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ATTORNEY AT LAW: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 3. AN EXAMINATION OF THE DECISION REVEALS THAT BOTH PROVISIONS WERE QUOTED IN THEIR ENTIRETY AND WERE CONSIDERED IN THE DISPOSITION OF THE CASE. THE SIGNIFICANCE OF THE STATEMENT IN THE NOTE WAS RECOGNIZED IN THE CONTRACTING AGENCY COMMENT WHICH WAS QUOTED FROM WITH APPROVAL AND THE REASON FOR WAIVING THE REQUIREMENT OF PARAGRAPH "E" WAS DISCUSSED AS WELL. AS WAS INDICATED. THE FAILURE TO COMPLY WITH PARAGRAPH "E" WAS CONSIDERED A MINOR DEVIATION SINCE THE DESCRIPTIVE DATA WHICH WAS REQUIRED WAS A REPETITION OF INFORMATION WHICH WAS FURNISHED WITH THE INVITATION FOR BIDS AND WHICH THE SUCCESSFUL CONTRACTOR WOULD BE REQUIRED TO ABIDE BY.

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B-155077, JAN. 5, 1965

TO MR. JEAN J. PROVOST, JR., ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 3, 1964, REQUESTING RECONSIDERATION OF DECISION B-155077 OF OCTOBER 30, 1964, REGARDING THE PROTEST OF POWERCON CORPORATION UNDER NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) INVITATION FOR BIDS S-4423.

YOU STATE THAT OUR DECISION DID NOT DISCUSS PARAGRAPH "E" OF THE GENERAL CONDITIONS OR THE NOTE IN THE SCHEDULE OF THE INVITATION. HOWEVER, AN EXAMINATION OF THE DECISION REVEALS THAT BOTH PROVISIONS WERE QUOTED IN THEIR ENTIRETY AND WERE CONSIDERED IN THE DISPOSITION OF THE CASE. WHILE THE DECISION DID NOT SPECIFICALLY DISCUSS THE TERMS "SHALL" AND "MUST" BE EMPLOYED IN THE CITED PROVISIONS, THE SIGNIFICANCE OF THE STATEMENT IN THE NOTE WAS RECOGNIZED IN THE CONTRACTING AGENCY COMMENT WHICH WAS QUOTED FROM WITH APPROVAL AND THE REASON FOR WAIVING THE REQUIREMENT OF PARAGRAPH "E" WAS DISCUSSED AS WELL. AS WAS INDICATED, THE FAILURE TO COMPLY WITH PARAGRAPH "E" WAS CONSIDERED A MINOR DEVIATION SINCE THE DESCRIPTIVE DATA WHICH WAS REQUIRED WAS A REPETITION OF INFORMATION WHICH WAS FURNISHED WITH THE INVITATION FOR BIDS AND WHICH THE SUCCESSFUL CONTRACTOR WOULD BE REQUIRED TO ABIDE BY.

IN ADDITION TO THE FOREGOING, YOU QUOTE FROM NASA PROCUREMENT REGULATION 2.202-5 COVERING THE POLICY WITH RESPECT TO REQUIRING DESCRIPTIVE LITERATURE IN INVITATIONS FOR BIDS. THE CITED REGULATION PROVIDES THAT BIDDERS SHALL NOT BE REQUIRED TO FURNISH DESCRIPTIVE LITERATURE AS A PART OF THEIR BIDS UNLESS THE PROCUREMENT OFFICE DEEMS THAT SUCH LITERATURE IS NEEDED TO ENABLE IT TO DETERMINE BEFORE AWARD WHETHER PRODUCTS OFFERED MEET THE SPECIFICATION REQUIREMENTS OF THE INVITATION FOR BIDS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH. MOREOVER, THE REGULATION STATES THAT WHEN DESCRIPTIVE LITERATURE IS REQUIRED, THE INVITATION SHALL CLEARLY STATE WHAT DESCRIPTIVE LITERATURE IS TO BE FURNISHED, THE PURPOSE FOR WHICH IT IS REQUIRED, THE EXTENT TO WHICH IT WILL BE CONSIDERED IN THE EVALUATION OF BIDS, AND THE RULES WHICH WILL APPLY IF A BIDDER FAILS TO FURNISH IT BEFORE BID OPENING. YOU STATE THAT UNDER THE RULE IN G. L. CHRISTIAN AND ASSOCIATES V. UNITED STATES, 320 F.2D 345, THE CITED REGULATION HAS THE FORCE AND EFFECT OF LAW AND THE INVITATION IS THEREFORE FATALLY DEFECTIVE AND MUST BE WITHDRAWN EITHER BECAUSE THE INVITATION FOR BIDS CALLED FOR DESCRIPTIVE LITERATURE AND DID NOT INCLUDE THE PROVISIONS REQUIRED BY THE REGULATIONS OR BECAUSE IT INCLUDED A STATEMENT REQUIRING DESCRIPTIVE LITERATURE WHEN IT WAS NOT NEEDED.

