B-143550, OCT. 3, 1960

B-143550, OCT. 3, 1960

TO MODEL ENGINEERING AND MANUFACTURING COMPANY, INC.:

REFERENCE IS MADE TO A LETTER DATED JULY 15, 1960, FROM YOUR ATTORNEY, ALLEGING THAT THE LOW BID OF TELERAD MANUFACTURING CORPORATION SUBMITTED TO THE AVIATION SUPPLY OFFICE, DEPARTMENT OF THE NAVY, UNDER INVITATION NO. JD-IFB-383-988-60 IS NONRESPONSIVE AND PROTESTING AGAINST A CONTRACT AWARD BASED UPON THAT BID.

THE INVITATION REQUESTED BIDS FOR THE FURNISHING OF 868 SIGNAL GENERATORS, TYPE URM-64A. THE INVITATION PROVIDED THAT ANY AWARD MADE WOULD BE MADE TO THE LOW OVERALL BIDDER. ELEVEN TIMELY BIDS WERE RECEIVED. THE LOW BID WAS SUBMITTED BY TELERAD FOR AN AGGREGATE TOTAL OF $587,321.41. THE NEXT LOW BID WAS THAT OF MODEL ENGINEERING AND MANUFACTURING COMPANY, INC., FOR AN AGGREGATE TOTAL OF $630,047.

THE RECORD SHOWS THAT THE BID OF TELERAD IS COMPLETE AND RESPONSIVE IN ALL RESPECTS WITH ONE EXCEPTION. THIS EXCEPTION IS THAT THE BLANK IS NOT COMPLETED IN THE SENTENCE ON PAGE 36 AT THE END OF THE CLAUSE ENTITLED "PREPRODUCTION TEST REQUIREMENTS FOR URM-64A.' THIS SENTENCE IS: ,SERVICE APPROVAL SAMPLE WILL BE SUBMITTED WITH .... DAYS AFTER DATE OF CONTRACT.'

YOUR PROTEST APPEARS TO BE BASED UPON THE CONTENTION THAT TELERAD'S FAILURE TO GIVE THIS INFORMATION WITH THE BID WAS SUCH A MATERIAL DEVIATION FROM THE SPECIFICATION REQUIREMENT AS TO RENDER THE BID NONRESPONSIVE TO THE INVITATION AND PRECLUDE ITS CONSIDERATION FOR AWARD.

THE INVITATION DOES NOT CONTAIN ANY STATEMENT THAT BIDS FAILING TO FURNISH THE INFORMATION AS TO WHEN THE SERVICE APPROVAL SAMPLE WOULD BE SUBMITTED WOULD BE CONSIDERED NONRESPONSIVE AND WOULD BE REJECTED. THE DEPARTMENT OF THE NAVY STATES THAT THE OMISSION OF SUCH LANGUAGE WAS DELIBERATE. THE INVITATION DOES CONTAIN ON PAGE 50 IN THE CLAUSE ENTITLED "TIME OF DELIVERY," A STATEMENT THAT A BID WHICH OFFERS A PARTIAL OR NONCONFORMING OR INDEFINITE OR CONTINGENT DELIVERY SCHEDULE FOR "THE SUPPLIES COVERED BY THIS INVITATION WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED IN ITS ENTIRETY.' THE CONTEXT OF THIS STATEMENT AS WELL AS THE REST OF THE INVITATION MAKES IT CLEAR THAT THE SERVICE APPROVAL SAMPLE IS NOT PART OF "THE SUPPLIES COVERED BY THIS INVITATION.'

IT IS CLEAR FROM OTHER PORTIONS OF TELERAD'S BID THAT THE BID MUST BE CONSTRUED AS AN OFFER TO SUBMIT A SERVICE APPROVAL SAMPLE IN TIME TO ENABLE THE BIDDER TO MEET THE DELIVERY SCHEDULE. THE BIDDER TAKES NO EXCEPTION TO ANY OF THE PREPRODUCTION TEST REQUIREMENTS, ONE OF WHICH IS THE FURNISHING OF THE SERVICE APPROVAL SAMPLE. THE DELIVERY REQUIREMENTS FOR THE COMPLETED ARTICLES CLEARLY AND DEFINITELY PROVIDE FOR THE FIRST DELIVERY WITHIN 390 DAYS, AND FOR AT LEAST 25 PERCENT OF THE UNITS TO BE DELIVERED WITHIN 485 DAYS. THESE DELIVERY TIMES ARE FROM DATE OF THE CONTRACT, AND ARE NOT DEPENDENT OR CONTINGENT UPON THE TIME OF SUBMISSION OR APPROVAL OF THE REQUIRED PREPRODUCTION SAMPLE, EXCEPT THAT PROVISION IS MADE FOR EXTENSION OF TIME IF THE GOVERNMENT SHOULD FAIL TO NOTIFY THE CONTRACTOR OF APPROVAL OR NON APPROVAL OF THE SAMPLE WITHIN 60 DAYS AFTER ITS SUBMISSION. UNDER THESE CIRCUMSTANCES WE DO NOT FEEL THAT THE DECISIONS CITED BY YOUR ATTORNEY ARE APPLICABLE, NOR DO WE FEEL THAT THE TIME SPECIFIED FOR SUBMISSION OF PREPRODUCTION SAMPLES WOULD BE SO MATERIAL A TERM OF THE CONTRACT AS THAT FAILURE TO COMPLY WITH IT WOULD IN ITSELF JUSTIFY TERMINATION OF THE CONTRACT FOR DEFAULT.

THE BIDS WERE OPENED ON JUNE 7, 1960, AND ON JUNE 9, TELERAD ADVISED THE AVIATION SUPPLY OFFICE THAT THROUGH AN OVERSIGHT IT HAD NEGLECTED TO FILL IN THE BLANK CONCERNING TIME OF SUBMISSION OF THE SAMPLE AND THAT THE BLANK SHOULD HAVE BEEN FILLED IN WITH THE FIGURE 210 DAYS AFTER DATE OF CONTRACT. THE CONTRACTING OFFICER STATES THAT IN HIS OPINION THE DELIVERY SCHEDULE REQUIRED BY THE INVITATION COULD BE SATISFIED BY A RESPONSIBLE CONTRACTOR IF THE SAMPLE WAS SUBMITTED WITHIN UP TO ABOUT 270 DAYS AFTER DATE OF CONTRACT.

THE PROCUREMENT WAS SUBMITTED TO THE PHILADELPHIA CONTRACT REVIEW BOARD WHO DETERMINED THAT THE BID OF TELERAD SHOULD BE CONSTRUED AS OFFERING TO SUBMIT A SERVICE APPROVAL SAMPLE WITHIN A REASONABLE TIME AND THAT THE OMISSION OF TELERAD IN ITS BID TO FILL IN THE BLANK WITH THE EXACT TIME OF SUBMISSION SHOULD BE TREATED AS A MINOR INFORMALITY OR IRREGULARITY, WITHIN THE MEANING OF ASPR 2-405 AND THE RULE SET FORTH IN 30 COMP. GEN. 179, WHICH CAN BE CORRECTED AFTER BID OPENING.

IT HAS BEEN CONSISTENTLY HELD THAT DEFICIENCIES OR DEVIATIONS IN BIDS MAY BE WAIVED ONLY IF THEY DO NOT GO TO THE SUBSTANCE OF THE BID OR WORK AN INJUSTICE TO OTHER BIDDERS. SEE 35 COMP. GEN. 98. SINCE THE DEFICIENCY HERE DOES NEITHER OF THESE THINGS, THERE IS NO LEGAL BASIS UPON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.