B-152889, JAN. 8, 1964

B-152889, JAN. 8, 1964

TO ERIE ENGINE AND MFG. COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 12, 1963, PROTESTING THAT DESPITE THE LOW BIDS YOUR COMPANY SUBMITTED ON A 200-TON HYDRAULIC PRESS AND A RUBBER MIXING MILL, WHICH WERE INCLUDED AS ITEMS 1 AND 4, RESPECTIVELY, IN INVITATION FOR BIDS AMC/A/-18-108-63-594, IT WAS NOT AWARDED A CONTRACT FOR THOSE ARTICLES.

THE PURCHASE DESCRIPTION IN THE INVITATION FOR BIDS REQUIRED THAT THE ARTICLES BE A SPECIFIED BRAND OR EQUAL. PARAGRAPH (C) (1) OF THE "BRAND NAME OR EQUAL" PROVISION IN THE INVITATION CAUTIONED BIDDERS PROPOSING TO SUPPLY PRODUCTS EQUAL TO THE BRANDS SPECIFIED TO FURNISH AS A PART OF THEIR BIDS ALL DESCRIPTIVE MATERIAL---

"* * * NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. * * *

YOUR COMPANY BID ON ALL FOUR ITEMS INCLUDED IN THE INVITATION FOR BIDS. IT DID NOT OFFER TO FURNISH THE BRANDS SPECIFIED. RATHER IT INDICATED IN RESPONSE TO EVERY ITEM THAT IT WOULD BE THE MANUFACTURER OF THE ARTICLE. HOWEVER, DESPITE THE ADMONITION ON THE INVITATION FOR BIDS THAT DESCRIPTIVE LITERATURE MUST BE FURNISHED WITH BIDS ON "OR EQUAL" PRODUCTS, NO DESCRIPTIVE MATERIAL ACCOMPANIED YOUR COMPANY'S BID.

BY VIRTUE OF HAVING FAILED TO CONFORM TO THE REQUIREMENTS OF THE "BRAND NAME OR EQUAL" PROVISION, YOUR COMPANY BY ITS OWN ACTION DISQUALIFIED ITSELF FROM RECEIVING AN AWARD UNDER THE INVITATION FOR BIDS, SINCE IT HAS BEEN THE VIEW OF OUR OFFICE THAT WHEN AN INVITATION FOR BIDS MAKES IT CLEAR THAT DATA REQUIRED TO BE FURNISHED WILL BE USED IN EVALUATING BIDS SUCH PROVISION IS TO BE ENFORCED STRICTLY AND THE FAILURE TO FURNISH SUCH DATA WITH THE BID IS TO RESULT IN REJECTION OF THE BID.

HOWEVER, WHILE THE BID FROM YOUR COMPANY WAS NONRESPONSIVE, IT HAS BEEN ASCERTAINED THAT THE PURCHASE DESCRIPTION IN THE INVITATION FOR BIDS FOR ITEM 2 WAS AMBIGUOUS IN THAT WHILE IT SPECIFIED A PARTICULAR BRAND IT DID NOT SPECIFY THE PARTICULAR MODEL DESIRED OF WHICH THERE IS MORE THAN ONE. PARAGRAPH 2-404.1 OF THE ARMED SERVICES PROCUREMENT REGULATION PERMITS CANCELLATION OF AN INVITATION AFTER OPENING WHEN THE SPECIFICATIONS IN THE INVITATION ARE AMBIGUOUS OR INADEQUATE. FURTHER, PARAGRAPH NO. 7 IN THE INVITATION SCHEDULE REQUIRED THAT ITEMS 1 AND 2 BE AWARDED AS A SINGLE LOT. THEREFORE, IN THE CIRCUMSTANCES, SINCE THE INVITATION DID NOT CONTEMPLATE A SINGLE AWARD FOR ITEM 1, THERE WAS NO ALTERNATIVE OTHER THAN TO RESOLICIT BIDS ON BOTH ITEMS 1 AND 2 AS A RESULT OF THE AMBIGUOUS REQUIREMENT WITH RESPECT TO ITEM 2.

WHILE YOU MAY FEEL THAT IT IS UNFAIR TO RESOLICIT BIDS AFTER THE ORIGINAL BIDS HAVE BEEN EXPOSED, IT DOES NOT APPEAR THAT ANY AWARD COULD HAVE BEEN MADE TO YOUR COMPANY UNDER THE FIRST SOLICITATION BY REASON OF THE NONRESPONSIVE FEATURE OF YOUR COMPANY'S BID AND, THEREFORE, THE PROCEDURE FOLLOWED HAS ACTUALLY BENEFITTED YOUR COMPANY IN THAT IT HAS ACTUALLY GAINED A SECOND CHANCE TO SUBMIT A RESPONSIVE BID.