B-151849, SEP. 10, 1963

B-151849, SEP. 10, 1963

TO MR. S. F. VAN HOESEN:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 17, 1963, PROTESTING THE REJECTION OF THE BIDS YOUR COMPANY SUBMITTED UNDER INVITATIONS FOR BIDS IFB-163/A858-1-166 AND -304.

INVITATION -166 DESCRIBED THE ITEMS TO BE PROCURED THEREUNDER AS FOLLOWS:

TABLE

"CAPACITOR, TO BE IN ACCORDANCE WITH ATTACHED BUWEPS DRAWING, REV E

1 59A44C292-1 7250 EA

2 59A44C292-2 920 EA

3 59A44C292-3 920 EA

THERE WAS INCLUDED IN DRAWING 59A44C292 A CAPACITOR SKETCH AND A STATEMENT OF CHARACTERISTICS. A NOTATION ON THE DRAWING STATED THAT SPRAGUE ELECTRIC COMPANY HAD BEEN THE ORIGINAL SOURCE OF SUPPLY.

THE ITEMS TO BE PROCURED UNDER INVITATION -304 WERE DESCRIBED MUCH THE SAME WAY AS THE ITEMS IN INVITATION -166. INVITATION -304 SOLICITED BIDS ON ITEMS AS FOLLOWS:

TABLE

"CAPACITOR, TO BE IN ACCORDANCE WITH ATTACHED BUAER DRAWING, REV H.

1 60A5A118-2 1830 EA

2 60A5A118-3 2725 EA

DRAWING 60A5A118 LIKEWISE INCLUDED A DIAGRAM AND A STATEMENT OF DETAILED SPECIFICATIONS THREE PAGES LONG. INCLUDED IN THE SPECIFICATIONS WAS A TABLE CONTAINING CERTAIN DATA AND A COLUMN HEADED "MFR.REF. SPRAGUE ELECTRIC CO. (VENDOR CODE 93561) TYPE OR EQUAL" BELOW WHICH WERE LISTED VARIOUS SERIAL NUMBERS.

BOTH INVITATIONS CONTAINED A CLAUSE AS FOLLOWS:

"EVALUATION OF BIDS - SPECIFICATIONS

TO BE CONSIDERED RESPONSIVE, BIDS MUST OFFER MATERIAL IN EXACT ACCORDANCE WITH THE SPECIFICATIONS AS IDENTIFIED IN THE INVITATION FOR BIDS. IF A BIDDER INSERTS ANY IDENTIFYING DATA (SUCH AS PART NUMBER) IN CONNECTION WITH THE DESCRIPTION OF THE MATERIAL, THE BID WILL BE CONSIDERED NON- RESPONSIVE AND WILL BE REJECTED, UNLESS THE BIDDER CLEARLY INDICATED THAT THE MATERIAL OFFERED IS IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS AS IDENTIFIED IN THIS INVITATION FOR BIDS. AWARDS WHICH ARE MADE UNDER THIS INVITATION FOR BIDS WILL REFERENCE ONLY THE SPECIFICATIONS AS IDENTIFIED IN THIS INVITATION FOR BIDS.'

DESPITE THE ADMONITION AGAINST STATING A PART NUMBER IN THE BID WITHOUT INDICATING THAT IT REPRESENTS AN ARTICLE TOTALLY COMPLYING WITH THE SPECIFICATION IN THE INVITATION FOR BIDS, YOUR FIRM STATED ITS OWN PART NUMBER AFTER EACH ITEM DESCRIPTION QUOTED ABOVE WITHOUT ANY OTHER QUALIFYING STATEMENT. THE BID FROM YOUR COMPANY WAS THEREFORE REJECTED.

YOU HAVE PROTESTED THE REJECTION ON VARIOUS GROUNDS WHICH WILL BE CONSIDERED HEREAFTER.

THE CIRCUMSTANCES THAT YOUR BID WAS LOW ON SEVERAL OF THE ITEMS OR THAT THE ARTICLES OFFERED MIGHT MEET THE SPECIFICATIONS ARE NOT CONTROLLING. NOR IS IT IMPORTANT THAT THIS IS YOUR FIRM'S STANDARD WAY OF BIDDING, THAT YOU HAVE DONE SO UNDER SIMILAR EVALUATION CONDITIONS, WITHOUT OBJECTION, OR THAT OTHER AGENCIES FOLLOW SOME OTHER PRACTICE IN OBTAINING BIDS FOR SIMILAR EQUIPMENT. NEITHER IS IT OF ANY CONSEQUENCE THAT THE "EVALUATION OF BIDS" CLAUSE IS NOT PRESCRIBED IN THE ARMED SERVICES PROCUREMENT REGULATIONS OR THAT THOSE REGULATIONS PRESCRIBE A BRAND NAME OR EQUAL PROVISION THAT YOUR COMPANY FOLLOWED IN BIDDING.

IT IS THE RESPONSIBILITY OF EACH PROCURING ACTIVITY TO PREPARE ITS OWN INVITATION FOR BIDS. WHILE ASPR PRESCRIBES THAT CERTAIN CLAUSES AND INFORMATION SHALL BE INCLUDED IN EACH INVITATION FOR BIDS, EACH FACILITY HAS DISCRETION TO INCLUDED ANY OTHER INFORMATION THAT MAY BE REQUIRED FOR PARTICULAR PROCUREMENT. SEE ASPR 2-201. IN THE IMMEDIATE CASE, THE PROCURING ACTIVITY CHOSE TO PROCURE THE ARTICLES IN THE MANNER PRESCRIBED IN THE INVITATION WHICH REQUIRED THAT WHERE BIDDERS REFER TO A PART NUMBER THEY ALSO INDICATE THAT THE PART IS IN COMPLETE COMPLIANCE WITH THE SPECIFICATION REQUIREMENTS. SINCE YOUR COMPANY DID NOT COMPLY WITH THE INVITATION REQUIREMENTS, IT WAS NOT IMPROPER FOR THE CONTRACTING OFFICE TO REJECT ITS BID. THE INFORMATION THAT WAS FURNISHED IN THE BIDS HAD A MATERIAL BEARING ON THE ITEMS THAT WERE TO BE PROCURED AND THE FAILURE TO INDICATE COMPLETE COMPLIANCE OF YOUR COMPANY'S PARTS, AFTER BEING ADMONISHED TO DO SO IN THE INVITATION, WAS A DEFICIENCY FATAL TO THE BID.

