B-182949, MAR 19, 1975

B-182949, MAR 19, 1975

IFB WHICH DID NOT CLEARLY STATE ACTUAL NEEDS OF GOVERNMENT MAY BE CANCELED AFTER BID OPENING SINCE AGENCY RECEIVED NO OTHERWISE RESPONSIVE BIDS WHICH WOULD HAVE BOUND BIDDER TO PROVIDE ITEMS MEETING ACTUAL NEEDS OF GOVERNMENT.

IMMIGRATION AND NATURALIZATION SERVICE (REQUEST FOR ADVANCE DECISION):

ON NOVEMBER 15, 1974, THE UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, ISSUED INVITATION FOR BIDS (IFB) CO-9-75, SEEKING BIDS ON FOUR RADIO REPEATER SYSTEMS FOR USE BY THE BORDER PATROL. BID OPENING OCCURRED ON DECEMBER 20, 1974. HOWEVER, 3 DAYS PRIOR TO BID OPENING A REPRESENTATIVE OF RCA POINTED OUT TO THE PROCUREMENT ACTIVITY THAT WHILE A MULTICHANNEL RECORDER/REPRODUCER WAS DESCRIBED IN THE SCHEMATIC DRAWINGS FOR EACH OF THE FOUR ITEMS, IT WAS ONLY WITH REGARD TO ITEM 1 THAT THIS EQUIPMENT WAS LISTED IN THE NARRATIVE PORTION OF THE SPECIFICATIONS. THE RCA OFFICIAL WAS THEN ADVISED THAT "*** HE SHOULD BID ACCORDING TO HIS INTERPRETATION OF THE SPECIFICATIONS."

ON DECEMBER 20, 1974, THE FOLLOWING BIDS WERE RECEIVED:

ASTRONAUTICS CORP.

ITEM OF AMERICA RCA GENERAL ELECTRIC MOTOROLA

1 $408,984 $207,792 $149,547 $130,214

2 346,968 138,910 110,598100,762

3 387,473 179,204 146,877 127,536

4 359,208 144,905 114,191 104,472

TOTAL $773,261 $509,545$521,213 $462,984

(WITH QUANTITY DISCOUNT)

ON DECEMBER 21, 1974, THE AGENCY STATES THAT GE NOTIFIED THE CONTRACTING ACTIVITY OF WHAT "THEY CONSIDERED AN AMBIGUITY." THE DRAWINGS HAD SHOWN THE MULTICHANNEL RECORDER/REPRODUCER IN ALL FOUR ITEMS AND GE HAD BID INCLUDING SUCH EQUIPMENT IN ALL FOUR ITEMS NOTWITHSTANDING THE FACT THAT THE EQUIPMENT WAS SET FORTH ONLY IN THE NARRATIVE FOR ITEM 1.

GE, HOWEVER, DISAGREES AS TO THE "EXISTENCE OF AN AMBIGUITY." IT STATES THAT FROM ITS PERSPECTIVE IT:

"*** DID NOT NOTE ANY AMBIGUITY IN THE SPECIFICATIONS REGARDING THE QUANTITY OF MULTICHANNEL RECORDER/REPRODUCERS. WE BID ONE MULTICHANNEL RECORDER/REPRODUCER PER ITEM 1.2, 2.2, 3.2, 4.2 CONSOLES FOR A TOTAL OF FOUR AS SPECIFIED. THE BID IS A COMBINATION OF OUR EXPERIENCE IN LIKE AND SIMILAR PAST BIDS FOR IMMIGRATION AND NATURALIZATION SERVICE, OUR UNDERSTANDING OF THE IMMIGRATION & NATURALIZATION SERVICE NEEDS AND OF THEIR SYSTEM REQUIREMENTS AND GOALS."

HOWEVER, RCA SUBMITS THAT IT (AS WELL AS TWO OTHER BIDDERS) RELIED ON THE "ONLY CORRECT INTERPRETATION" OF THE SPECIFICATIONS AND BID TO THE NARRATIVE PORTION OF THE SPECIFICATIONS, I.E., BID ON THE BASIS OF A RECORDER/REPRODUCER FOR JUST ITEM 1.

