B-179836, FEB 25, 1974, 53 COMP GEN 622

B-179836, FEB 25, 1974, 53 COMP GEN 622

CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - AMBIGUITY OF SPECIFICATION - CONSTRUED AS AFFECTING BID RESPONSIVENESS AN INVITATION FOR BIDS WHICH ONLY STATED IN GENERAL TERMS THE NATURE AND EXTENT OF THE DESCRIPTIVE LITERATURE DESIRED WAS DEFECTIVE BECAUSE IT FAILED TO COMPLY WITH SECTION 1-2.202-5 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) THAT A DESCRIPTIVE DATA CLAUSE DETAIL THOSE COMPONENTS OF THE DATA AND TYPE OF DATA DESIRED. AS THE INDUSTRIAL EXHAUSTER SOLICITED IS STILL REQUIRED, AND CANNOT BE PROCURED WITHOUT SUBMISSION OF DESCRIPTIVE DATA, THE CANCELED INVITATION SHOULD BE READVERTISED IN CONSONANCE WITH FPR DESCRIPTIVE LITERATURE REQUIREMENTS.

IN THE MATTER OF AIR PLASTICS, INCORPORTED, FEBRUARY 25, 1974:

INVITATION FOR BIDS (IFB) NO. BEP-74-14 WAS ISSUED ON AUGUST 8, 1973, BY THE BUREAU OF ENGRAVING AND PRINTING, DEPARTMENT OF THE TREASURY, WASHINGTON, D.C., AND WAS INTENDED TO PROCURE AN INDUSTRIAL EXHAUSTER WITH AN ACCOMPANYING MOTOR. THE BID SCHEDULE PROVIDED THAT DESCRIPTIVE LITERATURE WAS TO BE FURNISHED WITH EACH BID, AND THAT DELIVERY OF THE PRODUCT WAS TO BE MADE WITHIN 45 CALENDAR DAYS AFTER THE RECEIPT OF THE PURCHASE ORDER. ON THE DATE SPECIFIED, AUGUST 28, 1973, THE THREE BIDS TIMELY RECEIVED WERE OPENED. AN ABSTRACT OF THE BIDS REVEALS THE FOLLOWING:

BIDDER PRICE TIME FOR DELIVERY

BUFFALO FORGE COMPANY $2,377 60 DAYS.

CEILCOTE COMPANY, INC 2,560 45 DAYS.

AIR PLASTICS, INC 2,727 30-45 DAYS.

SUBSEQUENT TO AN EVALUATION OF THE BIDS, THE BUREAU OF ENGRAVING AND PRINTING AWARDED THIS CONTRACT TO BUFFALO FORGE. HOWEVER, AS A RESULT OF AIR PLASTICS' LETTER OF OCTOBER 1, 1973, TO THE BUREAU POINTING OUT THAT BUFFALO FORGE'S DELIVERY TIME EXCEEDED THE SCHEDULE DELIVERY PARAMETERS, THE BUREAU CANCELED THE AWARD. AS THE BUREAU WAS OF THE OPINION THAT CEILCOTE AND AIR PLASTICS HAD NOT FURNISHED SUFFICIENT DESCRIPTIVE DATA TO ESTABLISH WHETHER THE PRODUCTS OFFERED WOULD OR WOULD NOT COMPLY WITH THE SPECIFICATIONS, THOSE BIDS WERE REJECTED AS NONRESPONSIVE, AND THE BUREAU THEREFORE DECIDED TO READVERTISE THE PROCUREMENT. AS A RESULT OF THE REJECTION OF ITS BID, AIR PLASTICS PROTESTED TO THIS OFFICE BY LETTER DATED OCTOBER 1, 1973.

THE SOLICITATION CONTAINED THE FOLLOWING REQUIREMENT FOR DESCRIPTIVE LITERATURE:

(A) DESCRIPTIVE LITERATURE 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 PRODUCT THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, MATERIALS, COMPONENTS, PERFORMANCE CHARACTERISTICS, CONSTRUCTION AND OPERATION. SEE PARAGRAPH A.10, A-10.01 AND A-10.02 OF THE GENERAL CONDITIONS.

