B-169446, JUL. 7, 1970

B-169446, JUL. 7, 1970

CONTRACTS -- BID PROTEST -- FAILURE TO COMPLETE DD FORMS 1423 DECISION TO LEWIS CORPORATION OF WOODBURY, CONNECTICUT SECOND LOW BIDDER DENYING PROTEST OF CONTRACT AWARDED WESTINGHOUSE ELECTRIC CORPORATION UNDER INVITATION FOR BIDS (IFB) BY THE NAVY AVIATION SUPPLY OFFICE, PHILADELPHIA, PENN. LOW BIDDER WHO CAN FURNISH ALL ITEMS UPON WHICH PRICES WERE AGREED BUT FAILED TO COMPLETE DD FORMS 1423 WHICH IS NORMALLY REQUIRED FOR GOVERNMENT INTERNAL USE AND HAS NO EFFECT ON PRICE, QUALITY, QUANTITY OR DELIVERY MAY HAVE SUCH FAILURE REGARDED AS NO MORE THAN A MINOR DEVIATION WHICH MAY BE WAIVED IN ACCORDANCE WITH ASPR 2-405. ALSO, A PRE-AWARD SURVEY HAD DETERMINED THAT LOW BIDDER CAN AND WOULD COMPLY IN USING THE TECHNIQUE AND APPLICATIONS REQUIRED BY THE SPECIFICATIONS.

TO KING AND KING:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 21, 1970, AND PRIOR CORRESPONDENCE, ON BEHALF OF THE LEWIS CORPORATION OF WOODBURY, CONNECTICUT, PROTESTING ANY AWARD OF A CONTRACT TO WESTINGHOUSE ELECTRIC CORPORATION UNDER INVITATION FOR BIDS (IFB) NO. N00383-70-B 0612, ISSUED BY THE NAVY AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA.

THE SUBJECT INVITATION WAS ISSUED ON JANUARY 28, 1970, AND CALLED FOR 36 ULTRASONIC CLEANERS TO BE FURNISHED IN ACCORDANCE WITH SPECIFICATION XFWGS -149C UNDER ITEM 1, A TECHNICAL MANUAL COVERING THE ULTRASONIC CLEANER (ITEM 2), PROVISIONING DATA (ITEM 3) AND ENGINEERING DRAWINGS AND ASSOCIATED LISTS (ITEM 4). AMENDMENT NO. 0001 TO THE INVITATION, ISSUED ON FEBRUARY 24, 1970, MADE A DRAWING DELETION, CORRECTED A TYPOGRAPHICAL ERROR, AND EXTENDED THE BID OPENING DATE FROM MARCH 2, 1970, TO MARCH 9, 1970. BIDS WERE OPENED AS SCHEDULED AND OF THE FIVE BIDS RECEIVED, IT WAS DETERMINED THAT WESTINGHOUSE SUBMITTED THE LOWEST BID IN THE AMOUNT OF $69,680. THE SECOND LOW BID WAS SUBMITTED BY THE LEWIS CORPORATION IN THE AMOUNT OF $78,480. IT IS REPORTED THAT WESTINGHOUSE FAILED TO ACKNOWLEDGE AMENDMENT NO. 0001. HOWEVER, LEWIS WITHDREW ITS PROTEST RESPECTING THE FAILURE TO ACKNOWLEDGE THE AMENDMENT.

WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE NAVY THAT DUE TO AN URGENT NEED FOR THE EQUIPMENT, AN AWARD WAS MADE TO WESTINGHOUSE ON MAY 28, 1970. PURSUANT TO THE PROVISIONS OF ASPR 2-407.8(B)(3), THE CONTRACTING OFFICER DETERMINED THAT AN AWARD TO WESTINGHOUSE ON OR BEFORE MAY 29, 1970, WOULD BE ADVANTAGEOUS TO THE GOVERNMENT, IN ADDITION TO THE FACT THAT THE ITEMS TO BE PROCURED ARE URGENTLY REQUIRED AND PERFORMANCE WOULD BE UNDULY DELAYED BY FAILURE TO MAKE AWARD PROMPTLY.

