THR COMPTROLLILI ORNmRAL
O C T H R UNIT80 ITATRm
W A 8 H l N Q T O N .

B-214288

FILE:

MATTER OF:

Niagara Machine

DATE:
&

0 . C .

POC14.

July 16, 1984

Tool Works

DIGEST:

1.

When unsolicited descriptive literature submitted with a bid refers to
same model number as equipment bid and
reveals that equipment does not meet
material requirements included in a
solicitation, contracting agency is not
free to accept the bid. Even if bidder
otherwise takes no exception to the
specifications, the descriptive
literature qualifies the bid and thus
renders it nonresponsive.

2.

Waiver of an advertised specification
is improper if the deviation from it
goes to the substance of a bid ..or works
an injustice to other bidders. Substantial, i.e. material, deviation is
one that affects the price, quality, or
quantity of the goods or services
offered.

3.

Importance of maintaining the integrity
of the competitive bidding system outweighs the advantage of any monetary
saving that would result if material
deviation from specifications is waived
or ignored. When agency discovers that
specifications overstate its needs,
proper course of action is to cancel
the invitation for bids and recompete
on a less restrictive basis.

Niagara Machine 6, Tool Works protests the award of
a contract under invitation for bids No. 16-PI-00110-4,
issued by Federal Prison Industries, Inc. for a 45-ton

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B-214288

p r e s s and two d i e s .
T h e e q u i p m e n t w i l l be u s e d t o
p r o d u c e grommets f o r U.S. P o s t a l S e r v i c e mail b a g s . 1
N i a g a r a c o n t e n d s t h a t t h e award was i m p r o p e r because t h e
e q u i p m e n t o f f e r e d b y J o h n R. Wald Company, I n c . , t h e l o w
b i d d e r , d i d n o t meet s p e c i f i c a t i o n s .
We sustain t h e protest.

The s o l i c i t a t i o n p e r m i t t e d b i d s f o r t h e p r e s s o n l y ,
d i e s o n l y , o r p r e s s a n d d i e s . Wald o f f e r e d b o t h p r e s s
a n d d i e s f o r a t o t a l of $ 1 0 0 , 1 2 5 ; N i a g a r a o f f e r e d a
p r e s s o n l y f o r $82,214; and t w o o t h e r f i r m s o f f e r e d d i e s
only.
F e d e r a l P r i s o n I n d u s t r i e s awarded t h e c o n t r a c t t o
Wald b e c a u s e t h e f i r m ' s b i d was l e s s t h a n t h e combinat i o n o f N i a g a r a ' s p r e s s b i d and t h e l o w d i e b i d .

Niagara contends t h a t Wald's equipment d i d n o t
comply w i t h a n u m b e r o f t h e s p e c i f i c a t i o n s .
Federal
P r i s o n I n d u s t r i e s b a s i c a l l y acknowledges t h i s , s t a t i n g
t h a t d u r i n g i t s p o s t - o p e n i n g e v a l u a t i o n of b i d s , b a s e d
on m a n u f a c t u r e r s ' b r o c h u r e s a n d l e t t e r s , i t d e t e r m i n e d
t h a t t h e p o i n t s o n w h i c h Wald d i d n o t meet o r e x c e e d
s p e c i f i c a t i o n s were n o t c r i t i c a l and t h a t W a l d ' s p r e s s
could perform t h e r e q u i r e d o p e r a t i o n s .
T h e record shows t h a t t h e p r e s s and t h e f e e d i n g
e q u i p m e n t Wald o f f e r e d d o n o t comply i n t h e f o l l o w i n g
r e s p e c t s : t h e specifications require a p r e s s speed range
o f 73-220 s t r o k e s p e r m i n u t e and a motor o f 7-1/2
h o r s e p o w e r , 1710 r e v o l u t i o n s p e r m i n u t e ; W a l d ' s p r e s s
h a s a s i n g l e s p e e d o f 120 s t r o k e s p e r m i n u t e and a motor
o f 5 h o r s e p o w e r , 1200 r e v o l u t i o n s p e r m i n u t e .
Furthermore, t h e s p e c i f i c a t i o n s f o r t h e s t o c k s t r a i g h t e n e r ,
t h r o u g h which t h e c o i l s t e e l i s f e d i n t o t h e p r e s s ,
r e q u i r e a "Mod-U-Loop" d r i v e u t i l i z i n g a 5 h o r s e p o w e r
motor e q u i p p e d w i t h a n e l e c t r i c e y e t o sense when
m a t e r i a l i s t o b e moved and t o p r e v e n t c o n t a c t w i t h
t h e material. Wald's s t o c k s t r a i g h t e n e r i n c l u d e s a
1 horsepower d r i v e and, i n s t e a d o f t h e r e q u i r e d e l e c t r i c
e y e , a p a d d l e c o n t r o l w i t h m e r c u r y s w i t c h , w h i c h necess i t a t e s p h y s i c a l contact w i t h t h e material.

