B-173519, SEP 27, 1971

B-173519, SEP 27, 1971

BID PROTEST - CANCELLATION OF SOLICITATION - DEFECTIVE SPECIFICATIONS - DESCRIPTIVE DATA REQUIREMENTS - WALSH-HEALEY ACT - SAFETY STANDARDS - "ALL OR NONE" BIDDING DENIAL OF PROTEST AGAINST THE AWARD OF A CONTRACT TO DISTRICT EQUIPMENT CORPORATION BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA. THE ORIGINAL SOLICITATION WAS CANCELLED, AND ALL BIDS REJECTED, WHEN IT WAS DISCOVERED THAT THE SPECIFICATIONS WERE ERRONEOUS. IT IS GAO'S VIEW THAT THE SPECIFICATIONS WERE DEFECTIVE, A FACT OF WHICH BOTH BIDDERS WERE AWARE, AND CANCELLATION OF THE IFB AND READVERTISEMENT OF THE PROCUREMENT WERE THEREFORE IN ACCORD WITH THE RULES OF COMPETITIVE BIDDING AS REFLECTED IN FPR 1-2.404-1. SINCE DISTRICT EQUIPMENT DID INDICATE IN ITS BID THAT IT IS A REGULAR DEALER, THE REQUIREMENTS OF THE IFB AND THE WALSH-HEALEY PUBLIC CONTRACTS ACT WERE MET. THE ADDITIONAL INFORMATION REQUESTED BY THE BID FORM AS TO THE PLACE OF MANUFACTURE OF THE EQUIPMENT IS SUCH AS COULD BE FURNISHED UP TO THE DATE OF AWARD. WHERE AN INVITATION INCLUDES A REQUEST FOR INFORMATION WHICH DOES NOT MATERIALLY CONTRIBUTE TO PROPER EVALUATION OF BIDS, THE ABSENCE OF THE INFORMATION FROM A BID DOES NOT RENDER IT NONRESPONSIVE. THE RECORD IN THIS CASE DOES NOT SHOW ANY JUSTIFICATION FOR THE DATA REQUIREMENTS, AS IS REQUIRED BY FPR 1-2.205-5(C). IN ADDITION, THE PROVISION IN THE IFB WAS DEFECTIVE SINCE IT DID NOT IDENTIFY THE AREAS AS TO WHICH THE DATA WAS REQUIRED, ITS PURPOSE, AND ITS EFFECT ON BID EVALUATION. THE DETERMINATION AS TO WHETHER A PROVISION REQUIRING CONFORMANCE TO SAFETY STANDARDS ESTABLISHED BY A NATIONALLY RECOGNIZED TESTING AGENCY SHOULD BE USED RESTS WITH THE CONTRACTING AGENCY. AS TO THE "ALL OR NONE" QUALIFICATION IN DISTRICT EQUIPMENT'S BID, IT IS CLEAR THAT THE LANGUAGE OF PARAGRAPH 6 OF THE INSTRUCTION TO BIDDERS PERMITS SUCH BIDDING, AND ALSO RESERVES TO THE DISTRICT THE RIGHT TO MAKE AWARD, EITHER IN THE AGGREGATE OR SEPARATELY, ACCORDING TO ITS BEST INTERESTS.

TO COOPER EQUIPMENT COMPANY, INC.:

WE REFER TO YOUR LETTERS OF JULY 6 AND 12, 1971, AS SUPPLEMENTED BY LETTERS OF JULY 16 AND AUGUST 20 FROM SCHMID-DEWLAND ASSOCIATES, PROTESTING AGAINST AWARD BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA OF A CONTRACT TO DISTRICT EQUIPMENT CORPORATION (DISTRICT EQUIPMENT) UNDER INVITATION FOR BIDS (IFB) 73-134-1-0688-GW/1.

YOU MAINTAIN THAT DISTRICT EQUIPMENT'S BID WAS NONRESPONSIVE TO THE IFB SINCE IT DID NOT INCLUDE THE NAME OF THE MANUFACTURER OF THE EQUIPMENT OFFERED, AS REQUIRED BY PARAGRAPH 14 OF THE BID INSTRUCTIONS RELATING TO THE WALSH-HEALEY ACT (41 U.S.C. 35), AND ALSO FAILED TO COMPLY WITH THE DESCRIPTIVE DATA REQUIREMENT OF THE IFB. YOU ASSERT THAT, WITHOUT SUCH INFORMATION, ONLY DISTRICT EQUIPMENT KNOWS WHERE THE EQUIPMENT IS TO BE MANUFACTURED. FURTHER, YOU ASSERT THAT DISTRICT EQUIPMENT FAILED TO QUOTE INDIVIDUAL ITEM PRICES BY TAKING EXCEPTION TO THE IFB TERMS AND OFFERING EACH OF TWO GROUPS OF ITEMS, NOS. 1 THROUGH 12 AND NOS. 13 THROUGH 17, ON AN ALL OR NONE BASIS, WITH THE RESULT THAT THE DISTRICT OF COLUMBIA WAS DEPRIVED OF ITS OPTION TO AWARD THE CONTRACT TO SEVERAL BIDDERS BASED ON LOW BIDS FOR INDIVIDUAL ITEMS. ACCORDINGLY, YOU URGE THAT THE CONTRACT WITH DISTRICT EQUIPMENT SHOULD BE RESCINDED AND THAT AWARD SHOULD BE MADE TO YOU.