THE AGENCY INTENDED, HOWEVER, THAT THE RECORDER/REPRODUCER BE INCLUDED IN EACH OF THE FOUR SYSTEMS. THE OMISSION FROM THE NARRATIVE OF ITEMS, 2.3.4, WAS, IT STATES, AN OVERSIGHT. MOREOVER, THE AGENCY BELIEVES THAT SINCE THE REQUIREMENTS OF THE IFB WERE NOT CLEARLY UNDERSTOOD BY ALL BIDDERS, THE IFB SHOULD BE CANCELED.

IN THIS REGARD, FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-2.404-1 (1964 ED. FPR CIRC. 1) STATES IN PERTINENT PART THAT:

"(A) PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE SYSTEM DICTATES THAT, AFTER BIDS HAVE BEEN OPENED, AWARD MUST BE MADE TO THAT RESPONSIBLE BIDDER WHO SUBMITTED THE LOWEST RESPONSIVE BID, UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION. EVERY EFFORT SHALL BE MADE TO ANTICIPATE CHANGES IN A REQUIREMENT PRIOR TO THE DATE OF OPENING AND TO NOTIFY ALL PROSPECTIVE BIDDERS OF ANY RESULTING MODIFICATION OR CANCELLATION, THEREBY PERMITTING BIDDERS TO CHANGE THEIR BIDS AND PREVENTING UNNECESSARY EXPOSURE OF BID PRICES. AS A GENERAL RULE, AFTER OPENING, AN INVITATION FOR BIDS SHOULD NOT BE CANCELED AND READVERTISED DUE SOLELY TO INCREASED REQUIREMENTS FOR THE ITEMS BEING PROCURED. AWARD SHOULD BE MADE ON THE INITIAL INVITATION FOR BIDS AND THE ADDITIONAL QUANTITY SHOULD BE TREATED AS A NEW PROCUREMENT.

"(B) INVITATIONS FOR BIDS MAY BE CANCELED AFTER OPENING BUT PRIOR TO AWARD, AND ALL BIDS REJECTED, WHERE SUCH ACTION IS CONSISTENT WITH SEC. 1- 2.404-1(A) AND THE CONTRACTING OFFICER DETERMINES IN WRITING THAT CANCELLATION IS IN THE BEST INTEREST OF THE GOVERNMENT FOR REASONS SUCH AS THE FOLLOWING:

"(1) INADEQUATE, AMBIGUOUS, OR OTHERWISE DEFICIENT SPECIFICATIONS WERE CITED IN THE INVITATION FOR BIDS."

COUNSEL FOR RCA STATES THAT AN UNREASONABLE INTERPRETATION OF A SPECIFICATION, SUCH AS IT IMPLIES GE'S INTERPRETATION WAS, WHICH GENERATES AN "ALLEGED AMBIGUITY" DOES NOT PROVIDE A COMPELLING REASON FOR AN AGENCY TO CANCEL AN IFB UNDER THE ABOVE-NOTED REGULATION. IN THIS REGARD, COUNSEL CITES B-177165, JANUARY 31, 1973, WHEREIN WE STATED THAT "*** THE MERE UTILIZATION IN THE IFB OF INADEQUATE, AMBIGUOUS OR OTHERWISE DEFICIENT SPECIFICATIONS IS NOT, ITSELF, A 'COMPELLING REASON' TO CANCEL AN IFB AND READVERTISE. 52 COMP. GEN. 285 (1972)." HOWEVER, THE SITUATION REFERENCED ABOVE INVOLVED A FACT PATTERN WHERE AN AWARD UNDER THE SOLICITATION AS ISSUED WOULD "SERVE THE ACTUAL NEEDS OF THE GOVERNMENT." FOR SIMILAR HOLDINGS, SEE MATTER OF SPICKARD ENTERPRISES, INC.; COTTRELL ENGINEERING CORPORATION, B 181414, AUGUST 26, 1974, 54 COMP. GEN. ; MATTER OF GAF CORPORATION; MINNESOTA MINING AND MANUFACTURING COMPANY, 53 COMP. GEN. 586 (1974); 49 ID. 211 (1969); 48 ID. 731 (1969); MATTER OF JOY MANUFACTURING COMPANY, B-181136, SEPTEMBER 25, 1974, 54 COMP. GEN. . SEE, ALSO, 50 COMP. GEN. 464 (1970); MATTER OF R.C. HUDSON & ASSOCIATES, B-181528, SEPTEMBER 16, 1974; MATTER OF LEARNING RESOURCES MANUFACTURING CO., B 180642, JUNE 6, 1974; MATTER OF KLEEN-RITE JANITORIAL SERVICES, INC.; SURF CLEANERS, INC.; NATIONWIDE BUILDING MAINTENANCE, INC., B-180345, APRIL 23, 1974.

