B-172006, MAR 15, 1971

B-172006, MAR 15, 1971

BID PROTEST - BID RESPONSIVENESS - DESCRIPTIVE LITERATURE DENIAL OF PROTEST OF KENNEDY ELECTRIC COMPANY, INC., AGAINST THE REJECTION OF ITS BID UNDER GOVERNMENT PRINTING OFFICE (GPO) PURCHASE REQUEST FOR THE FURNISHING OF LABOR AND MATERIAL TO INCREASE ELECTRICAL CAPACITY AT GPO. THE HIGHLY SPECIALIZED NATURE OF THE EQUIPMENT TO BE INSTALLED UNDER THE CONTRACT IS SUFFICIENT JUSTIFICATION FOR THE INCLUSION OF THE DESCRIPTIVE LITERATURE CLAUSE IN THE SOLICITATION AND THE REJECTION OF PROTESTANT'S BID AS NONRESPONSIVE FOR FAILURE TO SUPPLY THE REQUIRED DATA.

TO MR. SPENCE:

REFERENCE IS MADE TO A PROTEST BY KENNEDY ELECTRIC COMPANY, INC. (KENNEDY), AGAINST THE REJECTION OF ITS BID UNDER GOVERNMENT PRINTING OFFICE (GPO) PURCHASE REQUEST NO. 12770, FOR THE FURNISHING OF LABOR AND MATERIAL TO INCREASE ELECTRICAL CAPACITY AT GPO.

YOUR LETTER OF FEBRUARY 25, 1971, ADVISED THAT KENNEDY, THE LOW BIDDER, FAILED TO SUBMIT WITH ITS BID CERTAIN DESCRIPTIVE DATA REQUIRED BY THE GENERAL PROVISIONS OF THE SOLICITATION.

THE PERTINENT PROVISIONS ARE:

"1.10 INSTRUCTIONS TO BIDDERS.

G. THE GOVERNMENT IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID. ACCORDINGLY, IT IS THE RESPONSIBILITY OF THE BIDDER TO INSURE THAT SUFFICIENT INFORMATION IS MADE AVAILABLE FOR THE GOVERNMENT TO DETERMINE EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH, WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION TO BID, AND WHAT THE GOVERNMENT WOULD BE OBLIGATING ITSELF TO PURCHASE BY MAKING AN AWARD.

H. BIDDERS SHALL STATE THE MAKE, MODEL, STYLE OR TYPE, AND MANUFACTURER OF MATERIAL THEY PROPOSE TO FURNISH.

J. BIDDERS MUST SUBMIT WITH THEIR PROPOSALS, CUTS OR ILLUSTRATIONS, PRINTS, AND COMPLETE DESCRIPTIONS OF THE MATERIAL AND SYSTEM THEY PROPOSE TO FURNISH. BIDS WITHOUT COMPLETE CUTS OR ILLUSTRATIONS, PRINTS, AND WITHOUT COMPLETE DESCRIPTIVE MATTER WHICH WILL CLEARLY INDICATE THE CHARACTER OF THE MATERIAL AND SYSTEM OFFERED, MAY BE REJECTED AS BEING INCOMPLETE."

IT IS YOUR POSITION THAT KENNEDY'S FAILURE TO SUPPLY THE ABOVE DESCRIPTIVE DATA RENDERED ITS BID NONRESPONSIVE. THE RATIONALE FOR THIS POSITION IS THAT THE EQUIPMENT TO BE INSTALLED UNDER THIS CONTRACT IS OF SUCH A HIGHLY SPECIALIZED NATURE THAT GPO PROPERLY REQUIRED A DETAILED DESCRIPTION OF THE EQUIPMENT EACH BIDDER PROPOSED TO FURNISH AS ESSENTIAL TO GPO'S DETERMINATION AS TO WHETHER OR NOT THE EQUIPMENT WOULD MEET THE REQUIREMENTS OF THE SPECIFICATIONS.

IT IS THE PROTESTANT'S POSITION THAT ITS BID IS FULLY RESPONSIVE TO THE SOLICITATION SINCE THE INFORMATION REQUESTED TO BE SUBMITTED WITH THE BID WAS UNNECESSARY BECAUSE THE TECHNICAL SPECIFICATIONS ESTABLISH THE DETAILED DESIGN REQUIREMENTS TO A CERTAINTY, AND KENNEDY WOULD BE REQUIRED TO PERFORM THE CONTRACT IN ACCORDANCE WITH THESE SPECIFICATIONS, WITH ONLY THE CHOICE OF THE MANUFACTURER LEFT TO ITS DISCRETION.

