B-158016, FEB. 4, 1966

B-158016, FEB. 4, 1966

TO THE RAYTHEON COMPANY:

BY TELEGRAM AND LETTER OF NOVEMBER 10, 1965, AND SUBSEQUENT CORRESPONDENCE, YOU REITERATED BEFORE US A PROTEST ORIGINALLY LODGED WITH THE UNITED STATES NAVY PURCHASING OFFICE AGAINST THE AWARD OF A CONTRACT FOR LARGE SHIP RADARS AND ASSOCIATED SPARE PARTS TO RADIO CORPORATION OF AMERICA, THE ONLY OTHER BIDDER ON ITEMS 5 AND 6 OF INVITATION FOR BIDS NO. 600-219-66. YOUR PROTEST IS DIRECTED AT TWO ALLEGED DEVIATIONS FROM THE ADVERTISED SPECIFICATIONS IN THE RCA BID: (1) RCA NEGLECTED TO SCHEDULE A MAGNETRON, KLYSTRON, AND CATHODE RAY TUBE IN ITS LISTING OF SPARE PARTS FURNISHED WITH THE BID; AND (2) THE RCA UNITS WILL BE DELIVERED WITH A SLOTTED WAVE GUIDE ANTENNA WHICH YOU STATE IS A NEW AND UNTRIED COMPONENT, THE EQUALITY OF WHICH TO THE STANDARD PARABOLIC ANTENNA HAS NOT YET BEEN OFFICIALLY DETERMINED.

YOU ARGUE THAT THE REQUIREMENT FOR A LIST OF SPARE PARTS EXPRESSLY SETTING FORTH THE AFOREMENTIONED TUBES WAS CONSIDERED SIGNIFICANT ENOUGH BY THE GOVERNMENT TO BE SPELLED OUT IN THE SCHEDULE OF THE INVITATION AND THEREFORE FAILURE TO COMPLY SHOULD RENDER THE BID NONRESPONSIVE. THE PROVISION TO WHICH YOU HAVE REFERENCE RECITES AS FOLLOWS:

"6. SPARE PARTS:

A SPARE PARTS KIT SHALL BE PROVIDED WITH EACH UNIT OF EQUIPMENT DELIVERED (INCLUDED IN THE UNIT PRICE). THESE KITS SHALL CONTAIN THE MANUFACTURER'S RECOMMENDED QUANTITY OF ON-BOARD SPARE PARTS AND CONSIST OF TUBES, FUSES, LAMPS, AND SUCH OTHER HIGH-USAGE ITEMS AS DEEMED APPROPRIATE. RADAR SPARES SHALL INCLUDE MAGNETRON, KLYSTRON, AND CRT. (CATHODE RAY TUBE). QUANTITIES SHOULD BE SUFFICIENT FOR 60 DAYS USAGE WITHOUT REPLENISHMENT. A LISTING OF SPARE PARTS OFFERED SHOULD ACCOMPANY BIDS.' (PARENTHETICAL MATERIAL SUPPLIED.)

ALTHOUGH GENERALLY A DATA REQUIREMENT IS TO BE CONSTRUED AND ENFORCED AS WRITTEN (40 COMP. GEN. 132), THE OMISSION FROM A BID OF DESCRIPTIVE INFORMATION REQUESTED IN THE INVITATION NEED NOT INVARIABLY BE DEEMED SO MATERIAL AS TO LEAD TO DISQUALIFICATION. THE ADVERTISED SPECIFICATION CLEARLY SET FORTH THE NEEDS OF THE GOVERNMENT ON A "BRAND NAME OR EQUAL" BASIS AND IN TERMS OF DETAILED PERFORMANCE CHARACTERISTICS. THE WINNING BIDDER WAS OBLIGED TO SUPPLY THE OMITTED TUBES IRRESPECTIVE OF WHETHER OR NOT THEY WERE PROPERLY LISTED IN THE BID. RCA HAS ATTRIBUTED THE ERROR TO INADVERTENCE RESULTING FROM THE LAST MINUTE RUSH IN ASSEMBLING THE VARIOUS SCHEDULES NECESSARY FOR INCORPORATION IN THE BID, A POSITION WHICH TENDS TO BE BORNE OUT BY THE FACT THAT THE OMISSION WAS MADE ONLY WITH RESPECT TO ITEM 5 AND NOT WITH RESPECT TO ITEM 6. COMPARE THE DICTUM IN 36 COMP. GEN. 415, 416, TO THE EFFECT THAT THE FAILURE OF A BIDDER TO SUBMIT INFORMATION WITH HIS BID, AS REQUIRED BY THE INVITATION, MAY BE WAIVED AS A MINOR INFORMALITY WHERE THE SPECIFICATIONS FULLY SET FORTH THE REQUIREMENTS OF THE GOVERNMENT AND THE BIDDER PROPOSES TO MEET THE SPECIFICATIONS. SEE ALSO 39 COMP. GEN. 595.