(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 WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF MATERIAL 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.

IN ITS REPORT TO THIS OFFICE DATED OCTOBER 19, 1973, THE BUREAU STATED THE FOLLOWING AS THE RATIONALE FOR REJECTION OF THE AIR PLASTICS, BID:

BIDDER NO. 3, AIR PLASTICS, INC.

THIS BID OFFERED AN ITEM IDENTIFIED AS AIR PLASTICS, CR-24, AND SUBMITTED ACCOMPANYING DATA IN THE FORM OF AIR PLASTICS BULLETIN NO. 7305, INDUSTRIAL FIBERGLASS CENTRIFUGAL FANS; HOWEVER UNDER THE CHART SHOWING THE CHARACTERISTICS OF CR-24, CONTAINED THEREIN, THERE WAS NO LISTING FOR THE 7100 CFM (CUBIC FEET PER MINUTE) AS REQUIRED BY THE INVITATION. SINCE THE DESCRIPTIVE LITERATURE FAILED TO SHOW THAT THE PRODUCT OFFERED CONFORMED TO THE SPECIFICATION'S REQUIREMENTS, REJECTION OF THE BID WAS REQUIRED.

ALSO, AND RELATED TO THE ABOVE, THE COUNTER-CLOCKWISE ARRANGEMENT AND NO. 9 CHANNEL BASE WERE NOT DELINEATED NOR WAS THERE EVIDENCE OF SPECIFICALLY FURNISHING THE C.F.M. 8" STATIC PRESSURE CAPACITY OR AN OPEN DRIP-PROOF, 1750 R.P.M., 480 VOLT, 3 PHASE A.C. MOTOR AND MAGNETIC ACROSS LINE STARTER.

IN RESPONSE TO THIS REPORT, AIR PLASTICS SUBMITTED TO OUR OFFICE A LETTER DATED OCTOBER 26, 1973, IN WHICH AIR PLASTICS CONTENDED THAT THE INFORMATION SUBMITTED IN ITS BID WAS ADEQUATE FOR THE EVALUATION INTENDED. IN REFERENCE TO ITS ALLEGED FAILURE TO INDICATE THE CR-24'S CHARACTERISTICS AT 7100 C.F.M., AIR PLASTICS POINTS OUT THAT THE CHART SUBMITTED WITH ITS BID DID LIST THE AIR-FLOW REQUIREMENTS OF THE AIR PLASTICS CR-24 MODEL AT BOTH 7000 AND 8000 C.F.M., AND THE PROTESTER MAINTAINS THAT IT IS A "SIMPLE MATTER AND STANDARD PRACTICE IN THE INDUSTRY TO INTERPOLATE FOR INTERMEDIATE AIR-FLOW VOLUMES AS IT IS IMPRACTICAL TO LIST ALL POSSIBLE AIR FLOW REQUIREMENTS." AIR PLASTICS CONTENDS THAT INTERPOLATION OF THIS CHART FOR 7100 C.F.M. SHOULD BE CONSIDERED A REASONABLE PART OF THE EVALUATION PROCESS, AND IT CONCLUDES THAT FAILURE OF THE TECHNICAL EVALUATORS TO CONDUCT ACCEPTED EVALUATION TECHNIQUES SHOULD NOT RESULT IN THE REJECTION OF ITS BID. IN RELATION TO ITS ALLEGED FAILURE TO SUPPLY DESCRIPTIVE LITERATURE CONCERNING THE VARIOUS COMPONENTS OF ITS SYSTEM, AIR PLASTICS ARGUES THAT THERE WAS NO NEED FOR DUPLICATION OF THE COMPONENT INFORMATION BECAUSE IT WAS ALREADY STATED IN DETAIL BY THE BUREAU IN DESCRIBING THE EXHAUSTER DESIRED. THE PROTESTER STATES THAT ITS BID DID NOT IN ANY WAY ALTER, DELETE OR TAKE EXCEPTION TO THIS DESCRIPTION, AND THAT IT INDICATED ITS COMPLIANCE WITH THE DESCRIPTION BY LISTING ITS BID PRICE IMMEDIATELY NEXT TO IT. AIR PLASTICS SUBMITS THAT ITS BID SHOULD HAVE BEEN EVALUATED IN ITS ENTIRETY, AND THAT SUCH AN EVALUATION SHOULD HAVE CONCLUDED THAT ITS BID STATED THE NECESSARY COMPLIANCE WITH THE SPECIFICATIONS.