SCHMID-DEWLAND ASSOCIATES, WHO IDENTIFY THEMSELVES AS THE REPRESENTATIVE OF G. S. BLODGETT COMPANY (BLODGETT), THE MANUFACTURER OF THE EQUIPMENT WHICH YOU OFFERED IN YOUR BID, OBJECTS TO THE DELETION FROM THE IFB, BY AMENDMENT, OF A REQUIREMENT FOR CERTIFICATION AND APPROVAL OF THE PROCUREMENT ITEMS BY THE UNDERWRITERS' LABORATORIES, INC. (UL), OR OTHER ACCEPTABLE AND APPROVING AGENCIES. IN THIS CONNECTION, IT IS STATED THAT THE MANUFACTURER (THE MONTAGUE COMPANY, SAN LEANDRO, CALIFORNIA) WHOSE EQUIPMENT HAS BEEN ACCEPTED BY THE PROCUREMENT OFFICE, HAS NEVER MADE MORE THAN A PROTOTYPE OF THE OVEN REQUIRED BY THE IFB AND THAT ITS PRODUCT HAS NOT BEEN INSPECTED AND APPROVED BY ANY OF THE RECOGNIZED AGENCIES. IT IS FURTHER STATED THAT THE ORIGINAL SOLICITATION FOR THE PROCUREMENT ITEMS, TO WHICH YOU WERE FULLY RESPONSIVE, WAS CANCELLED FOR REASONS UNKNOWN AND THAT IT WAS REISSUED WITH CHANGES "FOR WHAT APPEARS TO BE THE CONVENIENCE OF THE UNRESPONSIVE BIDDER AND HIS SUPPLIER."

EXAMINATION OF THE ORIGINAL INVITATION, IFB 73-134-1-0688-GW, DATED APRIL 9, 1971, SHOWS THAT IT CALLED FOR 11 ROLL-IN CONVECTION OVENS, BLODGETT MODEL RE-43 OR MONTAGUE MODEL 2EK-15R, OR EQUAL, AND 1 SINGLE DECK CONVECTION OVEN, BLODGETT MODEL EZE-1 OR MONTAGUE MODEL EK-15R, OR EQUAL. BOTH PURCHASE DESCRIPTIONS SET FORTH IN DETAIL THE SALIENT CHARACTERISTICS OF THE ITEMS DESIRED, AND THE SCHOOLS IN WHICH THE OVENS ARE TO BE INSTALLED WERE IDENTIFIED.

ELECTRICAL REQUIREMENTS IN THE IFB READ AS FOLLOWS:

"ELECTRICAL REQUIREMENTS FOR PLUG-IN EQUIPMENT: ALL PLUG-IN EQUIPMENT HEREIN SHALL BE SUITABLE FOR OPERATION ON 208 VOLTS OR 110 120 VOLTS, 60 CYCLE, THREE PHASE, ALTERNATING CURRENT, AND SHALL BE EQUIPPED WITH GROUNDING CONNECTIONS CONSISTING OF 3 WIRE CORD, 3 PRONG PLUG, AND A TWO PRONG ADAPTER FOR A STANDARD DUPLEX OUTLET. ALL EQUIPMENT SHALL BE IN STRICT ACCORDANCE WITH THE ELECTRICAL CODE OF THE DISTRICT AND THE CONTRACTOR SHALL PROVIDE A CERTIFICATE OF INSPECTION AND APPROVAL FROM THE ELECTRICAL ENGINEER, D.C., ROOM 604, PRESIDENTIAL BUILDING, 415 12TH STREET, N.W., WASHINGTON, D.C.

"THE CONTRACTOR MAY PROVIDE A CERTIFICATE OF INSPECTION AND APPROVAL FROM UNDERWRITERS LABORATORIES (U.L.) OR OTHER ACCEPTABLE INSPECTING AND APPROVING AGENCIES IN LIEU OF THE ABOVE CERTIFICATE."

THE INSTRUCTIONS TO BIDDERS INCLUDED THE FOLLOWING PERTINENT PARAGRAPHS:

"6. BIDS FOR ALL OR PART: - UNLESS OTHERWISE SPECIFIED BY THE DISTRICT OR BY THE BIDDER, THE PROCUREMENT OFFICER RESERVES THE RIGHT TO MAKE AWARD ON ALL ITEMS, OR ON ANY OF THE ITEMS ACCORDING TO THE BEST INTERESTS OF THE DISTRICT. BIDDER MAY RESTRICT HIS BID TO CONSIDERATION IN THE AGGREGATE BY SO STATING, BUT SHOULD NAME A UNIT PRICE ON EACH ITEM BID UPON; ANY BID IN WHICH THE BIDDER NAMES A TOTAL PRICE FOR ALL THE ARTICLES WITHOUT QUOTING A PRICE ON EACH AND EVERY SEPARATE ITEM, MAY BE CONSIDERED INFORMAL.

"12. AWARD OR REJECTION OF BIDS: - THE CONTRACT WILL BE AWARDED THE LOWEST RESPONSIBLE BIDDER COMPLYING WITH ALL THE PROVISIONS OF THE INVITATION, PROVIDED THE BID PRICE IS REASONABLE AND IT IS TO THE INTEREST OF THE DISTRICT TO ACCEPT IT. THE PROCUREMENT OFFICER RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS AND TO WAIVE ANY INFORMALITY IN BIDS RECEIVED WHENEVER SUCH REJECTION OR WAIVER IS IN THE INTEREST OF THE DISTRICT. THE PROCUREMENT OFFICER ALSO RESERVES THE RIGHT TO REJECT THE BID OF A BIDDER WHO HAS PREVIOUSLY FAILED TO PERFORM PROPERLY OR COMPLETE ON TIME CONTRACTS OF A SIMILAR NATURE, OR A BID OF A BIDDER WHO INVESTIGATION SHOWS IS NOT IN A POSITION TO PERFORM THE CONTRACT. THE PROCUREMENT OFFICER ALSO RESERVES THE RIGHT TO ACCEPT ANY BID WITHIN THIRTY (30) DAYS FROM THE DATE OF OPENING UNLESS A SHORTER TIME IS STATED THEREIN BY THE BIDDER, BUT ANY BID ON WHICH THE TIME OF ACCEPTANCE IS RESTRICTED TO LESS THAN TEN (10) DAYS MAY BE REJECTED SOLELY FOR THAT REASON. IT IS IMPRACTICAL TO FURNISH BIDDERS WITH AN ABSTRACT OF BIDS RECEIVED. TABULATIONS OF ALL BIDS RECEIVED ARE DULY RECORDED AND MAY BE INSPECTED AT ANY TIME IN ROOM 1001, 613 G STREET, N.W., WASHINGTON, D. C. 20001.

