B-166513, JUN. 24, 1969

B-166513, JUN. 24, 1969

TO THERMAL RESEARCH AND ENGINEERING CORPORATION:

YOUR LETTER OF MAY 5, 1969, REQUESTS RECONSIDERATION OF OUR DECISION B- 166513, APRIL 30, 1969, WHICH DENIED YOUR PROTEST AGAINST ANY AWARD BY THE DEPARTMENT OF THE INTERIOR, BUREAU OF MINES, UNDER INVITATION FOR BIDS (IFB) S4391160, DATED MARCH 11, 1969. THE PROCUREMENT ITEM IS A WASTE GAS THERMAL OXIDIZER FOR USE BY THE LARAMIE PETROLEUM RESEARCH CENTER, LARAMIE, WYOMING.

THE IFB REQUIRED THAT THE OXIDIZER COMPLY WITH CERTAIN SPECIFICATIONS AND DRAWINGS; STATED THAT THE SPECIFICATIONS REFLECTED THE MINIMUM STANDARDS FOR OPERATION AND PERFORMANCE OF THE EQUIPMENT; AND STIPULATED THAT FAILURE OF A BIDDER'S DRAWINGS, WHICH WERE REQUIRED TO BE SUBMITTED WITH THE BID, TO SHOW COMPLIANCE OF THE OFFERED ITEM WITH THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THE IFB WOULD REQUIRE REJECTION OF THE BID.

IN YOUR PROTEST LETTER OF MARCH 20 YOU CHARGED THAT THE PROCUREMENT WAS SOLE SOURCE, ON THE BASIS THAT THE SPECIFICATIONS AND DRAWING OF THE BURNER REQUIRED IN THE END ITEM DEPICTED A BURNER MANUFACTURED BY ONLY ONE FIRM. IN ADDITION, YOU STATED THAT WHILE THE USING ACTIVITY HAD VERBALLY AUTHORIZED CERTAIN EXCEPTIONS TO THE SPECIFICATIONS, IT WAS INSISTENT "THAT THE BURNER BE ONE PRODUCED BY A COMPETITIVE COMPANY.' ACCORDINGLY, YOU PROTESTED ANY AWARD UNDER THE IFB, AND URGED THAT A LESS RESTRICTIVE SPECIFICATION BE WRITTEN IN ORDER THAT ALL INTERESTED CONTRACTORS MIGHT HAVE A FAIR AND EQUAL OPPORTUNITY TO HAVE THEIR BIDS CONSIDERED.

IN OUR DECISION OF APRIL 30 WE ADVISED YOU THAT THE BUREAU OF MINES HAD REPORTED THAT THE IFB BURNER DRAWING INCLUDED IN THE BID PACKAGE HAD ORIGINATED IN THE BUREAU AND WAS NOT THE DRAWING OF ANY PARTICULAR MANUFACTURER; THAT THE DRAWING REFLECTED THE GOVERNMENT'S MINIMUM NEEDS FOR THE BURNER; AND THAT TO THE BEST OF THE BUREAU'S KNOWLEDGE THE TERM "THERMAL OXIDIZER" USED IN THE IFB AND ON THE BUREAU DRAWING IS NOT A TRADE OR BRAND NAME (AS YOU HAD CLAIMED IN PRE-BID DISCUSSIONS OF THE IFB REQUIREMENTS WITH THE USING ACTIVITY).

WE ALSO INFORMED YOU IN OUR DECISION THAT FIVE BIDS RECEIVED IN THE BUREAU BY THE SCHEDULED BID OPENING TIME WERE CONSIDERED BY THE BUREAU TO BE RESPONSIVE TO THE IFB, ALTHOUGH ONLY ONE OFFERED THE PARTICULAR BURNER WHICH YOU ALLEGE WAS CALLED OUT BY THE SPECIFICATIONS AND DRAWINGS. THE LOW BID, SUBMITTED IN THE NAME OF THERMAL TRANSFER CORPORATION BUT REFERRED TO IN YOUR LETTER OF MAY 5 AS YOURS, WAS REJECTED FOR FAILURE TO SUBMIT ANY DRAWINGS AS REQUIRED BY THE IFB.

