B-166779 (1), AUG. 1, 1969

B-166779 (1), AUG. 1, 1969

BID PROTEST - DESCRIPTIVE LITERATURE - DEVIATIONS DECISION DENYING PROTEST OF PRESTYPE, INC., AGAINST CANCELLATION OF ARMY INVITATION AFTER OPENING AND REJECTION OF BID UNDER READVERTISED PROCUREMENT ON BASIS OF FAILURE TO FURNISH DESCRIPTIVE LITERATURE. SECOND LOW BIDDER WHO OFFERED PRODUCT ON AN "OR EQUAL BASIS" BUT WHO FAILED TO FURNISH ANY DESCRIPTIVE MATERIAL FOR EVALUATION PURPOSES HAD BID PROPERLY DETERMINED NONRESPONSIVE.

TO PRESTYPE, INC.:

WE REFER TO YOUR LETTER OF APRIL 23, 1969, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD TO ANY OTHER FIRM OF THE CONTRACT UNDER INVITATION FOR BIDS (IFB) DAAG05-69-B-0541, DATED MARCH 19, 1969, ISSUED BY THE UNITED STATES ARMY SAN FRANCISCO PROCUREMENT AGENCY, OAKLAND, CALIFORNIA.

UNDER THE 100 PERCENT SMALL BUSINESS SET-ASIDE PROCEDURE THE PROCURING ACTIVITY ISSUED IFB NO. DAAG05-69-B-0341 ON JANUARY 21, 1969, TO 20 POTENTIAL SUPPLIERS FOR 51 ITEMS. EACH ITEM CALLED FOR 1,000 SHEETS OF PARA-TIPE PRESSURE LETTERING, 10 INCHES X 14 INCHES, ACCORDING TO SPECIFIC NUMBERS LISTED IN THE PARA-TONE, INC., CATALOG.

AMENDMENT 0001 TO THE IFB WAS ISSUED FEBRUARY 4, 1969, DELETING 36 ITEMS DUE TO INADEQUATE DESCRIPTIONS. FIVE BIDS WERE RECEIVED AND OPENED ON FEBRUARY 12, 1969, QUOTING AGGREGATE PRICES AS FOLLOWS: A. PRESTYPE, INC., CARLSTADT, NEW JERSEY - $14,400.00 B. ARTYPE, INC., CRYSTAL LAKE, ILLINOIS - $19,440.00 C. METRO SUPPLY CO., SAN FRANCISCO, CALIFORNIA - $19,600.00 D. FLAX ART SUPPLIES, SAN FRANCISCO, CALIFORNIA - $20,484.00 E. TACTYPE, INC., NEW YORK, NEW YORK - $21,240.00

