B-171417, MAR 9, 1971

B-171417, MAR 9, 1971

BID PROTEST - BID RESPONSIVENESS - QUALIFICATIONS INTERNAL PART NUMBER AFFIRMING PROTEST OF THE BLACK & DECKER MANUFACTURING COMPANY AGAINST THE AWARD OF A REQUIREMENTS CONTRACT ISSUED BY THE GSA FOR ELECTRIC PORTABLE DRILLS TO SKIL CORPORATION. THE INSERTION OF MODEL NUMBERS FOR INTERNAL CONTROL PURPOSES IN A BID GIVES THE BIDDER POWER TO DECIDE AFTER OPENING TO EITHER MAKE ITS BID RESPONSIVE OR NONRESPONSIVE. TO PERMIT SUCH A PROCEDURE WOULD VIOLATE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. THEREFORE, SKIL'S BID MUST BE REJECTED AS NONRESPONSIVE.

TO MR. KUNZIG:

REFERENCE IS MADE TO THE LETTER DATED DECEMBER 22, 1970, WITH ENCLOSURES, FROM YOUR GENERAL COUNSEL, FURNISHING OUR OFFICE WITH A REPORT ON THE PROTEST FROM THE BLACK & DECKER MANUFACTURING COMPANY (B & D) OF TOWSON, MARYLAND, AGAINST THE PROPOSED AWARD OF A CONTRACT FOR ITEMS 2 AND 5 TO ANOTHER CONCERN UNDER INVITATION FOR BIDS NO. FPNTP-B8 18828-A-11-10-70, ISSUED ON OCTOBER 7, 1970, BY THE PROCUREMENT OPERATIONS DIVISION, GENERAL SERVICES ADMINISTRATION (GSA). THE LETTER OF DECEMBER 22 FROM YOUR AGENCY ADVISES THAT AWARDS ARE BEING HELD IN ABEYANCE PENDING OUR DECISION.

THE PROPOSED CONTRACT IS TO BE OF THE REQUIREMENTS TYPE WITH A GUARANTEED MINIMUM FROM MARCH 1, 1971, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH FEBRUARY 29, 1972.

ITEM 2 IS FOR A "DRILL, ELECTRIC, PORTABLE" AND CERTAIN SPECIFICATION REQUIREMENTS WERE CONTAINED IN THE PURCHASE DESCRIPTION OF THE ITEM. THE FIRST LINE OF THE PURCHASE DESCRIPTION CONTAINED DATA RELATING TO THE "FEDERAL SUPPLY NUMBER", THE "ESTIMATED PEAK MONTHLY REQUIREMENT", THE "GUARANTEED MINIMUM QUANTITY", THE "ESTIMATED QUANTITY" AND A SPACE WHERE BIDDERS WERE TO INSERT A UNIT PRICE FOR THE ITEM. THE FIRST LINES OF ITEM 5 AND ITEM 7 FOLLOWED THE SAME FORM.

SKIL CORPORATION BID ON ITEMS 2, 5, AND 7, AND ITS PRICES FOR ITEMS 2 AND 5 AT $16.19 EACH AND $21.53 EACH, RESPECTIVELY, WERE LOW. SKIL'S PRICE FOR ITEM 7 WAS NOT LOW. B & D WAS SECOND LOW ON ITEMS 2 AND 5 AT $16.56 EACH AND $21.99 EACH, RESPECTIVELY. B & D WAS THE LOW BIDDER FOR ITEM 7 AT $11.24 EACH.

IN SKIL'S BID FOR ITEM 2, THE NUMBER "91196-01" WAS TYPED BY SKIL IN THE FIRST LINE OF THE PURCHASE DESCRIPTION BETWEEN DATA FOR THE "ESTIMATED PEAK MONTHLY REQUIREMENT" AND THE "GUARANTEED MINIMUM QUANTITY". IN ITEM 5, SKIL TYPED THE NUMBER "91196-02" IN THE FIRST LINE BETWEEN THE SAME TYPE DATA AS INDICATED FOR ITEM 2. IN ITEM 7, SKIL TYPED THE NUMBER "582" IN A PLACE BETWEEN THE SAME TYPE DATA AS WAS INDICATED FOR ITEMS 2 AND 5.

