA, WHEREAS THE TIME NECESSARY TO OBTAIN FCC TYPE ACCEPTANCE, INCLUDING THE PRODUCTION OF A MODEL, IS LIKELY TO MAKE IT IMPOSSIBLE FOR SUCH A SUPPLIER WHO DID NOT ALREADY HAVE A MODEL TO OBTAIN ACCEPTANCE BY BID OPENING. IN ADDITION THE REQUIREMENT FOR DESIGN DATA BETTER SERVED THE NAVY'S INTERESTS IN THAT IT WAS TO COVER ALL ASPECTS OF THE MOBILE AND FIXED STATION EQUIPMENTS, WHEREAS FCC TYPE ACCEPTANCE PRIMARILY CONCERNS ONLY THE TRANSMITTER PORTION.

"AS SAID, THE REQUIREMENT FOR DESIGN DATA WAS MADE PURSUANT TO ASPR 2- 202.5, WHICH PROVIDES FOR THE FURNISHING OF INFORMATION WITH BIDS SHOWING THE CHARACTERISTICS OR CONSTRUCTION OF A PRODUCT TO DETERMINE ITS ACCEPTABILITY. IN THIS CASE THE SPECIFICATIONS ARE ESSENTIALLY PERFORMANCE SPECIFICATIONS, AND THE DESIGN, INCLUDING CIRCUITY, PARTS AND MATERIALS, IS LEFT LARGELY UP TO EACH PROSPECTIVE SUPPLIER. CONSIDERATIONS OF DESIGN ARE THEREFORE IMPORTANT IN DETERMINING THE ACCEPTABILITY OF THESE PRODUCTS. SOME ASSURANCE OF SOUND DESIGN IS PROVIDED IF A PROSPECTIVE SUPPLIER HAS FCC TYPE ACCEPTANCE FOR EQUIVALENT PRODUCTS, BUT THE DESIGN AND TECHNICAL DATA NEEDED FOR TYPE ACCEPTANCE BY FCC IS MUCH LESS THAN THE DATA NEEDED TO DETERMINE ACCEPTABILITY FOR NAVY PURPOSES. PAST DEFAULTS OF BUREAU OF SHIPS CONTRACTORS FOR RADIO EQUIPMENT FOR INTERNAL SECURITY PURPOSES HAVE BEEN DUE IN LARGE PART TO THE FAILURE OF SUCH CONTRACTORS TO HAVE GOOD DESIGNS THEREFORE. ACCORDINGLY, AS PROVIDED FOR IN ASPR 2-202.5 (B), THE BUREAU OF SHIPS DEEMED THAT DESIGN INFORMATION AS A PART OF BIDS WAS NEEDED TO ENABLE IT TO DETERMINE BEFORE AWARD WHETHER THE PRODUCTS OFFERED WOULD MEET THE SPECIFICATION REQUIREMENTS OF THE INVITATION FOR BIDS AND TO ESTABLISH MORE EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH.