THE IFB WAS CANCELLED ON MARCH 10, 1969. THE CONTRACTING OFFICER GAVE THE FOLLOWING REASONS FOR THE CANCELLATION: "A. PARAGRAPH 27, PAGE 7 OF SOLICITATION INSTRUCTIONS AND CONDITIONS, SF 33A, PROVIDES A. F.O.B. DESTINATION (1968 JUNE) SEE SHIPPING INSTRUCTIONS ON PAGE 19.'B.PARAGRAPH I. INSPECTION AND ACCEPTANCE, PAGE 18 OF CONTINUATION SHEET, SF 36, PROVIDES -INSPECTION AND ACCEPTANCE SHALL BE MADE AT DESTINATION BASED ON THE CONTRACTOR'S CERTIFICATION (CERTIFICATE OF CONFORMANCE) THAT THE ITEM ...- "C. PARAGRAPH K. INSPECTION, PAGE 19 OF CONTINUATION SHEET, SF 36, INSTRUCTS THE BIDDER TO SPECIFY THE LOCATION WHERE INSPECTION OF SUPPLIES FOR CONFORMITY WITH SPECIFICATIONS AND WITH PACKAGING, PACKING AND MARKING INSTRUCTIONS WILL BE MADE.'D. PARAGRAPH K GAVE THE APPEARANCE OF BEING IN CONFLICT WITH PARAGRAPH I BY LEAVING TO THE BIDDER THE SELECTION OF THE PLACE OF INSPECTION AND HE COULD SELECT ORIGIN WHEREAS PARAGRAPH I PROVIDES FOR INSPECTION AT DESTINATION AND PARAGRAPH 27 STATES AN F.O.B. DESTINATION.'E. PARAGRAPH F. PREPARATION FOR DELIVERY, PAGE 16 OF CONTINUATION SHEET, SF 36, PROVIDES INSTRUCTIONS FOR THE PRESERVATION, PACKAGING AND PACKING OF SUPPLIES FOR OVERSEAS SHIPMENT, THAT IS, PACKAGING LEVEL A AND PACKING LEVEL A.'F. PARAGRAPH L. SHIPPING INSTRUCTIONS, PAGE 19 OF CONTINUATION SHEET, SF 36, PROVIDES FOR SHIPMENT TO THE PORT PACKING SECTION OF OAKLAND ARMY BASE, OAKLAND, CALIFORNIA OR U.S.A. PACKING DIVISION OF MILITARY OCEAN TERMINAL, BAYONNE, N.J. AND STATES: -FOR EXPORT PROCESSING, PACKING AND TRANS SHIPMENT.- "G. PARAGRAPHS F AND L WERE WORDED SO AS TO PERMIT AN INTERPRETATION BY THE BIDDER THAT SUPPLIES WOULD BE PACKAGED AND PACKED IN ACCORDANCE WITH A/A REQUIREMENTS, THAT IS, OVERSEAS PACKAGING AND PACKING, RATHER THAN THE DESIRED CONTRACTOR'S COMMERCIAL PACKAGING AND PACKING, TO BE SENT TO THE GOVERNMENT PORT PACKING FACILITIES TO BE OVERSEAS PACKAGED PER A/A REQUIREMENTS. THE DIFFERING INTERPRETATIONS DERIVABLE FROM THE ABOVE PROVISIONS COULD HAVE AFFECTED BID PRICES BY PERMITTING SOME BIDDERS TO INCLUDE COSTS OF EXPORT PACKAGING AND PACKING WHILE OTHER BIDDERS COULD HAVE INCLUDED IN THEIR BID PRICES ONLY THOSE COSTS ATTRIBUTABLE TO COMMERCIAL PACKAGING AND PACKING. THE RANGE OF PRICES FROM 40 CENTS TO 59 CENTS PER SHEET TENDED TO SUPPORT THE POSSIBILITY OF MISINTERPRETATION STATED ABOVE.'H. WHILE FULLY AWARE OF THE PROVISIONS OF ASPR 2-404.1 (A) REGARDING THE PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM REQUIRING AWARD UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION, THE UNDERSIGNED CONSIDERED THE NOTED INSTRUCTIONS TO BE SO AMBIGUOUS AND CONTRADICTORY AS TO COMPEL HIM TO CANCEL THE INVITATION IN ESSENTIAL FAIRNESS TO ALL BIDDERS AND AS BEING IN THE BEST INTEREST OF THE GOVERNMENT IN ACCORDANCE WITH ASPR 2-404.1 (B) (I) AND (VIII).'

THE PROCUREMENT WAS REISSUED ON MARCH 19, 1969, AS IFB DAAG05-69-B 0541, TO 23 POTENTIAL SUPPLIERS FOR THE SAME ITEMS 1 THROUGH 36, BUT DELETED FROM THE READVERTISEMENT WERE THE CONFLICTING AND AMBIGUOUS INSTRUCTIONS REGARDING INSPECTION AND ACCEPTANCE AND OVERSEAS PACKAGING AND PACKING. THE INSTRUCTIONS CLEARLY SET OUT THAT INSPECTION AND ACCEPTANCE WOULD BE AT DESTINATION AND THAT VENDOR'S COMMERCIAL PACK WOULD BE ACCEPTABLE FOR SHIPMENT TO PORT PACKING FOR EXPORT PACKING.