B & D'S POSITION IS THAT SKIL QUALIFIED ITS BID BY INSERTION OF THESE NUMBERS IN THE FIRST LINE OF ITEMS 2 AND 5 AS PREVIOUSLY DESCRIBED. B & D HAS ALSO BROUGHT TO OUR ATTENTION THAT THE NUMBER "582" WHICH WAS TYPED BY SKIL ON THE FIRST LINE OF THE PURCHASE DESCRIPTION FOR ITEM 7 CAN BE TRACED TO SKIL'S CATALOG AND THAT THE DESCRIPTION IN SKIL'S CATALOG FOR ITS MODEL NO. 582 DOES NOT CONFORM WITH THE REQUIREMENTS IN THE SPECIFICATIONS.

GSA'S POSITION IS THAT SINCE THE NUMBERS TYPED BY SKIL FOR ITEMS 2 AND 5 CANNOT BE TRACED TO ANY OF SKIL'S CATALOGS, THERE IS NO MORE REASON TO ASSUME THAT THOSE NUMBERS ARE MODEL NUMBERS THAN THERE IS TO ASSUME THAT THEY RELATE TO SOMETHING COMPLETELY AND ENTIRELY DIFFERENT. GSA URGES THAT THEY MIGHT BE, FOR EXAMPLE, FILE NUMBERS. GSA HAS CITED TWO OF OUR DECISIONS FOR THE VIEW THAT SKIL'S BID SHOULD BE CONSIDERED AS RESPONSIVE. (B-164384, APRIL 23, 1969; B-164053, MAY 24, 1968).

GSA ALSO ARGUES THAT THERE IS NOTHING IN SKIL'S BID WHICH WOULD INDICATE AN INTENTION TO QUALIFY ITS BID AND THAT, THEREFORE, UNDER ARTICLE 25, PAGE 4, OF GSA SUPPLEMENTAL PROVISIONS, JUNE 1970 EDITION, WHICH WERE INCORPORATED INTO THE INVITATION, SKIL'S BID SHOULD BE CONSIDERED AS RESPONSIVE. THIS PROVISION PROVIDES AS FOLLOWS:

"IF BID SAMPLES, DESCRIPTIVE LITERATURE OR REFERENCES TO BRAND NAMES ARE NOT REQUIRED BY THE INVITATION FOR BIDS, BUT ARE FURNISHED WITH A BID, THEY WILL NOT BE CONSIDERED AS QUALIFYING THE BID, AND WILL BE DISREGARDED, UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE BIDDER'S INTENTION TO SO QUALIFY THE BID. *** " THE ABOVE PROVISION AS IT RELATES TO DESCRIPTIVE DATA IS APPARENTLY DERIVED FROM FEDERAL PROCUREMENT REGULATIONS 1-2.202-5(F).

BY LETTER DATED DECEMBER 22, 1970, SKIL HAS COMMENTED ON B & D'S PROTEST AS FOLLOWS:

"THE BASIS FOR BLACK AND DECKER'S PROTEST IS THE INCLUSION OF MODEL NUMBERS IN SKIL'S BID. THESE MODEL NUMBERS ARE USED FOR SKIL'S INTERNAL CONTROL AND IN NO WAY QUALIFY THIS BID. IT HAS BEEN THE PRACTICE OF SKIL CORPORATION IN ITS GOVERNMENT CONTRACT ACTIVITY TO INCORPORATE SKIL MODEL NUMBERS IN CONJUNCTION WITH THE FSN TO ALLOW SKIL PROPER INTERNAL CONTROL AND THIS PRACTICE HAS BEEN ACCEPTED BY THE GENERAL SERVICES ADMINISTRATION, SEE, FOR EXAMPLE, THE ATTACHED COPY OF THE SKIL FEDERAL SUPPLY CATALOG FOR CONTRACT NO. GS-00S-81754. IT IS RESPECTFULLY SUBMITTED THAT THE INCLUSION OF MODEL NUMBERS FOR INTERNAL CONTROL PURPOSES DOES NOT RENDER THE SKIL BID QUALIFIED AND THUS NON RESPONSIVE. IN SUBMITTING ITS BID, SKIL AGREED TO FULLY MEET THE FEDERAL SPECIFICATIONS AND DID NOT CITE, INDICATE OR IMPLY ANY QUALIFICATIONS. THE COMPTROLLER GENERAL DECISIONS RELIED UPON BY BLACK AND DECKER CLEARLY SUPPORT SKIL'S POSITION IN THIS REGARD."