AN AGENCY HAS THE PRIMARY RESPONSIBILITY TO DRAFT SPECIFICATIONS REFLECTING ITS MINIMUM NEEDS AS WELL AS DETERMINING THAT PRODUCTS OFFERED MEET THOSE SPECIFICATIONS. THUS, AN IFB MAY REQUIRE THAT DESCRIPTIVE DATA ACCOMPANY EACH BID FOR THE PURPOSE OF BID EVALUATION, IF SUCH DATA IS NEEDED TO AID THE AGENCY IN DETERMINING WHETHER THE PRODUCT OFFERED MEETS THE SPECIFICATIONS AND IN CONCLUDING WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY THE MAKING OF AN AWARD. 40 COMP. GEN. 132 (1960); 36 ID. 415, 416-17 (1956). IF THE NEED FOR DESCRIPTIVE LITERATURE CAN BE JUSTIFIED, THE INVITATION MUST CLEARLY ESTABLISH THE NATURE AND EXTENT OF THE DESCRIPTIVE MATERIAL ASKED FOR, THE PURPOSE INTENDED TO BE SERVED BY SUCH DATA, AND WHETHER ALL DETAILS OF SUCH DATA WILL BE CONSIDERED AN INTEGRAL PART OF THE AWARDED CONTRACT. 38 COMP. GEN. 59, 64 (1958). IF A BID FAILS TO COMPLY WITH A PROPER DESCRIPTIVE LITERATURE REQUIREMENT, THE BID ORDINARILY WILL BE REJECTED AS NONRESPONSIVE. B-174892, MARCH 6, 1972.

WE NOTE AT THE OUTSET THAT THE RECORD FURNISHED OUR OFFICE BY THE BUREAU OF ENGRAVING AND PRINTING DOES NOT CONTAIN ANY JUSTIFICATION FOR THE INCLUSION OF THE DESCRIPTIVE LITERATURE CLAUSE AS REQUIRED BY FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.202-5(C). THE BUREAU'S STATEMENT ON THE PROTEST INDICATES THAT THE AGENCY REQUIRED DESCRIPTIVE LITERATURE TO ENABLE IT TO DETERMINE IF THE PRODUCT OFFERED CONFORMED TO THE SPECIFICATIONS. WHILE THIS ALONE DOES NOT JUSTIFY THE REQUIREMENT FOR DESCRIPTIVE DATA, 49 COMP. GEN. 398, 400 (1969), A POSSIBLE JUSTIFICATION FOR THIS REQUIREMENT MIGHT HAVE BEEN THAT THE PURCHASE DESCRIPTION IN QUESTION IS SO BRIEF AND LACKING IN DETAIL THAT THE INDIVIDUAL BIDDERS COULD PROPOSE DIFFERENT DESIGNS, COMPRISED OF VARYING MATERIALS AND COMPONENTS, SO THAT DESCRIPTIVE DATA WAS NEEDED TO AID IN THE EVALUATION OF THESE BIDS. WE NEED NOT RESORT TO SUCH SPECULATION, HOWEVER, BECAUSE EVEN IF AN ACCEPTABLE PRODUCT COULD NOT HAVE BEEN PROCURED WITHOUT DESCRIPTIVE LITERATURE, THE INVITATION IS DEFECTIVE BECAUSE IT FAILS TO IDENTIFY THOSE ITEMS, SPECIFICATION FEATURES OR COMPONENTS AS TO WHICH DESCRIPTIVE LITERATURE WAS REQUIRED.

