B-178046, JUL 25, 1973

B-178046, JUL 25, 1973

DENIAL OF PROTEST AGAINST AWARD TO ANOTHER FIRM OF 10 ITEMS OF LABORATORY EQUIPMENT UNDER SOLICITATION NO. FPNGG-V-29180-A-12-7-72 ISSUED BY GSA, SINCE GSA PROPERLY DECIDED PROTESTANT'S LOW BID WAS NONRESPONSIVE BECAUSE IT REFERRED TO MODEL NUMBERS.

TO H & R SHEET METAL MANUFACTURING CORP.:

WE REFER TO YOUR LETTER OF FEBRUARY 13, 1973, CONCERNING YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO STACOR CORPORATION ON FEBRUARY 5, 1973, FOR TEN ITEMS UNDER SOLICITATION NO. FPNGG-V-29180-A-12-7-72, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA) ON NOVEMBER 7, 1972.

YOU MAINTAIN THAT GSA SHOULD NOT HAVE DECIDED THAT YOUR LOW BID WAS NONRESPONSIVE BECAUSE IT MADE REFERENCE TO MODEL NUMBERS. FOR THE REASONS DISCUSSED BELOW, WE MUST AGREE WITH GSA'S DECISION.

THE SOLICITATION WAS ISSUED TO COVER REQUIREMENTS FOR CERTAIN LABORATORY EQUIPMENT FROM MAY 1, 1973 (OR DATE OF AWARD), TO APRIL 30, 1974. ALTHOUGH 28 FIRMS SUBMITTED BIDS ON THE VARIOUS ITEMS COVERED BY THE IFB, ONLY 2 FIRMS, YOUR COMPANY AND STACOR, SUBMITTED BIDS FOR THE 10 ITEMS IN QUESTION (49 THROUGH 55, 58, 59 AND 62). YOU INSERTED THE FOLLOWING UNSOLICITED MODEL NUMBERS AFTER THE INDICATED ITEMS:

ITEM BIDDER INSERTED MODEL NUMBER

49 EC 3748

50 EC 3760

51 EC 3772

52 EC 4360

53 EC 4372

54 EC 3760A

55 EC 3772A

58 TR 2025

59 TR 2436

62 TR 3648

GSA REPORTS THAT THE CONTRACTING OFFICER HAD TO REJECT YOUR BID SINCE HE HAD NO WAY TO DETERMINE WHETHER EACH ITEM BEING OFFERED AS A REFERENCED MODEL NUMBER COMPLIED WITH THE REQUIREMENTS. IN THIS CONNECTION, GSA STATES:

WE ARE INFORMED THAT OUR CONTRACTING OFFICER CHECKED WITH OUR NATIONAL BUYING CENTER, FEDERAL SUPPLY SERVICE, AND ALSO WITH THE QUALITY CONTROL REPRESENTATIVE OF REGION 2 WHERE THE BIDDER'S PLANT WAS LOCATED. OUR CONTRACTING OFFICER WAS UNABLE TO LOCATE ANY CATALOG WHICH CONTAINED THE APPLICABLE MODEL NUMBERS.

YOU STATE THAT YOU WILL NOT TAKE ANY EXCEPTIONS TO THE SPECIFICATIONS, AND THAT YOU SHOULD HAVE THEREFORE RECEIVED THE AWARD.

WE HAVE HELD THAT THE INSERTION OF UNSOLICITED MODEL NUMBERS IN A BID CREATES AN INITIAL AMBIGUITY AS TO WHETHER THE BIDDER HAS AGREED TO SUBMIT ITEMS CONFORMING WITH ALL SPECIFICATIONS. 50 COMP. GEN. 8 (1970). THE AMBIGUITY MAY BE CLARIFIED EITHER BY THE PRESENCE OF AN EXPRESS STATEMENT IN THE BID THAT THE MODELS CONFORM WITH ALL REQUIREMENTS OR BY THE CONTRACTING OFFICER'S EVALUATION OF DATA, AVAILABLE TO THE GOVERNMENT PRIOR TO BID OPENING, WHICH SHOWS SUCH CONFORMITY. SEE B-170908, MARCH 5, 1971.

YOU DID NOT SUBMIT AN EXPRESS STATEMENT WITH YOUR BID THAT YOUR MODELS WOULD COMPLY WITH THE REQUIREMENTS. NOR WAS THE CONTRACTING OFFICER ABLE TO RESOLVE THE AMBIGUITY IN YOUR BID SINCE HE DID NOT HAVE DATA, AVAILABLE PRIOR TO BID OPENING, DEMONSTRATING THAT YOUR MODELS COMPLIED WITH THE REQUIREMENTS.

ALTHOUGH YOU INSERTED THE SAME MODEL NUMBERS IN YOUR SUCCESSFUL BIDS FOR IDENTICAL ITEMS IN 1968, 1970, AND 1971, THE CONTRACTING OFFICER REPORTS THAT HE DID NOT HAVE THIS INFORMATION PRIOR TO AWARD. FURTHER, THIS INFORMATION, IN OUR OPINION, DOES NOT CONCLUSIVELY SHOW THAT YOUR CURRENT MODELS CONFORM WITH ALL REQUIREMENTS OF THE SUBJECT IFB WITHOUT ASSURANCE THAT YOUR MODELS HAVE NOT BEEN MODIFIED SINCE 1971. IN THIS REGARD, GSA COULD NOT HAVE QUESTIONED YOU AFTER BID OPENING ABOUT THE CURRENT ACCEPTABILITY OF YOUR MODEL. RELIANCE ON ANY EXPLANATION FURNISHED BY YOU IN THIS SITUATION WOULD GIVE YOU AN OPTION TO AFFECT THE RESPONSIVENESS OF YOUR BID AND WOULD THEREFORE BE DETRIMENTAL TO THE COMPETITIVE BIDDING SYSTEM. 36 COMP. GEN. 705 (1957).

IN THESE CIRCUMSTANCES, WE THINK GSA'S REJECTION OF YOUR LOW BID WAS PROPER, NOTWITHSTANDING YOUR STATEMENT THAT YOU ARE A SMALL BUSINESS EMPLOYING 90 PERCENT MINORITY WORKERS. WE MUST THEREFORE DENY YOUR PROTEST.