IN MATTER OF GAF ET AL., SUPRA, GAF'S LOW BID OFFERED A BRAND NAME IN A BRAND NAME OR EQUAL SOLICITATION FOR FILM. HOWEVER, SINCE THE ONLY SHORTCOMING OF THE GAF FILM WAS THAT IT FAILED TO MEET A STATED SALIENT CHARACTERISTIC WHICH WAS NOT ESSENTIAL IN MEETING THE GOVERNMENT'S ACTUAL NEEDS, OUR OFFICE CONCLUDED THAT THE FILM OFFERED BY GAF WOULD FULFILL ALL OF THE GOVERNMENT'S ACTUAL REQUIREMENTS AND THAT THE PROCUREMENT SHOULD NOT, THEREFORE, BE CANCELED.

MORE IMPORTANTLY, PERHAPS, IS MATTER OF JOY MANUFACTURING COMPANY, SUPRA. THERE, THE SOLICITATION WAS DEFICIENT IN THAT THE SPECIFICATION ERRONEOUSLY OMITTED PROVISIONS FOR BOTH A REQUIRED FILTER AND READOUT INDICATOR. HOWEVER, OUR OFFICE DID NOT PERMIT OUTRIGHT CANCELLATION OF THE IFB SINCE (1) ONE OF THE BIDDERS, SPECIFICALLY JOY, HAS ASSERTED THAT IT HAS ACTUALLY OFFERED SOMETHING ABOVE AND BEYOND THE REQUIREMENTS OF THE ORIGINAL SPECIFICATION AND, IF SUCH WAS THE CASE, IT WAS POSSIBLE THAT THE AGENCY MIGHT HAVE BEEN ABLE TO SATISFY ITS ADDITIONAL NEEDS BY ACCEPTING SUCH BID, AND (2) NONE OF THE OTHER BIDDERS WERE TOTALLY OTHERWISE RESPONSIVE, THUS ELIMINATING THE POSSIBILITY OF PREJUDICE TO THEM BECAUSE OF AN AWARD TO JOY. WE THEREFORE SUGGESTED THAT THE AGENCY REVIEW JOY'S BID TO SEE IF IT WOULD, IN FACT, MEET THE AGENCY'S ACTUAL NEEDS.

THE INSTANT CASE, WE FEEL, IS CLOSER IN NATURE TO JOY THAN TO GAF. REGARDLESS OF WHETHER OR NOT THE SPECIFICATION IS AMBIGUOUS, THE AGENCY'S ACTUAL NEED REMAINS FOR A RECORDER/REPRODUCER FOR EACH OF THE FOUR ITEMS AND ONLY A BIDDER PROPOSING ON SUCH A BASIS COULD BE CONSIDERED FOR AWARD.

THE LOW BIDDER, MOTOROLA, BY ITS OWN ADMISSION, DID NOT BID ON THIS BASIS. MOREOVER, SINCE THE AGENCY STATES THAT MOTOROLA TOOK AN EXCEPTION TO THE SPECIFICATIONS IN ITS DESCRIPTIVE DATA, IT MOST LIKELY IS NONRESPONSIVE.