WE DO NOT AGREE WITH GSA'S VIEW THAT THE NUMBERS INSERTED BY SKIL SHOULD BE CONSIDERED AS NOT HAVING ANY SIGNIFICANCE. THE NUMBER "582" WHICH SKIL TYPED IN WITH REGARD TO ITEM 7 CORRESPONDS TO "MODEL 582 SINGLE SPEED JIG SAW" DESCRIBED IN SKIL'S "CATALOG NO. CP-510, 1970 DEALER CATALOG." NOTE THAT THE "582" WHICH IS A SINGLE SPEED SAW DEVIATES FROM THE MINIMUM TWO-SPEED SPECIFICATION REQUIREMENT FOR ITEM 7. THE NUMBERS INSERTED BY SKIL IN ITEMS 2 AND 5 MUST BE CONSIDERED AS AT LEAST HAVING SOME SIGNIFICANCE FOR SKIL WHICH IS CONSISTENT WITH THE ADVICE GIVEN TO OUR OFFICE BY SKIL IN ITS LETTER OF DECEMBER 22.

WE HAVE PREVIOUSLY CONSIDERED THE ISSUE WHETHER AN INTERNAL PART NUMBER WHICH A BIDDER TYPES IN ITS BID QUALIFIES THE BID AND RENDERS THE BID NONRESPONSIVE. IN B-169813, JULY 6, 1970, 50 COMP. GEN. , WE STATED AS FOLLOWS:

" *** WE HAVE CONSIDERED THE PROBLEM PRESENTED BY FPD'S INSERTIONS IN A NUMBER OF OTHER CASES. SEE B-152808, JANUARY 2, 1964; B-151849, SEPTEMBER 10, 1963; B-143084, JUNE 22, 1960. AND OUR DECISION IN B 152808, SUPRA, IS IN ALL MATERIAL RESPECTS ANALOGOUS TO THE PRESENT SITUATION. IN THAT DECISION, WE QUOTED WITH APPROVAL THE FOLLOWING COMMENTS SUBMITTED BY A CONTRACTING OFFICER IN CONNECTION WITH B 151849, SUPRA:

' *** SOME BIDDERS, WHEN INTENDING TO SUPPLY MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS, HAVE INCLUDED THEIR PART NUMBERS FOR THEIR READY REFERENCE IN THE EVENT OF AN AWARD, WHILE OTHERS HAVE INCLUDED THEIR PART NUMBERS FOR THE PURPOSE OF OFFERING A SIMILAR BUT MATERIALLY DIFFERENT ITEM, WHICH MIGHT OR MIGHT NOT MEET THE APPLICABLE SPECIFICATIONS AND THE NEEDS OF THE GOVERNMENT. WHEN PART NUMBERS ARE INSERTED IN BIDS, THE CONTRACTING OFFICER HAS NO WAY TO DETERMINE WHETHER THE BIDDER IS OFFERING MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS. *** '

"THE FOREGOING APTLY STATES THE PRECISE DIFFICULTY APPARENT FROM AN EXAMINATION OF FPD'S BID, AND WE MUST INITIALLY CONCLUDE, AS WE DID IN B- 151849, THAT, IN THE ABSENCE OF AN EXPRESS STATEMENT BY FPD IN ITS BID THAT THE SPECIFIED PLANT PARTS NUMBERS WOULD COMPLY WITH THE SPECIFICATIONS, THERE IS AN INITIAL AMBIGUITY AS TO WHETHER FPD AGREED TO OFFER AN ITEM WHICH WOULD COMPLY WITH THE SPECIFICATIONS SET FORTH IN THE INVITATION.

"FAILURE, AS HERE, TO ESTABLISH CONFORMANCE OF THE PLANT PARTS NUMBERS TO THE SPECIFICATIONS PRIOR TO BID OPENING LEAVES UNRESOLVED THE AMBIGUITY. FURTHERMORE, THE APPARENT RELIANCE BY THE CONTRACTING OFFICER ON FPD'S POST-BID-OPENING LETTER OF MAY 19, WHILE, IN OUR OPINION, ESSENTIAL TO HIS CONCLUSION, IS NOT PROPER. AS WE HAVE INDICATED IN NUMEROUS CASES, RELIANCE ON SUCH INFORMATION AFFORDS THE BIDDER AN OPTION TO AFFECT THE RESPONSIVENESS OF ITS BID - AN OPTION WHICH IS DETRIMENTAL TO THE COMPETITIVE BIDDING SYSTEM. 36 COMP. GEN. 705 (1967); 37 ID. 110, 112 (1957)."