THIS OFFICE HAS HELD THAT AN IFB MUST STATE DEFINITELY THE COMPONENTS CONCERNING WHICH DESCRIPTIVE DATA IS REQUIRED. B-146211, OCTOBER 6, 1961. EVEN IF THE DATA REQUIREMENT IS JUSTIFIED AND DESCRIPTIVE LITERATURE IS REQUIRED TO DETERMINE BID RESPONSIVENESS, AN INVITATION IS DEFECTIVE IF IT DOES NOT CLEARLY ESTABLISH IN THE GREATEST DETAIL PRACTICAL THE NATURE AND EXTENT OF DESCRIPTIVE DATA NEEDED. 46 COMP. GEN. 1, 5 (1966); B-173519, SEPTEMBER 27, 1971.

THE "REQUIREMENT FOR DESCRIPTIVE LITERATURE" CLAUSE PRESCRIBED BY FPR 1- 2.202-5(D)(1) PROVIDES IN PART:

*** 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.

THE ADAPTATION OF THIS CLAUSE WHICH APPEARED IN THE INSTANT IFB STATED:

*** THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCT THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, MATERIALS, COMPONENTS, PERFORMANCE CHARACTERISTICS, CONSTRUCTION AND OPERATION. ***.

IN REFERENCE TO A VERY SIMILAR DESCRIPTIVE LITERATURE CLAUSE WHICH ALSO MERELY REPEATED THESE ELEMENTS, WE HAVE STATED THAT THE MERE RECITAL IN THAT CLAUSE OF THOSE CATEGORIES OF GENERAL SUBJECTS WHICH MIGHT REQUIRE DESCRIPTION, WITHOUT MORE, IS NOT SUFFICIENT TO ESTABLISH A COMMON BASIS FOR EVALUATION OF BIDS. 46 COMP. GEN. 1, 5 (1966). IN THAT OPINION, WE THEREFORE HELD THAT THE INVITATION WAS DEFECTIVE BECAUSE, INTER ALIA, THE EXTENT OF DETAIL REQUIRED WAS NOT PROPERLY SET OUT. ID. WHILE THAT DECISION CONCERNED ARMED SERVICES PROCUREMENT REGULATION 2-202.5, THE CLAUSE IN ISSUE IN THAT DECISION IS VIRTUALLY IDENTICAL TO THE DESCRIPTIVE DATA CLAUSE IN THIS SOLICITATION.

WHILE THIS IFB ALSO REFERS A BIDDER TO PARAGRAPHS A-10, A-10.01 AND A 10.02 OF THE GENERAL CONDITIONS (FOR MECHANICAL AND ELECTRICAL EQUIPMENT) FOR FURTHER GUIDANCE, A PERUSAL OF THESE PARAGRAPHS REVEALS THAT THE ADDITIONAL ADVICE OFFERED IS GENERAL AND IN FACT IS ONLY A RESTATEMENT OF FPR 1-2.202-5. FOR EXAMPLE, PARAGRAPH A-10 ADMONISHES BIDDERS THAT EACH BIDDER SHALL FURNISH DESCRIPTIVE LITERATURE OF THE EXACT EQUIPMENT UPON WHICH HIS BID IS BASED, THAT THIS LITERATURE SHALL BE IN THE FORM OF CATALOG CUTS, DRAWINGS, PICTURES, OR OTHER GRAPHICAL MATERIAL AND SHALL INCLUDE APPROPRIATE DESCRIPTIVE TEXT, AND THAT DESCRIPTIVE LITERATURE SHALL BE COMPLETE AND AMPLE TO AN EXTENT THAT IT WILL ENABLE THE BUREAU TO DETERMINE WITHOUT ANY DOUBT THAT THE OFFERED EQUIPMENT MEETS ALL SPECIFIED REQUIREMENTS. WHILE THESE STATEMENTS ARE ACCEPTABLE AS FAR AS THEY GO, NOWHERE IN THE GENERAL CONDITIONS OR IN THE INVITATION IS THE BIDDER INSTRUCTED AS TO THE COMPONENTS FOR WHICH THE DESCRIPTIVE DATA IS REQUIRED OR AS TO WHAT TYPE OF DATA IS REQUIRED FOR EACH COMPONENT. IN VIEW OF THE ABOVE, WE BELIEVE THAT THIS INVITATION IS DEFECTIVE FOR FAILING TO SET OUT IN A MANNER AS DETAILED AS PRACTICAL THE NATURE AND EXTENT OF THE DESCRIPTIVE LITERATURE REQUIREMENT. 49 COMP. GEN. 398, 401 (1969); 46 ID. 1, 5 (1966).