IN YOUR LETTER OF MAY 21, 1970, YOU STATE THAT LEWIS PROTESTED AGAINST AWARD TO WESTINGHOUSE ON THE FOLLOWING GROUNDS:

" *** (2) THAT BY NOT FILLING OUT THE DD 1423 FORMS WHICH WERE A PART OF THE IFB PACKAGE WESTINGHOUSE FAILED TO COMPLY WITH MANDATORY REQUIREMENTS OF THE IFB; AND (3) THAT THERE WAS SERIOUS DOUBT WHETHER THE LOW BIDDER COULD AND WOULD COMPLY WITH THE VERY SPECIFIC REQUIREMENT OF THE EQUIPMENT SPECIFICATION THAT THE MAJOR COMPONENTS OF THE EQUIPMENT BE JOINED BY USE OF A SILVER BRAZING TECHNIQUE."

YOU REQUEST OUR OFFICE TO DETERMINE WHETHER THE FAILURE OF WESTINGHOUSE TO FILL OUT DD FORM 1423 (CONTRACT DATA REQUIREMENTS LIST) RENDERED ITS BID NONRESPONSIVE.

PAGE 5 OF THE INVITATION PROVIDED IN PERTINENT PART AS FOLLOWS:

"/X/ 123 DATA PRICING (ITEMS 2, 3, AND 4).

"EXCEPT WHERE OTHERWISE STATED, THE BIDDER/OFFEROR SHALL, FOR EACH LINE ITEM OF DATA, INSERT A PRICE OR A SPECIFIC RESPONSE SUCH AS 'NO CHARGE' OR 'INCLUDED IN THE PRICE OF ITEMS'. IF A BIDDER FAILS TO ENTER A PRICE OR A SPECIFIC RESPONSE, AS ABOVE REQUESTED, FOR ANY LINE ITEM OF DATA, IT SHALL BE PRESUMED THAT THE PRICE FOR SUCH LINE ITEM OF DATA IS INCLUDED IN THE PRICES SUBMITTED FOR OTHER ITEMS."

FURTHER, PAGE 24 OF THE INVITATION PROVIDED:

"/X/ 730 REQUIREMENTS FOR COMPLETION OF DD-FORM 1423

"BIDDERS/OFFERORS ARE REQUESTED TO COMPLETE ITEM NUMBERS 23 THROUGH 26 ON THE ATTACHED DD-FORM 1423."

THE WESTINGHOUSE CORPORATION BID IN RESPONSE TO THE INVITATION SCHEDULE READS AS FOLLOWS:

"ENGINEERING DRAWINGS AND ASSOCIATED LISTS IN ACCORDANCE WITH FORMS 1423 (WHICH SHALL BE COMPLETED BY THE BIDDER) AND 4200/25, ATTACHED HERETO AS EXHIBIT III.

$2,000.00."

THE CONTRACTING OFFICER IS OF THE OPINION THAT THE FAILURE OF WESTINGHOUSE TO COMPLETE DD FORM 1423 IS A MINOR INFORMALITY OR IRREGULARITY WHICH HAS NO EFFECT ON PRICE, QUALITY, QUANTITY, OR DELIVERY. LEWIS CORPORATION DOES NOT CONCEDE THAT DD FORM 1423, WHICH REQUIRES THE SUBMISSION OF THE ESTIMATED COST FOR ADDITIONAL TECHNICAL DATA, CAN BE SAID TO HAVE NO EFFECT UPON THE EQUIPMENT'S PRICE. ADDITIONALLY, LEWIS CONTENDS THAT THE PROCURING AGENCY'S POSITION DOES NOT TAKE INTO ACCOUNT THE VERY PLAIN, MANDATORY REQUIREMENT OF THE INVITATION THAT THE TECHNICAL DATA REQUIRED TO BE FILLED IN ON DD FORM 1423 BE SUBMITTED.