"WHILE THE INVITATION, AS AMENDED, PERMITTED FLEXIBILITY AS TO THE FORM IN WHICH THE DESIGN AND TECHNICAL DATA WAS TO BE SUBMITTED, THE SUBSTANCE THAT WAS REQUIRED WAS CLEARLY SET FORTH. TO BE ACCEPTABLE, THE DESIGNS HAD TO SHOW MECHANICAL AND ELECTRICAL CHARACTERISTICS, INCLUDING PARTS AND MATERIALS WITH SUFFICIENT COMPLETENESS, CLARITY AND DETAIL, AND BE SO PREPARED AS TO (I) PERMIT THOROUGH EVALUATION OF CHARACTERISTICS AND PERFORMANCE, (II) PROVIDE ASSURANCE, AS A MATTER OF ENGINEERING JUDGMENT, THAT PRODUCTS BUILT IN ACCORDANCE WITH THE DESIGN COULD REASONABLY BE EXPECTED TO MEET SPECIFICATION REQUIREMENTS AND (III)PERMIT A SOUND ENGINEERING DETERMINATION THAT THE PRODUCTS PROPOSED WOULD FULLY MEET THE TECHNICAL REQUIREMENTS FOR TYPE ACCEPTANCE BY FCC. FURTHER, IF A BIDDER HAD TYPE ACCEPTANCE FOR EQUIVALENTS HE WAS REQUESTED TO PROVIDE THAT INFORMATION, GIVING THE MODEL NUMBERS OF HIS EQUIVALENTS. OBVIOUSLY IN SUCH A CASE, THE NAVY WOULD NOT BE INTERESTED IN EVALUATING THE BIDDER'S TECHNICAL PROPOSAL FOR THE TECHNICAL REQUIREMENTS OF FCC TYPE ACCEPTANCE, BUT WOULD BE VITALLY INTERESTED IN EVALUATION FROM THE SPECIFICATION STANDPOINT. THESE ARE TWO DIFFERENT THINGS, PARTICULARLY AS THE TYPE ACCEPTANCE EVALUATION AND DETERMINATION CAN SOUNDLY BE MADE ON THE BASIS OF TECHNICAL DATA THAT IS INADEQUATE TO PERMIT EVALUATION AND REASONABLE ASSURANCE OF SPECIFICATION COMPLIANCE. THE INVITATION, AS AMENDED, CALLED FOR DESIGN INFORMATION THAT WOULD ENABLE BOTH EVALUATIONS TO BE MADE. THE PERFORMANCE REQUIREMENTS OF THE SPECIFICATIONS PROVIDE DEFINITE CRITERIA FOR EVALUATING THE DESIGN DATA, AND SUCH CRITERIA ARE IMPLICIT IN AMENDMENT NO. 1.

"THE INVITATION PROVIDED THAT THE ACCEPTABLE DESIGN OF THE SUCCESSFUL BIDDER WOULD FORM PART OF THE RESULTING CONTRACT BUT, IN THE EVENT OF CONFLICT OR INCONSISTENCY BETWEEN SUCH PROPOSAL AND THE SPECIFICATIONS, THE LATTER WOULD GOVERN. DARE, IN ITS LETTER TO YOU OF 25 JULY, ARGUES THAT BECAUSE THE SPECIFICATIONS CONTROLLED, THE REQUIREMENT FOR DESIGN DATA ONLY WAS INTENDED TO SHOW RESPONSIBILITY OF A BIDDER. NO QUESTION AS TO THE RESPONSIBILITY OF DARE AROSE--- INDEED THE ENGINEERS WHO REVIEWED AND ATTEMPTED TO EVALUATE DARE'S TECHNICAL PROPOSAL CONSIDERED THAT DARE WAS TECHNICALLY QUALIFIED FOR THE PROCUREMENT. THE DATA REQUIRED BY THE INVITATION WAS NO MORE THAN THAT NECESSARY TO DETERMINE ACCEPTABILITY AND RELATED ONLY TO THE PRODUCT PROPOSED, NOT TO DARE'S EXPERIENCE, FACILITIES, PERSONNEL OR OTHER FACTORS AFFECTING RESPONSIBILITY. THIS FULLY ACCORDS WITH ASPR 2-202.5 WHICH PROVIDES FOR DESIGN INFORMATION TO DETERMINE THE ACCEPTABILITY OF THE PRODUCT EXCLUDING INFORMATION IN CONNECTION WITH THE QUALIFICATIONS OF A BIDDER. * * *" THE SPECIFICATIONS APPLICABLE TO THE INVITATION ARE ESSENTIALLY OF THE PERFORMANCE TYPE SO THAT CONSIDERABLE DIFFERENCE WAS POSSIBLE IN THE MEANS TO BE UTILIZED BY THE CONTRACTOR IN ACHIEVING THE REQUIRED PERFORMANCE. IT IS OUR UNDERSTANDING THAT THE SPECIFICATIONS ARE SUBSTANTIALLY SIMILAR TO THOSE USED IN PRIOR PROCUREMENTS AND, AS WE UNDERSTAND IT, NO PROBLEM WITH RESPECT TO THEIR ADEQUACY HAS BEEN ENCOUNTERED. IN OUR VIEW THIS TENDS TO ESTABLISH THEIR ADEQUACY FOR THE PURPOSE OF THE PRESENT PROCUREMENT. IN ANY CASE, YOU HAVE FAILED TO SET OUT ANY INSTANCES IN WHICH THEY ARE INADEQUATE. IT HAS LONG BEEN ESTABLISHED THAT THE FIXING OF SPECIFICATIONS MEETING THE GOVERNMENT'S REQUIREMENTS AND THE DETERMINATION, FACTUALLY, WHETHER THOSE REQUIREMENTS ARE MET BY THE ARTICLES OFFERED ARE PRIMARILY WITHIN THE JURISDICTION OF THE CONTRACTING AGENCY. 17 COMP. GEN. 554, 557. IN VIEW THEREOF, THE SUCCESSFUL PRIOR USE OF THE SPECIFICATIONS, THE RECEIPT OF RESPONSIVE BIDS UNDER THIS INVITATION, AND YOUR FAILURE TO ESTABLISH ANY INADEQUACIES IN THE SPECIFICATIONS, WE MUST CONCLUDE THAT THE SPECIFICATIONS ARE NOT SO VAGUE OR INDEFINITE AS TO REQUIRE CANCELLATION OF THE AWARD.

