Matter of:Acoustic Systems File:B-248373; B-248374 Date:August 24, 1992

Matter of:Acoustic Systems File:B-248373; B-248374 Date:August 24, 1992

PROCUREMENT Contract Qualification Responsibility/responsiveness distinctions Requirement in invitation for bids (IFB) for the submission with the bid of certified test data from an independent testing laboratory regarding performance and other technical requirements to be met by the contractor in the construction of audiometric examination suites must be viewed as relating to bidder responsibility, as opposed to bid responsiveness, where the IFB did not advise bidders that the requirement would be treated as a matter of bid responsiveness.

Attorneys

DECISION

Acoustic Systems protests the rejection of its bid as nonresponsive under invitation for bids (IFB) No. 642-11-92, issued by the Veteran Affairs Medical Center (VA), Philadelphia, Pennsylvania, for audiometric examination suites, and the subsequent cancellation of the IFB and the conversion of the procurement into a negotiated one under request for proposals No. 642-17-92.

We sustain the protest.

The IFB was issued on February 12, 1992, to obtain a contractor to provide all labor, materials, equipment, and supervision necessary to furnish and install three double room audio examination suites and one single room radio frequency shielded audio examination suite for VA. Under the section entitled "Description/Specifications/Work Statement," the IFB stated the following:

"Bidders shall submit, along with bids, [a] certified copy of a test report from either the River-bank Acoustical Laboratories . . . or other independent testing laboratory acceptable to the contracting officer, indicating that the booths to be supplied conform to the provisions of paragraph Numbers 16 through 28, below."

The referenced paragraphs detailed various performance and other technical requirements to be met by the contractor in constructing and installing the suites.

On March 12, VA received three bids, including Acoustic's low bid. Acoustic's bid included a significant amount of test data addressing the certified test data requirement, most of which was generated by its own in -house testing laboratory. VA rejected Acoustic's bid because: (1) much of Acoustic's test data was generated by Acoustic's own in-house laboratory, which VA asserts is not an acceptable independent testing laboratory; (2) Acoustic's test data failed to address paragraph Nos. 22 and 23 covering the installation of duct silencers and system connectors; and (3) the submitted "Standard Radio Frequency Shielding" test data under paragraph No. 28 was for suites different from those bid under the IFB. After VA determined all bids to be nonresponsive for failing to comply with the certified test data requirement, the IFB was canceled and the procurement converted to a negotiated one.

Acoustic argues that its bid was responsive. Acoustic asserts that its laboratory should have been acceptable because it is independently accredited by the National Institute of Standards and Technology's National Voluntary Laboratory Accreditation Program. Acoustics argues that the test data submitted under paragraph No. 28 was reliable because the tested suites were similar to those being procured and the test data was only to address the shielding, not the booths. Also, paragraph Nos. 22 and 23 apparently only relate to the installation of the suite and it is not clear what an independent laboratory could certify to prior to actual installation.

The VA reports that, due to the highly technical nature of the suites, the certified test data is vital to enable the procuring activity to evaluate whether the suites proposed by bidders conform to the technical requirements set forth in specification paragraph Nos. 16 through 28. VA argues that Acoustic's test data was insufficient and therefore its bid was properly rejected as nonresponsive.

A requirement for certified test data in a sealed bid procurement can relate either to bid responsiveness or bidder responsibility depending on the intention of the agency as expressed in the solicitation. Commercial Window & Door Co., Inc., B-211280, Nov. 18, 1983, 83-2 CPD Para. 582. Generally, a pre-award testing requirement merely serves to verify the bidder's ability to provide the required items in conformance with the specifications such that the test data usually can be furnished after bid opening, as is the case with any responsibility-related matter. On the other hand, if the data is needed to determine whether the offered items themselves conform to the solicitation's specifications, a bidder's failure to include the data requires rejecting the bid as nonresponsive. Western Waterproofing Co., Inc., B-183155, May 20, 1975, 75-1 CPD Para. 306.