RCA, ON THE OTHER HAND, MAY BE RESPONSIVE, ALTHOUGH WE NEED NOT PRESENTLY DECIDE THAT QUESTION. HOWEVER, BY ITS OWN ADMISSION, IT ALSO BID ON THE BASIS OF ONLY ONE RECORDER/REPRODUCER. THUS, ITS EQUIPMENT DOES NOT MEET WHAT IS THE AGENCY'S ACTUAL NEED - A RECORDER/REPRODUCER FOR EACH UNIT.

GE, ALTHOUGH ALLEGING THAT IT BID ON THE BASIS OF THE NEEDED FOUR RECORDER/REPRODUCERS, HAS BEEN FOUND BY THE AGENCY TO HAVE TAKEN AN EXCEPTION TO THE SPECIFICATION IN ITS DESCRIPTIVE DATA. ASTRONAUTICS' BID SIMILARLY "INDICATED NONCOMPLIANCE" WITH A NUMBER OF IFB REQUIREMENTS.

IN THREE OF THE CASES NOTED ABOVE, 52 COMP. GEN., SUPRA, MATTER OF GAF ET AL., SUPRA, AND MATTER OF JOY MANUFACTURING COMPANY, SUPRA, OUR OFFICE DID NOT ALLOW CANCELLATION WHERE IT WAS FELT THAT NO PREJUDICE WOULD RESULT FROM AN AWARD TO AN OTHERWISE RESPONSIVE BIDDER WHOSE BID WOULD MEET THE GOVERNMENT'S ACTUAL NEEDS, I.E., (1) WHERE THERE WAS NO REASON TO BELIEVE THAT ADDITIONAL FIRMS WOULD BID ON REVISED SPECIFICATIONS INCLUDED IN A RESOLICITATION OR THAT THE ORIGINAL BIDDERS WOULD HAVE OFFERED ANY DIFFERENT EQUIPMENT ON A RESOLICITATION. 52 COMP. GEN., SUPRA, AT 289; MATTER OF GAF CORPORATION ET AL., SUPRA,; SEE, GENERALLY, MATTER OF SPICKARD ENTERPRISES, INC.,, SUPRA, AND (2) THAT THERE WAS IN ANY EVENT ONLY ONE RESPONSIVE BIDDER, MATTER OF JOY MANUFACTURING CO., SUPRA.

WITH REGARD TO THE INSTANT SITUATION, WE FEEL THAT IF A RESOLICITATION OCCURRED, AT THE VERY LEAST, CERTAIN OF THE PARTICIPATING FIRMS WOULD OFFER EQUIPMENT DIFFERING FROM THAT SUBMITTED IN RESPONSE TO THE IFB (AND AT ACCORDINGLY REVISED PRICES). MOREOVER, WHILE RCA, AS NOTED ABOVE, MAY HAVE BEEN THE LOW RESPONSIVE BIDDER TO THE IFB AS WRITTEN, SINCE ITS BID DID NOT IN ANY EVENT BIND IT TO PROVIDE WHAT THE GOVERNMENT ACTUALLY REQUIRES - FOUR TAPE RECORDERS - THE BID CANNOT BE CONSIDERED FOR AWARD. SEE MATTER OF LEARNING RESOURCES, SUPRA. SIMILARLY, GE, WHICH ARGUABLY OFFERED TO PROVIDE THE FOUR TAPE RECORDERS, IS NOT ENTITLED TO AWARD FOR THE REASONS SET FORTH BELOW. THEREFORE, ON THESE FACTS, WE BELIEVE THAT THE IFB SHOULD BE CANCELED.

