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B-155827, JUN. 1, 1965

B-155827 Jun 01, 1965
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IN WHICH IT WAS CONCLUDED THAT YOUR BID TO SUPPLY VARIOUS X-RAY APPARATUS WAS NONRESPONSIVE AND COULD NOT BE CONSIDERED FOR AWARD BECAUSE OF AN EXCEPTION TAKEN TO PARAGRAPH 3.5.7.3.7.10 OF FEDERAL SPECIFICATION GG X- 635C. WAS CONSIDERED IN THE FORMULATION OF OUR DECISION. INDEED SPECIFIC REFERENCE IS MADE TO IT THEREIN. IS OF QUESTIONABLE USEFULNESS. WE WILL NOT ORDINARILY SUBSTITUTE OUR JUDGMENT FOR THAT OF THE PROCURING AGENCY INVOLVED. 40 COMP. X-RAY APPARATUS EQUIPPED WITH A LEAD APRON ON THE SPOT FILM DEVICE ADJUSTABLE TO THREE SIDES IS OBVIOUSLY MORE ELABORATE THAN APPARATUS MOVABLE TO ONLY TWO SIDES. OUR PRIOR DECISION WAS PREDICATED ON THE RATIONALE THAT ONCE THE GOVERNMENT'S MINIMUM NEEDS HAVE BEEN DETERMINED AND ADVERTISED.

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B-155827, JUN. 1, 1965

TO GENERAL ELECTRIC COMPANY:

BY LETTER DATED APRIL 20, 1965, YOUR COMPANY HAS REQUESTED RECONSIDERATION OF OUR DECISION B-155827, FEBRUARY 25, 1965, IN WHICH IT WAS CONCLUDED THAT YOUR BID TO SUPPLY VARIOUS X-RAY APPARATUS WAS NONRESPONSIVE AND COULD NOT BE CONSIDERED FOR AWARD BECAUSE OF AN EXCEPTION TAKEN TO PARAGRAPH 3.5.7.3.7.10 OF FEDERAL SPECIFICATION GG X- 635C.

THE MEMORANDUM OF JANUARY 19, 1965, FROM MR. JOHN R. BOGGS, CHIEF, MARKETING DIVISION FOR TECHNICAL AND SCIENTIFIC SUPPLY, VETERANS ADMINISTRATION SUPPLY DEPOT, SOMERVILLE, NEW JERSEY, TO THE DIRECTOR OF SUPPLY, VETERANS ADMINISTRATION, REFERRED TO IN YOUR LETTER, WAS CONSIDERED IN THE FORMULATION OF OUR DECISION. INDEED SPECIFIC REFERENCE IS MADE TO IT THEREIN.

YOU NOW CONTEND THAT THE FEATURE TO WHICH YOU TOOK EXCEPTION, THE REQUIREMENT FOR ADJUSTABILITY OF THE LEAD SHIELD ON THE SPOT FILM DEVICE TO THREE SIDES OF THE DEVICE RATHER THAN TO TWO AS YOU PROPOSED, IS OF QUESTIONABLE USEFULNESS. FURTHERMORE, YOU POINT TO THE $3000 SAVINGS WHICH THE GOVERNMENT WOULD REALIZE BY ACCEPTING YOUR BID INSTEAD OF THE SECOND LOWEST.

THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT BEAR THE RESPONSIBILITY FOR DETERMINATION OF THE GOVERNMENT'S MINIMUM NEEDS. 17 COMP. GEN. 554, 559. WE WILL NOT ORDINARILY SUBSTITUTE OUR JUDGMENT FOR THAT OF THE PROCURING AGENCY INVOLVED. 40 COMP. GEN. 294, 297. X-RAY APPARATUS EQUIPPED WITH A LEAD APRON ON THE SPOT FILM DEVICE ADJUSTABLE TO THREE SIDES IS OBVIOUSLY MORE ELABORATE THAN APPARATUS MOVABLE TO ONLY TWO SIDES. IRRESPECTIVE OF THE TECHNICAL MERITS OR USEFULNESS OF THE FORMER CONFIGURATION, OUR PRIOR DECISION WAS PREDICATED ON THE RATIONALE THAT ONCE THE GOVERNMENT'S MINIMUM NEEDS HAVE BEEN DETERMINED AND ADVERTISED, AND AFTER THE OPENING OF BIDS, A SPECIFIED CHARACTERISTIC OF THE EQUIPMENT TO BE PURCHASED CANNOT BE WAIVED AS A MINOR INFORMALITY. SEE 30 COMP. GEN. 179. THE CONTRACT AWARDED MUST BE THE SAME AS THE CONTRACT ADVERTISED.

AS WE STATED IN 17 COMP. GEN. 554, AT 558 AND 559:

"* * * TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. * * *"

SEE ALSO 38 COMP. GEN. 59, 61, TO THE SAME EFFECT.

THUS THE PROTEST CANNOT BE DECIDED ON THE GROUND OF PECUNIARY SAVINGS TO THE GOVERNMENT ALONE. BY STATUTE AWARD UNDER ADVERTISED SPECIFICATIONS MAY BE CONSUMMATED ONLY ON THE BASIS OF A BID CONFORMING TO THE INVITATION FOR BIDS. ACT OF JUNE 30, 1949, 63 STAT. 395, 41 U.S.C. 253 (B).

FAILURE OF YOUR OFFER TO SATISFY THE REQUIREMENT UNDER DISCUSSION CANNOT BE WAIVED AS A MINOR INFORMALITY OR IMMATERIAL DEVIATION. THE MEMORANDUM TO WHICH WE MADE REFERENCE BEFORE CONCLUDES THAT ADJUSTABILITY OF THE APRON TO THE THIRD SIDE (HEAD END) IS "DESIRABLE IN SOME CASES" AND, INDEED, IS "NECESSARY IN CERTAIN INSTANCES" ALTHOUGH NOT NORMALLY ESSENTIAL TO THE PROPER FUNCTIONING OF THE UNIT OR THE PROTECTION OF PATIENT OR OPERATING PERSONNEL. FOR EXAMPLE, THE OPINION OF DOCTOR JORGENS, CHIEF OF THE RADIOLOGY SERVICE, VETERANS ADMINISTRATION HOSPITAL, MINNEAPOLIS, MINNESOTA, IS STATED TO BE THAT USE OF THE APRON IN THIS POSITION IS NECESSARY DURING CERVICAL SPINOGRAM PROCEDURES TO PERFORM A G.I. SERIES IN THE REVERSE 90 DEGREE POSITION OF THE TABLE.

FOR THE REASONS STATED ABOVE OUR DECISION OF FEBRUARY 25, 1965, IS SUSTAINED.

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