B-158088, MAR. 4, 1966

B-158088, MAR. 4, 1966

TO COMBUSTION ENGINEERING, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM DATED NOVEMBER 24, 1965, AND TO YOUR SUPPLEMENTAL LETTER OF FEBRUARY 15, 1966, PROTESTING ANY AWARD OF A CONTRACT FOR 2 BOILERS AND RELATED MATERIAL UNDER IFB NO. 151-28-6 TO FOSTER WHEELER CORPORATION, THE LOW BIDDER. YOU SAY THAT THE CONTRACTING AGENCY, PHILADELPHIA NAVAL SHIPYARD, DEPARTMENT OF THE NAVY, ALLOWED THE LOW BIDDER THE OPPORTUNITY TO SUBMIT REQUIRED TECHNICAL DATA AFTER BID OPENING, AND IN THE LETTER OF FEBRUARY 15 YOU STATE THE POSITION OF COMBUSTION ENGINEERING AS FOLLOWS:

"1. IT IS COMBUSTION ENGINEERING'S POSITION THAT THE ITEMS SPECIFIED ON PAGE 12 OF THE SCHEDULE RELATING THE PREPARATION OF MATHEMATICAL MODELS AND DYNAMIC SHOCK ANALYSIS ARE ABSOLUTE REQUIREMENTS OF THE BID AND FAILURE TO INCLUDE THE INFORMATION SPECIFIED WOULD RESULT IN THE BID BEING NON-RESPONSIVE. THEY CONSTITUTE DATA WHICH IS ESSENTIAL TO DETERMINE THAT THE CORRESPONDING DESIGN IS IN GENERAL CONFORMANCE WITH THE SPECIFICATION REQUIREMENTS PERTAINING TO SHOCK.

IF MAJOR UNITS OF PROPULSION EQUIPMENT ARE TO BE DESIGNED TO SUCCESSFULLY WITHSTAND GRADE "A" SHOCK, THOROUGH CONSIDERATION OF THESE REQUIREMENTS MUST BE INCORPORATED INTO THE DESIGN SELECTION. DURING THE DESIGN SELECTION PHASE THE BOILER MANUFACTURER PROCEEDS THROUGH A SERIES OF ENGINEERING INVESTIGATIONS WHICH RESOLVE THE BOILER DESIGN SET FORTH IN THE PROPOSAL.

FOR UNITS WHICH MUST MEET GRADE "A" SHOCK REQUIREMENTS THIS INITIAL ENGINEERING PHASE MUST INCLUDE, AS AN INTEGRAL DESIGN CONSIDERATION, THOROUGH SHOCK EVALUATION.

"2. SUBSEQUENT TO REVIEW OF THE IFB AND PRIOR TO BID SUBMITTAL A COMBUSTION ENGINEERING REPRESENTATIVE MET WITH REPRESENTATIVES OF THE PURCHASING DEPARTMENT, PHILADELPHIA NAVAL SHIPYARD AND IN INFORMAL DISCUSSIONS POINTED OUT THAT THE UNUSUALLY DETAILED BID SUBMITTAL DATA WOULD BE EXPENSIVE TO PREPARE. HE SUGGESTED THAT THE IFB BE CHANGED TO A TWO STEP PROCUREMENT BUT THIS SUGGESTION WAS REJECTED AND THE COMBUSTION ENGINEERING REPRESENTATIVE WAS INFORMED THAT THE DATE SPECIFIED IN THE IFB MUST BE INCLUDED IN THE BID.

"4. AS POINTED OUT IN PARAGRAPH 3 OF REFERENCE (A), THE IFB DOES NOT CONTAIN A STATEMENT AS TO THE TREATMENT TO BE AFFORDED A BID WHICH OMITTED ANY INFORMATION REQUESTED. THERE IS NO ATTEMPT TO SEGREGATE ITEMS THAT ARE REQUIRED BY THE BID FROM ITEMS THAT MERELY ILLUSTRATE THE BIDDER'S CAPABILITY. WE FEEL THAT THE MATHEMATICAL MODEL AND DYNAMIC SHOCK ANALYSIS INFORMATION WERE INTENDED TO BE A PART OF THE BID, AND FAILURE TO INCLUDE IT SHOULD BE TREATED IN THE SAME MANNER AS IF A MAJOR ITEM OF PROCUREMENT HAD BEEN OMITTED.

