B-168487, DEC. 16, 1969

B-168487, DEC. 16, 1969

SPECIFICATIONS--DEVIATIONS--INFORMAL V. SUBSTANTIVE WHERE INVITATION FOR BIDS PROVIDED FIRST ARTICLE TESTING AND CERTAIN DATA EXHIBITS WOULD BE WAIVED FOR LISTED SUPPLIERS WHICH INCLUDED LOW BIDDER AND LOW BID FAILED TO INCLUDE PRICE ON NONWAIVABLE DATA ITEMS OR OTHERWISE INDICATE IN BID INTENTION TO FURNISH SUCH DATA, EVEN THOUGH BIDDER ALLEGED FAILURE TO INCLUDE INFORMATION THAT EXHIBITS WERE INCLUDED IN TOTAL PRICE WAS INADVERTENTLY OMITTED, LOW BID SHOULD BE CONSIDERED NONRESPONSIVE AND REJECTED, SINCE IN ABSENCE OF ANY AFFIRMATIVE INTENTION TO FURNISH REQUIRED DATA ITEMS, SERIOUS DOUBT EXISTS THAT BIDDER IS LEGALLY OBLIGATED TO SUPPLY REQUIRED DATA AT ITS BID PRICE AND SUCH FAILURE CONSTITUTES NONWAIVABLE MATERIAL DEVIATION UNDER ARMED SERVICES PROCUREMENT REGULATION 2-405.

TO MR. DIGGLE:

REFERENCE IS MADE TO LETTER 00J:JCC:JAW N00024-70-B-7004 SER 180 OF NOVEMBER 21, 1969, REQUESTING A DECISION WHETHER THE BID OF THE DYNALEC CORPORATION IS RESPONSIVE TO INVITATION FOR BIDS N00024-70-B-7004.

THE DYNALEC CORPORATION BID AS FOLLOWS: "1 AMPLIFIER, AN/SIA-120 70EA. $ 838.00 $ 58,660.00

FSN - TO BE ASSIGNED) 70 EA. $ $

OFFER A

OFFER B 1AAAMPLIFIER, AN/SIA-120 1 EA. (PRICE OF ITEM 1AA

(PREPRODUCTION EQUIPMENT) (TO BE INCLUDED IN

OFFER B (PRICE OF ITEM 1

(UNDER OFFER B 2 AMPLIFIER, AN/SIA-120

FSN - TO BE ASSIGNED)

(REQN. P/TKY01/9154/1280

OFFER A 1 EA. $ 838.00 $ 838.00

OFFER B 1 EA. $ $ 3 MAINTENANCE REPAIR PARTS

FOR ITEM 1 (INDIVIDUAL FSN

NUMBERS TO BE ASSIGNED

BY ESO GLAKES) 1 LOT (SEE NOTE A) 4 DATA FOR ITEMS 1 AND 2 (SEE DD

FORM 1423 EXHIBIT A HERETO AND

NOTE B BELOW)

TOTAL XXXXXXXXXX

OFFER A (EXCLUSIVE OF ITEM 3) $ 59,498.00

OFFER B (EXCLUSIVE OF ITEM 3) $ "

