B-154686, SEP. 11, 1964

B-154686, SEP. 11, 1964

TO METRO-TEL CORPORATION:

WE REFER TO YOUR TELEGRAM DATED JULY 9, 1964, AND YOUR LETTER OF JULY 13, 1964, PROTESTING THE AWARD OF A CONTRACT TO THE THIRD LOWEST BIDDER BY THE FEDERAL AVIATION AGENCY (FAA) UNDER INVITATION FOR BIDS NO. WA5M-4-791- B1. THE INVITATION, ISSUED MAY 4, 1964, SOLICITED BIDS FOR FULLY TRANSISTORIZED, COMBINED TONE/SCAN CONTROL SYSTEMS FOR TWO WAY CONTROL AND MONITORING OF REMOTE UNMANNED FACILITIES OVER A 300 TO 3,000 C.P.S. TELEPHONE CIRCUIT.

SIX BIDS WERE RECEIVED AND AWARD OF CONTRACT NO. FA64WA-5157 WAS MADE ON JUNE 25, 1964, TO ORBITRONICS, INCORPORATED, DENVER, COLORADO. REJECTION OF YOUR BID WAS BASED UPON THE GROUND THAT IT WAS NOT RESPONSIVE TO THE INVITATION.

THE THREE LOW BIDS WHICH WERE OPENED ON MAY 27, 1964, WERE AS FOLLOWS:

TABLE

FIRM BID PRICE

TELE-SIGNAL CORPORATION $314,367.15

METRO-TEL CORPORATION 399,091.70

ORBITRONICS, INCORPORATED 413,724.65

IT IS REPORTED BY THE ADMINISTRATIVE AGENCY THAT THE FIRST AND SECOND LOW BIDS AS SUBMITTED BY TELE-SIGNAL CORPORATION AND YOUR CORPORATION, RESPECTIVELY, WERE CONSIDERED NONRESPONSIVE FOR THE FOLLOWING REASONS:

"1. THE LITERATURE SUBMITTED BY TELE-SIGNAL DID NOT EXPLAIN, IN DETAIL, HOW THE BIDDER INTENDED TO MEET THE PERFORMANCE REQUIREMENTS OF THE SPECIFICATION AND FAILED TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATION AND OTHER REQUIREMENTS OF THE INVITATION; CONSEQUENTLY, TELE -SIGNAL'S BID WAS REJECTED AS NON-RESPONSIVE.

"2. WITH RESPECT TO METRO-TEL, THIS FIRM DID NOT SUBMIT ANY DESCRIPTIVE DATA, THUS WE WERE UNABLE TO EVALUATE THEIR BID AND THIS BID WAS REJECTED AS NON-RESPONSIVE.'

THE EQUIPMENT TO BE PURCHASED WAS SCHEDULED FOR INSTALLATION IN REMOTE UNMANNED FACILITIES AND WILL PROVIDE THE FLYING PUBLIC WITH CURRENT WEATHER DATA AND OTHER INFORMATION THAT IS NECESSARY FOR SAFE FLIGHT PLANNING. BECAUSE OF THIS FAA DEEMED IT NECESSARY TO DETERMINE, TO THE MAXIMUM EXTENT POSSIBLE BY MEANS OF THE DESCRIPTIVE LITERATURE REQUIREMENT, THE ACCEPTABILITY OF THE EQUIPMENT PRIOR TO AWARD OF THE CONTRACT.

AS SET OUT BELOW, THE INVITATION FOR BIDS, PAGE 16, SPECIFICALLY PROVIDES:

"SCHEDULE

"ARTICLE VII REQUIREMENT FOR DESCRIPTIVE LITERATURE:

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH INCLUDING, BUT NOT LIMITED TO DESCRIPTIVE DATA SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, BROCHURES, ENGINEERING TYPE SKETCHES, WIRING DIAGRAMS, SCHEMATIC DIAGRAMS OF THE ELECTRONIC CIRCUITRY AND DRAWINGS SHOWING THE GENERAL LAYOUT OF SHEET METAL WORK. THIS DATA SHALL EXPLAIN, IN DETAIL, HOW THE BIDDER EXTENDS TO MEET THE PERFORMANCE REQUIREMENTS OF THE SPECIFICATIONS.

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.

"/C) HOWEVER, THE REQUIREMENTS FOR FURNISHING DESCRIPTIVE LITERATURE MAY BE WAIVED AS TO A BIDDER IF (1) THE BIDDER STATES IN HIS BID THAT THE PRODUCT HE IS OFFERING TO FURNISH IS THE SAME AS A PRODUCT HE HAS PREVIOUSLY FURNISHED TO THE FEDERAL AVIATION AGENCY UNDER A PRIOR CONTRACT AND THE BIDDER IDENTIFIES THE CONTRACT, AND (2) THE CONTRACTING OFFICER DETERMINES THAT SUCH PRODUCT MEETS THE REQUIREMENTS OF THIS INVITATION FOR BIDS.'

WE HAVE CONSISTENTLY TAKEN THE POSITION THAT AN INVITATION FOR BIDS MAY REQUIRE BIDDERS TO SUBMIT DESCRIPTIVE LITERATURE SHOWING THAT THEIR PROPOSALS CONFORM TO SPECIFICATIONS WHEN IT APPEARS THAT SUCH A REQUIREMENT IS ESSENTIAL FOR A PROPER DETERMINATION AS TO THE RESPONSIVENESS OF BIDS. SEE 36 COMP. GEN. 415. IN THIS CASE THE INVITATION EXPRESSLY PROVIDES THAT A BIDDER MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIAL NECESSARY FOR THE PURCHASING ACTIVITY TO DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS. THIS PROVISION WAS INCORPORATED IN THE INVITATION FOR THE PRIME PURPOSE OF ESTABLISHING EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. THE DESCRIPTIVE LITERATURE WAS SPECIFICALLY REQUIRED FOR EVALUATION OF BIDS, AND THE BIDS HAD TO BE EVALUATED ON THE BASIS OF THEIR CONTENT AT THE TIME OF BID OPENING. IN THE CIRCUMSTANCES, SINCE YOU FAILED TO FURNISH SUCH DESCRIPTIVE LITERATURE YOUR BID WAS NOT RESPONSIVE TO THE INVITATION AND IT WOULD NOT HAVE BEEN PROPER FOR THE FEDERAL AVIATION AGENCY TO ACCEPT THE BID.

THE FAILURE OF A BIDDER TO COMPLY WITH THE MANDATORY REQUIREMENTS OF AN INVITATION FOR BIDS ISSUED BY A GOVERNMENT AGENCY CANNOT BE WAIVED SINCE SUCH ACTION WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS AND IT IS IN THE PUBLIC INTEREST TO MAINTAIN THE RULES OF FORMAL COMPETITIVE PROCUREMENT RATHER THAN TO OBTAIN A PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461, 463; CITY OF CHICAGO V. MOHR, 74 N.E. 1056.