"5. THE MATHEMATICAL MODEL ILLUSTRATING THE CAPABILITY OF THE BOILER TO ABSORB DYNAMIC SHOCK IS AN INTEGRAL PART OF THE BOILER DESIGN AND WAS ESSENTIAL TO BE RESPONSIVE TO THE REQUIREMENTS OF THE NAVY. IN VIEW OF THE FACT THAT THIS WAS A FORMAL ADVERTISED BID, ALL OF THE INFORMATION REQUIRED BY THE IFB SHOULD HAVE BEEN INCLUDED FOR REVIEW BY THE CONTRACTING OFFICER ON THE BASIS OF THE ORIGINAL SUBMITTAL AND WE DO NOT BELIEVE THAT THE OMISSIONS MADE BY THE FOSTER WHEELER CORPORATION WERE OF A MINOR NATURE.'

THE SUBJECT PROVISIONS CONCERNING MATHEMATICAL MODELS, DYNAMIC SHOCK ANALYSIS AND DESIGN PROCEDURES WERE SET FORTH ON PAGE 12 OF THE IFB IN THE FOLLOWING CLAUSE:

"DESIGN CATEGORIES

THE EQUIPMENT DESCRIBED BY THIS SPECIFICATION SHALL COMPLY WITH THE FOLLOWING DESIGN CRITERIA AS DEFINED IN APPENDIX A

SHOCK GRADE - A

MOUNTING LOCATION - HULL

THE SELLER'S PROPOSAL SHALL INCLUDE A DETAILED STATEMENT CONCERNING THE DESIGN PROCEDURES CONTEMPLATED, SETTING FORTH THE POINTS OF INTEREST FOR STRESS AND DEFLECTION CHECKING, A ROUGH MATHEMATICAL MODEL AND THE NUMBER OF ITERATIONS ANTICIPATED FOR A SUCCESSFUL DESIGN. THE SELLER'S PROPOSAL SHALL ALSO INCLUDE A STATEMENT AS TO THE SELLER'S PAST EXPERIENCE WITH RESPECT TO PREPARATION OF MATHEMATICAL MODELS AND DYNAMIC SHOCK ANALYSIS, AND WHETHER THIS WORK WILL BE PERFORMED BY THE SELLER'S OWN STAFF OR AN OUTSIDE CONSULTANT.'

THE FOLLOWING THREE BIDS RECEIVED WERE OPENED AS SCHEDULED ON OCTOBER 14, 1965:

FOSTER WHEELER CORP. $358,649.00

COMBUSTION ENGINEERING, INC. 389,219.00

BABCOCK AND WILCOX CO. 504,588.00

FOSTER WHEELER DID NOT INCLUDE WITH ITS BID THE STATEMENTS AND ROUGH MATHEMATICAL MODEL SPECIFIED UNDER DESIGN CATEGORIES, AND WAS ORALLY REQUESTED BY THE CONTRACTING OFFICER AFTER BID OPENING ON NOVEMBER 22, 1965, TO SUBMIT THE MATERIAL OMITTED FROM ITS BID. IT IS REPORTED THAT THE BIDDER COMPLIED WITH THE REQUEST BY A LETTER DATED THAT SAME DAY. THIS CONNECTION IT IS FOR NOTING THAT THE IFB DOES NOT GIVE THE PURPOSE FOR WHICH SUCH DATA WAS DESIRED NOR DOES IT CONTAIN ANY PROVISION REQUIRING REJECTION OF THOSE BIDS AS NONRESPONSIVE WHICH FAIL TO SUBMIT REQUESTED DATA. IN REPORTING ON SUCH FACTORS THE CONTRACTING OFFICER HAS FURNISHED THE FOLLOWING STATEMENT:

