B-152000, SEP. 12, 1963

B-152000, SEP. 12, 1963

TO JOY, HALLINAN AND FINN:

BY LETTERS DATED JULY 17 AND AUGUST 21, 1963, YOU PROTESTED, ON BEHALF OF THE MAGNETIC INSTRUMENTS COMPANY, INC., AGAINST THE AWARD OF A CONTRACT BY THE NAVY PURCHASING OFFICE, BROOKLYN, NEW YORK, UNDER INVITATION FOR BIDS NO. N140-398-63 TO THE GALBRAITH PILOT MARINE COMPANY.

THE INVITATION DATED FEBRUARY 1, 1963, REQUESTED BIDS FOR THE FURNISHING OF A TANK LEVEL INDICATING SYSTEM (CAPACITANCE TYPE). PAGE 15 OF THE INVITATION PROVIDED WITH RESPECT TO THE SUBMISSION OF TECHNICAL DATA THAT-

"PRELIMINARY DATA TO BE SUBMITTED WITH BID

"THE BIDDER SHALL SUBMIT IN TRIPLICATE, WITH HIS BID, THE PRELIMINARY DRAWINGS, SKETCHES, CALCULATIONS, OR OTHER DESCRIPTIVE DATA OF THE EQUIPMENT PROPOSED TO BE FURNISHED HEREUNDER, AS SET FORTH BELOW. THE DRAWINGS OR SKETCHES AND DESCRIPTIVE MATTER MUST SHOW THE CHARACTER AND DESIGN OF THE EQUIPMENT WHICH THE BIDDER PROPOSES TO FURNISH. APPROVAL OF THE DRAWINGS OR SKETCHES BY THE GOVERNMENT SHALL NOT RELIEVE THE BIDDER OF THE OBLIGATION TO DELIVER EQUIPMENT WHICH MEETS THE REQUIREMENTS OF THE SPECIFICATIONS CONTAINED HEREIN. THE BIDDER WARRANTS THAT THE EQUIPMENT TO BE FURNISHED HEREUNDER WILL BE IN EXACT ACCORDANCE WITH ALL THE MATERIAL REQUIREMENTS OF SUCH SPECIFICATIONS. THE DRAWINGS OR SKETCHES AND DESCRIPTIVE MATTER TO BE SUBMITTED HEREUNDER SHALL NOT CONSTITUTE PART OF THE BID. ANY BID CONDITIONED ON SUCH DRAWINGS OR SKETCHES AND DESCRIPTIVE MATTER BEING PART OF THE BID WILL BE REJECTED. NOTWITHSTANDING ANY DIFFERENCES BETWEEN THE EQUIPMENT SHOWN ON DRAWINGS OR SKETCHES AND DESCRIPTIVE MATTER SUBMITTED WITH A BID AND THE REQUIREMENTS OF THE APPLICABLE SPECIFICATIONS, SUCH BID WILL BE CONSIDERED; PROVIDED, HOWEVER, THAT THE SPECIFICATIONS CONTAINED HEREIN SHALL GOVERN, AND THE EQUIPMENT TO BE FURNISHED UNDER ANY RESULTING CONTRACT SHALL BE IN ACCORDANCE WITH SUCH SPECIFICATIONS. WHEN SUFFICIENT DATA IS SUBMITTED BY THE SUCCESSFUL BIDDER, SUCH DATA MAY, AT THE OPTION OF THE NEW YORK NAVAL SHIPYARD, BE DEEMED TO BE SUBMITTED IN ACCORDANCE WITH THE CLAUSE ENTITLED "PREPRODUCTION DRAWINGS FOR APPROVAL" AS OF THE DATE OF AWARD. THE FOLLOWING DATA IS DESIRED PURSUANT TO THIS CLAUSE:

"ASSEMBLY DRAWING INDICATING INTERCONNECTION OF ALL UNITS AND NUMBER AND TYPES OF CAPACITORS, TRANSFORMERS, RESISTORS, ETC.'