THIS IS NOT A CASE WHERE THE NEGLECTED DATA IS ESSENTIAL TO ESTABLISH PRECISELY WHAT THE BIDDER IS OFFERING TO FURNISH AND WHETHER THE PROPOSED PERFORMANCE WILL MEET SPECIFICATIONS. CF. 40 COMP. GEN. 132; 37 ID. 763. REITERATION OF THE INVITATION REQUIREMENTS WAS NOT NECESSARY FOR THE EVALUATION OF THE BIDS (CF. B-152720 DATED NOVEMBER 29, 1963; B-147564 DATED FEBRUARY 2, 1962) OR TO SETTLE THE RIGHTS AND OBLIGATIONS ARISING FROM ACCEPTANCE (CF. B-152853 DATED JUNE 19, 1964). THE INFORMATION HAD NO BEARING UPON THE EQUALITY OF THE RCA PRODUCT TO THE BRAND NAME UNIT. CF. 40 COMP. GEN. 435; B-155034 DATED NOVEMBER 24, 1964. NEITHER DID THE PORTION OF THE INVITATION REQUIRING LISTING OF THE TUBES ADVISE BIDDERS THAT A FAILURE TO COMPLY WOULD BE CAUSE FOR REJECTION OF THE BID. SEE 39 COMP. GEN. 684, 691. THE OMISSION IN NO WAY AFFORDED RCA THE OPTION OF DECIDING, AFTER BID OPENING, WHETHER TO ACCEPT OR REJECT THE AWARD. 148624 DATED MAY 2, 1962.

YOU CHARGE THAT THE OMITTED TUBES HAVE A TOTAL VALUE EXCEEDING THE DIFFERENCE IN PRICES BID ON ITEM 5 AND THAT THEREFORE OUR OFFICE CANNOT CONCLUDE THAT THE DEVIATION WAS NOT A MATERIAL ONE. A FAILURE TO SCHEDULE THE ITEMS AS SPARE PARTS IS NOT TANTAMOUNT TO IMMUNITY FROM THE OBLIGATION TO DELIVER THEM AS PART OF THE CONSIDERATION OF THE CONTRACT. THE INADEQUACY OF THE SUBJECT LIST IN THIS CASE CAN HAVE NO EFFECT ON THE PRICE OR QUALITY OF THE CONTRACT PERFORMANCE. BIDDERS WERE TO QUOTE UNIT PRICES INCLUDING BOTH THE RADAR SETS AND THE SPARE PARTS NECESSARY FOR 60 DAYS USAGE. IT WAS MANDATORY BY THE TERMS OF THE INVITATION THAT THE LATTER INCLUDE AN EXTRA MAGNETRON, KLYSTRON, AND CATHODE RAY TUBE FOR EACH UNIT.

YOU NEXT CONTEND THAT THE GOVERNMENT SHOULD NOT HAVE ACCEPTED THE RCA BID WITHOUT RUNNING EXPENSIVE AND TIME-CONSUMING QUALIFICATION TESTS ON A RADAR SET EQUIPPED WITH SLOTTED WAVE GUIDE ANTENNA TO ASSURE THAT THE BEAM WIDTH AND SIDE LOBE CHARACTERISTICS OF THE SPECIFICATION ARE MET. REFERENCES IN INVITATIONS TO BRAND-NAME PRODUCTS ARE INTENDED ONLY TO ESTABLISH STANDARDS OF QUALITY, GIVING PROSPECTIVE BIDDERS THE RIGHT TO BID ON ITEMS OR COMPONENT PARTS EQUAL TO THOSE NAMED IN THE INVITATION. THE ARMED SERVICES PROCUREMENT REGULATION STATES IN THIS REGARD THAT ,BIDS SHALL NOT BE REJECTED BECAUSE OF MINOR DIFFERENCES IN DESIGN, CONSTRUCTION, OR FEATURES WHICH DO NOT AFFECT THE SUITABILITY OF THE PRODUCTS FOR THEIR INTENDED USE.' ASPR 1-1206.4 (A). PRIMARY RESPONSIBILITY FOR DETERMINING THE EQUALITY OF OFFERED ITEMS TO THE BRAND- NAME ARTICLES RESTS UPON THE PROCURING AGENCY, NOT UPON THE ACCOUNTING OFFICERS OF THE GOVERNMENT. THE MILITARY SEA TRANSPORTATION SERVICE WHICH PERFORMED THE TECHNICAL EVALUATIONS IN THIS INSTANCE HAS CONCLUDED THAT THE SLOTTED WAVE GUIDE ANTENNA WILL MEET SPECIFICATION REQUIREMENTS AND THAT EXTENSIVE QUALIFICATION TESTS WILL NOT BE NECESSARY.