"14. WALSH-HEALEY ACT: - IF YOUR BID IS $10,000, OR MORE, THE FOLLOWING INFORMATION MUST BE FURNISHED (SEE PARAGRAPH 4 (C), (GENERAL CONDITIONS):

"(1) STATE WHETHER A 'MANUFACTURER' OR 'REGULAR DEALER' AS DEFINED IN THE ACT:

(HERE STATE)

"(2) IF A MANUFACTURER: - STATE WHERE THE MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT ARE TO BE MANUFACTURED OR SUPPLIED:

NAME AND LOCATION OF PLANT OR PLANTS

"(3) IF A REGULAR DEALER: - STATE LOCATION OF ESTABLISHMENT IN WHICH MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT OF THE GENERAL CHARACTER DESCRIBED BY THIS PROPOSAL ARE BOUGHT, KEPT IN STOCK, AND SOLD TO THE PUBLIC IN THE USUAL COURSE OF BUSINESS.

GIVE STREET AND NUMBER - CITY AND STATE

"(4) IF A REGULAR DEALER: - STATE WHERE THE MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT ARE TO BE MANUFACTURED OR SUPPLIED:

GIVE STREET AND NUMBER - CITY AND STATE"

A DATA CLAUSE IN THE SPECIAL CONDITIONS OF THE IFB CALLED FOR THE FURNISHING, WITH BIDS, OF SUFFICIENT DESCRIPTIVE LITERATURE AND TECHNICAL DATA TO ADEQUATELY DESCRIBE THE EQUIPMENT PROPOSED TO BE FURNISHED, AND CAUTIONED, "FAILURE OF ANY BIDDER TO SUBMIT THIS INFORMATION WITH HIS BID MAY RENDER HIS BID INFORMAL IN WHICH EVENT NO CONSIDERATION WILL BE GIVEN THERETO."

ON APRIL 23, THE TWO BIDS RECEIVED IN RESPONSE TO THE ABOVE IFB WERE OPENED AS SCHEDULED. A BID FROM YOUR FIRM, IN THE TOTAL AMOUNT OF $40,333, SUBJECT TO A PROMPT PAYMENT DISCOUNT OF 1/2 PERCENT 10 DAYS, OFFERED THE SPECIFIED BLODGETT MODELS FOR ALL OVENS BUT PROVIDED NO DESCRIPTIVE DATA ON THE EQUIPMENT. A BID FROM DISTRICT EQUIPMENT, IN THE TOTAL AMOUNT OF $32,535.96, NET, OFFERED THE MONTAGUE MODEL 2EK-15R FOR THE 11 ROLL-IN OVENS AND MONTAGUE MODEL EK 15A IN LIEU OF MODEL EK 15R FOR THE 12TH OVEN. DESCRIPTIVE LITERATURE FURNISHED WITH DISTRICT EQUIPMENT'S BID COVERED BOTH ITEMS AND SHOWED THAT MODEL EK 15A BEARS THE "UL" APPROVAL SEAL.

A LETTER ATTACHED TO DISTRICT EQUIPMENT'S BID STATED THAT THE BIDDER HAD MADE A PERSONAL INVESTIGATION OF THE JOB SITES AND HAD ASCERTAINED THAT SOME OF THE SCHOOLS WERE WITHOUT THREE PHASE POWER. THE LETTER FURTHER STATED THAT THE BIDDER WOULD THEREFORE PROVIDE OVENS TO OPERATE ON THREE PHASE POWER FOR THE SCHOOLS SO EQUIPPED, AND OVENS TO OPERATE ON SINGLE PHASE POWER FOR OTHER SCHOOLS.

IN LIGHT OF NOTICE OF A POSSIBLE DISCREPANCY IN THE SPECIFICATIONS, THE PROCUREMENT OFFICE REQUESTED YOU TO CONFIRM YOUR BID AND WAS ADVISED IN YOUR LETTER OF MAY 6 AS FOLLOWS:

"IN REFERENCE TO OUR BID SUBMITTED UNDER THE SUBJECT INVITATION, AFTER MAKING A PERSONAL INVESTIGATION OF ALL SCHOOLS, ACCOMPANIED BY A LICENSED ELECTRICAL CONTRACTOR, WE FOUND THAT NONE OF THE SCHOOLS HAD ENOUGH THREE PHASE POWER ADJACENT TO THE LOCATIONS DESIGNATED FOR THE INSTALLATION OF THE OVENS, THOUGH SOME HAD SINGLE PHASE POWER NEARBY.

