B-150622, JUN. 6, 1963

B-150622, JUN. 6, 1963

TO THE SECRETARY OF THE NAVY:

WE HAVE LETTERS OF JANUARY 31, FEBRUARY 6, APRIL 2 AND APRIL 17, 1963, YOUR REFERENCE R12, FROM THE BUREAU OF SUPPLIES AND ACCOUNTS IN RESPONSE TO OUR REQUEST FOR A REPORT ARISING OUT OF THE PROTEST BY THE EDWARD A. LYNCH MACHINERY COMPANY, INC., AGAINST THE REJECTION OF THAT FIRM'S BID SUBMITTED PURSUANT TO INVITATION NO. 156-066-63 ISSUED JULY 30, 1962, BY THE NAVAL AIR MATERIAL CENTER, PHILADELPHIA, PENNSYLVANIA, FOR THE PROCUREMENT OF A POWER DRIVEN BRAKE PRESS IN ACCORDANCE WITH BUREAU OF NAVAL WEAPONS INDUSTRIAL OFFICE SPECIFICATION NO. 62140.

THE INVITATION REQUIRED THE SUBMISSION OF DESCRIPTIVE DATA BY THE FOLLOWING PROVISIONS:

"DESCRIPTIVE DATA REQUIRED WITH BIDS:

"1. EACH BIDDER MUST SUBMIT, WITH HIS BID, ILLUSTRATIONS, BROCHURES, DRAWINGS/SKETCHES OR OTHER DESCRIPTIVE DATA DESCRIBING THE EQUIPMENT, INCLUDING ATTACHMENTS AND/OR ACCESSORIES THAT HE PROPOSES TO FURNISH HEREUNDER. SUCH DESCRIPTIVE DATA MUST ILLUSTRATE OR DESCRIBE HOW THE EQUIPMENT BID UPON WILL COMPLY WITH THE SPECIFICATION REQUIREMENTS.

"2. WHEN THE BIDDER PROPOSES TO MODIFY STANDARD EQUIPMENT, AS DESCRIBED IN SALES LITERATURE IN ORDER TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS, THE BIDDER MUST SUBMIT DESCRIPTIVE DATA SHOWING THE CONCISE DETAILS AS TO THE NATURE OF THE PROPOSED MODIFICATIONS AND THE METHODS HE PROPOSES TO USE TO MODIFY THE STANDARD EQUIPMENT TO MEET THE SPECIFICATION REQUIREMENTS.

"3. THE SPECIFICATIONS IN THE SCHEDULE WILL BE CONTROLLING. ACCORDINGLY, THE DESCRIPTIVE DATA FURNISHED HEREUNDER WITH THE BID MUST BE IN COMPLETE COMPLIANCE WITH THE SPECIFICATIONS AND MUST BE FURNISHED IN SUCH DETAIL AS IS NECESSARY TO SHOW SUCH COMPLETE COMPLIANCE WITH SUCH SPECIFICATIONS.

"4. (A) THE DESCRIPTIVE DATA WILL BE CONSIDERED A PART OF THE BID FOR EVALUATING PURPOSES ONLY AND WILL BE USED BY THE GOVERNMENT TO DETERMINE IF THE MATERIAL OFFERED IS IN COMPLETE COMPLIANCE WITH THE SPECIFICATION REQUIREMENTS AND WHETHER THE BIDDER CAN, AND INTENDS TO, FURNISH EQUIPMENT MEETING THE REQUIREMENTS OF THE SPECIFICATIONS.