KENNEDY FURTHER ALLEGES THAT THE LANGUAGE OF PARAGRAPH 1.10J DOES NOT COMPLY WITH SECTION 1-2.202-5(D) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). ADDITIONALLY, THE PROTESTANT STATES THAT THE DESCRIPTIVE DATA LANGUAGE OF THE INVITATION IS DIRECTED TOWARDS THE BIDDER'S RESPONSIBILITY, AND THE REQUIREMENTS FOR DESCRIPTIVE DATA CAN BE WAIVED UNDER THE PROVISION IN THE INVITATION RESERVING THE RIGHT TO THE GOVERNMENT TO REJECT ANY OR ALL BIDS AND TO WAIVE DEFECTS OR INFORMALITIES.

WE HAVE RECOGNIZED THAT IN PROCURING HIGHLY SPECIALIZED EQUIPMENT AN ADMINISTRATIVE AGENCY MAY REQUIRE BIDDERS TO SUPPLY SPECIFIC DESCRIPTIVE DATA ON SPECIFIC COMPONENTS OF ITEMS BEING PROCURED TO ENABLE IT TO CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. COMP. GEN. 659 (1969), 36 COMP. GEN. 376 (1956), ID. 415 (1956) AND B- 158740, MAY 3, 1966. HOWEVER, WE HAVE ALSO HELD THAT A REQUIREMENT THAT BIDDERS FURNISH UNSPECIFIED DATA WHICH IS "SUFFICIENT" TO PROVE COMPLIANCE WITH THE SPECIFICATIONS, MAY RENDER AN INVITATION DEFECTIVE FOR FAILURE TO PUT BIDDERS ON NOTICE OF THE EXTENT OF DETAIL THAT THE AGENCY REQUIRED DESCRIPTIVE DATA TO INCORPORATE. 42 COMP. GEN. 737 (1963), ID. 598.

ALSO, IN THIS REGARD, WE HAVE HELD THAT THE DESCRIPTIVE LITERATURE REQUIREMENT IS IMPROPER WHERE THE SPECIFICATIONS FOR THE EQUIPMENT BEING PROCURED APPEAR TO BE STATED IN SUCH DETAIL THAT ALMOST NOTHING IS LEFT FOR THE BIDDER TO DESCRIBE CONCERNING THE NATURE AND CAPABILITIES OF THE EQUIPMENT IT PROPOSES TO OFFER AND WHERE THAT SECTION OF THE INVITATION REQUIRING DESCRIPTIVE LITERATURE FURNISHS NO STANDARDS FOR EVALUATION OF DESIGN, MATERIALS OR COMPONENTS EXCEPT TO THE EXTENT THAT SUCH ELEMENTS ARE SPECIFICALLY PRESCRIBED IN THE SPECIFICATIONS. B-159579, JULY 20, 1966. SEE ALSO 48 COMP. GEN. 659, 660 (1969). ADDITIONALLY, IT IS THE POSITION OF THIS OFFICE THAT IF DESCRIPTIVE DATA IS REQUIRED TO BE SUBMITTED WITH THE BID, THE INVITATION SHOULD DEFINE THE PURPOSE AND EFFECT OF THE REQUIREMENT, INCLUDING THE EFFECT TO BE GIVEN TO THE REQUIRED DATA IN EVALUATION OF BIDS AND THE EXTENT TO WHICH IT WILL BE EMBODIED IN THE CONTRACT; SHOULD CONTAIN AN AFFIRMATIVE STATEMENT TO THE EFFECT THAT SUCH MATERIAL MUST DESCRIBE ITEMS WHICH WOULD BE IN STRICT COMPLIANCE WITH THE SPECIFICATIONS; AND SHOULD DECLARE THAT A FAILURE TO SUBMIT SUCH MATERIAL WITH THE BID WOULD PRECLUDE ITS CONSIDERATION. COMP. GEN. 659, 660 (1969) AND 36 COMP. GEN. 376 (1956). THE SUBSTANCE OF THIS POSITION WAS INCORPORATED INTO FPR SECTIONS 1-2.202-5(B), (C) AND (D), WHICH PROVIDE IN PERTINENT PART:

"(B) POLICY. BIDDERS SHALL NOT BE REQUIRED TO FURNISH DESCRIPTIVE LITERATURE AS A PART OF THEIR BIDS UNLESS THE CONTRACTING AGENCY DEEMS THAT SUCH LITERATURE IS NEEDED TO ENABLE IT TO DETERMINE BEFORE AWARD WHETHER THE PRODUCTS OFFERED MEET THE SPECIFICATION REQUIREMENTS OF THE INVITATION FOR BIDS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH. IT MAY BE APPROPRIATE TO REQUIRE DESCRIPTIVE LITERATURE IN THE PROCUREMENT OF HIGHLY TECHNICAL OR SPECIALIZED EQUIPMENT, OR WHERE CONSIDERATIONS SUCH AS DESIGN OR STYLE ARE IMPORTANT IN DETERMINING ACCEPTABILITY OF THE PRODUCT.

(C) JUSTIFICATION. THE REASONS WHY ACCEPTABLE PRODUCTS CANNOT BE PROCURED WITHOUT THE SUBMISSION OF DESCRIPTIVE LITERATURE SHALL BE SET FORTH AND FILED IN THE CASE FILE, EXCEPT WHERE SUCH SUBMISSION IS REQUIRED BY THE FORMAL SPECIFICATIONS (FEDERAL, MILITARY, DEPARTMENTAL, ETC.) APPLICABLE TO THE PROCUREMENT.

(D) REQUIREMENTS OF INVITATION FOR BIDS. WHEN DESCRIPTIVE LITERATURE IS REQUIRED, THE INVITATION FOR BIDS SHALL CLEARLY STATE WHAT DESCRIPTIVE LITERATURE IS TO BE FURNISHED, THE PURPOSE FOR WHICH IT IS REQUIRED, THE EXTENT TO WHICH IT WILL BE CONSIDERED IN THE EVALUATION OF BIDS, AND THE RULES WHICH WILL APPLY IF A BIDDER FAILS TO FURNISH IT BEFORE BID OPENING OR IF THE LITERATURE FURNISHED DOES NOT COMPLY WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS. WHERE DESCRIPTIVE LITERATURE IS NOT CONSIDERED NECESSARY AND A WAIVER OF THE LITERATURE REQUIREMENTS OF A SPECIFICATION HAS BEEN AUTHORIZED, A STATEMENT SHALL BE INCLUDED IN THE INVITATION FOR BIDS THAT NOTWITHSTANDING THE REQUIREMENTS OF THE SPECIFICATIONS, DESCRIPTIVE LITERATURE WILL NOT BE REQUIRED.

(1) EXCEPT AS PROVIDED IN (D)(2) OF THIS SECTION, IF BIDDERS ARE TO FURNISH DESCRIPTIVE LITERATURE AS A PART OF THEIR BIDS, A PROVISION SUBSTANTIALLY AS FOLLOWS (MODIFIED, IF APPROPRIATE, IN ACCORDANCE WITH (E)(1) OF THIS SECTION) SHALL BE INCLUDED IN THE INVITATION FOR BIDS:

REQUIREMENT FOR DESCRIPTIVE LITERATURE

(A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO (*).

*CONTRACTING OFFICER SHALL INSERT SIGNIFICANT ELEMENTS SUCH AS DESIGN, MATERIALS, COMPONENTS, OR PERFORMANCE CHARACTERISTICS, OR METHODS OF MANUFACTURE, CONSTRUCTION, ASSEMBLY, OR OPERATION, AS APPROPRIATE.

(B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS."

THE DESCRIPTIVE DATA CLAUSES OF THE PRESENT INVITATION DO NOT CONFORM, IN ALL RESPECTS, TO THE REQUIREMENTS OF THE ABOVE QUOTED FPR PROVISIONS AND, INDEED, THERE IS NO REQUIREMENT THAT THEY DO SO SINCE GPO IS NOT SUBJECT TO THE FPR. 40 U.S.C. 474. SEE ALSO FPR 1-1.004, 40 U.S.C. 472 AND 481; 44 U.S.C. 63 AND 64. NEVERTHELESS, BIDDERS SHOULD NOT BE REQUIRED TO FURNISH DESCRIPTIVE LITERATURE WITH THEIR BIDS UNLESS IT IS NECESSARY THAT THE CONTRACTING AGENCY KNOW EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH, AND WHETHER THE ITEM WHICH THE BIDDER PROPOSES TO FURNISH WILL MEET THE SPECIFICATIONS. AS NOTED ABOVE, IT IS YOUR POSITION THAT THE EQUIPMENT TO BE INSTALLED UNDER THIS CONTRACT IS OF SUCH A HIGHLY SPECIALIZED NATURE THAT IT WAS PROPER FOR GPO TO REQUIRE A DETAILED DESCRIPTION OF THE EQUIPMENT OFFERED, TO DETERMINE IF THE EQUIPMENT WOULD MEET THE REQUIREMENTS OF THE SPECIFICATIONS.