"AT THIS POINT WE PROCEEDED TO MEASURE FROM THE NEAREST SOURCE OF AVAILABLE THREE PHASE POWER AND ESTIMATED OUR COSTS ACCORDINGLY, TO WIRE AND PROVIDE ALL NECESSARY SWITCHES, ETC., AS PER PARAGRAPH 3, PAGE 5 OF THE SPECIAL CONDITIONS, IN ORDER FOR THE OVENS TO OPERATE ON 208/220 VOLTS, THREE PHASE POWER ALL IN STRICT ACCORDANCE WITH YOUR SPECIFICATIONS.

"WE FEEL YOU SHOULD KNOW THAT TWO SCHOOLS DO NOT HAVE THREE PHASE POWER AT THE PRESENT TIME, AND THAT IN THESE INSTANCES WE HAVE CONTEMPLATED FURNISHING ALL NECESSARY WIRING, IN STRICT ACCORDANCE WITH YOUR SPECIFICATIONS, FROM THE LOCATION OF THE OVENS TO THE SWITCH WHICH WE WILL INSTALL NEXT TO MAIN ELECTRIC PANEL. IT WAS NOT REQUESTED OF US, AND IT IS BEYOND OUR POWER, TO ARRANGE WITH THE POTOMAC ELECTRIC POWER COMPANY TO BRING ELECTRIC CURRENT TO THESE TWO SWITCHES WE ARE GOING TO INSTALL.

"THIS LETTER THEREFORE CONFIRMS OUR PRICE BID IN THE AMOUNT OF $40,333.00 TO DELIVER AS SPECIFIED, AND 'ALL EQUIPMENT SPECIFIED SHALL BE FURNISHED, DELIVERED, SET UP, COMPLETE AND READY FOR USE AND INSTALLED AS NECESSARY.'

ON MAY 24, THE PUBLIC SCHOOLS NOTIFIED THE PROCUREMENT OFFICE AS FOLLOWS:

"UNDER ELECTRICAL REQUIREMENTS, CHANGE TO READ THAT, ALL PLUG-IN EQUIPMENT HEREIN SHALL BE SUITABLE FOR OPERATION WHERE 208 VOLTS, 60 CYCLE, THREE PHASE, ALTERNATING CURRENT, EXISTS AT THE MAIN, AND SHALL BE EQUIPPED WITH GROUNDING CONNECTION CONSISTING OF 3 WIRE CORD, 3 PRONG PLUG. THOSE SCHOOLS WITHOUT THREE PHASE SHALL BE 208, SINGLE PHASE."

IN VIEW OF THE FOREGOING, THE PROCUREMENT OFFICER DETERMINED THAT THE INTERESTS OF THE DISTRICT OF COLUMBIA AND OF THE BIDDERS WOULD BE BEST SERVED BY REJECTING ALL BIDS AND READVERTISING THE PROCUREMENT UNDER REVISED SPECIFICATIONS. OFFICIAL REJECTION OF THE BIDS WAS ACCORDINGLY EFFECTED ON MAY 24.

THE SECOND IFB, DATED JUNE 2, 1971, LISTED THE SAME 12 SCHOOLS AS THE ORIGINAL IFB BUT INDICATED THAT TEN OF THE SCHOOLS HAVE THREE PHASE POWER WHILE TWO HAVE ONLY SINGLE PHASE POWER. THE ELECTRICAL REQUIREMENTS SPECIFIED THAT EQUIPMENT SHALL BE SUITABLE FOR OPERATION WITH THREE PHASE CURRENT WHERE INDICATED AND THAT FOR SCHOOLS WITHOUT THREE PHASE CURRENT THE EQUIPMENT SHALL BE 208 VOLTS, SINGLE PHASE. ALL EQUIPMENT IS REQUIRED TO BE IN STRICT ACCORDANCE WITH THE ELECTRICAL CODE OF THE DISTRICT OF COLUMBIA, AND THE CONTRACTOR IS REQUIRED TO PROVIDE A CERTIFICATE OF INSPECTION AND APPROVAL FROM THE ELECTRICAL ENGINEER FOR THE DISTRICT.

THE SECOND IFB INCLUDES FIVE ADDITIONAL ITEMS COVERING A TOTAL OF 24 OVENS. THESE OVENS ARE TO BE DELIVERED TO STORAGE SINCE INSTALLATION IS NOT PRESENTLY REQUIRED.

THE PURCHASE DESCRIPTIONS IN THE SECOND IFB ARE AS DETAILED AS THE DESCRIPTIONS IN THE ORIGINAL IFB EXCEPT THAT THE BRAND NAME "OR EQUAL" LANGUAGE HAS BEEN DELETED. FURTHER, EACH DESCRIPTION SPECIFIES THAT THE OVEN FURNISHED SHALL BE CAPABLE OF RECEIVING WIRE BASKETS NOW IN USE IN THE PUBLIC SCHOOLS IN THE APPROXIMATE SIZE STATED IN THE DESCRIPTION.

AS IN THE ORIGINAL IFB, THE INSTRUCTIONS TO BIDDERS INCLUDE PARAGRAPHS 6, 12 AND 14 QUOTED ABOVE, AND THE SPECIAL CONDITIONS INCLUDE A DATA REQUIREMENT.

ON JUNE 28 THE BIDS RECEIVED IN RESPONSE TO THE SECOND IFB WERE OPENED. YOUR FIRM SUBMITTED TWO BIDS. ONE OF YOUR BIDS OFFERED THE BLODGETT MODELS SPECIFIED IN THE ORIGINAL IFB, WAS ACCOMPANIED BY DESCRIPTIVE DATA SHOWING THE "UL" SEAL OF APPROVAL FOR THE BLODGETT EQUIPMENT, AND QUOTED THE LOWEST UNIT PRICES ON ITEMS 4, 6 AND 9, AND A TOTAL PRICE OF $75,287.52, AFTER DISCOUNT, FOR ALL ITEMS. YOUR OTHER BID QUOTED A TOTAL OF $60,982.02, AFTER DISCOUNT, FOR ALL ITEMS, BUT IT OFFERED EQUIPMENT WHICH DID NOT MEET THE SPECIFICATIONS FOR ITEMS 1 THROUGH 12 AND ITEMS 14 THROUGH 17, AND IT WAS THEREFORE ELIMINATED FROM CONSIDERATION FOR AWARD.