THE INVITATION PROVIDED THAT THE FIRST ARTICLE REQUIREMENT AND DATA EXHIBITS A001AA THROUGH A001AD, APPEARING ON DD FORM 1423, CONTRACT DATA REQUIREMENTS LIST, WOULD BE WAIVED FOR LISTED SUPPLIERS INCLUDING THE DYNALEC CORPORATION. "OFFER A" WAS FOR BIDS ON THE WAIVED BASIS. "OFFER B" WAS FOR BIDS ON THE NOT WAIVED BASIS. LISTED SUPPLIERS LIKE DYNALEC WERE NOT REQUIRED TO BID ON THE "OFFER B" BASIS. THUS, THE ONLY QUESTION IS WHETHER THE DYNALEC BID WAS RESPONSIVE EVEN THOUGH IT DID NOT QUOTE A PRICE ON ITEM 4, THE DATA ITEM. IN THAT REGARD, DD FORM 1423 LISTS DATA EXHIBITS NUMBERED A001AA THROUGH A001AP. HOWEVER, THE INVITATION PROVIDED ON PAGE 2 THAT ONLY THE FIRST FOUR EXHIBITS WOULD BE WAIVED FOR PREVIOUS SUPPLIERS. HENCE, THE BALANCE OF THE EXHIBITS ARE NOT AFFECTED BY THE WAIVER. THE NONWAIVABLE EXHIBITS INCLUDE 200 TECHNICAL MANUALS, A SET OF REPLENISHMENT MATERIAL RELATED TO THE MANUAL, PHOTOLITHOGRAPHIC NEGATIVES FOR THE MANUAL, A SET OF DATA PROVISIONING TECHNICAL DOCUMENTATION, A RELIABILITY PREDICTION, A MEAN TIME TO REPAIR PROCEDURE, TWO COPIES OF PROVISIONING SCREENING DATA, FIVE COPIES A MONTH OF PRODUCTION PROGRESS REPORTS AND A REPORT ON PRINTING OF TECHNICAL MANUALS. "NOTE B" REFERENCED IN ITEM 4 STATES: "OFFEROR TO QUOTE TOTAL PRICE FOR ITEM 4. SEE INSTRUCTIONS FOR PRICING ON THE DD FORM 1423."

BY LETTER OF OCTOBER 29, 1969, OR MORE THAN 2 MONTHS AFTER THE OPENING OF BIDS, DYNALEC ADVISED THAT THE COST OF THE REQUIRED DATA EXHIBITS IS PRO- RATED AND INCLUDED IN THE PRICE OF ITEMS 1 AND 2; THAT IT INADVERTENTLY OMITTED SUCH INFORMATION IN THE BID; AND THAT THE TOTAL PRICE SUBMITTED WAS ALL INCLUSIVE FOR ITEMS 1, 2 AND 4.

YOU PROPOSE TO MAKE AN AWARD TO DYNALEC AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER. THE REASONS ADVANCED FOR SUCH PROPOSAL ARE AS FOLLOWS: (1) DYNALEC IS A PRIOR PRODUCER OF THE EQUIPMENT AND, LIKE THE OTHER PRIOR PRODUCER WHO BID "NC" FOR THE DATA, DID NOT INCLUDE ANY ESTIMATED DATA PRICES ON DD FORM 1423; AND (2) DYNALEC SUBMITTED A TOTAL PRICE FOR ALL THE REQUIREMENTS OF THE INVITATION WHICH PROVIDES THAT "AWARD WILL BE MADE ONLY TO ONE OFFEROR FOR ALL UNITS OF ITEMS 1, 1AA, 2 AND 4" AND THAT "OFFERS, THEREFORE, MUST BE ON THE BASIS OF FURNISHING (I) ALL UNITS."

YOU RECOGNIZE THAT UNDER CONDITIONS SIMILAR TO THOSE IN THE IMMEDIATE INVITATION, OUR OFFICE HELD IN B-167899, NOVEMBER 5, 1969, THAT THE FAILURE TO QUOTE A PRICE FOR A DATA ITEM RENDERED THE BID NONRESPONSIVE. HOWEVER, YOU POINT OUT THAT IN B-161012, JUNE 13, 1967, WE HELD:

"* * * SINCE THE AWARD WAS TO BE MADE IN THE AGGREGATE AND AN AGGREGATE TOTAL PRICE WAS INVITED, INDIVIDUAL ITEM PRICES WERE NOT MATERIAL TO THE EVALUATION OF BIDS AND THE FAILURE TO QUOTE INDIVIDUAL ITEM PRICES SHOULD HAVE BEEN WAIVED AS A MINOR DEVIATION. * * *" YOU ALSO CITE B-165469, MARCH 19, 1969.