REGARDLESS OF WHAT OTHER INVITATIONS MAY HAVE PROVIDED, EACH IS TO BE CONSTRUED AND INTERPRETED ACCORDING TO ITS OWN TERMS AND PROVISIONS, AND IT IS OF NO SIGNIFICANCE THAT CONDITIONS OR PROVISIONS OF SOME OTHER INVITATIONS MAY HAVE BEEN DIFFERENT. THE INVITATIONS ISSUED IN THE PRESENT CASE LEFT NO ROOM FOR DOUBT THAT BIDDERS WERE TO INDICATE COMPLIANCE WHERE THEY REFERRED TO THEIR OWN PART NUMBERS AND THE BIDS MUST BE VIEWED IN THAT LIGHT.

IF AWARDS HAVE BEEN MADE TO YOUR COMPANY IN THE PAST IN CIRCUMSTANCES IDENTICAL TO THOSE HERE CONSIDERED, SUCH ACTIONS WOULD APPEAR TO HAVE BEEN IMPROPER AND WOULD NOT JUSTIFY A REPETITION OF THE SAME ERROR. 36 COMP. GEN. 535, 540.

ALTHOUGH IN THE DETAILED SPECIFICATIONS FOR ONE INVITATION THERE WAS INCLUDED INFORMATION OF A PARTICULAR MANUFACTURER'S SERIAL NUMBER UNDER THE HEADING OF THE MANUFACTURER'S NAME WITH THE STATEMENT "OR EQUAL" AFTER IT, THERE WAS NOT INCLUDED IN THE INVITATION THE STANDARD BRAND NAME OR EQUAL CLAUSES. SINCE THE CLAUSES WERE NOT INCLUDED IN THE INVITATION YOUR FIRM SHOULD NOT HAVE COMPLIED WITH THEM, BUT SHOULD HAVE FOLLOWED INSTEAD THE CLAUSES INCLUDED IN THE INVITATION.

YOU HAVE SUGGESTED THAT THE DEFICIENCY IN YOUR COMPANY'S BID SHOULD HAVE BEEN WAIVED IN VIEW OF THE STATEMENT IN THE "EVALUATION OF BID" CLAUSE THAT "AWARDS WHICH ARE MADE UNDER THIS INVITATION FOR BIDS WILL REFERENCE ONLY THE SPECIFICATION AS IDENTIFIED IN THIS INVITATION FOR BIDS" AND THE INTENTION EXPRESSED THEREBY TO PLACE THE AWARD IN ACCORDANCE WITH THE SPECIFICATIONS.

WHILE IT IS TRUE THAT THE INVITATION EXPRESSED AN INTENTION TO MAKE AN AWARD IN ACCORDANCE WITH THE SPECIFICATION, YOUR COMPANY'S BID WAS NOT SO CLEAR AS TO INDICATE THAT IT WAS MAKING AN OFFER TO COMPLY WITH THAT INTENTION. IN ANY EVENT IT WOULD NOT HAVE BEEN PROPER FOR THE CONTRACTING OFFICER TO HAVE CHECKED WITH YOUR FIRM TO VERIFY ITS INTENTION SINCE THERE WAS INVOLVED A MATTER OF SUBSTANCE RATHER THAN OF FORM BECAUSE THERE WAS INVOLVED THE QUESTION WHETHER YOUR FIRM WAS PROPOSING TO OFFER THE GOVERNMENT A PRODUCT THAT WOULD MEET ITS SPECIFICATION.

AS TO YOUR SUGGESTION THAT YOUR FIRM SHOULD HAVE BEEN ALLOWED TO DELETE THE PART NUMBER TO MAKE THE BID RESPONSIVE ON THE BASIS THAT THE NUMBER WAS INCLUDED THROUGH CLERICAL ERROR IN THINKING THAT THE INVITATION REQUIRED THE NUMBER TO BE STATED, IN 38 COMP. GEN. 876, AT PAGE 878, OUR OFFICE STATED:

"* * * ERRORS IN BID WHICH MAY BE CORRECTED AFTER OPENING ARE THOSE WHICH DO NOT AFFECT THE RESPONSIVENESS OF THE BID. B-139132, MAY 14, 1959. SINCE YOUR BID, AS INDICATED ABOVE, IS NOT RESPONSIVE IN THE FORM SUBMITTED, IT MAY NOT BE CONSIDERED FOR CORRECTION.'

YOU HAVE ALSO STATED THAT ACCEPTANCE OF YOUR COMPANY'S BIDS WOULD HAVE RESULTED IN A SAVINGS TO THE GOVERNMENT OF APPROXIMATELY $2,000. IN 37 COMP. GEN. 110, AT PAGE 112, WE STATED THAT THE STRICT MAINTENANCE OF THE COMPETITIVE BIDDING PROCEDURE, REQUIRED BY LAW, IS MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENT PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY VIOLATION OF THE RULES.

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT IT WAS NOT IMPROPER FOR THE CONTRACTING OFFICER TO REJECT YOUR COMPANY'S BID.