THE BID SUBMITTED BY DISTRICT EQUIPMENT DID NOT REFLECT THE NAME OF THE MANUFACTURER OF THE EQUIPMENT OFFERED OR THE PLACE OF MANUFACTURE. SHOWED UNIT PRICES FOR ALL ITEMS AND A TOTAL PRICE OF $62,681.06. FURTHER, IT CARRIED THE NOTATIONS, "ITEMS 1 THROUGH 12 ALL OR NONE, AS SPECIFICATIONS" AND "BID ALL ITEMS AS SPECIFICATIONS ITEMS 13 THROUGH 17 ALL OR NONE."

THE FOURTH BID, FROM STANDARD STORE EQUIPMENT CO., INC. (STANDARD), BALTIMORE, MARYLAND, BORE NO NOTATIONS AND DID NOT INDICATE ANY EXCEPTION TO THE SPECIFICATIONS. LIKE THE DISTRICT EQUIPMENT BID, IT WAS NOT ACCOMPANIED BY DESCRIPTIVE DATA, NOR DID IT REFLECT THE NAME OF THE MANUFACTURER OF THE EQUIPMENT OFFERED. HOWEVER, IT SHOWED BURLINGTON, VERMONT, AS THE PLACE OF MANUFACTURE. THIS BID WAS NOT LOWEST ON ANY OF THE ITEMS, BUT IT WAS LOWER THAN YOUR BID AS TO ITEMS 2, 11, 13, 16 AND 17. THE TOTAL BID, AFTER DISCOUNT, WAS $76,026.47. CONSIDERATION OF THE LOWEST ITEM BY ITEM PRICES QUOTED BY YOU AND BY STANDARD SHOWED THAT THE LOWEST PRICE FOR WHICH ALL ITEMS COULD BE PROCURED ON SUCH BASIS WAS $73,322.88, OR $10,641.82 MORE THAN THE TOTAL BID PRICE OF DISTRICT EQUIPMENT.

IN CONSIDERING THE DISTRICT EQUIPMENT BID FOR AWARD, THE PROCUREMENT OFFICER TOOK NOTE OF THE ABSENCE FROM THE BID OF ANY DESCRIPTIVE DATA. THE BASIS, HOWEVER, THAT THE DATA SUBMITTED WITH THE ORIGINAL BID ADEQUATELY INDICATED THAT THE EQUIPMENT OFFERED BY DISTRICT EQUIPMENT WOULD MEET THE SPECIFICATIONS, THIS OMISSION IN THE SECOND BID WAS WAIVED AS A MINOR DEVIATION. ACCORDINGLY, AWARD TO DISTRICT EQUIPMENT WAS MADE ON JUNE 30 WITH APPROVAL OF THE CONTRACT REVIEW COMMITTEE FOR THE PUBLIC SCHOOLS. FURTHER, A COPY OF THE PURCHASE REQUISITION ISSUED BY THE PUBLIC SCHOOLS TO THE CONTRACTOR ON THE SAME DATE SHOWS THAT MONTAGUE EQUIPMENT WAS ORDERED.

WE HAVE BEEN ADVISED BY THE PROCUREMENT OFFICE THAT THE 12 SCHOOLS NAMED IN THE IFB HAVE NEED FOR THE OVENS COMMENCING SEPTEMBER 20; THAT ALL BUT MINOR ELECTRICAL WORK REQUIRED FOR OPERATION OF THE OVENS HAS BEEN COMPLETED; THAT ALL OF THE OVENS HAVE BEEN DELIVERED TO THE CONTRACTOR; AND THAT INSTALLATION IS NOW IN PROGRESS AND WILL BE COMPLETED AS DIRECTED BY THE PUBLIC SCHOOLS.

WE HAVE BEEN FURTHER ADVISED BY THE PROCUREMENT OFFICE THAT THE DELETION FROM THE SECOND IFB OF THE REQUIREMENT FOR CERTIFICATION AND APPROVAL OF THE OVENS BY THE UNDERWRITERS LABORATORY OR OTHER SIMILAR AGENCY WAS EFFECTED AT THE REQUEST OF THE ELECTRICAL ENGINEER FOR THE DISTRICT OF COLUMBIA, WHO CONSIDERS COMPLIANCE WITH THE DISTRICT ELECTRICAL CODE A NECESSITY, IRRESPECTIVE OF WHETHER THE EQUIPMENT HAS UL APPROVAL. ADDITION, WE ARE INFORMED THAT THE BRAND NAME OR EQUAL LANGUAGE WAS DELETED FROM THE PURCHASE DESCRIPTIONS ON THE BASIS THAT THE DESCRIPTIONS WERE CONSIDERED TO BE SUFFICIENTLY DETAILED TO ADEQUATELY DESCRIBE THE PROCUREMENT NEEDS, AND THAT IN MAKING THIS CHANGE IN THE IFB THE DATA REQUIREMENT WAS OVERLOOKED BY THE PROCUREMENT OFFICE.