FOUR BIDS WERE RECEIVED AND OPENED AS SCHEDULED AND IT APPEARED THAT GALBRAITH SUBMITTED THE LOWEST BID AND MAGNETIC INSTRUMENTS SUBMITTED THE NEXT LOWEST BID. AWARD WAS MADE ON JUNE 25, 1963, TO GALBRAITH AS THE LOWEST RESPONSIVE BIDDER. YOU PROTEST THE AWARD ON THE BASIS THAT GALBRAITH'S BID WAS NONRESPONSIVE BECAUSE THE DRAWING SUBMITTED BY THEM IN COMPLIANCE WITH THE ABOVE-QUOTED PROVISION WAS MERELY SCHEMATIC AND DID NOT SHOW THE REQUIRED DETAILS OF ASSEMBLY SUCH AS INTERCONNECTION OF ALL UNITS AND MEMBERS AND TYPES OF CAPACITORS, TRANSFORMERS, RESISTORS, C., WHEREAS MAGNETIC INSTRUMENT'S BID FULLY COMPLIED WITH THE DRAWING REQUIREMENTS. WHILE YOU RECOGNIZE THAT THE DATA SUBMITTED UNDER THE ABOVE -QUOTED PROVISION WOULD NOT FORM A PART OF THE BID, YOU CONTENT THAT THE DATA WAS A NECESSARY PREREQUISITE TO A DETERMINATION THAT GALBRAITH WAS A RESPONSIBLE BIDDER AND THAT OMISSION OF SUCH DATA MADE GALBRAITH'S BID NONRESPONSIVE, CITING THE DESCRIPTIVE LITERATURE REQUIREMENTS OF ASPR 2- 202.5 AND PARTICULARLY, ASPR 2-202.5 (D). YOU ALSO ALLEGE THAT PROPRIETARY DATA FURNISHED BY MAGNETIC INSTRUMENTS WAS DISCLOSED TO AND MADE AVAILABLE TO GALBRAITH, AND THAT GALBRAITH IN PRODUCING THE END ITEM IS DEPARTING FROM ITS BID AND IS ADOPTING THE METHOD OF MANUFACTURE SHOWN BY MAGNETIC INSTRUMENTS' DATA.

WE ARE ADVISED BY THE PROCUREMENT AGENCY THAT THE ABOVE-QUOTED PROVISION HAS BEEN USED, WHERE APPROPRIATE, FOR SOME TIME TO ACCOMMODATE THE EXPRESSED NEED OF THE TECHNICAL ACTIVITIES. WHERE PROCUREMENTS OF COMPLEX EQUIPMENT ARE INVOLVED, AS HERE, TECHNICAL PERSONNEL REQUIRE SOME DATA IN ORDER TO BE ABLE TO INTELLIGENTLY ADVISE THE CONTRACTING OFFICER WITH RESPECT TO THE TECHNICAL CAPACITY OF THE BIDDER. SUCH ADVICE FACILITATES THE DETERMINATION BY THE CONTRACTING OFFICER AS TO THE RESPONSIBILITY OF AN OTHERWISE LOW RESPONSIVE BIDDER ON PROCUREMENTS OR COMPLEX EQUIPMENT. IT PERMITS AN INSIGHT IN APPROPRIATE CASES INTO THE UNDERSTANDING OF THE LOW BIDDER OF THE COMPLEX SPECIFICATIONS ON WHICH HIS BID WAS SUBMITTED, FORESTALLING AWARDS TO IMPRUDENT BIDDERS WHO ARE INNOCENT OF THE TRUE CAPACITY REQUIRED OF THE CONTRACTOR ON THE INSTANT PROCUREMENT. WHERE SUFFICIENT DATA IS SUBMITTED WITH THE BID, IT OBVIATES THE INVITATION REQUIREMENT FOR THE SUBMISSION OF PREPRODUCTION DRAWINGS AFTER AWARD, THEREBY SAVING PROCUREMENT TIME. MORE IMPORTANTLY, BIDDERS ARE APPRISED BY THE CLAUSE THAT DATA SUBMITTED WILL NOT BE CONSIDERED IN EVALUATING THE RESPONSIVENESS OF A BID AND THAT THE SPECIFICATIONS, AND NOT THE DATA SUBMITTED, MEASURE THE OBLIGATION OF THE BIDDER WHEN A CONTRACT IS AWARDED.

