B-173586, OCT 12, 1971

B-173586, OCT 12, 1971

BID PROTEST - BID RESPONSIVENESS - REQUIREMENTS OF THE GOVERNMENT DECISION DENYING PROTEST AGAINST REJECTION OF PROTESTANT'S LOW BID AND AWARD OF A CONTRACT TO BADGER METER, INC., SECOND LOW BIDDER, UNDER AN IFB ISSUED BY THE SAVANNA ARMY DEPOT FOR FOUR FLOOR-MOUNTED, GAS TYPE, CHLORINATORS. WHERE PROTESTANT'S LOW BID WAS ACCOMPANIED BY AN EXCEPTION TO THE SPECIFICATIONS INDICATING THAT A DIRECT CYLINDER-MOUNTED OR WALL MOUNTED UNIT WITHOUT A P.S.I. GAUGE WOULD BE FURNISHED, THE CONTRACTING OFFICER PROPERLY REJECTED THE BID AS NONRESPONSIVE UNDER ASPR 2 404.2(B). FURTHER, ASSUMING THAT SIMILAR SPECIFICATIONS WERE NOT ENFORCED IN A PRIOR PROCUREMENT, SUCH DOES NOT BIND THE GOVERNMENT TO PROCURE IDENTICAL ITEMS WHICH IT HAS SINCE DETERMINED DO NOT MEET ITS ESSENTIAL NEEDS. ACCORDINGLY, THE PROTEST IS DENIED.

TO CAPITAL CONTROLS COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 12, 1971, WITH ENCLOSURES, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. DAAG20-71-B-0015, ISSUED MAY 14, 1971, BY THE SAVANNA ARMY DEPOT, AND THE AWARD OF A CONTRACT ON JUNE 30, 1971, TO BADGER METER, INC.

THE SUBJECT INVITATION SOLICITED BIDS FROM 22 PROSPECTIVE SUPPLIERS TO FURNISH "4 EACH CHLORINATOR, GAS TYPE, FLOOR-MOUNTED, AS PER SPECIFICATION ATTACHED." THE PURCHASE DESCRIPTION INCLUDED THE FOLLOWING LANGUAGE - "FLOOR-MOUNTED IN A SELF-SUPPORTING FIBER GLASS PLASTIC CABINET" AND "UNIT SHALL HAVE A GAGE INDICATING GAS SUPPLY PRESSURE IN P.S.I." BIDS WERE OPENED ON JUNE 4, 1971, AS SCHEDULED. OF THE FIVE BIDS RECEIVED, YOUR BID QUOTING $930.00 PER UNIT WAS LOWEST. HOWEVER, YOU ATTACHED A LETTER TO YOUR BID TAKING EXCEPTION TO THE SPECIFICATIONS IN PERTINENT PART AS FOLLOWS:

"CAPITAL CONTROLS COMPANY WISHES TO TAKE EXCEPTION TO THE SPECIFICATIONS IN THE FOLLOWING MANNER: WE PROPOSE TO FURNISH THE FOLLOWING EQUIPMENT TO PROVIDE A FUNCTIONAL INTENT OF THE SPECIFICATIONS YET MODIFIED IN THIS MANNER. THE EQUIPMENT WE PROPOSE TO FURNISH IS THE ADVANCE MODEL 201 CHLORINATOR, GAS TYPE, SOLUTION FEED, VACUUM TYPE EITHER DIRECT CYLINDER MOUNTED OR WALL MOUNTED RATHER THAN FLOOR MOUNTED IN A SELF-SUPPORTING FIBER GLASS PLASTIC CABINET.

" *** THE UNIT SHALL NOT HAVE A GAUGE INDICATING GAS SUPPLY PRESSURE IN PSI, AS, WE PROVIDE A LOSS OF CHLORINE INDICATOR ON THE FACE OF THE ADVANCE GAS CHLORINATOR."

YOUR LETTER TOGETHER WITH ATTACHED DESCRIPTIVE LITERATURE, WAS REVIEWED BY THE REQUESTING ACTIVITY AND IT WAS DETERMINED THAT THE ITEMS OFFERED DID NOT MEET THE REQUIREMENTS SET FORTH IN THE IFB AND WERE NOT ACCEPTABLE FOR THE USE INTENDED. THE CONTRACTING OFFICER THEREFORE DETERMINED YOUR BID TO BE NONRESPONSIVE AND REJECTED IT.

THE SECOND LOW BIDDER, BADGER METER, INC., DID NOT TAKE EXCEPTION TO THE SPECIFICATIONS AND WAS OTHERWISE FULLY RESPONSIVE TO THE TERMS AND CONDITIONS OF THE IFB. BADGER METER, INC., WAS THEREFORE AWARDED THE CONTRACT.

THE NEED FOR EQUIPMENT MEETING THE SPECIFICATION REQUIREMENTS WAS SUPPORTED BY A MAY 5, 1971, MEMO FROM THE CHIEF, DEPOT FACILITIES DIVISION, STATING THAT PAST EXPERIENCE WITH THE DIRECT CYLINDER MOUNTED CHLORINATOR MANUFACTURED BY CAPITAL CONTROL HAD RESULTED IN CONSIDERABLE TROUBLE WITH LEAKAGE, ACCURATE READINGS, SERVICE AND REPLACEMENT, WHILE FLOOR-MOUNTED CHLORINATORS WITH P.S.I. GAUGE HAD NOT CAUSED THESE PROBLEMS. BASED ON THIS PAST EXPERIENCE, A FLOOR-MOUNTED CHLORINATOR WITH PRESSURE GAUGE INDICATING GAS SUPPLY IN P.S.I. WAS SPECIFIED.