THE FEDERAL PROCUREMENT REGULATIONS (FPR) SET FORTH THE POLICIES AND PROCEDURES WHICH GENERALLY GOVERN COMPETITIVE BIDDING. ALTHOUGH THOSE REGULATIONS ARE NOT MANDATORY ON THE DISTRICT OF COLUMBIA, WE HAVE STATED THAT THE PROCUREMENT PROCEDURES APPLICABLE TO THE DISTRICT SHOULD BE COMPARABLE TO, AND IN CONSONANCE WITH, THE PROCEDURES WHICH ARE BINDING UPON FEDERAL PROCUREMENT OFFICERS. B-167917, DECEMBER 16, 1969; B-157951, FEBRUARY 1, 1966.

CONSIDERING FIRST THE PROPRIETY OF THE CANCELLATION OF THE ORIGINAL BID INVITATION, FPR 1-2.404-1, RELATING TO THE CANCELLATION OF INVITATIONS FOR BIDS AFTER OPENING, READS, IN PERTINENT PART, AS FOLLOWS:

"1-2.404-1 CANCELLATION OF INVITATION AFTER OPENING.

"(A) PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM DICTATES THAT, AFTER BIDS HAVE BEEN OPENED, AWARD MUST BE MADE TO THAT RESPONSIBLE BIDDER WHO SUBMITTED THE LOWEST RESPONSIVE BID, UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION. EVERY EFFORT SHALL BE MADE TO ANTICIPATE CHANGES IN A REQUIREMENT PRIOR TO THE DATE OF OPENING AND TO NOTIFY ALL PROSPECTIVE BIDDERS OF ANY RESULTING MODIFICATION OR CANCELLATION, THEREBY PERMITTING BIDDERS TO CHANGE THEIR BIDS AND PREVENTING UNNECESSARY EXPOSURE OF BID PRICES. AS A GENERAL RULE, AFTER OPENING, AN INVITATION FOR BIDS SHOULD NOT BE CANCELLED AND READVERTISED DUE SOLELY TO INCREASED REQUIREMENTS FOR THE ITEMS BEING PROCURED. AWARD SHOULD BE MADE ON THE INITIAL INVITATION FOR BIDS AND THE ADDITIONAL QUANTITY SHOULD BE TREATED AS A NEW PROCUREMENT.

"(B) INVITATIONS FOR BIDS MAY BE CANCELLED AFTER OPENING BUT PRIOR TO AWARD, AND ALL BIDS REJECTED, WHERE SUCH ACTION IS CONSISTENT WITH SEC 1- 2.404-1(A) AND THE CONTRACTING OFFICER DETERMINES IN WRITING THAT CANCELLATION IS IN THE BEST INTEREST OF THE GOVERNMENT FOR REASONS SUCH AS THE FOLLOWING:

"(1) INADEQUATE, AMBIGUOUS, OR OTHERWISE DEFICIENT SPECIFICATIONS WERE CITED IN THE INVITATION FOR BIDS."

THE RECORD ESTABLISHES THAT THE REQUIREMENT IN THE ORIGINAL IFB THAT EQUIPMENT SUITABLE FOR OPERATION WITH THREE PHASE POWER BE FURNISHED FOR ALL 12 SCHOOLS LISTED IN THE IFB WAS INCORRECT, INASMUCH AS TWO OF THE SCHOOLS WERE EQUIPPED WITH SINGLE PHASE POWER ONLY. IN THE CIRCUMSTANCES, IT IS OUR VIEW THAT THE SPECIFICATIONS WERE DEFECTIVE, A FACT OF WHICH BOTH BIDDERS WERE AWARE, AND CANCELLATION OF THE IFB AND READVERTISEMENT OF THE PROCUREMENT WERE THEREFORE IN ACCORD WITH THE RULES OF COMPETITIVE BIDDING AS REFLECTED IN FPR 1-2.404-1.

FPR 1-12.603, RELATING TO DETERMINATIONS OF ELIGIBILITY AS MANUFACTURER OR DEALER, PROVIDES THAT QUALIFICATION AS A REGULAR DEALER OR MANUFACTURER MUST BE ESTABLISHED BEFORE AWARD. PURSUANT TO SUCH PROVISIONS, DISTRICT EQUIPMENT COULD PROPERLY BE PERMITTED TO SUPPLY INFORMATION AS TO ITS OWN STATUS FOR THE PURPOSE OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35-45, ANY TIME PRIOR TO AWARD. SINCE DISTRICT EQUIPMENT DID, IN FACT, INDICATE IN ITS BID THAT IT IS A REGULAR DEALER, THE REQUIREMENTS OF THE IFB AND OF THE STATUTE WERE MET. THE ADDITIONAL INFORMATION REQUESTED BY THE BID FORM AS TO THE PLACE OF MANUFACTURE OF THE EQUIPMENT OFFERED BY REGULAR DEALERS IS SUCH AS COULD ALSO BE FURNISHED UP TO THE DATE OF AWARD SINCE IT DOES NOT RELATE TO THE RESPONSIVENESS OF THE BID. 49 COMP. GEN. 553 (1970). IN ANY EVENT, IT IS EVIDENT FROM THE FACT THAT MONTAGUE OVENS WERE SPECIFIED IN THE PUBLIC SCHOOLS PURCHASE REQUISITION ISSUED TO DISTRICT EQUIPMENT ON THE DATE OF AWARD THAT THE PROCUREMENT OFFICE WAS AWARE OF THE IDENTITY OF THE MANUFACTURER, WHOSE PLACE OF BUSINESS IS LOCATED IN SAN LEANDRO, CALIFORNIA.