"5. REJECTION OF THE BID AS NON-RESPONSIVE WILL RESULT IF THE BIDDER:

(A) FAILS TO FURNISH WITH THE BID THE DESCRIPTIVE DATA REQUIRED HEREUNDER, EXCEPT THAT IF THE DESCRIPTIVE DATA IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISION FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS; OR

(B) FURNISHES DESCRIPTIVE DATA THAT VARIES THE TERMS OF THE INVITATION; OR

(C) FURNISHES DESCRIPTIVE DATA THAT IS NOT IN COMPLETE COMPLIANCE WITH THE REQUIREMENTS OF THIS CLAUSE AND THE SPECIFICATIONS SET FORTH IN THE SCHEDULE; OR

(D) IMPOSES A RESTRICTION ON THE DISCLOSURE OF DESCRIPTIVE DATA FURNISHED HEREUNDER WHICH HAS THE EFFECT OF PROHIBITING THE DISCLOSURE OF SUFFICIENT INFORMATION TO PERMIT COMPETING BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF PRODUCTS OFFERED OR THOSE ELEMENTS OF THE BID WHICH RELATE TO QUANTITY, PRICE AND DELIVERY TERMS.

THE LYNCH BID OFFERED A MODEL NO. 90-04 EXCELSIOR ALL-STEEL POWER PRESS BRAKE WHICH APPEARS FROM THE COVERING LETTER TO HAVE BEEN CONCEIVED AS A STANDARD PRODUCTION MODEL MODIFIED AS NECESSARY TO MEET THE SPECIFICATIONS. IN SATISFACTION OF THE DESCRIPTIVE DATA REQUIREMENTS LNYCH SUBMITTED A STANDARD GENERAL BROCHURE COVERING EXCELSIOR PRESSES, WITH CERTAIN DELETIONS AND ADDITIONS TO MAKE IT APPLICABLE TO THE ITEM OFFERED. THIS PROCEDURE CONTAINS FEW DETAILS TO SHOW HOW THE ITEM OFFERED WOULD COMPLY WITH THE SPECIFICATION REQUIREMENTS. IN ADDITION, THE LYNCH BID INCLUDED A DOCUMENT DESCRIBED AS DETAILED SPECIFICATIONS OF THE ITEM OFFERED WHICH IN FACT WAS NOTHING MORE THAN A COPY OF NAVY SPECIFICATION NO. 62-140 WITH THE HEADING CHANGED AND CERTAIN MINOR CHANGES TO INDICATE A SINGLE DESIGN FEATURE WHERE THE SPECIFICATIONS PERMITTED ONE OR MORE ALTERNATIVES.

THE LOW BID WAS REJECTED FOR MATERIAL DEVIATIONS FROM THE SPECIFICATIONS NOT HERE AT ISSUE. THE NEXT, THE LYNCH BID, WAS REJECTED FOR FAILURE TO INDICATE HOW THE PITMAN ASSEMBLY IS ATTACHED TO THE RAM AND BECAUSE THE SPECIFICATION "STIPULATES SPECIFIC REQUIREMENTS ONLY AND THEREFORE CANNOT BE UTILIZED AS DESCRIPTIVE DATA AS SPECIFIED IN THE CONTRACT.

THE THIRD LOW BID WAS FOUND ACCEPTABLE AND A CONTRACT WAS AWARDED TO DELAWARE VALLEY MACHINERY, INC. ON NOVEMBER 28, 1962. WE HAVE BEEN ADVISED INFORMALLY BY NAVY DEPARTMENT REPRESENTATIVES THAT DELIVERY HAS BEEN COMPLETED.

LYNCH PROTESTED THE AWARD BY LETTER OF JANUARY 14, 1963, CONTENDING THAT ITS BID WAS ENTIRELY RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION AND QUALIFIED FOR AWARD. IT WAS FURTHER CONTENDED THAT IF ITS DESCRIPTIVE DATA DID NOT SATISFY THE REQUIREMENTS OF THE INVITATION, THE SUCCESSFUL BID WAS ALSO DEFICIENT IN THAT REGARD.