FROM THE RECORD FURNISHED OUR OFFICE, WE MUST CONCLUDE THAT THERE WAS SUFFICIENT JUSTIFICATION FOR THE INCLUSION OF THE DESCRIPTIVE LITERATURE CLAUSE IN THE INVITATION. WE BELIEVE THAT IN SPITE OF THE FAILURE TO CONFORM, IN ALL RESPECTS, TO THE REQUIREMENTS OF FPR 1-2.202 5, THE DESCRIPTIVE DATA CLAUSE OF THE PRESENT INVITATION CLEARLY ESTABLISHED THE NATURE AND EXTENT OF THE DATA REQUIRED, THE PURPOSE INTENDED TO BE SERVED BY THIS DATA AND THE CONSEQUENCES OF FAILURE TO FURNISH THIS DATA. THEREFORE, WE MUST CONCLUDE THAT KENNEDY'S BLANKET OFFER TO COMPLY WITH THE SPECIFICATION REQUIREMENTS WILL NOT OVERCOME ITS FAILURE TO FURNISH THE REQUIRED DESCRIPTIVE DATA. 41 COMP. GEN. 192, 195 (1961); 40 ID. 132 (1960); 38 ID. 59 (1958).

KENNEDY ALSO CONTENDS THAT THE LANGUAGE OF 1.10J, TO THE EFFECT THAT FAILURE TO INCLUDE THE REQUIRED DESCRIPTIVE LITERATURE "MAY" BE A BASIS FOR REJECTION OF THE BID "AS BEING INCOMPLETE", ESTABLISHES THE FACT THAT THE OBLIGATION WAS NOT MANDATORY BUT RATHER INTENDED TO ESTABLISH THE RESPONSIBILITY OF THE BIDDER. NOTWITHSTANDING THE APPARENT DISCRETION CONFERRED ON THE CONTRACTING OFFICER IN THE INVITATION TO DETERMINE WHETHER THE FAILURE TO COMPLY MAY BE REGARDED AS AN INFORMALITY, WHERE THE LANGUAGE OF AN INVITATION REQUIRES THE SUBMISSION OF DATA WITH THE BID ANY FAILURE TO COMPLY THEREWITH MUST BE REGARDED AS MATERIAL 40 COMP. GEN. 132, 135 (1960). IN THE PRESENT CASE YOU ADVISE, CONTRARY TO THE PROTESTANT'S CONTENTION, THAT THE SPECIFICATIONS, IN AND OF THEMSELVES, ARE NOT SUFFICIENT TO GUARANTEE THAT GPO'S NEEDS WILL BE MET AND, IT IS THEREFORE NECESSARY THAT DESCRIPTIVE LITERATURE BE FURNISHED. IN THE ABSENCE OF STRONG EVIDENCE TO THE CONTRARY, WHICH WE DO NOT FIND IN THE PRESENT CASE, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF YOUR TECHNICAL PERSONNEL. THUS, FAILURE TO FURNISH SUCH DATA PRIOR TO BID OPENING IS A MATTER OF RESPONSIVENESS WHICH CANNOT BE WAIVED AS A MINOR INFORMALITY.

IN VIEW OF THE FOREGOING THIS OFFICE WILL INTERPOSE NO OBJECTION TO THE ACTION PROPOSED TO BE TAKEN BY YOU IN CONNECTION WITH THIS MATTER. HOWEVER, AS PREVIOUSLY NOTED, THE DESCRIPTIVE LITERATURE CLAUSES (1.10G, H AND J) DO NOT CONFORM IN ALL RESPECTS TO THE PROVISIONS OF FPR 1-2.202- 5(B), (C) AND (D). IN THE INTEREST OF UNIFORMITY AND CLARITY, IN FUTURE PROCUREMENTS OF THIS NATURE IT IS SUGGESTED THAT GPO ADOPT, AS FAR AS IT IS PRACTICABLE, THE PROVISIONS RECOMMENDED IN FPR 1 2.202-5(D).

THE FILE TRANSMITTED WITH YOUR LETTER OF FEBRUARY 25, 1971, IS RETURNED.