REGARDING THE ISSUE OF COMPLIANCE WITH THE IFB DESCRIPTIVE DATA PROVISIONS, WE HAVE STATED THAT AN INVITATION SHOULD NOT SOLICIT UNNECESSARY INFORMATION. ACCORDINGLY, WHERE AN INVITATION INCLUDES A REQUEST FOR INFORMATION WHICH DOES NOT MATERIALLY CONTRIBUTE TO PROPER EVALUATION OF BIDS, WE HAVE HELD THAT THE ABSENCE OF THE INFORMATION FROM A BID DOES NOT RENDER IT NONRESPONSIVE. 49 COMP. GEN. 311 (1969).

WHERE DESCRIPTIVE DATA IS REQUIRED FOR DETERMINING THE RESPONSIVENESS OF A BID, THE INVITATION MUST CLEARLY ESTABLISH THE NATURE AND EXTENT OF THE DESCRIPTIVE MATERIAL ASKED FOR, THE PURPOSE INTENDED TO BE SERVED BY SUCH DATA, AND PARTICULARLY WHETHER ALL DETAILS OF SUCH DATA WILL BE CONSIDERED AN INTEGRAL PART OF THE AWARDED CONTRACT. 38 COMP. GEN. 59, 64 (1958). THESE RULES ARE CONSISTENT WITH THE PRINCIPLE THAT REQUIREMENTS OF AN INVITATION SHOULD BE SET FORTH CLEARLY AND ACCURATELY IN ORDER TO PERMIT BIDDERS TO COMPETE ON AN EQUAL FOOTING. 17 COMP. GEN. 789 (1938). (THE DESCRIPTIVE DATA CLAUSE PRESCRIBED IN FPR 1-2.202-5(D) COMPLIES WITH THE FOREGOING.)

THE RECORD IN THIS CASE DOES NOT INCLUDE ANY JUSTIFICATION FOR THE DATA REQUIREMENT SUCH AS IS REQUIRED BY FPR 1-2.202-5(C). FURTHER, EVEN IF THE REQUIREMENT COULD BE JUSTIFIED, THE PROVISION IN THE IFB WAS DEFECTIVE SINCE IT DID NOT IDENTIFY THE AREAS AS TO WHICH THE DATA WAS REQUIRED, ITS PURPOSE AND ITS EFFECT ON BID EVALUATION. IN ADDITION, WE QUESTION THE NEED FOR THE REQUIREMENT IN LIGHT OF THE FACT THAT THE PURCHASE DESCRIPTIONS APPEAR TO HAVE DELINEATED THE PROCUREMENT NEEDS WITH PARTICULARITY AND LEFT NOTHING FOR BIDDERS TO DESCRIBE. IN THIS CONNECTION, WE BELIEVE THE FOLLOWING LANGUAGE FROM 46 COMP. GEN. 315, 318 (1966) IS PERTINENT TO THIS PROCUREMENT:

"FURTHERMORE, WHILE IT IS NOT CLEAR WHAT WAS EXPECTED OF BIDDERS WITH RESPECT TO DESCRIBING PERFORMANCE CHARACTERISTICS, THE COMMENTS OF THE AGENCY REGARDING THE DEFICIENCIES IN YOUR BID WITH RESPECT TO CERTAIN PARAGRAPHS OF THE PURCHASE DESCRIPTION INDICATE IT EXPECTED BIDDERS TO RENDER THEIR BIDS RESPONSIVE MERELY BY AFFIRMING THAT THEIR EQUIPMENT WOULD INDEED MEET THE REQUIREMENTS OF THE PURCHASE DESCRIPTION WHICH THEY WOULD HAVE BEEN REQUIRED TO HAVE MET WITHOUT SUCH A SUPERFLUOUS AFFIRMATION. IF THE REQUIREMENT FOR DESCRIPTIVE LITERATURE CAN BE MET BY PARROTING BACK THE GOVERNMENT SPECIFICATIONS, THE LEGITIMACY OF THAT REQUIREMENT IS QUESTIONABLE. B-150622, DATED JUNE 6, 1963. THE LEGITIMACY OF THE REQUIREMENT CERTAINLY IS NOT HERE ESTABLISHED, AS IT SHOULD BE, BY THE 'JUSTIFICATION FOR DESCRIPTIVE LITERATURE,' WHICH DOES LITTLE MORE THAN STATE A CONCLUSION THAT DESCRIPTIVE LITERATURE IS REQUIRED, AND FURNISHES NO STANDARDS FOR OR IDENTIFICATION OF PERFORMANCE CHARACTERISTICS WHICH MIGHT BE DESCRIBED, EXCEPT TO THE EXTENT SUCH ELEMENTS ARE ALREADY SPECIFICALLY PRESCRIBED BY THE PURCHASE DESCRIPTION REQUIREMENTS. 46 COMP. GEN. 1, SUPRA; B-159579, DATED JULY 20, 1966."

THE RECORD FURTHER ESTABLISHES THAT WHILE YOUR BID WAS THE ONLY BID WHICH WAS ACCOMPANIED BY DESCRIPTIVE DATA, NO BID TOOK EXCEPTION TO ANY OF THE DETAILED PROCUREMENT REQUIREMENTS SET FORTH IN THE PURCHASE DESCRIPTIONS. THE ACCEPTANCE, THEREFORE, OF EITHER OF THE BIDS WHICH WERE NOT ACCOMPANIED BY DESCRIPTIVE DATA WOULD HAVE BOUND THE BIDDER (DISTRICT EQUIPMENT OR STANDARD) TO FURNISH EQUIPMENT IN COMPLIANCE WITH THE SPECIFICATIONS TO THE SAME EXTENT AS YOU WOULD HAVE BEEN BOUND BY AN AWARD BASED ON YOUR BID. IN THE CIRCUMSTANCES, WE BELIEVE THAT IT CANNOT BE SAID THAT THE DISREGARD BY THE PROCUREMENT OFFICE OF THE DEFECTIVE DATA REQUIREMENT IN THE EVALUATION OF THE BIDS CONFERRED ANY UNDUE ADVANTAGE ON ANY BIDDER. 49 COMP. GEN. 398, 401 (1969).