"* * * THE DRAWINGS OMITTED FROM THE FOSTER WHEEL CORP. BID WERE NOT INTENDED TO CONSTITUTE A PART OF THE CONTRACT RESULTING FROM THE IFB. THE FINAL DESIGN OF THE BOILERS MEETING THE CONTRACT SPECIFICATION WAS TO BE SET FORTH IN DESIGN DRAWINGS TO BE SUBMITTED TO THE GOVERNMENT REPRESENTATIVES AFTER AWARD OF CONTRACT FOR APPROVAL BY THE GOVERNMENT PRIOR TO THE FABRICATION OF THE BOILERS. THE ROUGH MATHEMATICAL MODEL RELATING TO SHOCK TESTING OF THE BOILERS WHICH WAS OMITTED FROM THE ORIGINAL FOSTER WHEELER BID WAS NOT TO FORM A PART OF THE CONTRACT, BUT WAS DESIRED BY HE GOVERNMENT ONLY AS AN INDICATION OF THE BIDDER'S PROBABLE CAPABILITY OF DEVELOPING A FINAL MATHEMATICAL MODEL IN ACCORDANCE WITH THE IFB PROCEDURES FOR DEVELOPING SUCH FINAL MODEL. THE DEVELOPMENT OF SUCH FINAL MODEL IS A SEPARATE ITEM UNDER THE IFB (IFB ITEM 5218-4513 RELATING TO DYNAMIC SHOCK ANALYSIS) AND INVOLVES EXTENSIVE COMPUTER ANALYSIS AND INTERCHANGE OF INFORMATION BETWEEN THE GOVERNMENT AND THE CONTRACTOR AFTER AWARD OF CONTRACT. IN VIEW OF THE NATURE AND PURPOSE FOR SECURING THE DATA INVOLVED AND OF THE FACT THAT THE IFB DID NOT ADVISE BIDDERS THAT THE FAILURE TO SUBMIT DATA WOULD RESULT IN THE REJECTION OF THE BID, AND OF THE FACT THAT THE FOSTER WHEELER BID (EXHIBIT D) SPECIFICALLY AGREES TO MEET ALL SPECIFICATIONS OF THE IFB, THE CONTRACTING OFFICER RECOMMENDS THAT THE PROTEST BE DENIED AND THAT AWARD TO FOSTER WHEELER CORP. BE AUTHORIZED.'

UNDER CERTAIN CIRCUMSTANCES, THE FURNISHING OF DRAWINGS WHICH AN INVITATION REQUIRES TO BE SUBMITTED WITH A BID MAY BE OF SUFFICIENT IMPORTANCE TO A DETERMINATION OF THE NATURE OR EXTENT OF THE PERFORMANCE OFFERED BY A BIDDER, OR TO A COMPETITIVE EVALUATION OF THE BIDS RECEIVED, TO MERIT REJECTION OF BIDS WHICH DO NOT INCLUDE THE REQUIRED DRAWINGS. HOWEVER, IF THE INFORMATION OMITTED BEARS ON THE RESPONSIBILITY OF THE BIDDER IT MAY BE SUBMITTED AFTER BID OPENING. SEE 41 COMP. GEN. 555.

IN YOUR LETTER OF FEBRUARY 15TH YOU STATE THAT THOSE ITEMS SPECIFIED ON PAGE 12 OF THE IFB RELATING TO THE PREPARATION OF MATHEMATICAL MODELS AND DYNAMIC SHOCK ANALYSIS ARE ABSOLUTE REQUIREMENTS ESSENTIAL FOR DETERMINING THE RESPONSIVENESS OF THE BID. THAT PROVISION WHICH IS QUOTED ABOVE, REQUIRES A STATEMENT OF THE BIDDER'S PAST EXPERIENCE IN SUCH RESPECT AND ASKS FOR THE NUMBER OF ITERATIONS ANTICIPATED BY THE BIDDER FOR A SUCCESSFUL DESIGN.