YOU DO NOT QUESTION THE CONTRACTING OFFICER'S DETERMINATION THAT THE ITEMS OFFERED BY YOUR BID DID NOT MEET THE SPECIFICATIONS. HOWEVER, YOU STATE THAT YOU PREVIOUSLY OFFERED AND SUPPLIED SIMILAR EQUIPMENT UNDER RFQ NO. DAAC35-67-Q-0755, WHICH CONTAINED SPECIFICATIONS IDENTICAL TO THE SPECIFICATIONS RECEIVED WITH THE SUBJECT SOLICITATION. YOU THEREFORE CONTEND THAT YOUR BID SHOULD BE CONSIDERED RESPONSIVE, BASED ON PAST PROCEDURES ESTABLISHING A PRECEDENT.

PARAGRAPH 2-404.2(B) OF THE ARMED SERVICES PROCUREMENT REGULATION REQUIRES THE REJECTION OF ANY BID WHICH DOES NOT CONFORM TO THE SPECIFICATIONS CONTAINED, OR REFERENCED, IN THE IFB, UNLESS THE INVITATION AUTHORIZES THE SUBMISSION OF ALTERNATE BIDS AND THE SUPPLIES OFFERED AS ALTERNATES MEET THE REQUIREMENTS IN THE INVITATION. TO THE SAME EFFECT, SEE B-169480, MAY 26, 1970.

IN THE PRESENT PROCUREMENT, THE CONTRACTING OFFICER ON MAY 5, 1971, AND AGAIN ON JUNE 15, 1971, VERIFIED THAT A FLOOR-MOUNTED CHLORINATOR WITH P.S.I. GAS SUPPLY PRESSURE GAUGE WAS NEEDED AND COULD NOT BE FOREGONE. ACCORDINGLY, AND SINCE THE ITEM WHICH YOU OFFERED ADMITTEDLY DEVIATED FROM THE SPECIFIED ESSENTIAL NEEDS OF THE GOVERNMENT, IT IS APPARENT THAT YOUR BID WAS NOT RESPONSIVE TO THE IFB WITHIN THE MEANING OF THE APPLICABLE REGULATIONS AND DECISIONS OF THIS OFFICE.

WITH REFERENCE TO YOUR CONTENTION THAT A PREVIOUS AWARD, UNDER AN RFQ WITH IDENTICAL SPECIFICATIONS ESTABLISHES A PRECEDENT WHICH SHOULD BE CONTROLLING IN THE INSTANT PROCUREMENT, THE DEPARTMENT ADVISES THAT ITS RECORDS OF THAT PROCUREMENT HAVE BEEN DESTROYED, AND IT IS THEREFORE UNABLE TO CONFIRM OR DENY YOUR ALLEGATION. HOWEVER, ASSUMING YOUR ADVICE IS CORRECT, IT IS A SETTLED RULE THAT AN AWARD MADE AFTER ADVERTISING MUST BE MADE UPON THE SAME SPECIFICATIONS WHICH WERE OFFERED TO ALL BIDDERS. SEE 37 COMP. GEN. 524, 527 (1958), AND CITATIONS THEREIN.

THE DEPOT FACILITIES DIVISION CHIEF'S MAY 5, 1971, MEMO STATED THAT ACTUAL USE OF WALL MOUNTED OR DIRECT CYLINDER MOUNTED CHLORINATOR WITHOUT A P.S.I. GAUGE DISCLOSED SEVERAL UNSATISFACTORY FEATURES OF THIS TYPE CHLORINATOR, AND THE FLOOR-MOUNTING AND P.S.I. GAUGE REQUIREMENTS WERE THEREFORE MADE PART OF THE PURCHASE DESCRIPTION. UNDER SUCH CIRCUMSTANCES, LACK OF ENFORCEMENT OF THE SPECIFICATIONS IN A PRIOR PROCUREMENT CANNOT BIND THE GOVERNMENT TO PROCURE IDENTICAL ITEMS WHICH IT HAS SINCE DETERMINED DO NOT MEET ITS ESSENTIAL NEEDS. AS STATED IN OUR DECISION REPORTED AT 17 COMP. GEN. 409, 413 (1937), WHAT HAS BEEN ACCEPTED IN THE PAST AS COMPLIANCE WITH THE SPECIFICATIONS IN PURCHASING AN ITEM CANNOT BE CONTROLLING IN A SUBSEQUENT PROCUREMENT, AND THE FAILURE TO ENFORCE A SPECIFICATION IN THE PAST DOES NOT PRECLUDE PRESENT ENFORCEMENT IF THE SPECIFICATIONS ACTUALLY REFLECT THE REQUIREMENTS OF THE GOVERNMENT.

ACCORDINGLY, WE MUST CONCLUDE THAT YOUR FAILURE TO OFFER ITEMS CONFORMING TO THE SPECIFICATIONS IN THE IFB JUSTIFIED THE REJECTION OF YOUR BID. YOUR PROTEST AGAINST SUCH REJECTION, AND AGAINST AWARD OF THE CONTRACT TO ANOTHER BIDDER, MUST THEREFORE BE DENIED.