B-144679, MAY 12, 1961

B-144679: May 12, 1961

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHICH WILL BE USED IN DETERMINING THE RESPONSIVENESS OF THE BID. BIDS WILL BE EVALUATED STRICTLY ON THE BASIS OF INFORMATION SUBMITTED WITH THE BID. SUCH DATA WILL BE MADE A PART OF THE CONTRACT INSTRUMENT. OR FAILURE TO SUBMIT ALL OF THE REQUIRED DATA WILL RESULT IN REJECTION OF THE BID. - THE FOLLOWING DATA WILL NOT BE MADE A PART OF THE CONTRACT: (A) DRAWINGS. (G) FACTORY SHIPPING POINT AND APPROXIMATE WEIGHT OF INVERTER SET. (2) SPECIFIC DATA: THE FOLLOWING DATA WILL BE MADE A PART OF THE CONTRACT: "MANUFACTURER AND TYPE INDICATING INSTRUMENTS . THE GUARANTEED CHARACTERISTICS OF THE ABOVE EQUIPMENT WILL BE SUBMITTED AND WILL BE MADE A PART OF THE CONTRACT.'. IT WAS FOUND THAT THE LOW BID.

B-144679, MAY 12, 1961

TO GRAYDON, HEAD AND RITCHEY:

WE REFER AGAIN TO YOUR TELEGRAM OF DECEMBER 22, 1960, AND YOUR LETTERS OF DECEMBER 27, 1960, AND MARCH 18 AND 20, 1961, PROTESTING ON BEHALF OF THE POST-GLOVER ELECTRIC COMPANY THE PROPOSED REJECTION OF THAT FIRM'S LOW BID UNDER INVITATION NO. CIVENG-01-076-61-20, ISSUED OCTOBER 18, 1960, BY THE CORPS OF ENGINEERS FOR THE PROCUREMENT OF CONTROL SWITCHBOARDS, MOTOR GENERATORS AND APPURTENANT EQUIPMENT.

THE INVITATION PROVIDES, BEGINNING AT PAGE 6 OF THE CONTINUATION SCHEDULE AS FOLLOWS:

"4. DRAWINGS AND DATA TO BE SUBMITTED WITH BID:

"A. EACH BIDDER SHALL SUBMIT WITH HIS BID IN DUPLICATE THE INFORMATION LISTED BELOW, WHICH WILL BE USED IN DETERMINING THE RESPONSIVENESS OF THE BID. BIDS WILL BE EVALUATED STRICTLY ON THE BASIS OF INFORMATION SUBMITTED WITH THE BID. THE DRAWINGS AND DATA SUBMITTED MUST BE IN SUFFICIENT DETAIL AND CLARITY TO ENABLE MAKING A COMPLETE AND POSITIVE CHECK WITH THE TECHNICAL PROVISIONS OF THE SPECIFICATIONS AND, WHERE HEREINAFTER INDICATED, SUCH DATA WILL BE MADE A PART OF THE CONTRACT INSTRUMENT. IF BIDDERS SUBMIT STANDARD DRAWINGS AND/OR STANDARD PUBLISHED DESCRIPTIVE DATA OF THEIR PRODUCT, ANY MODIFICATION REQUIRED AND INTENDED BY THEM IN ORDER TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS SHALL BE CLEARLY SET FORTH BY DESCRIPTION OF THE CHANGE OR REVISION. FAILURE TO SUBMIT DRAWINGS AND DATA OF SUCH DETAIL AND CLARITY AS DESCRIBED ABOVE, FAILURE OF SUCH INFORMATION TO INDICATE COMPLIANCE OF THE BID WITH THE SPECIFICATIONS, OR FAILURE TO SUBMIT ALL OF THE REQUIRED DATA WILL RESULT IN REJECTION OF THE BID.

"B. THE DRAWINGS AND DATA SUBMITTED SHALL INCLUDE, AS A MINIMUM, THE FOLLOWING:

(1) DRAWINGS AND DESCRIPTIVE DATA--- THE FOLLOWING DATA WILL NOT BE MADE A PART OF THE CONTRACT:

(A) DRAWINGS, PHOTOGRAPHS, OR BULLETINS OF SIMILAR CONTROL SWITCHBOARDS HE HAS MANUFACTURED SHOWING GENERAL CONSTRUCTION FEATURES.

(B) APPROXIMATE SHIPPING WEIGHT OF EACH SWITCHBOARD.

(C) APPROXIMATE SHIPPING LENGTH OF EACH SWITCHBOARD. (LONGEST SECTION)

(D) FACTORY SHIPPING POINT OF EACH SWITCHBOARD.

(E) DESCRIPTIVE LITERATURE FOR WATER FLOW METERS, AND WATER LEVEL DEVICES.