IN PARAGRAPH 1-903.2 OF THE ARMED SERVICES PROCUREMENT REGULATION A BIDDER'S EXPERIENCE IS LISTED AMONG THE STANDARDS FOR CONSIDERATION IN DETERMINING THE RESPONSIBILITY OF PROSPECTIVE CONTRACTORS RATHER THAN RELATING TO THE RESPONSIVENESS OF BIDS. ALSO, IN REQUESTING BIDDERS TO STATE THE NUMBER OF ITERATIONS ANTICIPATED ON THE MATHEMATICAL MODEL IT SEEMS EVIDENT, AS POINTED OUT BY THE CONTRACTING OFFICER, THAT THE ROUGH MODEL ASKED FOR WAS NOT INTENDED TO BE FINAL OR CONSTITUTE A PART OF THE CONTRACT. THE CONTRACTING OFFICER HAS STATED THAT THE MATERIAL WAS DESIRED BY THE GOVERNMENT ONLY FOR THE PURPOSE OF INDICATING THE BIDDER'S PROBABLE CAPABILITY TO FURNISH THE ITEMS CALLED FOR BY THE IFB, AND WE ARE UNABLE TO SAY FROM THE RECORD THAT SUCH CONCLUSION IS INCORRECT. IN VIEW THEREOF, AND SINCE A BIDDER'S ABILITY TO PERFORM PERTAINS ESSENTIALLY TO THE MATTER OF RESPONSIBILITY, WE DO NOT FEEL THAT FOSTER WHEELER WAS PRECLUDED AFTER BID OPENING FROM SUBMITTING THE SUBJECT MATERIAL FOR CONSIDERATION.

REGARDING YOUR STATEMENT IN YOUR TELEGRAM OF NOVEMBER 24 THAT A REPRESENTATIVE OF THE NAVY, IN RESPONSE TO AN ORAL INQUIRY FROM COMBUSTION ENGINEERING PRIOR TO BID OPENING, ADVISED THAT ANY BIDDER WHO FAILED TO SUBMIT THE DATA WHICH WAS OMITTED FROM THE FOSTER WHEELER BID WOULD BE CONSIDERED NONRESPONSIVE, PARAGRAPH 2, STANDARD FORM 33-A (S.F. 33-A), WHICH IS A PART OF THE IFB, CONTAINS THE FOLLOWING:

"EXPLANATIONS TO BIDDERS---

"ANY EXPLANATION DESIRED BY A BIDDER REGARDING THE MEANING OR INTERPRETATION OF THE INVITATION FOR BIDS, DRAWINGS, SPECIFICATIONS, ETC., MUST BE REQUESTED IN WRITING AND WITH SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH BIDDERS BEFORE THE SUBMISSION OF THEIR BIDS. ANY INFORMATION GIVEN TO A PROSPECTIVE BIDDER CONCERNING AN INVITATION FOR BIDS WILL BE FURNISHED TO ALL PROSPECTIVE BIDDERS, AS AN AMENDMENT TO THE INVITATION, IF SUCH INFORMATION IS NECESSARY TO BIDDERS IN SUBMITTING BIDS ON THE INVITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNIFORMED BIDDERS. RECEIPT OF AMENDMENTS BY A BIDDER MUST BE ACKNOWLEDGED ON THE BID OR BY LETTER OR TELEGRAM RECEIVED BEFORE THE TIME SET FOR OPENING OF BIDS. ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING.'

FROM THE RECORD AND INFORMAL DISCUSSIONS WITH REPRESENTATIVES OF YOUR COMPANY, IT APPEARS THAT NO WRITTEN REQUEST AS REQUIRED BY S.F. 33-A WAS EVER MADE. THUS, THE ALLEGED ORAL ADVICE REGARDING FAILURE TO SUBMIT THE DATA COULD NOT BE BINDING ON THE GOVERNMENT. FURTHERMORE, THE AGENCY'S REPORT IN THIS MATTER CONTRADICTS YOUR ASSERTION BY STATING THAT WHILE YOUR REPRESENTATIVE WAS ADVISED THAT THE DATA CALLED FOR BY THE IFB SHOULD BE SUBMITTED WITH YOUR BID, NO STATEMENT WAS MADE THAT A BID WHICH FAILED TO INCLUDE SUCH DATA WOULD BE CONSIDERED NONRESPONSIVE.