NINE BIDS, ALL FROM SMALL BUSINESS, WERE RECEIVED ON THE SECOND IFB:

A. ARTYPE, INC., CRYSTAL LAKE, ILLINOIS - 395 CENTS PER SHEET FOR 1,000 QUANTITY FOR EACH OF 36 ITEMS, TOTAL $14,220.00.

B. PRESTYPE, INC., CARLSTADT, NEW JERSEY - 40 CENTS PER SHEET FOR 1,000 QUANTITY FOR EACH OF 36 ITEMS, TOTAL $14,400.00.

C. GEORGE F. MUTH CO., WASHINGTON, D.C. - 438 CENTS PER SHEET FOR 1,000 QUANTITY FOR EACH OF 36 ITEMS, TOTAL $15,768.00.

D. VISUAL SYSTEMS, INC., ROCKVILLE, MD. - 44 CENTS PER SHEET FOR 1,000 QUANTITY FOR EACH OF 36 ITEMS, TOTAL $15,840.00.

E. INSTANTYPE, INC., N. HOLLYWOOD, CALIF. - 44 CENTS PER SHEET FOR 1,000 QUANTITY FOR EACH OF 36 ITEMS, TOTAL $15,840.00.

F. H.G. DANIELS CO., LOS ANGELES, CALIFORNIA - 44 CENTS PER SHEET FOR 1,000 QUANTITY FOR EACH OF 36 ITEMS, TOTAL $15,840.00.

G. FLAX-S, SAN FRANCISCO, CALIFORNIA - 459 CENTS PER SHEET FOR 1,000 QUANTITY FOR EACH OF 36 ITEMS, TOTAL $16,524.00.

H. TACTYPE, INC., NEW YORK, N.Y. - 65 CENTS PER SHEET FOR 1,000 QUANTITY FOR EACH OF 36 ITEMS, TOTAL $23,400.00.

I. METRO SUPPLY, SAN FRANCISCO, CALIFORNIA - 825 CENTS PER SHEET FOR 1,000 QUANTITY FOR EACH OF 36 ITEMS, TOTAL $29,700.00.

ARTYPE, INC., THE LOW BIDDER, BID ITS OWN PRODUCT, AS AN "EQUAL" FOR EACH OF THE 36 ITEMS AND FURNISHED ITS CATALOG FOR COMPARISON PURPOSES. ITEMS 6, 7, 9, 14, 15, 16, 22, 23, 33 AND 34 WERE DETERMINED BY THE CONTRACTING OFFICER TO BE EQUAL TO THE BRAND NAME REFERENCED, AND AWARD FOR THESE ITEMS WAS MADE ON APRIL 15, 1969. ITEMS 1, 2, 3, 4, 5, 8, 10, 11, 12, 13, 17, 18, 19, 20, 21, 25, 26, 27, 28, 29, 30, 31, 32, 35 AND 36 WERE DETERMINED NOT TO BE EQUAL TO THE BRAND NAME AND REJECTED. ITEM 24 WAS REJECTED BECAUSE THE CONTRACTING OFFICER COULD NOT RELATE IT TO AN ITEM IN THE PARA-TONE CATALOG FOR AN "OR EQUAL" COMPARATIVE EVALUATION.

YOUR CORPORATION, THE SECOND LOW BIDDER, BID YOUR OWN PRODUCT ON AN "OR EQUAL" BASIS, PRESTYPE, INC. 12 INCHES X 16 INCHES SHEET SIZE, PLATE 502A, 503A, ETC., FOR EACH OF THE 36 ITEMS. THE CONTRACTING OFFICER STATES THAT YOU FAILED TO FURNISH ANY DESCRIPTIVE MATERIAL FOR THE PURCHASING ACTIVITY TO DETERMINE WHETHER THE PRODUCTS OFFERED MET THE REQUIREMENTS OF THE BID AS TO BEING EQUAL TO THE BRAND NAME PRODUCTS REFERENCED IN THE BID, AND THAT NO OTHER INFORMATION OR MATERIAL ON THESE BID PRODUCTS WAS REASONABLY AVAILABLE FOR "OR EQUAL" EVALUATION PURPOSES. ACCORDINGLY, THE CONTRACTING OFFICER DETERMINED YOUR BID TO BE NONRESPONSIVE.

GEORGE F. MUTH COMPANY, THE THIRD LOW BIDDER, BID THE BRAND NAME PRODUCT ON EACH OF THE 36 ITEMS AND WAS OTHERWISE DETERMINED RESPONSIVE TO THE INVITATION. AWARD WAS MADE TO THE COMPANY ON APRIL 15, 1969, FOR THE 26 ITEMS ON WHICH ARTYPE, INC., HAD BEEN DETERMINED NONRESPONSIVE.

