B-156741, JUN. 23, 1965

B-156741, JUN. 23, 1965

TO THE HONORABLE SECRETARY OF THE NAVY:

UNDER DATES OF MAY 25 AND JUNE 4, 1965, THE ACTING ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, SUBMITTED REPORTS CONCERNING THE PROTEST OF AGAC-DERRITRON, INCORPORATED, AGAINST THE REJECTION OF ITS LOW BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 161-70-65, ISSUED ON MARCH 11, 1965, BY THE U.S. NAVAL ACADEMY FOR ONE AUTOMATIC RECORDING VIBRATION CALIBRATION SYSTEM.

FOUR BIDS WERE RECEIVED AND OPENED ON APRIL 20, 1965, AS FOLLOWS:

CHART

AGAC-DERRITRON $15,620

LING ELECTRONICS 23,470

MB ELECTRONICS 18,778

UNHOLTZ-DICKIE 21,988

THE INVITATION CONTAINED DETAILED SPECIFICATIONS OF THE EQUIPMENT BEING PROCURED BUT PARAGRAPH 2.6 OF THE INVITATION PROVIDED:

"2.6 EXCEPTIONS AND DESCRIPTION LITERATURE

"ANY EXCEPTIONS TAKEN TO THIS SPECIFICATION AND THE DEGREE OF NON COMPLIANCE SHALL BE STATED AND FULLY EXPLAINED. IN ADDITION, ALL BIDDERS ARE REQUIRED, AS A PART OF THIS SPECIFICATION, TO SUBMIT WITH THEIR BIDS DETAILED DESCRIPTIVE LITERATURE INCLUDING SPECIFICATIONS, OF THE SYSTEM BEING OFFERED IN RESPONSE THIS INVITATION FOR BID. A BLOCK DIAGRAM OF THE CALIBRATION SYSTEM WITH AUTOMATIC RECORDING CAPABILITY SHALL BE INCLUDED IN THE DESCRIPTIVE LITERATURE.'

THE BIDS OF AGAC-DERRITRON AND MB ELECTRONICS WERE REJECTED AS NONRESPONSIVE BASED ON AN EVALUATION OF THEIR ACCOMPANYING DESCRIPTIVE LITERATURE IN THE LIGHT OF THE ADVERTISED SPECIFICATIONS. THE LOW BID OF AGAC-DERRITRON WAS DETERMINED TO BE NONRESPONSIVE FOR THE FOLLOWING REASONS:

"A. SECTION 2.6 OF THE SPECIFICATIONS REQUIRED DETAILED DESCRIPTIVE LITERATURE. THE LITERATURE SUBMITTED BY AGAC-DERRITRON, INC. WAS NOT ADEQUATE TO PERMIT DETAILED EVALUATION OF THE SYSTEM BEING OFFERED. THIS REGARD, ATTENTION IS INVITED TO THE FACT THAT THE DESCRIPTIVE LITERATURE FURNISHED WITH THE BID OF AGAC-DERRITRON, INC. DID NOT INCLUDE CERTAIN DESCRIPTIVE INFORMATION LATER PROVIDED TO THE COMPTROLLER GENERAL OF THE UNITED STATES WITH THEIR LETTER OF 7 MAY 1965.

"B. SECTION 4.3 OF THE SPECIFICATIONS REQUIRED 4 TO 6 EQUALLY SPACED 10- 32 THREADED HOLES ON A 2 OR 2.25 INCH DIAMETER. FROM THE BRIEF DESCRIPTIVE LITERATURE WHICH AGAC-DERRITRON, INC. DID FURNISH WITH THEIR BID, THEY CLEARLY TOOK EXCEPTION TO THIS REQUIREMENT BY OFFERING 4 HOLES ON A 3.25 INCH DIAMETER.

