B-147099, NOV. 9, 1961

B-147099: Nov 9, 1961

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THE SUBJECT INVITATION FOR BIDS WAS ISSUED ON MAY 26. IT IS STATED THAT THE REQUEST FOR DECISION RELATES ONLY TO ITEM 9 FOR ROTARY STREET SWEEPERS. IMMEDIATELY BELOW ITEM 10 OF THE SCHEDULE ON PAGE 6 OF THE INVITATION APPEARS THE FOLLOWING NOTICE TO PROSPECTIVE BIDDERS: "IMPORTANT CAUTION NOTICES TO PROSPECTIVE BIDDERS: "THE QUESTIONNAIRE REFERENCED IN CLAUSE VIII HEREOF IS NOT APPLICABLE TO ITEMS 5. BIDDERS MUST INSERT IN THE SPACE PROVIDED UNDER THE ITEM DESCRIPTION A GUARANTEED SHIPPING WEIGHT PER UNIT AND INDICATE THE CITY AND STATE FROM WHICH SHIPMENT WILL BE MADE. "FAILURE OF THE BIDDER TO COMPLY WITH THE APPLICABLE REQUIREMENTS ABOVE WILL RESULT IN REJECTION OF THE BID.'. CLAUSE I OF THE SPECIAL INVITATION CONDITIONS ON PAGE 7 OF THE INVITATION PROVIDES AS FOLLOWS: "GENERAL: BIDS ARE INVITED FOR DELIVERY OF THE EQUIPMENT AS DESCRIBED ABOVE F.O.B.

B-147099, NOV. 9, 1961

TO FEDERAL AVIATION AGENCY:

WE REFER TO A LETTER DATED AUGUST 31, 1961, BY THE CHIEF, MATERIEL CONTRACTS BRANCH, AVIATION FACILITIES SERVICE, REQUESTING OUR DECISION AS TO THE PROPRIETY OF REJECTING THE BID OF THE ELGIN SWEEPER COMPANY AS NONRESPONSIVE TO THE TERMS OF INVITATION FOR BIDS NO. 1-3623B1.

THE SUBJECT INVITATION FOR BIDS WAS ISSUED ON MAY 26, 1961, AND CALLED FOR THE FURNISHING OF VARIOUS UNITS OF MOTORIZED EQUIPMENT SET OUT IN 10 ITEMS OF AN ACCOMPANYING SCHEDULE. IT IS STATED THAT THE REQUEST FOR DECISION RELATES ONLY TO ITEM 9 FOR ROTARY STREET SWEEPERS.

ITEM 9 OF THE SCHEDULE, AS AMENDED, CALLED FOR BIDS F.O.B. DESTINATION AND F.O.B. POINT OF ORIGIN FOR FURNISHING A ROTARY SWEEPER DESCRIBED AS FOLLOWS:

"SWEEPER, STREET, ROTARY, SELF-PROPELLED, THREE WHEEL PICK-UP TYPE, GASOLINE POWERED ENGINE WAYNE MFG. CO. MODEL 2-550 OR EQUAL AND HAVING THE MINIMUM CHARACTERISTICS SET FORTH IN THE ATTACHED SPECIFICATIONS.'

IMMEDIATELY BELOW ITEM 10 OF THE SCHEDULE ON PAGE 6 OF THE INVITATION APPEARS THE FOLLOWING NOTICE TO PROSPECTIVE BIDDERS:

"IMPORTANT CAUTION NOTICES TO PROSPECTIVE BIDDERS:

"THE QUESTIONNAIRE REFERENCED IN CLAUSE VIII HEREOF IS NOT APPLICABLE TO ITEMS 5, 7, AND 10. BIDDERS OFFERING ITEMS 5, 7, AND 10 MUST, HOWEVER, FURNISH THE DESCRIPTIVE DATA REQUIRED BY CLAUSE VIII.

"BIDDERS OFFERING ITEMS 1, 2, 3, 4, 6, 8, AND 9 MUST COMPLETE AND FURNISH THE QUESTIONNAIRE AND, IN ADDITION, MUST FURNISH THE DESCRIPTIVE DATA REQUIRED BY CLAUSE VIII. ALSO, BIDDERS MUST INSERT IN THE SPACE PROVIDED UNDER THE ITEM DESCRIPTION A GUARANTEED SHIPPING WEIGHT PER UNIT AND INDICATE THE CITY AND STATE FROM WHICH SHIPMENT WILL BE MADE, AND QUOTE PRICES FOR DELIVERY F.O.B. DESTINATION AND F.O.B. POINT OF ORIGIN.

