B-136440, JUL. 14, 1958

B-136440, JUL. 14, 1958

TO ROBERT SHERIFFS MOSS, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1958, PROTESTING ON BEHALF OF THE BREADY TRACTOR AND IMPLEMENT CO., SOLON, OHIO, THE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION NO. FN-30-9938-A-4-15-58, ISSUED APRIL 1, 1958, BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE.

BY THE INVITATION REFERRED TO BIDS WERE REQUESTED--- TO BE OPENED APRIL 15, 1958--- FOR FURNISHING 3400 THREE-WHEEL, GASOLINE DRIVEN MAIL DELIVERY VEHICLES IN ACCORDANCE WITH DESIGNATED POST OFFICE DEPARTMENT SPECIFICATIONS, DELIVERY F.O.B. POINT OF ORIGIN. PARAGRAPH 7 OF THE SPECIFICATIONS PROVIDED THAT "NO BID WILL BE CONSIDERED UNLESS ACCOMPANIED BY REQUIRED DRAWINGS AND DATA" AND PARAGRAPH 7.1, ENTITLED "DRAWINGS," STIPULATED THAT THE BIDDER SHALL SUBMIT WITH HIS BID TWO SETS OF DIMENSIONAL DRAWINGS FOR THE PURPOSE OF SHOWING IN DETAIL ARRANGEMENT AND DESCRIPTION OF THE VARIOUS COMPONENTS OF THE VEHICLE REQUIRED AND THEREIN AFTER ITEMIZED IN THE SPECIFICATIONS.

FOLLOWING THE OPENING OF BIDS, THE DIMENSIONAL DRAWINGS OF THE BREADY TRACTOR AND IMPLEMENT O., SOLON, OHIO, WERE ANALYZED BY THE PROCURING AGENCY AND IT WAS ASCERTAINED THAT THE BIDDER'S DRAWINGS FAILED TO COMPLY WITH THE REQUIREMENTS OF PARAGRAPH 7.1 OF THE SPECIFICATIONS IN THAT IT WAS IMPOSSIBLE TO DETERMINE THE TYPE OF VEHICLE THAT THE BIDDER WAS OFFERING TO SUPPLY THE GOVERNMENT FROM THE STANDPOINT OF (1) OVERALL DIMENSIONS OF THE VEHICLE; (2) SIZE AND SHAPE OF COMPONENT PARTS; (3) LOCATION OF REQUIRED COMPONENTS; AND (4) OVERALL DIMENSIONS OF USEABLE CARGO SPACE. ON THE BASIS OF THESE DEFICIENCIES IT WAS DETERMINED ADMINISTRATIVELY, AND WE BELIEVE RIGHTLY SO, THAT THE BID WAS FOR REJECTION AS BEING NONRESPONSIVE. THE DECISIONS OF OUR OFFICE ARE UNIFORM IN HOLDING THAT PUBLIC OFFICERS MAY NOT ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS. 34 COMP. GEN. 82.

WHILE CONTRACTING OFFICERS NECESSARILY ARE VESTED WITH A CERTAIN AMOUNT OF DISCRETION IN SUCH MATTERS, IT HAS BEEN CONSISTENTLY HELD THAT DEFICIENCIES OR DEVIATIONS MAY BE WAIVED ONLY IF THEY DO NOT GO TO THE SUBSTANCE OF THE BID OR WORK AN INJUSTICE TO OTHER BIDDERS. 30 COMP. GEN. 179. IN THE PRESENT CASE, PARAGRAPH 7.1 OF THE SPECIFICATIONS, REFERRED TO ABOVE, REQUIRES IN MANDATORY TERMS THAT THE BIDDER SHALL SUBMIT TWO SETS OF DIMENSIONAL DRAWINGS WITH HIS BID AND PARAGRAPH 7 SPECIFICALLY WARNED THAT "NO BID WILL BE CONSIDERED" UNLESS ACCOMPANIED BY THE REQUIRED DRAWINGS AND DATA.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT THE PROTEST OF THE BREADY COMPANY FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ACTION OF THE CONTRACTING OFFICER IN REJECTING ITS BID WAS ILLEGAL OR IMPROPER. IN REACHING SUCH A CONCLUSION WE HAVE NOT OVERLOOKED THE CERTIFICATION OF THE BIDDER AS PROVIDED BY PARAGRAPH 7.5 OF THE SPECIFICATION THAT THE VEHICLE OFFERED WILL COMPLY IN EVERY RESPECT WITH THE TERMS OF THE SPECIFICATION. A BLANKET OFFER TO COMPLY WITH SPECIFICATIONS CANNOT OVERCOME OR RENDER NUGATORY EITHER THE SPECIFIC REQUIREMENT IN AN INVITATION FOR THE FURNISHING OF DESCRIPTIVE DATA WHICH IS DEEMED MATERIAL, OR THE PROVISIONS THEREOF RELATING TO THE EXTENT TO WHICH SUCH DATA WILL BE CONSIDERED IN THE ..END :