SINCE OUR DECISIONS AT 36 COMP. GEN. 376 AND ID. 415 WE HAVE CONSISTENTLY RECOGNIZED THAT IN APPROPRIATE CIRCUMSTANCES INVITATIONS MAY REQUIRE AS A CONDITION OF RESPONSIVENESS, THE SUBMISSION WITH THE BID OF DESCRIPTIVE DATA IN ORDER TO FIX PRECISELY THE NATURE OF THE ITEM OR ITEMS TO BE FURNISHED UNDER THE CONTRACT, BUT NOT TO DETERMINE THE RESPONSIBILITY OF THE BIDDER. 41 COMP. GEN. 107. THE LANGUAGE OF PARAGRAPH 4 (A) OF THE DESCRIPTIVE DATA CLAUSE IS SUSCEPTIBLE OF THE INTERPRETATION THAT THE INTENTION IS TO DETERMINE THE ABILITY OR CAPACITY OF THE BIDDER TO COMPLY WITH THE REQUIREMENTS. THE STATEMENTS IN 4 (A) THAT "THE SPECIFICATIONS IN THE SCHEDULE WILL BE CONTROLLING" AND THAT THE "DESCRIPTIVE DATA WILL BE CONSIDERED A PART OF THE BID FOR EVALUATING PURPOSES ONLY" COULD WELL BE INTERPRETED TO MEAN THAT THE DESCRIPTIVE DATA FURNISHED WOULD FORM NO PART OF THE CONTRACT SPECIFICATIONS. SUCH AN INTERPRETATION WOULD, IN OUR OPINION, BE CONTRARY TO ASPR 2-202.5 WHICH DEFINES DESCRIPTIVE DATA AS DATA FURNISHED BY A BIDDER AS PART OF HIS BID ,TO DESCRIBE THE PRODUCTS OFFERED" AND TO "ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO RNISH.'

A FULLER EXPLANATION APPEARING IN AN ENCLOSURE TO THE NAVY LETTER OF APRIL 17, 1963, STATES A PURPOSE FOR THE DESCRIPTIVE DATA CONSISTENT WITH OUR DECISIONS AND ASPR AS FOLLOWS:

"A. DETERMINE WHETHER THE BIDDER UNDERSTANDS AND INTENDS TO COMPLY WITH THE REQUIREMENTS PRIOR TO AWARD, INSTEAD OF INVITING LITIGATION, CONTRACT AMENDMENT, OR CANCELLATION AT DELIVERY TIME, WHICH WOULD IMPOSE HARDSHIP TO REQUIRING ACTIVITIES AND TO THE GOVERNMENT, AND

"B. TO DETERMINE PRECISELY WHICH TOOL IS BEING OFFERED, AND ACCEPTABILITY OF THE PRODUCT AND ITS SUITABILITY FOR THE PURPOSE INTENDED.'

A STATEMENT OF SUCH PURPOSE COULD PROPERLY HAVE BEEN INCLUDED IN THE INVITATION RATHER THAN IN A DOCUMENT PREPARED WELL AFTER THE ISSUE WAS RAISED; CERTAINLY SUCH STATEMENT WOULD HAVE BEEN FAR MORE APPROPRIATE FOR INCLUSION IN THE INVITATION THAN THE CONTRARY LANGUAGE OF PARAGRAPH 4 (A).

IT IS WELL RECOGNIZED THAT THE 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, 790. WE HAVE TAKEN THE POSITION THAT THE NATURE AND EXTENT OF DESCRIPTIVE DATA REQUIRED SHOULD BE SPELLED OUT IN THE INVITATION WITH SUFFICIENT PARTICULARITY TO PUT BIDDERS ON NOTICE OF WHAT IS DESIRED. 38 COMP. GEN. 59, 63. SEE TO THE SAME EFFECT, ASPR 2-202.5 (D) (1). THE NATURE OF THE DESCRIPTIVE DATA FURNISHED BY THE PROTESTING BIDDER SUGGESTS SOME QUESTION AS TO WHETHER THE REQUIRED STANDARDS OF CLARITY AND SPECIFICITY HAVE IN GENERAL BEEN MET.