(F) FACTORY SHIPPING POINT AND APPROXIMATE WEIGHT OF EACH BATTERY CHARGER MOTOR-GENERATORS.

(G) FACTORY SHIPPING POINT AND APPROXIMATE WEIGHT OF INVERTER SET.

(2) SPECIFIC DATA: THE FOLLOWING DATA WILL BE MADE A PART OF THE CONTRACT:

"MANUFACTURER AND TYPE

INDICATING INSTRUMENTS ----------------------------

RECORDING INSTRUMENTS ----------------------------

WATTHOUR METERS ----------------------------

WATER LEVEL DEVICES ----------------------------

TURBINE FLOW METERS ----------------------------

CONTROL SWITCHES ----------------------------

PROTECTIVE RELAYS ----------------------------

CIRCUIT BREAKERS ----------------------------

ANNUNCIATOR EQUIPMENT ----------------------------

BATTERY-CHARGER

MOTOR-GENERATORS ----------------------------

INVERTER SET ----------------------------

SPEED REGULATOR ----------------------------

A-C VOLTAGE REGULATOR ---------------------------

"C. THE GUARANTEED CHARACTERISTICS OF THE ABOVE EQUIPMENT WILL BE SUBMITTED AND WILL BE MADE A PART OF THE CONTRACT.'

UPON OPENING, ON NOVEMBER 17, 1960, IT WAS FOUND THAT THE LOW BID, AT $169,682, LESS A 1 PERCENT PROMPT PAYMENT DISCOUNT, HAD BEEN SUBMITTED BY POST-GLOVER. THE CONTRACTING OFFICER, NEVERTHELESS, PROPOSES TO MAKE AWARD TO THE NEXT LOW BIDDER, BERRY ENGINEERING COMPANY, WHOSE NET PRICE IS $170,412. THE REASON FOR REJECTING THE LOW BID IS THAT IT WAS NOT ACCOMPANIED BY THE DATA AND DESCRIPTIVE LITERATURE SPECIFICALLY REQUIRED BY THE QUOTED TERMS OF THE INVITATION.

SOME DISPUTE EXISTS AS TO THE ADEQUACY OF A PORTION OF THE DATA FURNISHED. IT IS AGREED, HOWEVER, THAT THE INFORMATION REQUIRED UNDER PARAGRAPH 4C, QUOTED ABOVE, WAS NOT MET AT LEAST WITH RESPECT TO A NUMBER OF THE ITEMS LISTED, AND THAT THE MANUFACTURER'S TYPE IS NOT SHOWN UNDER PARAGRAPH 4B (2) FOR RECORDING INSTRUMENTS, WATER LEVEL DEVICES, TURBINE FLOWMETERS, AND BATTERY CHARGER MOTOR-GENERATORS. IN YOUR LETTER OF MARCH 18 YOU CONTEND THAT THE ADMITTED FAILURE TO MEET THE EXPRESS TERMS OF THE INVITATION IS NOT MATERIAL. THE LETTER STATES IN PART:

"THE LAST POINT SUGGESTED, WHICH CUTS THROUGH THE ENTIRE BID, IS THAT THE BID OF POST GLOVER WAS MATERIALLY DEFICIENT IN FAILING TO SUBMIT THE GUARANTEED CHARACTERISTICS OF THE EQUIPMENT QUOTED. (SEE ITEM 4C OF THE BID SCHEDULE). IN THE NORMAL SITUATION, THERE IS NO DOUBT BUT THAT FAILURE TO FURNISH SUCH INFORMATION WOULD CAUSE MATERIAL DEFICIENCY. FOR CERTAIN REASONS WE FEEL THAT IS NOT TRUE IN THIS SITUATION. THIS INVITATION CALLS FOR ABSOLUTELY NO DESIGN ENGINEERING. THE PRODUCT CALLED FOR IS NO MORE THAN AN ASSEMBLY PRODUCT. THE CORPS OF ENGINEERS HAS QUITE FULLY SET FORTH WHAT IT DESIRES IN TERMS OF DESIGN AND EQUIPMENT, AND, UNDER THE CONDITIONS OF THE BID, HAS FULL RIGHTS TO REQUIRE INSTALLATION TO A VERY EXACTING DEGREE OF EQUIPMENT MEETING THESE VERY DETAILED SPECIFICATIONS.'

THE QUESTION THUS PRESENTED IS WHETHER THE CLEAR REQUIREMENT IN AN INVITATION THAT SPECIFIED INFORMATION MUST BE FURNISHED WITH A BID AS A PREREQUISITE TO ELIGIBILITY FOR AWARD SHOULD BE WAIVED WHERE THE CONTRACTOR WILL IN ANY EVENT BE REQUIRED TO CONFORM TO DETAILED SPECIFICATIONS, AT LEAST IN THOSE CASES WHERE NO DESIGN ENGINEERING BY THE CONTRACTOR IS REQUIRED.