WITH RESPECT TO YOUR OBJECT TO THE DESCRIPTIVE DATA REQUIREMENT, IT HAS BEEN ESTABLISHED THAT THE CONTRACTING AGENCY HAS A RIGHT TO REQUIRE THE SUBMISSION OF SUCH DATA WITH EACH BID AND TO MAKE THE FAILURE TO CONFORM A VALID BASIS FOR REJECTING A BID AS NONRESPONSIVE. 40 COMP. GEN. 132, 135; 37 COMP. GEN. 763; 36 COMP. GEN. 415; ID. 376.

AS TO THE ADEQUACY OF THE LANGUAGE OF THE DESCRIPTIVE DATA REQUIREMENT, IT IS OUR VIEW THAT THE BIDDER WAS INTENDED TO HAVE A CONSIDERABLE DEGREE OF DISCRETION AS TO THE FORM OF THE DATA, BUT SUCH DATA WERE REQUIRED, AT THE MINIMUM, TO INCLUDE THE DETAILS SPECIFIED BY THE NEXT TO LAST PARAGRAPH OF THE AMENDMENT. WE RECOGNIZE THAT THE DATA REQUIREMENT IS SO BROADLY STATED THAT SOME QUESTION MIGHT BE RAISED IN CERTAIN INSTANCES AS TO WHETHER THE REQUIREMENT HAD BEEN FULFILLED. IN THIS INSTANCE, HOWEVER, THERE IS LITTLE QUESTION THAT THE DATA SUBMITTED WITH YOUR BID DID NOT MEET EVEN THE MINIMUM REQUIREMENTS SET OUT IN THE AMENDMENT.

IT IS TRUE, AS YOU ALLEGE, THAT IN SOME INSTANCES A DESCRIPTIVE DATA REQUIREMENT MAY BE REGARDED AS A MATTER OF RESPONSIBILITY WHERE MADE SO BY THE LANGUAGE OF THE INVITATION. SEE 37 COMP. GEN. 143. IN SUCH A CASE THE DATA MAY BE CHANGED OR SUPPLEMENTED AFTER OPENING. IN THE PROCUREMENT UNDER CONSIDERATION, HOWEVER, THE DATA SUBMITTED WITH THE BID BECAME, BY THE SPECIFIC LANGUAGE OF THE LAST PARAGRAPH OF THE AMENDMENT, A PART OF THE SPECIFICATIONS EXCEPT TO THE EXTENT THAT SUCH DATA MAY HAVE BEEN INCONSISTENT WITH THE SPECIFICATIONS. SINCE THE DATA SUBSTANTIALLY AFFECTED WHAT THE CONTRACTOR WOULD BE REQUIRED TO FURNISH IN ORDER TO MEET HIS OBLIGATIONS UNDER THE CONTRACT, THE DATA CLEARLY GOES TO THE RESPONSIVENESS OF THE BID. ACCORDINGLY, THE DATA COULD NOT BE CHANGED AFTER OPENING. CF. 40 COMP. GEN. 132, 134.

UPON CONSIDERATION OF ALL OF THE ARGUMENTS PRESENTED IN YOUR LETTER, WE CONCLUDE THAT THE AWARD MUST BE REGARDED AS VALID.

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