"C. SECTION 5.2 OF THE SPECIFICATIONS STATES THAT THE CONSOLE SHALL HOUSE THE POWER AMPLIFIER AND FIELD SUPPLY FOR THE SHAKER AS WELL AS THE SIGNAL SOURCE, CALIBRATION INSTRUMENTATION, AND PLOTTING ACCESSORIES. AGAC- DERRITRON, INC. LISTED THE EQUIPMENT THAT THE CONSOLE WOULD CONTAIN AND BY OMISSION OF THE FIELD SUPPLY CLEARLY TOOK EXCEPTION TO THE SPECIFICATIONS. ALSO, AN EXCEPTION BY OMISSION WERE ELEMENTS OF THE CALIBRATION INSTRUMENTATION AS DESCRIBED IN SECTION 5.11.1 IN THE SPECIFICATION. THE ELEMENTS OMITTED BY AGAC-DERRITRON, INC. WERE TWO VOLTAGE AMPLIFIER-INTEGRATORS AND AN EQUALIZATION METER.'

THE NEXT LOW BID OF MB ELECTRONICS WAS DETERMINED TO BE NONRESPONSIVE FOR THE FOLLOWING EASONS:

"A. DISTORTION VALUE EXCEEDS SPECIFICATIONS.

"B. MASTER ON-OFF SWITCH AND PILOT LIGHTS FOR THE FIELD CURRENT METER ARE NOT PROVIDED.

"C. INTEGRATOR, CALIBRATION CIRCUIT, MODE OF OPERATION SWITCH, FILTERS, VOLTAGE AMPLIFIER AND OUTPUTS ARE NOT PROVIDED.'

AWARD WAS THEREFORE MADE ON APRIL 28, 1965, TO THE UNHOLTZ-DICKIE CORPORATION AT ITS BID PRICE.

PARAGRAPH 2.6, QUOTED ABOVE, IS NOT THE USUAL REQUIREMENT FOR DESCRIPTIVE LITERATURE SUCH AS IS REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-202.5. IF ITS PURPOSE WAS TO ELICIT INFORMATION FROM BIDDERS TO DESCRIBE THE EQUIPMENT OFFERED AND TO MAKE SUCH INFORMATION A PART OF THE BID, SUCH IS NOT APPARENT FROM THE LANGUAGE EMPLOYED. THE REQUIREMENT FOR "DETAILED DESCRIPTIVE LITERATURE" IS APPARENTLY UNRELATED, AND ADDITIONAL, TO BIDDERS' UNDERTAKINGS TO COMPLY WITH THE TERMS AND CONDITIONS OF THE INVITATION, INCLUDING THE SPECIFICATIONS. THE REJECTION OF THE LOW BIDS DOES NOT APPEAR TO BE BASED ON WHETHER THEY HAD SUPPLIED SUFFICIENT INFORMATION TO DETERMINE THE ACCEPTABILITY OF THE PRODUCT OFFERED, BUT WHETHER THE EQUIPMENT OFFERED DEVIATED IN SOME UNDISCLOSED DEGREE FROM THE SPECIFICATIONS. IN FACT, PARAGRAPH 2.6 SOLICITED DEVIATIONS FROM THE SPECIFICATIONS BUT BIDDERS WERE NOT ADVISED AS TO THE EXTENT THAT PERMISSIVE DEVIATIONS, IF ANY, WOULD BE PERMITTED IN THE EVALUATION OF BIDS.

IN 43 COMP. GEN. 544 WE CONSIDERED THE LEGAL EFFECT OF A SIMILAR

"EXCEPTIONS TO SPECIFICATIONS: IN THE EVENT THE EQUIPMENT OFFERED DOES NOT FULLY COMPLY WITH THIS SPECIFICATION, THE BIDDER SHALL FURNISH, IN ADDITION TO QUESTIONNAIRE, A DEFINITE STATEMENT DESCRIBING EACH POINT OF NON-COMPLIANCE.'