OUR HOLDING IN B-161012 TO THE EFFECT THAT A BID WAS NOT NONRESPONSIVE BECAUSE OF THE FAILURE TO INCLUDE A PRICE OPPOSITE THE DATA ITEM DID NOT TURN ON THE FACT THAT THE BID WAS TENDERED IN THE AGGREGATE. IN THAT CASE, THE BIDDER, IN ACCORDANCE WITH THE INVITATION, INSERTED IN ITS BID A DELIVERY DATE FOR THE DATA. THE COMBINATION OF THE BIDDER'S SPECIFIC INDICATION IN ITS BID THAT IT WAS AWARE OF THE DATA REQUIREMENT AND THE FACT THAT THE INVITATION INVITED AN "AGGREGATE TOTAL" BID PRICE WAS REGARDED BY OUR OFFICE AS EVIDENCING AN INTENTION TO FURNISH THE DATA AS A PART OF THE TOTAL PRICE. IN THE ABOVE-CITED DECISION IT WAS STATED:

"HOWEVER, IN VIEW OF THE FACT THAT SONEX SPECIFICALLY OFFERED IN ITS BID A DELIVERY SCHEDULE FOR ITEM 2 AND ALSO BID AN 'AGGREGATE' TOTAL PRICE ON LOT I, WE DO NOT BELIEVE THAT THE BID WAS NONRESPONSIVE. * * *" HOWEVER, IN THE IMMEDIATE CASE, DYNALEC WAS NOT REQUIRED TO AND DID NOT EXPRESS ANY AFFIRMATIVE INTENTION IN ITS BID TO FURNISH THE DATA ITEM. B-161012, SUPRA, IS THEREFORE DISTINGUISHABLE IN THE FACTS.

IN B-165469, SUPRA, THE BID DID NOT INCLUDE A PRICE OPPOSITE THE DATA ITEM. THERE WAS, HOWEVER, A "NO CHARGE" NOTATION ON DD FORM 1423. HELD THERE THAT:

* * * (THE BIDDER'S) FAILURE TO INSERT A PRICE OR A NOTATION OF 'NO CHARGE' AFTER ITEM 6 (THE DATA ITEM) AMOUNTED TO NO MORE THAN A MINOR DEVIATION, THE PRICES LISTED FOR ITEMS 1 THROUGH 5 COUPLED WITH ITS NOTATION OF 'NO CHARGE' ON FORM 1423 BEING SUFFICIENT FOR THE PURPOSE OF EVALUATING ITS BID. * * *" HERE, THE PRICING COLUMNS IN DD FORM 1423 AND THE SPACE OPPOSITE THE DATA ITEM IN THE BID SCHEDULE ARE BOTH BLANK. HENCE, THE HOLDING IN B-165469 IS LIKEWISE INAPPLICABLE TO THE FACTS OF THIS CASE.

UNDER THE TERMS OF THE OFFER, THE BIDDER AGREES "TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED, AT THE PRICE SET OPPOSITE EACH ITEM." SINCE DYNALEC FAILED TO SUBMIT A PRICE FOR ITEM 4 OR OTHERWISE INDICATE IN THE SCHEDULE AN INTENTION TO FURNISH THE DATA, THERE IS SERIOUS DOUBT THAT IT IS OBLIGATED TO SUPPLY THE REQUIRED DATA AT ITS BID PRICE. SUCH FAILURE CONSTITUTES A MATERIAL DEVIATION WHICH MAY NOT BE WAIVED UNDER THE AUTHORITY OF PARAGRAPH 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION. THE BID THEREFORE SHOULD BE REJECTED. B 167899, SUPRA; 41 COMP. GEN. 412 (1961); 46 ID. 434 (1966).

THE ENCLOSURES THAT ACCOMPANIED YOUR LETTER ARE RETURNED AS REQUESTED.