YOU INDIRECTLY CONTEND IN YOUR PROTEST THAT THE ORIGINAL IFB SHOULD NOT HAVE BEEN CANCELLED SINCE YOUR LOW BID WAS DIVULGED TO ALL BIDDERS PRIOR TO THE ISSUANCE OF THE SECOND IFB. YOU ALSO CONTEND THAT YOU SHOULD HAVE BEEN AWARDED THE CONTRACT UNDER THE SECOND IFB SINCE YOUR BID WAS A BETTER BARGAIN THAN THAT OFFERED BY THE LOW BIDDER IN THAT YOU OFFERED A ONE- THIRD LARGER SHEET SIZE FOR ONLY A PRICE DIFFERENCE OF ?005 PER SHEET.

WE AGREE WITH THE CONTRACTING OFFICER THAT THE WORDING OF THE SPECIFICATIONS OF THE FIRST INVITATION WAS SO AMBIGUOUS AS TO JUSTIFY THE CANCELLATION. ARMED SERVICES PROCUREMENT REGULATION 2-404.1 (B) (I) PROVIDES THAT INVITATIONS FOR BIDS MAY BE CANCELLED AFTER BID OPENING BUT BEFORE AWARD WHERE INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION. SEE B-155025, MARCH 3, 1965., B-154415, AUGUST 4, 1964. THE CONTRACTING OFFICER'S SPECIFIC DISCUSSION OF THE CONFLICTING PROVISIONS, AS QUOTED ABOVE, ADEQUATELY ESTABLISH THAT THE INSTRUCTIONS REGARDING INSPECTION, ACCEPTANCE AND OVERSEAS PACKAGING AND PACKING WERE CONFLICTING AND AMBIGUOUS.

IN REGARD TO YOUR ARGUMENT THAT YOU SHOULD HAVE BEEN AWARDED THE CONTRACT UNDER THE SECOND IFB IN THAT THE SHEETS OFFERED BY YOUR CORPORATION WERE ONE-THIRD LARGER, FOR ONLY AN ADDITIONAL ?005 PER SHEET, IT SHOULD BE EMPHASIZED THAT YOUR BID WAS ACTUALLY REJECTED BECAUSE YOU FAILED TO FURNISH WITH YOUR BID DESCRIPTIVE INFORMATION OR MATERIAL SUFFICIENT TO ESTABLISH EXACTLY WHAT YOU PROPOSED TO FURNISH AND TO ENABLE THE PROCURING ACTIVITY TO DETERMINE WHETHER THE PRODUCT YOU OFFERED MET THE REQUIREMENTS OF THE INVITATION. THE PROCURING ACTIVITY REJECTED YOUR BID PURSUANT TO ASPR 2-404.2 (B) (D) (V) AND THE BRAND NAME OR EQUAL CLAUSE CONTAINED IN THE IFB. THIS CLAUSE LISTED IN THE INVITATION AS PARAGRAPH E, PAGE 15 OF THE SOLICITATION, INCLUDED THE FOLLOWING PROVISION AS E.3.A.: "IF THE BIDDER (OR OFFEROR) PROPOSES TO FURNISH AN -EQUAL- PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE BID (OR PROPOSAL), OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID (OR PROPOSAL). THE EVALUATION OF BIDS (OR PROPOSALS) AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER (OR OFFEROR) OR IDENTIFIED IN HIS BID (OR PROPOSAL), AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. CAUTION TO BIDDERS (OR OFFERORS): THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID (OR PROPOSAL) AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER (OR OFFEROR) MUST FURNISH AS A PART OF HIS BID (OR PROPOSAL) ALL DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE BID (OR PROPOSAL) AND (II) ESTABLISH EXACTLY WHAT THE BIDDER (OR OFFEROR) PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. THE INFORMATION FURNISHED MAY INCLUDE SPECIFIC REFERENCES TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY.'

SINCE YOU FAILED TO FURNISH ANY DESCRIPTIVE LITERATURE WHATSOEVER WITH YOUR BID AND THE PROCURING ACTIVITY HAD NO OTHER INFORMATION OR MATERIAL REASONABLY AVAILABLE ON YOUR BID PRODUCTS FOR "OR EQUAL" EVALUATION PURPOSES, WE MUST CONCUR IN THE AGENCY'S DETERMINATION THAT YOUR BID WAS NONRESPONSIVE. SEE B-165928, MAY 27, 1969.