HOWEVER, THERE CAN BE LITTLE QUESTION AS TO ADEQUACY OF PARAGRAPH 2 OF THE DESCRIPTIVE DATA CLAUSE OR THE FAILURE OF THE LYNCH BID TO COMPLY THEREWITH. IT APPEARS THAT THE UNIT OFFERED IN THE LYNCH BID WAS A STANDARD MODEL MODIFIED TO MEET THE NAVY'S SPECIFICATIONS. WHERE A STANDARD MODEL WITH MODIFICATIONS IS OFFERED, PARAGRAPH 2 REQUIRES THE BIDDER TO FURNISH DETAILS AS TO THE NATURE OF SUCH MODIFICATIONS AND THE METHODS PROPOSED TO MAKE THEM. THIS REQUIREMENT WAS CLEARLY NOT MET BY LYNCH AND, IN OUR VIEW, THE BID MAY PROPERLY BE REGARDED AS NONRESPONSIVE FOR THAT REASON.

IN VIEW OF THE FOREGOING, IT IS NOT NECESSARY TO CONSIDER WHETHER A REPETITION OF THE GOVERNMENT SPECIFICATIONS MAY BE REGARDED AS SATISFYING THE DESCRIPTIVE DATA REQUIREMENT. HOWEVER, WE THINK IT PROPER TO NOTE THAT SUCH AN ISSUE IS LESS LIKELY TO BE RAISED WHERE THE PROPOSE AND NATURE OF THE DATA REQUIRED IS CLEARLY SET OUT AS REQUIRED BY ASPR AND OUR DECISIONS. AT THE SAME TIME WE THINK IT REASONABLE TO EXPECT ANY PROVISION OF AN INVITATION TO BE INTERPRETED BY BIDDERS IN A REASONABLE MANNER. IT IS DIFFICULT TO PERCEIVE OF ANY INSTANCE IN WHICH A USEFUL PURPOSE COULD BE SERVED BY RESUBMITTING THE SPECIFICATIONS. UNDER THE LANGUAGE OF THE FIRST PAGE OF THE BID FORM (S.F. 30), OCT., 1957 EDITION) THE BIDDER ALREADY UNDERTAKES TO BID IN COMPLIANCE WITH THE SPECIFICATIONS. FURTHER, IF A COPY OF THE SPECIFICATIONS CAN SATISFY THE DATA REQUIREMENT, IT SHOULD FOLLOW THAT A MERE REFERENCE TO THOSE SPECIFICATIONS, OR AT LEAST ANOTHER SPECIFIC UNDERTAKING TO MEET THEM, SHOULD SERVE EQUALLY AS WELL; YET SUCH UNDERTAKING HAS CONSISTENTLY BEEN HELD NOT TO SATISFY A DATA REQUIREMENT. SEE 40 COMP. GEN. 132, 135; 36 ID. 415, 417. FOR THESE REASONS WE CONCLUDE THAT IF A DATA REQUIREMENT IS INCLUDED FOR THE KIND OF PURPOSE CONTEMPLATED BY ASPR, IT CANNOT BE SATISFIED BY A MERE PARROTING BACK OF THE GOVERNMENT SPECIFICATIONS AND IF IT CAN BE SATISFIED IN SUCH MANNER WE QUESTION THE LEGITIMACY OF THE REQUIREMENT. FOR EXAMPLE, IN THE PRESENT CASE, THERE CAN BE NO DOUBT THAT LYNCH SPECIFICALLY OFFERED AND WOULD BE OBLIGATED TO FURNISH BALL AND SOCKET JOINTS CONNECTING THE PITMAN ASSEMBLY AND RAM. THIS IS MADE CLEAR BY LYNCH'S ADOPTION AND SUBMISSION OF THE NAVY SPECIFICATION AS A PART OF ITS BID, SINCE PARAGRAPH 3.14.4 OF THAT SPECIFICATION CALLED FOR BALL AND SOCKET JOINTS. THE ENCLOSURES TO THE LETTER OF FEBRUARY 6, 1963, ARE RETURNED AS REQUESTED. THERE IS ALSO ENCLOSED A COPY OF OUR LETTER OF TODAY TO THE PROTESTING BIDDER WITH RESPECT TO THE ALLEGATIONS RAISED CONCERNING THE RESPONSIVENESS OF THE ACCEPTED BID.