B-176484(2), DEC 21, 1972

B-176484(2), DEC 21, 1972

BID PROTEST - DESCRIPTIVE LITERATURE DECISION DENYING A PROTEST BY ECOLOGIC INSTRUMENT CORP. AGAINST THE AWARD OF A CONTRACT TO SCHNEIDER INSTRUMENT COMPANY, UNDER AN IFB ISSUED BY THE ARMY CORPS OF ENGINEERS FOR THREE INTEGRATED WATER QUALITY DATA ACQUISITION SYSTEMS. A BLANKET OFFER TO COMPLY WITH SPECIFICATIONS CANNOT BE SUBSTITUTED FOR THE SUBMISSION OF DESCRIPTIVE LITERATURE REQUIRED BY THE IFB. THUS, THE FAILURE TO SUBMIT THE REQUIRED DATA WITH THE BID REQUIRES THAT THE BID BE REJECTED. 37 COMP. GEN. 763 (1958). ACCORDINGLY, THE PROTEST IS DENIED.

TO ECOLOGIC INSTRUMENT CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR REQUEST FOR OUR ADVICE AND INVESTIGATION OF THE CIRCUMSTANCES LEADING TO AN AWARD OF A CONTRACT TO SCHNEIDER INSTRUMENT COMPANY (SCHNEIDER) UNDER INVITATION FOR BIDS (IFB) NO. DACW33-72-B-0032, ISSUED ON APRIL 26, 1972, BY THE NEW ENGLAND DIVISION OF THE ARMY CORPS OF ENGINEERS.

THE INSTANT IFB REQUESTED BIDS FOR FURNISHING THREE INTEGRATED WATER QUALITY DATA ACQUISITION SYSTEMS FOR DELIVERY TO THE WATER QUALITY LABORATORY, BARRE FALLS DAM, HUBBARDSTON, MASSACHUSETTS. WHEN BIDS WERE OPENED ON MAY 24, 1972, YOUR FIRM HAD SUBMITTED THE LOWEST BID AND SCHNEIDER'S WAS SECOND LOW. YOUR COVER LETTER OF MAY 11, 1972, SUBMITTING YOUR BID STATED IN PART "WE HAVE TAKEN NO EXCEPTIONS WHATEVER TO THE SPECIFICATIONS OR DELIVERY."

THE DEPARTMENT HAS ADVISED THAT, BECAUSE OPERATION AND MAINTENANCE OF THE EQUIPMENT IN QUESTION WAS CONSIDERED TO BE OF PARAMOUNT IMPORTANCE TO THE USER, AND BASED ON EXPERIENCE GAINED IN THIS REGARD ON A PREVIOUS CONTRACT FOR THE SAME ITEM AWARDED TO YOUR FIRM, IT WAS DETERMINED THAT IN THIS AND ALL FUTURE PROCUREMENTS OF THIS NATURE, THE SPECIFICATIONS WOULD REQUIRE A DETAILED INSTRUCTION MANUAL, AND BID EVALUATION WOULD BE BASED UPON THE QUALITY AND DESIGN DETAILS FURNISHED IN THE MANUAL. CONSEQUENTLY, SECTION B OF THE IFB, ENTITLED "EVALUATION AND AWARD FACTORS," PROVIDED AT PARAGRAPH (3) THEREOF:

"BIDS WHICH DO NOT INCLUDE A COPY OF THE INSTRUCTION MANUAL AS SET FORTH IN SECTION J WILL BE REJECTED AS NONRESPONSIVE."

THE REFERENCED SECTION J STATED IN PERTINENT PART:

"BIDDER SHALL SUBMIT ONE (1) COPY OF INSTRUCTION MANUAL WITH HIS BID SUBMISSION IN ACCORDANCE WITH PARAGRAPH 5.00 AND ADDENDUM OF THE SPECIFICATIONS. EQUIPMENT AND SYSTEM OFFERED WILL BE EVALUATED FOR QUALITY AND DESIGN DETAIL FROM MANUAL SUBMITTED."

THUS, WHILE DESIGNATED AS AN "INSTRUCTION" MANUAL, IT WOULD APPEAR THAT THE MANUAL WAS ALSO INTENDED TO SERVE AS DESCRIPTIVE LITERATURE IN DETERMINING WHETHER THE ITEM PROPOSED MET THE SPECIFICATIONS.

PARAGRAPH 5.00 OF THE SPECIFICATIONS ENTITLED "INSTRUCTION MANUAL" LISTED SOME 16 AREAS OF REQUIRED INFORMATION AND MAINTENANCE PROCEDURES FOR EACH PHASE AND EACH PARAMETRIC SYSTEM TO BE INCLUDED IN THE MANUAL, WHICH WERE REQUIRED TO CONFORM TO THE OTHER REQUIREMENTS OF THE TECHNICAL SPECIFICATIONS. WHILE YOUR COMPANY SUBMITTED A MANUAL FOR YOUR MODEL 400 WATER QUALITY ANALYZER, IT WAS FOUND BY THE COGNIZANT TECHNICAL PERSONNEL NOT TO BE IN COMPLIANCE WITH THE REQUIREMENTS OF THE INVITATION IN 35 SIGNIFICANT AREAS. THE MORE CRITICAL OMISSIONS OF YOUR MANUAL WERE LISTED IN THE CONTRACTING OFFICER'S LETTER OF JUNE 26, 1972, REJECTING YOUR BID AS NONRESPONSIVE AS FOLLOWS:

"THE FOLLOWING SUBPARAGRAPHS OF PARAGRAPH 5, PAGE F-15 DO NOT MEET THE REQUIREMENTS:

5.04 (I.E., CONDUCTIVITY)

5.06 (NOT CLEAR)

5.07 (TROUBLESHOOTING)

5.11 (PARTS LIST)

5.12 (SOURCE OF SUPPLY)

"PARAGRAPH 1-01, PAGE F-5, DESCRIBES THE 'SYSTEM" TO BE COMPOSED OF A FLOW CHAMBER PHASE, AN ANALYSER PHASE AND AN OUTPUT PHASE.