THE RULE IS WELL ESTABLISHED IN ADVERTISED PROCUREMENTS THAT A BIDDER'S FAILURE TO SUPPLY INFORMATION IN HIS BID WHICH IS NECESSARY TO A COMPLETE AND FULL EVALUATION OF THE BID WILL RENDER THE BID NONRESPONSIVE TO THE INVITATION. 41 COMP. GEN. 412 (1961); B-165469, MARCH 19, 1969. THE RECORD BEFORE US INDICATES THAT WESTINGHOUSE AGREED IN ITS BID TO FURNISH THE REQUIRED DATA FOR $2,000. FOR THE REASONS STATED BELOW, WE FEEL THAT THE FAILURE OF WESTINGHOUSE TO COMPLETE DD FORM 1423 IS A MINOR INFORMALITY OR BID IRREGULARITY WHICH MAY BE WAIVED PURSUANT TO PARAGRAPH 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

THAT REGULATION PROVIDES IN PERTINENT PART AS FOLLOWS:

" *** A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO, BIDDERS. THE CONTRACTING OFFICER SHALL EITHER GIVE TO THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID, OR, WAIVE ANY SUCH DEFICIENCY WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT. *** "

THE CONTRACTING OFFICER STATES THAT DD FORM 1423 REQUESTS INFORMATION CONCERNING COSTS WHICH WOULD BE INCURRED AS A DIRECT RESULT OF THE REQUIREMENT TO SUPPLY THE DATA OVER AND ABOVE THOSE COSTS WHICH WOULD OTHERWISE BE INCURRED IN PERFORMANCE OF THE CONTRACT IF NO DATA WERE REQUIRED. PARAGRAPHS 2 AND 3 OF THE "INSTRUCTIONS FOR COMPLETING DD FORM 1423" CONTAINED ON THE REVERSE SIDE OF THAT FORM CONCERN THE ESTIMATED COST OF THE TECHNICAL DATA AND PROVIDE AS FOLLOWS:

"2. THE CONTRACTOR AGREES THAT, REGARDLESS OF WHETHER HE HAS MADE ANY ENTRIES IN ITEMS 25 AND 26, AND REGARDLESS OF WHAT THOSE ENTRIES ARE, HE IS OBLIGATED TO DELIVER ALL THE DATA LISTED HEREON, AND THE PRICE HE IS TO BE PAID THEREFOR IS INCLUDED IN THE TOTAL PRICE SPECIFIED IN THIS CONTRACT.

"THE ESTIMATED PRICES FILLED IN IN ITEM 26 WILL NOT BE SEPARATELY USED IN EVALUATION OF BIDS OR OFFERS." WE ARE ADVISED THAT THE INFORMATION CALLED FOR IN DD FORM 1423 IS NORMALLY DESIRED FOR THE GOVERNMENT'S INTERNAL USE AND HAS NO EFFECT ON PRICE, QUALITY, QUANTITY, OR DELIVERY. MOREOVER, UNDER THE TERMS OF THE OFFER, WESTINGHOUSE AGREES "TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED, AT THE PRICE SET OPPOSITE EACH ITEM." EVEN IF WESTINGHOUSE HAD SUBMITTED WITH ITS BID A COMPLETED DD FORM 1423, ANY PRICES LISTED THEREON WOULD BE ESTIMATES ONLY, IMPOSING NO FIXED-COST OBLIGATIONS ON WESTINGHOUSE. HOWEVER, SINCE WESTINGHOUSE'S BID INDICATED A PRICE FOR THE DATA CALLED FOR IN THE INVITATION, THIS WAS SUFFICIENT FOR THE PURPOSE OF EVALUATING ITS BID AND WESTINGHOUSE IS CLEARLY OBLIGATED TO FURNISH THE DATA AT ITS BID PRICE THEREFOR. UNDER THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE FAILURE OF WESTINGHOUSE TO COMPLETE DD FORM 1423 AMOUNTED TO NO MORE THAN A MINOR DEVIATION WHICH WAS PROPERLY WAIVED IN ACCORDANCE WITH ASPR 2-405. SEE, ALSO, B-161063(1), JUNE 8, 1967.