AS WE FURTHER STATED IN OUR DECISION, THE DRAFTING OF SPECIFICATIONS REFLECTING THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION WHETHER ITEMS OFFERED BY BIDDERS WILL MEET SUCH NEEDS ARE PRIMARILY THE RESPONSIBILITY OF THE PARTICULAR CONTRACTING AGENCY. FURTHER, THE FACT THAT A PARTICULAR BIDDER IS EITHER UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEEDS IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. SUCH PRINCIPLES ARE ENUNCIATED IN THE DECISIONS OF OUR OFFICE WHICH WERE CITED TO YOU.

UPON APPLICATION OF THE AFOREMENTIONED PRINCIPLES TO THE FACTS AND CIRCUMSTANCES OF THIS PROCUREMENT, PARTICULARLY THE FACT THAT FIVE BIDDERS DID NOT FIND THE IFB REQUIREMENTS UNDULY RESTRICTIVE, WE STATED THAT WE WERE UNABLE TO CONCUR WITH YOUR POSITION THAT THE IFB WAS SO RESTRICTED. WE THEREFORE CONCLUDED THAT THERE WAS NO EVIDENCE THAT THE IFB DID NOT PERMIT THE FULL AND FREE COMPETITION CONTEMPLATED BY THE APPLICABLE PROCUREMENT STATUTE AND DENIED YOUR PROTEST.

IN YOUR LETTER OF MAY 5 YOU ADHERE TO YOUR POSITION THAT THE IFB WAS RESTRICTIVE, CITING THREE POINTS: "/1) A DRAWING OF A COMPETITOR'S BURNER; (2) THE USE OF THE SAME COMPETITOR'S TERMINOLOGY, -THERMAL OXIDIZER-; (3) THE STATEMENT BY MR. ALBERT A. SHEPARD, ADMINISTRATIVE OFFICER OF LARAMIE RESEARCH CENTER, THAT NO OTHER BURNER IS ACCEPTABLE.'

AS TO THE FIRST POINT, EXAMINATION OF THE BURNER DRAWINGS WHICH WERE SUBMITTED TO THE USING ACTIVITY BY JOHN ZINK COMPANY AND THREE OF THE OTHER RESPONSIVE BIDDERS INDICATES THAT NO ONE OF SUCH DRAWINGS IS IDENTICAL TO THE BUREAU BURNER DRAWING WHICH WAS INCLUDED IN THE IFB. ADDITION, THE BUREAU OF MINES HAS AGAIN ADVISED US THAT THE BURNER DRAWING ORIGINATED AT THE LARAMIE CENTER AND WAS DRAWN BY AN EMPLOYEE OF THE BUREAU. THE DRAWINGS SUBMITTED WITH THE BIDS OF OZARK-MAHONING CO., MKB INDUSTRIES, INC., AND SARGENT GULF STATES, INC., LISTED, SPECTIVELY,"NORTH AMERICAN BURNER OR EQUAL"; "MAXON, WIDE RANGE NOZZLE MIX. BURNER WITH S.S. ENCLOSURE"; AND BURNER "FURNISHED AND FABRICATED BY SARGENT GULF STATES TO MEET DETAILS SHOWN ON SKETCHES R 10 AND R-11" (THE SPECIFICATION DRAWINGS). INASMUCH AS THE BUREAU STATES THAT EACH OF THOSE BIDS WAS CONSIDERED RESPONSIVE WE CANNOT ACCEPT YOUR CONTENTION THAT THE DRAWING MADE THE IFB RESTRICTIVE.

WITH RESPECT TO THE TERM "THERMAL OXIDIZER," WE NOTE THAT TWO OTHER BIDDERS USED THAT TERM, AS DID JOHN ZINK COMPANY AND THE BUREAU, TO DESCRIBE THE END ITEM. BOTH WORDS ARE ORDINARY TERMS IN COMMON USE AND IN COMBINATION APPEAR TO DESIGNATE A DEVICE FOR PRODUCING COMBUSTION BY HEAT. WE KNOW OF NO BASIS FOR CONSIDERING THE TERMS TO BE IN ANY WAY PROPRIETARY OR TO HAVE PARTICULAR REFERENCE TO ANY INDIVIDUAL MANUFACTURER'S BURNER, ANY MORE THAN THE TERM "INCINERATOR" USED BY YOU IN REFERRING TO YOUR BURNER IN CORRESPONDENCE WITH THE BUREAU.