WE HELD WITH RESPECT THERETO AT PAGES 545-546 THAT:

"THE REQUIREMENT ON PAGE 9 OF THE INVITATION, QUOTED ABOVE, APPARENTLY WAS NEEDED BY THE PROCUREMENT OFFICE TO ENABLE IT TO DETERMINE BEFORE AWARD WHETHER EQUIPMENT OFFERED MET THE SPECIFICATIONS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH. HOWEVER, BIDDERS WERE NOT ADVISED OF THE "BASIS" UPON WHICH THEIR POINTS OF NONCOMPLIANCE WOULD BE EVALUATED OR WHETHER PARTICULAR DEVIATIONS FROM CERTAIN SPECIFICATION REQUIREMENTS WOULD RESULT IN THE REJECTION OF THEIR BIDS AS NONRESPONSIVE. (CITING 36 COMP. GEN. 380, 385.)

"ESSENTIALLY, UNDER THE SUBJECT INVITATION, EACH BIDDER WAS ALLOWED TO BID ON THE BASIS OF THE PARTICULAR FEATURES OF HIS OWN EQUIPMENT RATHER THAN IN STRICT COMPLIANCE WITH THE SPECIFICATIONS. THE EXCEPTIONS TAKEN BY MOSS TO THE ADVERTISED SPECIFICATIONS WERE DETERMINED TO BE IMPORTANT," AND THOSE TAKEN BY PETTIBONE WERE DETERMINED TO BE MATERIAL DEVIATIONS FROM THE SPECIFICATIONS, BUT NEITHER BIDDER WAS MADE AWARE OF THE RELATIVE IMPORTANCE OF THE VARIOUS SPECIFICATION REQUIREMENTS BY THE TERMS OF THE INVITATION. HENCE, IT WAS NOT POSSIBLE FOR BIDDERS TO INTELLIGENTLY RESPOND TO THE INVITATION BY SUBMITTING BIDS ENTIRELY RESPONSIVE TO THE ADVERTISED NEEDS OF THE GOVERNMENT.'

WE HAVE RECOGNIZED THAT IN THE PROCUREMENT OF HIGHLY SPECIALIZED EQUIPMENT, A PROCUREMENT OFFICE PROPERLY MAY REQUIRE BIDDERS TO SUPPLY DESCRIPTIVE DATA IN ORDER TO ENABLE IT TO CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO BUY BY MAKING OF AN AWARD. 36 COMP. GEN. 415, 416-417; 42 ID. 598, 599. SEE ASPR 2-202.5 (B). HOWEVER, BIDDERS ARE ENTITLED TO BE INFORMED BY THE INVITATION ITSELF AS TO THE PURPOSE INTENDED TO BE SERVED BY DESCRIPTIVE DATA REQUIRED TO BE SUBMITTED WITH BIDS, AND PARTICULARLY WHETHER ALL DETAILS OF SUCH DATE ARE TO BE CONSIDERED AS AN INTEGRAL PART OF THEIR BIDS FOR EVALUATION PURPOSES. HERE, THE INVITATION DID NOT MAKE IT CLEAR TO BIDDERS THAT THE DATA WAS A PART OF THEIR BIDS, OR THE EXTENT OF DETAIL DESIRED OR THAT FAILURE TO SUBMIT "DETAILED" DATA WOULD RESULT IN AUTOMATIC REJECTION OF BIDS. CF. 38 COMP. GEN. 59.

IN 36 COMP. GEN. 376 WE RECOGNIZED THE RIGHT OF ADMINISTRATIVE AGENCIES OF THE GOVERNMENT, WHEN JUSTIFIED BY THE CIRCUMSTANCES, TO REQUIRE THE SUBMISSION OF DESCRIPTIVE MATERIAL WITH A BID AND TO REJECT A BID FOR FAILURE OF THE DESCRIPTIVE LITERATURE TO CONFORM TO A STATED STANDARD, PROVIDED THAT THE PURPOSE AND EFFECT OF THE REQUIREMENT WAS CLEARLY POINTED OUT IN THE INVITATION FOR BIDS. THE DECISION FURTHER STATED:

"IN OTHER WORDS, WE FEEL THAT THE INVITATION SHOULD EITHER (1) DISTINCTLY POINT OUT THAT, NOTWITHSTANDING A VARIANCE BETWEEN THE SPECIFICATIONS AND DESCRIPTIVE MATERIAL FURNISHED, THE SPECIFICATIONS WILL BE CONTROLLING, OR (2) WHERE DESCRIPTIVE MATERIAL IS DEEMED ESSENTIAL, CONTAIN AN AFFIRMATIVE STATEMENT TO THE EFFECT THAT SUCH MATERIAL WILL BE IN STRICT COMPLIANCE WITH THE SPECIFICATIONS AND THAT A FAILURE TO SUBMIT SUCH MATERIAL WITH THE BID OR A FAILURE OF THE MATERIAL SUBMITTED TO COMPLY STRICTLY WITH THE SPECIFICATION REQUIREMENTS, WILL PRECLUDE CONSIDERATION OF THE BID AS NOT CONFORMING TO THE INVITATION.'

PARAGRAPH 2.6 CLEARLY DOES NOT MEET THE ABOVE CRITERIA OR THAT PRESCRIBED BY ASPR 2-202.5 (D). IN SHORT, THE INVITATION WAS MATERIALLY DEFICIENT WITH RESPECT TO THE EXTENT AND THE EFFECT, AS WELL AS THE PURPOSE, OF THE DESCRIPTIVE DATA REQUIREMENTS. WE NOTE FURTHER THAT THE ADMINISTRATIVE FILES BEFORE US DO NOT CONTAIN A JUSTIFICATION FOR THE DESCRIPTIVE LITERATURE REQUIREMENT AS IS REQUIRED BY ASPR 2-202.5 (C).

WHETHER THE FAILURE OF AGAC-DERRITRON TO SPECIFY THE CORRECT DIMENSION OF THREADED HOLES IN ITS DESCRIPTIVE DATA WAS FATAL TO ITS BID IS AT LEAST DOUBTFUL. CERTAINLY, BIDDERS WERE SOMEWHAT AT A LOSS TO DECIDE FROM THE INVITATION WHICH CONSTITUENT PARTS OF THE EQUIPMENT REQUIRED DETAILED DESCRIPTIVE LITERATURE AND WHETHER THE DETAILS REQUESTED ENCOMPASSED SUCH A DETAIL AS THE DIAMETER OF THE THREADED HOLES. SEE, IN THIS CONNECTION 42 COMP. GEN. 598.

WHILE WE ARE IN NO POSITION TO DETERMINE WHETHER THE OFFERED EQUIPMENTS COMPLIED WITH THE SPECIFICATIONS, OR WHETHER AN ACCEPTABLE PRODUCT COULD HAVE BEEN PROCURED WITHOUT DESCRIPTIVE LITERATURE, WE CONCLUDE, ON THE BASIS OF INFORMATION IN THE PRESENT RECORD, THAT NOT ONLY DID THE PROCUREMENT OFFICE FAIL TO STATE ITS REASONS FOR REQUIRING DESCRIPTIVE DATA, BUT ALSO THE REQUIREMENT THEREFOR FAILED TO MEET THE STANDARDS PRESCRIBED BY ASPR 2-202.5.

IN VIEW OF THE DEFICIENCIES IN THE INVITATION, WE DO NOT BELIEVE THAT THE LOW BIDS SHOULD HAVE BEEN DETERMINED TO BE NONRESPONSIVE SOLELY ON THE BASIS OF AN EVALUATION OF THEIR DESCRIPTIVE LITERATURE. BUT SINCE AN AWARD WAS ACTUALLY MADE TO A BIDDER WHOSE DESCRIPTIVE LITERATURE APPARENTLY SATISFIED THE TECHNICAL REQUIREMENTS OF THE INVITATION, AND SINCE DELIVERY OF THE EQUIPMENT--- WHICH APPARENTLY IS BEING FABRICATED--- IS SCHEDULED FOR 75 DAYS AFTER RECEIPT OF ORDER APRIL 28, 1965), WE DO NOT FEEL THAT CANCELLATION OF THE CONTRACT WOULD BE IN THE INTEREST OF THE GOVERNMENT. WE RECOMMEND, HOWEVER, THAT THE DESCRIPTIVE LITERATURE REQUIREMENTS OF ASPR BE STRICTLY FOLLOWED IN THE FUTURE BY THE PROCUREMENT AGENCY.