B-162036, SEP. 19, 1967

B-162036, SEP. 19, 1967

BIDS - DEVIATIONS - DESCRIPTIVE LITERATURE DECISION TO LAB-LINE INSTRUMENTS, INC., CONCERNING REJECTION OF BID FOR EXPLOSION PROOF REFRIGERATORS FOR DEFENSE SUPPLY AGENCY. LOW BIDDER WHO VOLUNTARY FURNISHED INFORMATION WITH BID INDICATING A MODEL OF REFRIGERATOR THAT DID NOT COMPLY WITH SPECIFICATIONS HAD BID PROPERLY REJECTED AS NONRESPONSIVE ON THE BASIS OF THE QUALIFICATION.

TO LAB-LINE INSTRUMENTS, INC.:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST AWARD OF A CONTRACT TO ANY OTHER FIRM BY THE DEFENSE SUPPLY AGENCY (DSA) UNDER INVITATION FOR BIDS NO. DSA-400-67-B-8392.

THE INVITATION SOLICITED BIDS ON 25 EXPLOSION PROOF REFRIGERATORS, FSN 4110-051-4194, IN ACCORDANCE WITH INTERIM PURCHASE DESCRIPTION IP/DES S-52 -5, DATED AUGUST 16, 1965, TYPE I, SIZE 9, GRADE A. YOUR BID OF $505 EACH WAS LOW. HOWEVER, THE CONTRACTING OFFICER FOUND YOUR BID NONRESPONSIVE AND REJECTED IT BECAUSE OF YOUR INSERTION OF THE FOLLOWING LANGUAGE ON THE SPECIFICATION PAGE OF THE IFB:

"WE ARE QUOTING ON LAB-LINE CAT. NO. 3558 EXPLOSION-PROOF FRIGID CAB 9, AS DESCRIBED IN THE ATTACHED BULLETIN NO. 40.'

THE CONTRACTING OFFICER CONSIDERED THIS LANGUAGE AS AN OFFER TO FURNISH YOUR MODEL NO. 3558 WITHOUT MODIFICATION. UPON HIS REQUEST, TECHNICAL PERSONNEL COMPARED THE REQUIREMENTS OF THE SPECIFIED PURCHASE DESCRIPTION WITH THE SPECIFICATIONS OF BULLETIN NO. 40 AND FOUND THAT YOUR MODEL NO. 3558 DOES NOT COMPLY WITH THE HEIGHT DIMENSIONS SPECIFIED AND CONTAINS TWO RATHER THAN THREE SHELVES AS REQUIRED.

WE BELIEVE THE ADMINISTRATIVE AGENCY ACTED CORRECTLY IN REJECTING YOUR BID AS NONRESPONSIVE. ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2- 202.5 (F) PROVIDES THAT WHERE, AS HERE, DESCRIPTIVE LITERATURE IS NOT REQUIRED BY THE INVITATION, BUT IS VOLUNTARILY FURNISHED WITH A BID, IT WILL BE DISREGARDED UNLESS THE BID OR ACCOMPANYING PAPERS MANIFEST AN INTENT BY THE BIDDER TO QUALIFY ITS BID. YOUR BID CLEARLY STATED THAT YOU WERE BIDDING ON YOUR MODEL NO. 3558 AS DESCRIBED IN BULLETIN NO. 40. THESE CIRCUMSTANCES, THERE IS NO DOUBT AS TO YOUR INTENTION. THEREFORE, YOUR BID WAS PROPERLY CONSIDERED QUALIFIED. SINCE IT WAS DETERMINED BY TECHNICAL PERSONNEL THAT YOUR BID DID NOT COMPLY WITH THE SPECIFICATIONS, IT WAS REJECTED PURSUANT TO ASPR 2-404.2 (B).

YOUR LETTER AND TELEGRAM OF PROTEST REFER TO AN EARLIER AWARD AND IMPLY THAT IT WAS IMPROPERLY MADE. ALTHOUGH YOU HAVE NOT IDENTIFIED THE AWARD TO WHICH YOU REFER, IT IS ADMINISTRATIVELY REPORTED THAT YOU MAY BE REFERRING TO AN AWARD UNDER INVITATION FOR BIDS NO. DSA-400-66 B-5492. IS REPORTED THAT SRA, INC., BID YOUR MODEL 3558 (FORMERLY 3559X) UNDER THAT IFB. ALTHOUGH SRA WAS THE LOW BIDDER, IT WAS DETERMINED THAT SRA'S BID WAS NONRESPONSIVE BECAUSE IT DID NOT COMPLY WITH THE SAME PURCHASE DESCRIPTION AS IS NOW INVOLVED.

THE PROCUREMENTS WERE MADE SUBJECT TO 10 U.S.C. 2305 (C) WHICH REQUIRES AWARD ON A BID CONFORMING TO THE INVITATION. A VALID AWARD MAY NOT BE MADE ON A BID WHICH OFFERS PERFORMANCE NOT IN COMPLIANCE WITH THE SPECIFICATIONS. PRESTEX, INC. V. UNITED STATES (CT. CL. 1963) 320 F.2D 367. SINCE BOTH YOUR BID AND THAT OF SRA DEVIATED FROM THE SPECIFIED REQUIREMENTS, THEY WERE PROPERLY REJECTED.