"FAILURE OF THE BIDDER TO COMPLY WITH THE APPLICABLE REQUIREMENTS ABOVE WILL RESULT IN REJECTION OF THE BID.'

CLAUSE I OF THE SPECIAL INVITATION CONDITIONS ON PAGE 7 OF THE INVITATION PROVIDES AS FOLLOWS:

"GENERAL: BIDS ARE INVITED FOR DELIVERY OF THE EQUIPMENT AS DESCRIBED ABOVE F.O.B. DESTINATION AND/OR F.O.B. POINT OF ORIGIN. BIDS WILL BE EVALUATED AS TO THE LOWEST DELIVERED COST TO THE GOVERNMENT OF EACH VEHICLE, AND AWARD WILL BE MADE BY ITEM ON THE BASIS OF THE QUOTED PRICE F.O.B. DESTINATION OR F.O.B. POINT OF ORIGIN.

"FOR HIS BID TO BE RESPONSIVE EACH BIDDER MUST,

"/I) QUOTE A PRICE F.O.B. DESTINATION AND F.O.B. POINT OF ORIGIN, FOR ITEMS 1, 2, 3, 4, 6, 8, AND 9,

"/II) UNDER ITEMS 5, 7, AND 10, FURNISH WITH THE BID THE DESCRIPTIVE DATA REQUIRED BY CLAUSE VIII,

"/III) UNDER ITEMS 1, 2, 3, 4, 6, 8, AND 9, FURNISH WITH THE BID THE QUESTIONNAIRE AND THE DESCRIPTIVE DATA REQUIRED BY CLAUSE VIII,INSERT IN THE SCHEDULE THE GUARANTEED SHIPPING WEIGHT PER UNIT AND THE CITY AND STATE FROM WHICH SHIPMENT WILL BE MADE.

"FAILURE OF THE BIDDER TO COMPLY WITH EACH REQUIREMENT ABOVE WILL RESULT IN REJECTION HIS BID.

"IN ADDITION, EACH BIDDER SHALL ALSO COMPLETE CLAUSES II, III AND IV HEREOF, AS IS APPLICABLE TO THE ITEM/S) OFFERED.'

CLAUSES VIII AND IX OF THE SPECIAL INVITATION CONDITIONS CONTAIN THE FOLLOWING PROVISIONS WITH RESPECT TO THE FURNISHING OF DESCRIPTIVE DATA AND THE ORDER OF PRECEDENCE OF THE VARIOUS INVITATION DOCUMENTS IN CASE OF CONFLICT.

"VIII. QUESTIONNAIRE AND DESCRIPTIVE DATA: EACH BIDDER OFFERING ITEMS 1, 2, 3, 4, 6, 8, AND 9 MUST COMPLETE AND FURNISH WITH HIS BID, THE QUESTIONNAIRE FOR THE UNIT HE PROPOSES TO MANUFACTURE OR FURNISH UNDER THIS INVITATION. IN THE EVENT THERE ARE ANY BLANK SPACES ON THE SHEET WHICH ARE NOT APPLICABLE TO THE EQUIPMENT BEING DESCRIBED, THE BIDDER SHALL INDICATE THE LETTERS N/A OR MAKE SOME OTHER APPROPRIATE REMARK.

"EACH BIDDER IS REQUIRED TO SUBMIT WITH HIS BID A DETAILED DESCRIPTION OF THE EQUIPMENT HE PROPOSES TO FURNISH INCLUDING COMPLETE AND FULL DIMENSIONED DRAWINGS AND DIAGRAMS IF SUCH ARE CONSIDERED NECESSARY TO SUFFICIENTLY DETAIL HOW HE WILL MEET THE REQUIREMENTS OF THE INVITATION.

"THIS DATA SHALL SHOW THE SIZE AND EXACT LOCATION OF ALL MAJOR OR ESSENTIAL PARTS, THE METHOD OF MOUNTING AND SUPPORTING ALL APPURTENANCES WHICH ARE NOT AN INTEGRAL PART OF THE EQUIPMENT AND ALL OTHER DATA NECESSARY TO PROVIDE COMPLETE INFORMATION ON THE PRIMEAND COMPONENT EQUIPMENT WHICH HE PROPOSES TO SUPPLY. ALL DRAWINGS AND PLANS SHALL BE FURNISHED IN DUPLICATE.