In determining whether a requirement for literature or data relates to responsiveness as opposed to responsibility, we look to whether the solicitation otherwise complies with the requirements governing the use of descriptive literature needed for determining exactly what the bidder proposes to furnish and whether that meets the specifications. See Federal Acquisition Regulation (FAR) Sec. 14.202-5; Cecile Indus., Inc, B-194273, Apr. 23, 1979, 79-1 CPD Para. 282; Commercial Window & Door Co., Inc., supra. These requirements include clearly stating in the solicitation the purpose for which the technical data is required, the extent to which it will be considered in the evaluation of the bids, and the rules that will apply if a bidder fails to furnish the literature before bid opening or if the literature fails to comply with the requirements of the solicitation. FAR Sec. 14.202-5(d). In the absence of such language, a provision requiring data should generally relate to bidder responsibility rather than bid responsiveness. See Cecile Indus., Inc., supra; Commercial Window & Door Co., Inc., supra. Here, the solicitation provision requesting the test data did not include any language regarding the purpose for the data or the consequences for failing to submit the data. Although VA argues that the information is necessary to determine whether the suites conform to the requirements, it included nothing in the solicitation which would have reasonably indicated to bidders that the information was to be provided to enable VA to determine whether the bidder was offering a product that would meet solicitation requirements. Indeed, some of the required test data appears to relate to the actual installation of the suites (e.g. paragraph Nos. 22 and 23), and we do not understand how certified test data on these matters could be submitted with the bid. Moreover, in light of the precise detail contained in the specifications, it is not clear why testing data would be necessary to determine whether the bidder's system would meet IFB requirements. See Cecile Indus., Inc., supra; Commercial Window & Door Co., Inc., supra; cf. Western Waterproofing Co., Inc., supra (test data was needed to determine precisely what bidders proposed and would be bound to furnish).

Accordingly, we find that the test data in these circumstances involved a matter of responsibility, and that a bid that was noncompliant with the test data requirement properly could not be rejected as nonresponsive. Commercial Window & Door Co., Inc., supra.

We sustain the protest. Since it is not clear whether the agency actually needs the test data to determine the acceptability of offered systems, we are recommending that VA review its needs to determine the actual basis for the test data requirement. If its legitimate needs are for test data that is to be used to determine the acceptability of what bidders offer, VA should issue a new solicitation that clearly so informs bidders/offerors. If, on the other hand, the data is needed only to determine bidder ability to furnish an item meeting the specifications, then VA should reinstate the canceled IFB and determine whether Acoustic is a responsible bidder. (VA, if it chooses to do so, may give Acoustic a reasonable time to submit tests from an acceptable independent laboratory). If VA finds Acoustic to be nonresponsible, since Acoustic is a small business, VA must then refer the matter to the Small Business Administration (SBA) for a Certificate of Competency (COC). Under the circumstances, Acoustic is entitled to recover its costs of filing and pursuing the protest, including reasonable attorney's fees. 4 C.F.R. Sec. 21.6(d)(1) (1992).

The Honorable Edward J. Derwinski The Secretary of Veteran Affairs

Dear Mr. Derwinski:

Enclosed is a copy of our decision of today sustaining the protest of Acoustic Systems against the rejection of its bid as nonresponsive under invitation for bids (IFB) No. 642-11-92, issued by the Veterans Affairs Medical Center (VA), Philadelphia, Pennsylvania, for audiometric examination suites.

We sustain the protest because VA improperly determined that Acoustic's failure to submit adequate test data at bid opening required the bid to be rejected as nonresponsive; under the IFB, the requirement properly must be viewed as a matter of responsibility.

We recommend that VA review its needs to determine the actual basis for the test data requirement, and then, in accordance with our decision, either issue a new solicitation that clearly informs offerors of the requirement or reinstate the IFB and consider the responsibility of Acoustic. If Acoustic is found to be nonresponsible, the matter must be referred to the Small Business Administration (SBA) for a possible Certificate of Competency (COC) since Acoustic is a small business. Acoustic is also entitled to recover its costs of filing and pursuing the protest, including reasonable attorneys' fees. 4 C.F.R. Sec. 21.6(d)(1) (1992).

Since the enclosed decision contains a recommendation for corrective action, we direct your attention to 31 U.S.C. Sec. 3554(e)(1) (1988), which requires that the head of the procuring activity responsible for the solicitation report to our Office if the agency has not fully implemented our recommendations within 60 days of receipt of our decision. Please advise us in any case of the action taken on the recommendation.