AS TO THE STATEMENT ATTRIBUTED BY YOU TO MR. SHEPARD, THE EXACT LANGUAGE OF HIS LETTER OF MARCH 18 TO YOU WAS AS FOLLOWS: "REFERENCE IS MADE TO YOUR LETTER OF MARCH 13 AND OUR TELEPHONE CONVERSATION OF MARCH 17 REGARDING THE SPECIFICATIONS ON OUR SOLICITATION S4391160. "OUR SOLICITATION STATES OUR MINIMUM REQUIREMENTS AND ANY MAJOR DEVIATION FROM THESE SPECIFICATIONS WOULD HAVE TO BE CONSIDERED AS A NONRESPONSIVE OFFER. SPECIFICALLY, THE TYPE OF BURNER ARRANGEMENT AS SET FORTH IN OUR SOLICITATION MUST BE MET.'

CLEARLY, THE LANGUAGE,"TYPE OF BURNER ARRANGEMENT," DOES NOT DENOTE A PARTICULAR MAKE OF BURNER, AND THE BUREAU'S REPORT OF THE ACCEPTABILITY OF AT LEAST TWO OTHER MAKES REFUTES YOUR INTERPRETATION. MOREOVER, WE FIND NO INDICATION IN THE REMAINING CORRESPONDENCE IN THE FILE OR ELSEWHERE THAT YOU WERE INFORMED, AS YOU CLAIM, THAT NO BURNER OTHER THAN ONE PARTICULAR BURNER (I.E., THE JOHN ZINK COMPANY BURNER) WOULD BE ACCEPTABLE. WE MUST ASSUME, THEREFORE, THAT YOUR CONCLUSION THAT ONLY A ZINK BURNER WOULD MEET THE BUREAU'S REQUIREMENTS WAS NOT OCCASIONED BY ANY INFORMATION FURNISHED BY THE GOVERNMENT BUT REFLECTED YOUR OWN JUDGMENT IN THE MATTER.

IN VIEW OF THE FOREGOING, WE HAVE NO ALTERNATIVE BUT TO AFFIRM THE CONCLUSIONS IN OUR DECISION OF APRIL 30 TO THE EFFECT THAT THE IFB WAS NOT UNDULY RESTRICTIVE AND DID PERMIT THE FULL AND FREE COMPETITION CONTEMPLATED BY THE PROCUREMENT STATUTE.

IN ADDITION TO THE FOREGOING, YOU STATE, WITH RESPECT TO THE REJECTION OF THE LOWEST BID FOR FAILURE TO FURNISH THE REQUIRED DRAWINGS, THAT THE GOVERNMENT COULD HAVE REQUESTED AND WOULD HAVE BEEN FURNISHED ADEQUATE DRAWINGS WITHIN A FEW DAYS (AFTER BID OPENING) HAD IT BEEN TRULY INTERESTED IN THE LOW BID. HOWEVER, WE CALL YOUR ATTENTION TO 43 COMP. GEN. 707 (1964) AND THE DECISIONS THEREIN CITED, WHICH STAND FOR THE PROPOSITION THAT THE FAILURE OF A BIDDER TO COMPLY WITH A DESCRIPTIVE DATA REQUIREMENT WHICH HAS AS ITS PURPOSE DETERMINATION OF THE RESPONSIVENESS OF A BID, AS OPPOSED TO DETERMINATION OF THE RESPONSIBILITY OF A BIDDER, MAY NOT BE WAIVED AS A MINOR INFORMALITY IN BID WHERE THE INVITATION INCLUDES NOTICE TO THE BIDDERS THAT SUCH FAILURE WILL RESULT IN REJECTION OF THE BID. DRAWINGS ARE ENCOMPASSED IN THE DEFINITION OF THE TERM ,DESCRIPTIVE LITERATURE" SET FORTH IN FEDERAL PROCUREMENT REGULATION 1- 2.202-5 (A). ACCORDINGLY, UNDER THE LANGUAGE IN THE IFB THE FAILURE OF THE LOWEST BIDDER, THERMAL TRANSFER CORPORATION, TO SUBMIT THE REQUIRED DRAWINGS BEFORE THE SCHEDULED BID OPENING REQUIRED THE REJECTION OF ITS BID AND PRECLUDED ACCEPTANCE BY THE PROCURING ACTIVITY OF ANY DRAWINGS WHICH MIGHT HAVE BEEN TENDERED AFTER THE BID OPENING. SEE ALSO 41 COMP. GEN. 192 (1961).