"THE INSTRUCTION MANUAL DID NOT CONTAIN ANY REFERENCE TO THE ABOVE PHASE AS REQUIRED BY THE INVITATION ABOVE."

WITH THE APPROVAL OF THE NEW ENGLAND BOARD OF AWARDS, THE CONTRACTING OFFICER REJECTED YOUR BID FOR THE FOREGOING REASONS AS BEING NONRESPONSIVE, AND ON JUNE 26, 1972, AWARDED THE CONTRACT TO SCHNEIDER, WHOSE BID HAD BEEN FOUND TO BE RESPONSIVE.

SUBSEQUENT TO THE AWARD, YOUR FIRM BY LETTER DATED JUNE 29, 1972, REQUESTED A HEARING IN THE OFFICE OF THE PROCURING ACTIVITY, WHICH HEARING WAS LATER SCHEDULED FOR JULY 14, 1972. HOWEVER, AFTER YOU HAD BEEN ADVISED OF THE AWARD TO SCHNEIDER, YOUR FIRM DECLINED ON JULY 10, 1972, TO PARTICIPATE IN THE MEETING, STATING "THAT A MEETING AT THIS TIME WOULD BE A MEANINGLESS EXPENSE TO THE CORPS OF ENGINEERS AND ECOLOGIC INSTRUMENT CORPORATION." IN THE INTERIM (JULY 7, 1972), YOU MADE YOUR INQUIRY TO OUR OFFICE.

THE ESSENCE OF YOUR COMPLAINT IS THAT YOUR MANUAL COMPLETELY CONFORMED TO THE SPECIFICATIONS, AND THAT YOUR BID TOOK NO EXCEPTION TO THE SPECIFICATIONS.

IT SHOULD FIRST BE OBSERVED THAT A BLANKET OFFER TO COMPLY WITH SPECIFICATIONS CANNOT BE SUBSTITUTED FOR A DESCRIPTIVE LITERATURE REQUIREMENT SUCH AS IS PRESENT HERE. 36 COMP. GEN. 415 (1956); 37 COMP. GEN. 763 (1958). IT FOLLOWS THAT THE REQUIREMENT FOR SUBMISSION OF THE INSTRUCTION MANUAL CARRIES WITH IT THE CONCOMITANT REQUIREMENT OF SUBMISSION OF A MANUAL ACCEPTABLE TO THE PROCURING ACTIVITY.

THIS OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE ADMINISTRATIVE AGENCIES HAVE THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE RESPONSIBILITY OF DETERMINING WHETHER THE PRODUCT OFFERED MEETS THESE SPECIFICATIONS. COMP. GEN. 302 (1964); 38 COMP. GEN. 190 (1958). CONSISTENT WITH SUCH AUTHORITY, THE INVITATION MAY PROPERLY REQUIRE THAT DESCRIPTIVE DATA ACCOMPANY EACH BID FOR THE PURPOSE OF BID EVALUATION SO AS TO DETERMINE WHETHER THE SPECIFICATIONS WOULD BE SATISFIED BY THE ITEM OFFERED. COMP. GEN. 132 (1960). IN SUCH CIRCUMSTANCES, FAILURE TO SUBMIT THE REQUIRED DATA WITH THE BID REQUIRES THAT THE BID BE REJECTED. 37 COMP. GEN. 763 (1958).

WE ALSO RECOGNIZE THAT GOVERNMENT PROCUREMENT OFFICIALS WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH EQUIPMENT WILL BE USED, AND WITH PAST RESULTS IN THE USE OF SIMILAR EQUIPMENT, ARE GENERALLY IN THE BEST POSITION TO KNOW THE GOVERNMENT'S NEEDS AND BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS. IN THE INSTANT CASE IT IS THE CONSIDERED OPINION OF TECHNICAL PERSONNEL OF THE CORPS OF ENGINEERS THAT YOUR INSTRUCTION MANUAL DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS IN SEVERAL SIGNIFICANT AREAS. IN THIS CONNECTION, THE RECORD INDICATES THAT YOU WERE FURNISHED A LISTING OF THE AREAS IN WHICH YOUR MANUAL WAS CONSIDERED DEFICIENT, AND YOU HAVE NOT SUBMITTED A REFUTATION THEREOF. UNDER THE CIRCUMSTANCES, WE MUST AGREE WITH THE CONCLUSIONS OF THE CONTRACTING AGENCY, AND WITH ITS ACTION IN REJECTING YOUR BID.

WE THEREFORE BELIEVE THAT ANY FURTHER CONSIDERATION OF YOUR COMPLAINT CONCERNING DEFICIENCIES IN YOUR MANUAL MUST PROPERLY BE LEFT FOR THE ADMINISTRATIVE OFFICE CONCERNED, WHICH HAS ALREADY OFFERED TO CAREFULLY CONSIDER YOUR VIEWS AND HEAR ANY OBJECTIONS TO THE ACTION TAKEN YOU MAY CARE TO MAKE.