SINCE GE STATES THAT IT BID ON THE BASIS OF FOUR RECORDER/REPRODUCERS, THE INITIAL QUESTIONS TO BE ANSWERED ARE:

1. DID THE GE BID ITSELF INDICATE THAT IT BID A RECORDER/REPRODUCER ON EACH OF THE ITEMS?

2. IS GE'S BID OTHERWISE RESPONSIVE?

WITH REGARD TO THE FIRST QUESTION, WE NOTE THAT GE INDICATED THE FOLLOWING IN ITS BID WITH REGARD TO MANUFACTURER'S DESIGNATION OF ITEMS:

ITEM MANUFACTURER'S DESIGNATION

1.2 SPL COMMAND CONTROL CENTER AND TAPE RECORDERS

2.2 SPL COMMAND CONTROL CENTER AND TAPE RECORDERS

3.2 SPL COMMAND CONTROL CENTER AND TAPE RECORDERS

4.2 SPL COMMAND CONTROL CENTER AND TAPE RECORDERS

CONSEQUENTLY, WE BELIEVE THAT IT IS APPARENT FROM THE BIDDING DOCUMENTS THAT GE INTENDED TO SUPPLY FOUR RECORDER/REPRODUCERS.

THEREFORE, WE MUST ALSO DETERMINE IF GE OTHERWISE TOOK EXCEPTION TO THE SPECIFICATION, NAMELY, IN ITS DESCRIPTIVE DATA.

GE'S ALLEGED NONCOMPLIANCE WITH THE SPECIFICATIONS

SECTION 1.1.1.5 OF THE SPECIFICATIONS REQUIRED THAT THE VHF TRANSMITTER HAVE SIX FIXED TUNED, QUARTZ CRYSTAL CONTROLLED, SELECTABLE CHANNELS. SECTION 1.1.1.5.1 INDICATES THAT THE SPREAD BETWEEN THE HIGHEST AND LOWEST CHANNELS SHOULD BE A MINIMUM OF 1.0 MHZ. HOWEVER, THE AGENCY STATES THAT GE'S DESCRIPTIVE LITERATURE INDICATES A MAXIMUM SPREAD OF ( -) 0.2 PERCENT WHICH CALCULATES TO A HIGH/LOW CHANNEL SPREAD OF ONLY 0.35 MHZ.

SECTION 1.4.4.3 OF THE SPECIFICATION REQUIRED THAT THE REPEATER CONTROL PANEL CONTAIN A TIMING DEVICE WHICH WOULD BE ADJUSTABLE FOR 1 TO 5 MINUTES. THE AGENCY STATES THAT THE GE DESCRIPTIVE LITERATURE OUTLINED A PANEL ADJUSTABLE ONLY TO 3 MINUTES.

SECTION 1.4.4.4 REQUIRED A DROPOUT CIRCUIT TO PROVIDE AN EXTENDED-ON PERIOD FOR THE TRANSMITTERS BETWEEN INTERCHANGE OF TRANSMISSIONS. THE DELAY PERIOD WAS TO HAVE BEEN MANUALLY ADJUSTED FROM 0 TO SECONDS. AGAIN, THE AGENCY STATES THAT THE GE ITEM IN THE DESCRIPTIVE DATA IS NONCOMPLIANT IN THAT IT IS ADJUSTABLE FROM 0.5 SECONDS TO 5 SECONDS.

GE HAS NOT PRESENTED ANY ARGUMENTS TO SHOW THAT THE AGENCY IS INCORRECT IN ITS ANALYSIS OF THE GE DESCRIPTIVE DATE. GE DOES, HOWEVER, REFERENCE THE FACT THAT: "ALL ITEMS THAT WERE TO BE MODIFIED TO SATISFY THE IMMIGRATION & NATURALIZATION'S SPECIFIC SPECIFICATION WERE IDENTIFIED ON PAGES 99 OF 123 AND 100 OF 123."

WITH REGARD TO EACH OF THE ABOVE-NOTED ITEMS WHERE THE AGENCY HAS STATED THAT GE INDICATED NONCOMPLIANCE WITH THE SPECIFICATIONS, THE GE BID STATES ON PAGES 99 AND 100 UNDER THE PROVISIONS FOR LISTING MODIFICATIONS OF STANDARD EQUIPMENT:

ITEM REQUIRES MODIFICATION

1.1 STANDARD EQUIPMENT RACKED UP SPECIAL TO

MEET SYSTEM REQUIREMENTS

1.4 " "