THE SAME REASONING USED IN THE ABOVE-CITED CASE WOULD BE APPLICABLE HERE. THE NUMBERS TYPED IN BY SKIL ADMITTEDLY HAVE SOME INTERNAL SIGNIFICANCE FOR THIS BIDDER AND THE POSSIBILITY EXISTS THAT THERE MAY BE SOME INTERNAL DATA RELATING TO THESE NUMBERS WHICH MIGHT OR MIGHT NOT CONFORM TO THE SPECIFICATIONS. ANY INTERNAL DATA WOULD BE IN THE BIDDER'S CONTROL AND SINCE SUCH DATA WAS NOT FURNISHED PRIOR TO BID OPENING THE BIDDER WOULD HAVE IT WITHIN ITS POWER TO DECIDE AFTER OPENING TO EITHER MAKE ITS BID RESPONSIVE OR NONRESPONSIVE. TO PERMIT SUCH A PROCEDURE WOULD VIOLATE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. WE, THEREFORE, HOLD THAT THE MODEL NUMBERS INSERTED BY SKIL FOR INTERNAL CONTROL PURPOSES CREATED A FATAL QUALIFICATION IN ITS BID FOR ITEMS 2 AND 5 WHICH CANNOT BE RESOLVED AFTER BID OPENING AND THAT SKIL'S BID FOR THESE ITEMS MUST BE REJECTED AS NONRESPONSIVE.

WE HAVE REVIEWED THE TWO CASES CITED BY GSA AND SINCE NEITHER OF THESE CASES INVOLVES THE QUESTION OF QUALIFYING A BID BY THE INSERTION OF DATA NOT CALLED FOR BY THE INVITATION, WE DO NOT CONSIDER THEM TO BE APPLICABLE HERE.

WITH RESPECT TO WHETHER SKIL'S BID MAY BE CONSIDERED RESPONSIVE ON THE BASIS OF ARTICLE 25, OF GSA SUPPLEMENTAL PROVISIONS, WHICH APPEARS TO BE PATTERNED AFTER FPR 1-2.202-5(F), WE HAVE NEVER CONSIDERED THIS PROVISION AS OVERRIDING THE DEFECT IN A BID CAUSED BY A QUALIFICATION WHERE A BIDDER INSERTS A MODEL NUMBER IN ITS BID. FOR EXAMPLE, B 169813, JULY 6, 1970, SUPRA, AND B-152808, JANUARY 2, 1964, BOTH CONCLUDED THAT THE BIDDER'S INSERTION OF A PART NUMBER OR MODEL NUMBER CREATED AN AMBIGUITY REQUIRING REJECTION OF THE BID EVEN THOUGH AN ASPR PROVISION COMPARABLE TO FPR 1- 2.202-5(F), IN ITS PRESENT FORM, HAD BEEN PROMULGATED AND WAS IN EFFECT AT THE TIME BOTH OF THESE CASES WERE DECIDED. IN B-165424, NOVEMBER 19, 1968, OUR OFFICE SPECIFICALLY HELD THAT THE REJECTION OF A BID WHERE A BIDDER HAD INSERTED ITS MODEL NUMBER AND ALSO ATTACHED DESCRIPTIVE DATA ON ITS MODELS WHICH DID NOT SHOW THAT THE ARTICLES OFFERED MET OR EXCEEDED THE REQUIREMENTS OF THE SPECIFICATIONS WAS IN ACCORDANCE WITH ASPR 2- 202.5(F) WHICH IS SUBSTANTIALLY THE SAME AS FPR 1-2.202-5(F).

MOREOVER, WE ARE ADVISED THAT FPR 1-2.202-5 AND ITS COUNTERPART IN ASPR ARE BEING REVISED. UNDER THE PROPOSED REGULATION, THE CONTRACTING OFFICER'S BURDEN IN THE INSTANT TYPE OF SITUATION WOULD BE LIMITED TO A REASONABLE EFFORT TO DETERMINE WHETHER THE ITEM MET THE SPECIFICATIONS AND THE BID WOULD BE NONRESPONSIVE IF COMPLIANCE WITH THE SPECIFICATIONS COULD NOT BE ESTABLISHED AFTER SUCH A REASONABLE EFFORT HAD BEEN MADE. THE CONCLUSION IN THE INSTANT CASE IS CONSISTENT WITH THE PROPOSED REVISION OF THE PROVISIONS DEALING WITH UNSOLICITED DESCRIPTIVE LITERATURE IN FPR AND ASPR.

WITH RESPECT TO THE COMMENT THAT SKIL'S INCLUSION OF ITS PART NUMBERS WAS IN ACCORDANCE WITH ITS BIDDING PRACTICE IN PRIOR GSA PROCUREMENTS, ASSUMING THE FACTUAL SITUATIONS ARE THE SAME, WE CAN ONLY REITERATE THAT IMPROPER PRIOR BIDDING PRACTICES DO NOT JUSTIFY A REPETITION OF THE SAME ERROR. SEE B-152808, JANUARY 2, 1964.