WITH RESPECT TO THE DELETION FROM THE SECOND IFB OF THE PROVISION REQUIRING UL, OR SIMILAR, CERTIFICATION AND APPROVAL OF THE EQUIPMENT OFFERED BY BIDDERS, YOU ARE ADVISED THAT THERE IS NO REQUIREMENT IN THE FPR THAT SUCH A PROVISION BE INCORPORATED IN PROCUREMENT SOLICITATIONS. MORE IMPORTANT, WE HAVE STATED THAT IN ANY CASE IN WHICH REGULAR ESTABLISHED INSPECTION FACILITIES OF THE GOVERNMENT ARE ADEQUATE TO INSURE THAT A PROPER DETERMINATION MAY BE MADE AS TO WHETHER EQUIPMENT PROPOSED BY BIDDERS FULLY MEETS THE REQUIREMENTS OF THE SPECIFICATIONS, THE PRACTICE OF REQUIRING APPROVAL BY PRIVATE LABORATORIES SUCH AS UL SHOULD NOT BE FOLLOWED BY GOVERNMENT AGENCIES. B-116236, DECEMBER 5, 1955. WHERE CONFORMANCE TO APPROPRIATE SAFETY STANDARDS IS A FACTOR IN A PROCUREMENT, WE HAVE STATED THAT AN INVITATION MAY PROPERLY INCLUDE A PROVISION FOR ACCEPTANCE OF APPROVAL OF PRODUCTS BY ANY NATIONALLY RECOGNIZED TESTING AGENCY ADEQUATELY EQUIPPED AND COMPETENT TO PERFORM THE SERVICES. 36 COMP. GEN. 425 (1956). THE DETERMINATION AS TO WHETHER SUCH A PROVISION SHOULD BE USED RESTS, OF COURSE, WITH THE CONTRACTING AGENCY. THE GOVERNMENT SHOULD NOT BE PLACED IN THE POSITION OF HAVING UNNECESSARILY COMMITTED ITSELF TO THE ACCEPTANCE OF EQUIPMENT BEARING THE APPROVAL OF AN INDEPENDENT TESTING LABORATORY, BUT WHICH MAY NOT ACTUALLY MEET THE REQUIREMENTS OF THE CONTRACT AWARDED TO THE SUCCESSFUL BIDDER. 116236, SUPRA.

IN THIS PROCUREMENT, THE DISTRICT OF COLUMBIA HAS DETERMINED THAT COMPLIANCE WITH ITS OWN ELECTRICAL CODE, FOR WHICH PURPOSE INSPECTION AND APPROVAL BY ITS ELECTRICAL ENGINEER IS REQUIRED, IS AN ABSOLUTE REQUIREMENT FOR THE OVENS IN QUESTION AND THAT THERE IS NO NEED FOR ANY ADDITIONAL APPROVAL BY UL OR SIMILAR AGENCY. WE SEE NOTHING OF RECORD WHICH WOULD WARRANT QUESTIONING THE DISTRICT'S JUDGMENT IN THIS REGARD.

AS TO THE "ALL OR NONE" QUALIFICATIONS IN DISTRICT EQUIPMENT'S BID, IT IS CLEAR THAT THE LANGUAGE OF PARAGRAPH 6 OF THE INSTRUCTIONS TO BIDDERS, WHICH WAS NOT NEGATED BY ANY OTHER PROVISION OF THE IFB, PERMITS SUCH BIDDING AND ALSO RESERVES TO THE DISTRICT THE RIGHT TO MAKE AWARD, EITHER IN THE AGGREGATE OR SEPARATELY, ACCORDING TO ITS BEST INTERESTS. 168596, JANUARY 19, 1970.

DISTRICT EQUIPMENT'S BID, WHICH COULD BE CONSIDERED ONLY IN THE AGGREGATE FOR EITHER OR BOTH OF THE TWO SPECIFIED GROUPS OF ITEMS IN VIEW OF THE "ALL OR NONE" NOTATIONS, WAS MORE THAN $10,000 LESS FOR THE 17 BID ITEMS THAN THE LOWEST COMBINATION OF INDIVIDUAL ITEM PRICES QUOTED BY YOUR FIRM AND BY STANDARD. ACCORDINGLY, EVEN THOUGH YOUR BID AS TO THREE OF THE ITEMS WAS LOWER THAN THE PRICES LISTED BY DISTRICT EQUIPMENT FOR THE SAME ITEMS, WE ARE UNABLE TO CONCLUDE THAT THE DECISION BY THE DISTRICT THAT ITS INTERESTS WOULD BEST BE SERVED BY AWARD OF ALL 17 ITEMS TO DISTRICT EQUIPMENT WAS WITHOUT A PROPER BASIS. SEE 42 COMP. GEN. 746 (1963) AND DECISIONS THEREIN CITED.

IN LINE WITH THE FOREGOING, WE DO NOT FIND THAT THE RECORD SUPPORTS YOUR POSITION THAT THE IFB WAS DEFECTIVE, OR THAT THE BID OF DISTRICT EQUIPMENT WAS NOT RESPONSIVE TO THE IFB. ACCORDINGLY, WE SEE NO LEGAL BASIS TO OBJECT TO THE AWARD TO DISTRICT EQUIPMENT. YOUR PROTEST IS THEREFORE DENIED.