B-171053, MAY 21, 1971

B-171053, MAY 21, 1971

BID PROTEST - AMENDMENTS - ACKNOWLEDGEMENT DENYING PROTEST OF EPSILON SIGMA PI, INC., AGAINST THE REJECTION OF ITS LOW BID UNDER AN IFB ISSUED FOR PROCUREMENT OF LOAD CONTROLLERS, BY THE NAVAL SHIP RESEARCH AND DEVELOPMENT CENTER, WASHINGTON, D.C., FOR FAILURE TO ACKNOWLEDGE AN AMENDMENT. FAILURE TO ACKNOWLEDGE AN AMENDMENT THAT SET FREQUENCY LIMITS ON THE DITHER CIRCUIT FREQUENCY WITHOUT WHICH A BIDDER COULD DESIGN A CIRCUIT FOR APPROXIMATELY ONE-TENTH THE COST OF THE REQUIRED CIRCUIT AND WHICH ARE NECESSARY TO THE PROPER OPERATION OF THE CIRCUIT, IS A MATERIAL DEVIATION AND NOT SUBJECT TO WAIVER UNDER ASPR 2-405.

TO EPSILON SIGMA PI, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 15, 1970, PROTESTING THE REJECTION OF YOUR LOW BID UNDER INVITATION FOR BIDS NO. N00167-71-B-0002, ISSUED BY THE NAVAL SHIP RESEARCH AND DEVELOPMENT CENTER, WASHINGTON, D.C., BECAUSE OF YOUR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT 0001 TO THE INVITATION.

THE INVITATION, DATED JULY 30, 1970, SOLICITED BIDS ON 20 LOAD CONTROLLERS AS SPECIFIED. BID OPENING WAS SCHEDULED FOR AUGUST 21, 1970. HOWEVER, AMENDMENT 0001 TO THE INVITATION ISSUED AUGUST 14, 1970, EXTENDED THE BID OPENING DATE TO SEPTEMBER 4, 1970. IN ADDITION, THE AMENDMENT ADDED TO SECTION 5.05 OF THE SPECIFICATION THE FOLLOWING LANGUAGE: "THE DITHER CIRCUIT SHALL HAVE A FIXED FREQUENCY OF NO LESS THAN 350HZ AND NO GREATER THAN 1000HZ." ALSO, FOR CLARIFICATION PURPOSES SECTION 5.06 WAS AMENDED TO DEFINE "RPM" AS "RESETS PER MINUTE."

YOUR BID DID NOT ACKNOWLEDGE RECEIPT OF THE AMENDMENT. AFTER THE BID OPENING, IN A LETTER DATED SEPTEMBER 24, 1970, YOU CONFIRMED YOUR ORIGINALLY QUOTED PRICE WITHOUT ANY EXCEPTIONS, AND YOU ENCLOSED TWO EXECUTED COPIES OF AMENDMENT 0001. YOU STATED THAT THE AMENDMENT REACHED YOUR FIRM ON THE ORIGINALLY SCHEDULED DATE OF BID OPENING, AUGUST 21, 1970, AND THAT SINCE THE SPECIFICATION CLARIFICATION DID NOT AFFECT YOUR BID PRICE, YOU MISTAKENLY ASSUMED NO ACTION WAS REQUIRED ON YOUR PART.

YOU CONTEND THAT YOUR FAILURE TO ACKNOWLEDGE THE AMENDMENT IS A MINOR IRREGULARITY WHICH MAY BE WAIVED UNDER THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-405 SINCE THE AMENDMENT IS MERELY A CLARIFICATION OF REQUIREMENTS AND HAS NO EFFECT ON QUANTITY, QUALITY OR DELIVERY OF THE ITEM.