THE PURPOSE OF REQUIRING DATA TO BE SUBMITTED WITH A BID IS TO PERMIT THE PROCURING AGENCY TO DETERMINE PRECISELY WHAT THE BIDDER PROPOSES, AND WILL BE BOUND, TO FURNISH IF AWARDED THE CONTRACT. 39 COMP. GEN. 595, 598. AVOID CONTROVERSY AFTER AWARD AS TO WHETHER A GIVEN ARTICLE OF EQUIPMENT IN FACT MEETS THE SPECIFICATIONS, IT HAS BEEN FOUND DESIRABLE BY THE CONTRACTING OFFICERS OF THE GOVERNMENT, WHERE THE PROCUREMENT INVOLVES, AS HERE, RELATIVELY COMPLEX ITEMS, TO HAVE THE EXACT EQUIPMENT TO BE FURNISHED IDENTIFIED IN THE BID.

IN THIS INSTANCE IT IS EXPLICITLY PROVIDED THAT THE MAKE AND TYPE, AND THE GUARANTEED CHARACTERISTICS OF THE STATED ITEMS WILL BECOME PART OF THE CONTRACT. FURTHER, THE SPECIFICATIONS IN A NUMBER OF CASES NAME ONE OR MORE ACCEPTABLE BRANDS AND TYPES OF EQUIPMENT OF THE KINDS LISTED UNDER PARAGRAPH 4B (2) WITH THE USUAL "OR EQUAL" ALTERNATIVE. IT MAY BE AS ALLEGED THAT EXACT CONFORMANCE TO THE DETAILS OF THE SPECIFICATIONS CAN BE ENFORCED EVEN WITHOUT THE SUBMISSION OF THE TYPE OF DATA WITH WHICH WE ARE CONCERNED; BUT, UNFORTUNATELY, THE QUESTION OF WHAT IS EQUAL IS IN SUBSTANTIAL MEASURE A MATTER FOR SUBJECTIVE DETERMINATION UPON WHICH DIFFERENCES MAY WELL ARISE UNLESS RESOLVED PRIOR TO AWARD BY MEANS SUCH AS EMPLOYED IN THIS INVITATION. EVEN CONCEDING THAT THE MAKE, TYPE AND MODEL OF ITEMS INVOLVED MIGHT BE A SUFFICIENTLY DEFINITE DESCRIPTION TO WARRANT WAIVING THE DETAILED DESCRIPTIVE DATA REQUIREMENT OF PARAGRAPH 4C, THE ABSENCE OF ANY INFORMATION OTHER THAN THE NAME OF THE MANUFACTURER, OR IN SOME INSTANCES, ALTERNATIVE MANUFACTURERS, PROVIDES SO INDEFINITE A BASE AS TO PERMIT THE DEVELOPMENT AFTER AWARD OF SUBSTANTIAL AREAS OF DISAGREEMENT ON THE CONFORMITY OF THE PRODUCTS TO THE SPECIFICATIONS.

WE HAVE CONSISTENTLY HELD THAT A DESCRIPTIVE LITERATURE PROVISION IS A MATERIAL REQUIREMENT AND SHOULD BE ENFORCED IN ACCORDANCE WITH ITS TERMS. 37 COMP. GEN. 763. WE SEE NO REASON FOR MAKING AN EXCEPTION TO THE RULE IN CASES SUCH AS THIS WHERE TO DO SO MAY, AFTER AWARD, LEAD TO CONTROVERSY OR EVEN LITIGATION.

IN BRIEF, THE INVITATION CLEARLY CALLED FOR THE SUBMISSION WITH THE BID OF CERTAIN DATA AND SPECIFICALLY WARNED THAT FAILURE TO CONFORM WOULD RESULT IN REJECTION. WE FIND THE PROVISION TO HAVE A LEGITIMATE PURPOSE AND TO BE IN THE INTERESTS OF THE UNITED STATES. TO REQUIRE, OR EVEN PERMIT, THE WAIVER OF THE REQUIREMENT WOULD BE UNFAIR TO OTHER BIDDERS AND INCONSISTENT WITH THE SPIRIT OF THE COMPETITIVE BIDDING STATUTES. CONCLUDE, THEREFORE, THAT THERE HAS BEEN PRESENTED NO BASIS TO QUESTION THE VALIDITY OF THE CONTRACTING OFFICER'S PROPOSAL TO REJECT THE POST- GLOVER BID FOR FAILURE TO FURNISH THE DATA REQUIRED BY PARAGRAPH 4C. VIEW OF OUR CONCLUSION, IT BECOMES UNNECESSARY TO CONSIDER THE OTHER REASONS FOR REJECTION RAISED BY THE CONTRACTING AGENCY.