According t o Federal P r i s o n I n d u s t r i e s , t h e
i n f o r m a t i o n i n d i c a t i n g t h a t t h e e q u i p m e n t o f f e r e d by
Wald d i d n o t meet t h e s p e c i f i c a t i o n s was i n c l u d e d i n
d e s c r i p t i v e l i t e r a t u r e submitted w i t h Wald's bid.

l G r o m m e t s are produced from d e e p drawn c o i l s t e e l f e d
from a c e n t e r i n g r e e l t h r o u g h a s t r a i g h t e n e r t o t h e
press.

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B-214288
Although the solicitation did not require descriptive
literature for evaluation purposes, if Wald nevertheless
submitted such literature, it could be regarded as
qualifying the bid and thus would render the bid nonresponsive. See Minnesota Mining and Manufacturing Co.,
B-212004, Nov. 17, 1983, 83-2 CPD l\ 578. This is particularly the case where, as here, the model numbers of the
press and dies described are the same as those bid.
LogE/Spatial Data Systems, Inc., B-205016, May 17, 1982,
82-1 CPD 11 465.
Even, if Wald otherwise took no exception to the
specifications, Federal Prison Industries was not free to
ignore information indicating that the equipment offered
did not meet material requirements included in the
solicitation. Because of its impact on the competitive
bidding system, affecting the right to compete on a
common basis, a contracting agency may not waive an
advertised specification if the deviation from it goes to
the substance of a bid or works an injustice to other
bidders. American Automotive Machinery, Inc., E-204385,
Dec. 24, 1981, 81-2 CPD 494.
Our Office has defined a substantial, i.e. material,
deviation as one that affects the price, q u m y , or
quantity of the goods or services offered. Id. Here, it
appears that price was affected, since 'Niagara estimates
that if it had been permitted to provide equipment
similar to that offered by Wald, it could have reduced
its bid price by more than $15,000. Federal Prison
Industries has not attempted to rebut this assertion,
which appears in Niagara's comments on the agency report,
where prices were discussed. Award to Wald thus was
improper.
We recognize that Federal Prison Industries has
determined that the press Wald will furnish will meet
its needs at the lowest bid price submitted in response
to this invitation. Nevertheless, we often have stated
that the importance of maintaining the integrity of the
competitive bidding system outweighs the advantage of a
monetary saving that would result if material deviations
are waived or ignored. See Star-Line Enterprises, Inc.,
B-210732, Oct. 12, 1983,83-2 CPD 11 450.' If.- .upon
. discovering that the specifications in effect overstated
its needs, Federal Prison Industries had canceled the
invitation2 and revised the specifications to recompete

The procurement regulations cite the use of deficient
specifications, or the finding that the government's
needs can be satisfied by a less expensive item than
that specified, as compelling reasons to cancel an invitation and readvertise. Federal Procurement Regulations,
41 C.F.R. § 1-2.404-1(b)(l) (4) (1983).
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B-214288

the requirement on a less restrictive basis, the agency's
needs may well have been satisfied at an even lower cost
to the government.
We sustain the protest. Because the press has been
delivered to Federal Prisons Industries, no remedial
action is practicable. We are, however, recommending to
the Attorney General by separate letter that this matter
be brought to the attention of the procurement personnel
involved to prevent a repetition.

of the United States

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