IT IS ADMINISTRATIVELY EXPLAINED THAT THE SPECIFICATION, AS ORIGINALLY WRITTEN, DID NOT INCLUDE THE FREQUENCY LIMITS FOR THE SPECIFIED DITHER CIRCUIT; THAT THE DITHER CIRCUIT IS AN OSCILLATOR CIRCUIT WHICH SUPPLIES AN ELECTRICAL SIGNAL THROUGH THE LOAD CONTROLLER TO A SERVO VALVE CAUSING THE SERVO VALVE SPOOL TO VIBRATE AND IMPROVE THE RESPONSE OF THE VALVE TO SMALL SIGNALS; THAT IT IS NECESSARY FOR THE FREQUENCY OF THE DITHER CIRCUIT TO BE HIGH ENOUGH SO THAT THE VALVE SPOOL WILL NOT ACTUALLY MOVE BACK AND FORTH; BUT AT THE SAME TIME THE FREQUENCY MUST BE LOW ENOUGH SO THAT IT CAN REACT; AND THAT THE AMENDMENT INCLUDED THESE FREQUENCY LIMITS. IT IS FURTHER STATED THAT UNDER THE SPECIFICATIONS AS ORIGINALLY WRITTEN A BIDDER COULD HAVE ASSUMED THAT 60 CYCLES PER SECOND WAS A SUITABLE DITHER FREQUENCY AND USED THE 115 VOLTS AC INCOMING POWER AS THE FREQUENCY SOURCE; THAT THIS WOULD ELIMINATE THE NEED FOR DESIGN AND CONSTRUCTION OF AN OSCILLATOR CIRCUIT AND COULD BE DONE FOR APPROXIMATELY ONE-TENTH THE COST OF THE REQUIRED CIRCUIT; AND THAT USING THIS METHOD WOULD ALSO ALLOW THE CONTRACTOR TO REDUCE THE OVERALL QUALITY OF THE OTHER CIRCUITS AS AC POWER FREQUENCY NOISE WOULD BE MASKED BY THE DITHER CIRCUITS. FINALLY, IT IS EXPLAINED THAT THE SERVO VALVE SPOOL IS CAPABLE OF FOLLOWING A 60 CYCLE PER SECOND SIGNAL AND WOULD ACTUALLY MOVE BACK AND FORTH, THUS INTRODUCING UNDESIRED RESPONSES IN THE CONTROLLED DEVICE, AND THAT FOR THIS REASON ANY SOURCE OF SIGNALS NEAR THIS FREQUENCY GENERATED IN THE LOAD CONTROLLERS IS UNACCEPTABLE AND WOULD RESULT IN REJECTION OF THE LOAD CONTROLLERS.

IT IS THE GENERAL RULE THAT IF AN ADDENDUM TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, THE FAILURE OF THE BIDDER TO ACKNOWLEDGE ITS RECEIPT IN A MANNER REQUIRED BY THE INVITATION RENDERS THE BID NONRESPONSIVE AND SUCH FAILURE CANNOT BE WAIVED. 37 COMP. GEN. 785 (1958). SINCE THE SUBJECT MATTER OF AMENDMENT 0001 DEFINES THE FREQUENCY LIMITS FOR A DITHER CIRCUIT AND WAS NECESSARY FOR PROPER INTERPRETATION OF THE SPECIFICATIONS, THE FAILURE TO ACKNOWLEDGE THE AMENDMENT PRIOR TO BID OPENING WOULD ALLOW A BIDDER TO SUBMIT A BID OFFERING A DITHER CIRCUIT FREQUENCY OUTSIDE THE LIMITS SET BY AMENDMENT 0001. THEREFORE, YOUR FAILURE TO ACKNOWLEDGE AMENDMENT 0001 PRIOR TO BID OPENING WAS A MATERIAL DEVIATION AND NOT SUBJECT TO WAIVER UNDER ASPR 2- 405.

UNDER THE CIRCUMSTANCES WE MUST CONCLUDE THAT YOUR BID WAS PROPERLY DETERMINED TO BE NONRESPONSIVE. YOUR PROTEST IS THEREFORE DENIED.