HOWEVER, PARAGRAPH 6 OF THE GENERAL CONDITIONS OF THE IFB (PAGE 98) REQUIRES THAT IF MODIFICATION OF STANDARD ITEMS WERE BEING OFFERED THE BIDDER MUST SUBMIT "*** A GENERAL DESCRIPTION OF ALL MODIFICATIONS TO STANDARD COMPONENTS REQUIRED TO MEET THE SPECIFICATIONS ***." WE DO NOT FIND THAT SUCH A DESCRIPTION OF THE PROPOSED MODIFICATIONS WAS PROVIDED, NOR DO WE FEEL THAT GE'S GENERAL STATEMENT THAT ITS STANDARD EQUIPMENT WILL BE "RACKED UP SPECIAL TO MEET SYSTEM REQUIREMENTS," WHILE PERHAPS A GENERAL OFFER TO COMPLY, OVERCOMES THE UNREFUTED EXCEPTIONS TO THE SPECIFICATIONS CONTAINED IN THE GE DESCRIPTIVE DATA. B-176484(2), DECEMBER 21, 1972. SEE B-176693, OCTOBER 18, 1972. THEREFORE, SINCE THERE APPEARS TO BE A REASONABLE BASIS UPON WHICH TO MAKE A DETERMINATION OF NONRESPONSIVENESS WITH REGARD TO THE ONLY BID OFFERING THE GOVERNMENT'S ACTUAL NEEDS, WE FEEL THAT A COMPELLING REASON FOR CANCELLATION OF THE IFB EXISTS UNDER THE REGULATIONS, AND THAT THE CANCELLATION WOULD NOT UNDULY PREJUDICE ANY BIDDER.

WHILE THE NECESSITY FOR DESCRIPTIVE DATA IN THIS PROCUREMENT HAS BEEN CHALLENGED, WE DO NOT FEEL THAT THE QUESTION NEED BE ANSWERED. IF WE WERE TO FIND, AS COUNSEL FOR RCA CONTENDS, THAT A BID MERELY CONTAINING INSUFFICIENT DESCRIPTIVE DATA, RATHER THAN INDICATING NONCOMPLIANCE, SUCH AS RCA'S, IS RESPONSIVE, THEN WHILE RCA'S BID WOULD BE THE ONLY RESPONSIVE BID, SINCE IT DID NOT MEET THE ACTUAL NEEDS OF THE GOVERNMENT, CANCELLATION OF THE IFB WOULD BE PERMISSIBLE. MATTER OF JOY MANUFACTURING CO., SUPRA; MATTER OF SPICKARD ENTERPRISES, INC., SUPRA; MATTER OF GAF CORPORATION, SUPRA; 52 COMP. GEN., SUPRA.

WE WOULD, HOWEVER, SUGGEST TO THE AGENCY THAT PRIOR TO THE RESOLICITATION, IT SHOULD CLOSELY REEXAMINE BOTH ITS NEED FOR DESCRIPTIVE DATA AND THE ADEQUACY OF ITS SPECIFICATIONS.

SHOULD ANY PARTICIPANT IN THE READVERTISEMENT NOTE EITHER AN AMBIGUITY IN ANY REVISION OF THE SPECIFICATIONS OR AN UNNECESSARY REQUIREMENT FOR THE SUBMISSION OF DESCRIPTIVE DATA, IT SHOULD TAKE TIMELY ACTION IN LODGING A PROTEST EITHER WITH THE AGENCY OR WITH OUR OFFICE (IN ACCORDANCE WITH 4 C.F.R. SEC. 20.1, ET SEQ. (1974).

ALSO, WE WOULD SUGGEST TO THE AGENCY THAT IN THE FUTURE IT MORE PROPERLY RESPOND TO ANY INDICATION OF A POSSIBLE DEFECT OR AMBITUITY IN THE SPECIFICATIONS. THIS RESPONSE SHOULD BE BOTH CONSIDERED AND ACCOMPLISHED PRIOR TO EXPOSING BIDS, EVEN IF THIS REQUIRES A POSTPONEMENT OF THE DATE SET FOR BID OPENING.