THE RECORD SHOWS THAT GALBRAITH'S BID WAS ACCOMPANIED BY A DRAWING BUT THAT AFTER BID OPENING TECHNICAL PERSONNEL DISCOVERED CERTAIN DEFICIENCIES IN THE DRAWING. SINCE THE PURPOSE OF OBTAINING THE DATA WAS TO AID IN THE DETERMINATION OF BIDDER RESPONSIBILITY RATHER THAN RESPONSIVENESS, GALBRAITH WAS REQUESTED TO, AND DID, SUPPLY THE NEEDED ADDITIONAL INFORMATION WHICH ENABLED THE CONTRACTING OFFICER, WITH THE ASSISTANCE OF TECHNICAL PERSONNEL, TO DETERMINE GALBRAITH'S RESPONSIBILITY.

THE INVITATION PROVISION QUOTED ABOVE EXPRESSLY STATED THAT THE SPECIFICATIONS WOULD GOVERN OVER THE DATA REQUIRED TO BE SUBMITTED. VIEW THEREOF, AND THE FURTHER STATEMENT THAT THE DATA SHALL NOT CONSTITUTE A PART OF THE BID, IT IS CLEAR THAT THE DATA WOULD NOT BECOME A PART OF THE CONTRACT SO THAT THE CONTRACTOR'S OBLIGATION WOULD BE CONTROLLED PRIMARILY BY THE SPECIFICATIONS RATHER THAN BY THE DETAILS OF THE DATA SUBMITTED. IT THEREFORE FOLLOWS THAT THE DATA REQUIREMENT WAS SOLELY FOR THE PURPOSE OF DETERMINING, PRIOR TO AWARD, THAT THE BIDDER IS ABLE TO FURNISH A SYSTEM MEETING THE GOVERNMENT'S ADVERTISED NEEDS.

WE HAVE CONSISTENTLY HELD THAT WHERE THE REQUIREMENT FOR THE SUBMISSION OF DESCRIPTIVE LITERATURE OR DATA IS FOR THE PURPOSE OF DETERMINING THE CAPABILITY (RESPONSIBILITY) OF THE BIDDER RATHER THAN THE RESPONSIVENESS OF THE BID, THE FAILURE OF THE BIDDER TO SUBMIT SUCH DATA IS NOT FATAL TO CONSIDERATION OF THE NONCONFORMING BID AND THE DATA MAY BE PROVIDED SUBSEQUENT TO BID OPENING. 39 COMP. GEN. 247; ID. 881. THE RESULT IS THE SAME EVEN IN CASES WHERE BIDDERS ARE WARNED THAT FAILURE TO CONFORM TO DATA SUBMISSION REQUIREMENTS MAY RESULT IN REJECTION OF THEIR BIDS. COMP. GEN. 655. IN THIS CONNECTION, WE NOTE THAT THE PRESENT INVITATION DID NOT CONTAIN ANY NOTICE AS TO THE CONSEQUENCES OF A BIDDER'S FAILURE TO SUBMIT THE REQUIRED DATA OR OF THE SUBMISSION OF INCOMPLETE DATA. SEE, ALSO, B-151440, JUNE 24, 1963, 42 COMP. GEN.

WE HAVE BEEN ASSURED BY THE PROCUREMENT AGENCY THAT DATA SUBMITTED BY MAGNETIC INSTRUMENTS WAS NOT MADE AVAILABLE TO GALBRAITH. WHETHER THE PRESENT CONTRACTOR IS PERFORMING IN ACCORDANCE WITH THE CONTRACT REQUIREMENTS IS A MATTER WITHIN THE COGNIZANCE OF THE PROCUREMENT AGENCY IN ITS ADMINISTRATION OF THE CONTRACT TERMS AND CONDITIONS.

CONCERNING THE ALLEGATION THAT THE PROCUREMENT AGENCY REFUSED TO GIVE MAGNETIC INSTRUMENTS THE NUMBER OF THE CONTRACT AWARDED TO GALBRAITH, IT APPEARS FROM THE RECORD THAT, IF SUCH WERE THE CASE, IT WAS INADVERTENT AND THAT SUCH INFORMATION IS USUALLY FURNISHED UPON REQUEST. FOR YOUR INFORMATION THE CONTRACT NUMBER IS N140 (131) 75661B (X). IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS TO DISTURB THE AWARD TO GALBRAITH. YOUR PROTEST IS THEREFORE DENIED.