SINCE IT HAS BEEN DETERMINED THAT THE DESCRIPTIVE DATA WAS UNNECESSARY IT IS NOT MATERIAL THAT THE INVITATION DID NOT CONTAIN ALL THE CONDITIONS REQUIRED TO BE STATED WHEN SUCH DATA IS CALLED FOR. WHILE IT IS TRUE THAT UNDER THE REGULATION THERE SHOULD NOT HAVE BEEN INCLUDED IN THE INVITATION A REQUIREMENT FOR THE DATA WHEN IT WAS NOT NEEDED, WHERE IT IS INCLUDED THE WAIVER OF SUCH AN IMMATERIAL REQUIREMENT AFTER THE OPENING OF BIDS IS AUTHORIZED BY PARAGRAPH 2.405 OF THE AGENCY REGULATIONS WHICH UNDER THE CHRISTIAN DOCTRINE WOULD HAVE THE SAME FORCE AND EFFECT OF LAW AS PARAGRAPH 2.202-5.

YOU FURTHER TAKE EXCEPTION TO THE FACT THAT IN OUR DECISION WE RELIED UPON THE AGENCY REPRESENTATION THAT THE 1-LINE DIAGRAM AND OUTLINE SKETCH WERE SUPERFLUOUS WHEN THE PROTESTANT CONTENDED THAT THEY WOULD SERVE AN IMPORTANT PURPOSE. HOWEVER, IN DISPUTES OF THIS NATURE, WE BELIEVE THAT THE CONTRACTING AGENCY IS IN A BETTER POSITION THAN THE PROTESTANT TO STATE WHETHER IT INTENDED TO MAKE ANY USE OF THE DATA WHICH IT REQUESTED AND WE THEREFORE FEEL OBLIGED TO ABIDE BY ITS REPRESENTATION. WHILE YOU ARE CRITICAL OF THE FACT THAT THE CONTRACTING OFFICER RELIED UPON A TECHNICAL MEMORANDUM FROM THE COGNIZANT BRANCH AND FROM A LETTER RECEIVED FROM ANOTHER BIDDER NOT IN CONTENTION FOR AWARD, BOTH FURNISHED TO HIM AFTER BID OPENING, WE DO NOT THINK THAT IT WAS UNREASONABLE FOR THE CONTRACTING OFFICER TO RELY UPON THE ADVICE OF HIS TECHNICAL PEOPLE UPON WHOM HE WOULD HAVE TO RELY IN ENGINEERING MATTERS, AND CERTAINLY A BIDDER NOT IN CONTENTION FOR AWARD COULD BE EXPECTED TO BE MORE OBJECTIVE IN AN APPRAISAL WHEN IT DOES NOT STAND TO BENEFIT BY THE OUTCOME OF THE SITUATION AS DOES A PROTESTING BIDDER WHO STANDS NEXT FOR CONSIDERATION FOR AWARD IN THE EVENT ITS PROTEST IS SUSTAINED. WE DO NOT CONSIDER THAT THE DETERMINATION AFTER THE OPENING OF BIDS THAT AN INVITATION PROVISION IS IMMATERIAL IS DISRUPTIVE OF COMPETITION. THE DETERMINATION THAT A REQUIREMENT IS IMMATERIAL IS IN ITSELF A DETERMINATION THAT IT DOES NOT AFFECT THE COMPETITIVE PROCESS. OBVIOUSLY IF SUCH A DETERMINATION COULD NOT BE MADE AFTER THE OPENING OF BIDS, ALL REQUIREMENTS IN AN INVITATION WOULD HAVE TO BE CONSIDERED MATERIAL. WE DO NOT BELIEVE THAT SUCH A RULE IS REQUIRED OR NECESSARY.

YOU CONTEND FURTHER THAT THE PREPARATION OF THE LITERATURE CALLED FOR IN THE INVITATION REQUIRED BIDDERS TO EXPEND TIME AND EFFORT WHICH MUST NECESSARILY BE REFLECTED IN THEIR BID PRICE AND YOU SUGGEST THAT THE LOW BIDDER THEREBY GAINED A MATERIAL ADVANTAGE OF IGNORING THE REQUIREMENT FOR LITERATURE. HOWEVER, IT IS OUR BELIEF THAT BIDDERS IN PREPARING BID PRICES ORDINARILY INCLUDE IN THEIR ESTIMATES THE COST OF DOING THE WORK UNDER THE CONTRACT PLUS A PERCENTAGE FOR PROFIT AND OVERHEAD AND OTHERWISE ABSORB THE SPECIFIC COST OF PREPARING BIDS AS AN EXPENSE OF DOING BUSINESS. THEREFORE, IT IS DOUBTFUL THAT THE COST OF PREPARING THE DRAWINGS CALLED FOR IN THE INVITATION HAD ANY EFFECT UPON THE BID PRICES.

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