IN ANY EVENT, AIR PLASTICS ARGUES THAT THE DESCRIPTIVE DATA IT FURNISHED WAS ADEQUATE AND THAT IT ACCURATELY REFLECTED ITS PROPOSED SYSTEM. CONTENDS THAT THE BUREAU OF PRINTING AND ENGRAVING SHOULD HAVE AWARDED THE CONTRACT IN QUESTION TO IT AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER.

WE NOTE THAT ATTACHED TO AIR PLASTICS' BID WAS ITS BULLETIN 7305, WHICH INCLUDED CHARTS OF AIR-FLOW VOLUMES AND DIMENSIONAL DATA FOR SEVERAL INDUSTRIAL FIBERGLASS CENTRIFUGAL FANS. AIR PLASTICS MAINTAINS THAT THROUGH INTERPOLATION OF VALUES APPEARING IN ITS BULLETIN, IT CAN BE DETERMINED THAT ITS CR-24 FAN, EQUIPPED WITH THE SPECIFIED 20 HORSEPOWER MOTOR, WILL DELIVER THE REQUIRED VOLUME OF 7100 CUBIC FEET PER MINUTE AT AN 8-INCH STATIC PRESSURE CAPACITY.

EVEN IF IT IS CONCEDED THAT AIR PLASTICS' DESCRIPTIVE LITERATURE ESTABLISHED THAT ITS FAN WOULD PRODUCE THE REQUIRED AIR-FLOW WHEN EQUIPPED WITH THE PROPER-SIZED MOTOR, THE LITERATURE DOES NOT SPECIFICALLY DISCUSS THE SPECIFICATION REQUIREMENTS FOR CERTAIN CHARACTERISTICS OF THE MOTOR, STARTER, FAN BASE, AND DIRECTION OF ROTATION. THE BUREAU HAS STATED THAT AN ACCEPTABLE EXHAUSTER CANNOT BE PROCURED WITHOUT REQUIRING THE BIDDER TO SUBMIT DESCRIPTIVE DATA SO THAT THE BUREAU CAN ASCERTAIN PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH. UNDER THESE CIRCUMSTANCES, WE DO NOT BELIEVE AIR PLASTICS HAS SATISFIED THE BUREAU'S NEED FOR DESCRIPTIVE LITERATURE.

AS WE CANNOT HOLD THAT THE BUREAU'S JUDGMENT THAT DESCRIPTIVE LITERATURE IS REQUIRED IS INCORRECT, AND AS THE PRODUCT REQUIREMENT STILL EXISTS, THE DEFECTIVE INVITATION MUST BE CANCELED AND THE NEED SHOULD BE RESOLICITED UNDER AN INVITATION WHICH COMPLIES FULLY WITH FPR 1-2.202-5. 48 COMP. GEN. 659, 662-63 (1969). WE HAVE BEEN ADVISED THAT THIS NEED WILL BE READVERTISED, AND WE HAVE INFORMED THE BUREAU OF PRINTING AND ENGRAVING OF OUR VIEWS CONCERNING AN INVITATION'S REQUIREMENT FOR DESCRIPTIVE LITERATURE.

ACCORDINGLY, THE PROTEST MUST BE DENIED.