WITH RESPECT TO YOUR DOUBT WHETHER WESTINGHOUSE CAN AND WILL COMPLY WITH THE REQUIREMENT OF THE SPECIFICATIONS THAT THE MAJOR COMPONENTS OF THE EQUIPMENT BE JOINED BY USE OF A SILVER BRAZING TECHNIQUE, WE HAVE BEEN ADVISED THAT A PRE-AWARD SURVEY DETERMINED THAT WESTINGHOUSE CAN AND WILL MEET THE SILVER BRAZING TECHNIQUES CALLED FOR IN THE SPECIFICATIONS. VIEW OF THIS TECHNICAL DETERMINATION, WE HAVE NO BASIS TO QUESTION WESTINGHOUSE'S ABILITY TO CONFORM TO THE REQUIREMENTS OF THE SPECIFICATION. SEE 45 COMP. GEN. 357, 361 (1965).

IN YOUR LETTER OF MAY 21, 1970, YOU STATE IN PERTINENT PART AS FOLLOWS:

"THE PROTESTANT RECOGNIZES THAT THERE IS SUBSTANTIAL GAO DECISIONAL AUTHORITY TO THE EFFECT THAT YOUR OFFICE WILL GENERALLY DEFER TO ADMINISTRATIVE DETERMINATIONS REGARDING TECHNICAL CONTRACTUAL MATTERS.

IF, ON THIS BASIS, YOUR OFFICE WILL NOT INTERVENE TO PREVENT AWARD TO WESTINGHOUSE, THEN LEWIS CORPORATION REQUESTS THAT, IF YOU FURTHER FIND THAT THE PROTEST CANNOT BE SUSTAINED UPON THE SECOND GROUND (RE DD 1423 FORMS), YOU ADVISE THE PROCURING OFFICE THAT CONTRACT AWARD MAY BE MADE TO WESTINGHOUSE, BUT THAT YOUR OFFICE BE ADVISED WHETHER THE FIRST ARTICLE TO BE SUBMITTED FOR APPROVAL WITHIN 120 DAYS AFTER CONTRACT AWARD COMPLIES WITH THE CONTRACT EQUIPMENT REQUIREMENTS, AND PARTICULARLY WITH THE SILVER BRAZING REQUIREMENT OF PARAGRAPH 3.4 OF THE EQUIPMENT SPECIFICATION. THE PROTESTANT FURTHER REQUESTS THAT THE ADMINISTRATIVE PERSONNEL RESPONSIBLE FOR FIRST ARTICLE APPROVAL BE INSTRUCTED THAT THE SILVER BRAZING REQUIREMENT BE MET, INASMUCH AS WESTINGHOUSE ITSELF HAS NOTED (IN ITS FEBRUARY 11, 1970 TELEGRAM) THAT PRODUCTION WAIVERS HAD PREVIOUSLY BEEN OBTAINED 'ON NUMEROUS AWARDS.'

"WE SUBMIT THAT THESE MEASURES ARE ESSENTIAL TO PRESERVE THE FAIRNESS OF THE BIDDING PROCESS HERE AT ISSUE AND TO INSURE THAT THE EQUIPMENT FURNISHED MEETS THE HIGH QUALITY STANDARDS WHICH THE GOVERNMENT HAS SPECIFIED."

WE HAVE BEEN ADVISED BY THE NAVY THAT THE AVIATION SUPPLY OFFICE HAS REQUESTED THE COGNIZANT DEFENSE CONTRACT AREA SERVICE REGION TO MAINTAIN SURVEILLANCE TO INSURE THAT ALL REQUIREMENTS OF THE SPECIFICATIONS ARE MET. APPROPRIATE INQUIRY MAY BE MADE OF THE DEPARTMENT OF THE NAVY AS TO WHETHER THE FIRST ARTICLE TO BE SUBMITTED FOR APPROVAL WITHIN 120 DAYS AFTER CONTRACT AWARD COMPLIES WITH THE CONTRACT SPECIFICATIONS.

FOR THE ABOVE REASONS, WE MUST DENY YOUR PROTEST.