"FAILURE OF THE BIDDER TO SUBMIT WITH HIS BID THE QUESTIONNAIRE AND/OR DESCRIPTIVE DATA REQUIRED ABOVE WILL PRECLUDE CONSIDERATION OF THE BID ON THE BASIS THAT IT IS NOT RESPONSIVE. SUBMISSION OF DATA DESCRIBING EQUIPMENT THAT DEVIATES MATERIALLY FROM THE SPECIFICATIONS SHALL BE CAUSE FOR REJECTION OF THE BID.

"IF A CATALOG NUMBER OR OTHER TYPE OR MODEL NUMBER IS GIVEN ON ADESCRIPTION SHEET TO DESCRIBE A COMPONENT OF THE EQUIPMENT, BIDDER SHALL FURNISH WITH THE BID A COMPLETE AND DETAILED DESCRIPTION THEREOF.

"THE QUESTIONNAIRE AND DESCRIPTIVE DATA SUBMITTED WILL BE USED BY THE GOVERNMENT TO EVALUATE THE BID. THIS DATA WILL NOT BE INCLUDED IN ANY RESULTING CONTRACT. THIS DATA WILL BE USED IN EVALUATING THE BID (1) AS EVIDENCE OF THE BIDDER'S TECHNICAL KNOWLEDGE AND (2) TO DETERMINE WHETHER THE BIDDER COMPREHENDS THE SPECIFICATION REQUIREMENTS AND PROPOSES TO MEET THE REQUIREMENTS BY EMPLOYING METHODS WHICH CAN REASONABLY BE EXPECTED TO RESULT IN FULL COMPLIANCE WITH THE SPECIFICATIONS.

"IX. ATTACHMENTS AND PRECEDENCE: SUPPLEMENTING THE INVITATION, BID AND AWARD STANDARD FORM 33 (WITH ITS CONTINUATION SHEETS) THE FOLLOWING DOCUMENTS ARE ATTACHED OR INCORPORATED HEREIN BY REFERENCE AND MADE A PART OF ANY RESULTING CONTRACT:

"/I) STANDARD FORM 32, OCTOBER, 1957 EDITION, PRESCRIBED BY GENERAL SERVICES ADMINISTRATION FEDERAL PROCUREMENT REGULATION (14CFR) 1-16.101 AS SUPPLEMENTED BY SUPPLEMENTAL GENERAL PROVISIONS, SUPPLY CONTRACT DATED JUNE 15, 1960, AS AMENDED, EXCEPT CLAUSE 42 IS DELETED (SEE WARRANTY CLAUSE), AND AMENDMENT NO. 2 THERETO DATED MAY 15, 1961.

"/II) SPECIFICATIONS

"IN THE EVENT OF A CONFLICT BETWEEN THE PROVISIONS OF THE ABOVE NAMED DOCUMENTS, THE PROVISIONS OF STANDARD FROM 33 WITH ITS CONTINUATION SHEETS WILL HAVE FIRST PRECEDENCE WITH THE OTHERS FOLLOWING IN THE SEQUENCE LISTED.'

IN ADDITION TO THE DESCRIPTIVE DATA FURNISHING PROVISIONS SET FORTH IN CLAUSE VIII OF THE SPECIAL INVITATION CONDITIONS, CLAUSE 46 OF THE SUPPLEMENTAL GENERAL PROVISIONS (SUPPLEMENTING STANDARD FORM 32, OCTOBER 1957 EDITION) PROVIDES AS FOLLOWS:

"BRAND NAMES: (THIS PARAGRAPH APPLIES ONLY IF BRAND NAME HAS BEEN USED TO IDENTIFY THE END ITEMS.) (A) IF ARTICLES HAVE BEEN IDENTIFIED IN THIS INVITATION BY A "BRAND NAME OR EQUAL" DESCRIPTION, SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A DESCRIPTION OF ARTICLES THAT WILL BE SATISFACTORY. BIDDERS ARE NOT EXPECTED TO FURNISH EXACT DUPLICATES BUT ONLY ARTICLES WHICH ARE EQUAL, INSOFAR AS THE GOVERNMENT'S NEEDS ARE CONCERNED, TO THE REFERENCED BRAND NAME ARTICLES. BIDS OFFERING ARTICLES OTHER THAN BRAND NAME ARTICLES REFERENCED IN THIS INVITATION WILL BE CONSIDERED ONLY IF SUCH OFFERED ARTICLES ARE CLEARLY IDENTIFIED IN THE BIDS AND BIDDERS FURNISH WITH THEIR BIDS (1) DESCRIPTIVE MATERIAL, INCLUDING CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER GRAPHIC MATERIAL, WHICH WILL CLEARLY SHOW THE CHARACTERISTICS OF THE ARTICLES OFFERED, AND (2) A STATEMENT SHOWING IN DETAIL THE DIFFERENCES BETWEEN THE ARTICLES OFFERED AND THOSE REFERENCED IN THE INVITATION. FAILURE TO FURNISH THE INFORMATION REQUIRED BY (1) AND (2) ABOVE WILL REQUIRE REJECTION OF THE BIDS.

"/B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING A DIFFERENT ARTICLE, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME ARTICLE REFERENCED IN THE INVITATION.

"/C) BIDDERS ARE CAUTIONED THAT IN EVALUATING BIDS OFFERING ARTICLES OTHER THAN THE BRAND NAMES REFERENCED IN THE INVITATION, THE GOVERNMENT WILL CONSIDER THAT THE BIDDER INTENDS TO BIND HIMSELF TO FURNISH ONLY THE ARTICLES DESCRIBED IN HIS BID AND ANY ATTACHED DESCRIPTIVE MATERIAL. IF A BIDDER OFFERING BRAND NAME ARTICLES WHICH DIFFER FROM THOSE ARTICLES REFERENCED IN THE INVITATION PROPOSES TO MODIFY THE BRAND NAME ARTICLES HE HAS IDENTIFIED IN HIS BID SO AS TO MAKE THE OFFERED ARTICLES EQUAL THOSE REFERENCED INSOFAR AS THE NEEDS OF THE GOVERNMENT ARE CONCERNED, HE SHALL (1) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS OR (2) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS. MODIFICATIONS PROPOSED AFTER BID OPENING WILL NOT BE CONSIDERED.'

BIDS WERE OPENED ON JUNE 21, 1961. IT IS REPORTED THAT THREE BIDS WERE RECEIVED UNDER ITEM 9. ELGIN SWEEPER COMPANY, THE LOW BIDDER ON EITHER AN F.O.B. ORIGIN OR F.O.B. DESTINATION BASIS, CONSIDERING TRANSPORTATION COSTS, OFFERED TWO DIFFERENT MODELS, ITS ELGIN WHITE WING IV AND ITS ELGIN STREET KING. THE WHITE WING IV WAS OFFERED AT UNIT PRICES OF $7,683 F.O.B. ORIGIN AND $7,940 F.O.B. DESTINATION. THE ELGIN STREET KING WAS OFFERED AT UNIT PRICES OF $8,993 F.O.B. ORIGIN AND $9,250 F.O.B. DESTINATION. THE SECOND LOW BIDDER, THE WAYNE MANUFACTURING COMPANY, BID UNIT PRICES OF $8,675 F.O.B. ORIGIN AND $9,330 F.O.B. DESTINATION WHILE THE THIRD BIDDER, THE CHESAPEAKE SUPPLY AND EQUIPMENT CORPORATION, OFFERED UNIT PRICES OF $12,848.82 F.O.B. ORIGIN AND $13,628.82 F.O.B. DESTINATION.

THE LETTER OF AUGUST 31, 1961, STATES THAT TO DESCRIBE THE UNIT THEY PROPOSED TO FURNISH, BIDDERS WERE REQUIRED BY CLAUSE VIII OF THE SPECIAL INVITATION CONDITIONS AND CLAUSE 46 OF THE GENERAL PROVISIONS TO SUBMIT DESCRIPTIVE DATA. IT IS FURTHER STATED THAT YOUR AGENCY RECOGNIZES THE TWO CLAUSES ARE SOMEWHAT CONTRADICTORY, BUT ON THE PREMISE THAT CLAUSE VIII TAKES PRECEDENCE, IT IS YOUR AGENCY'S VIEW THAT THE EQUIPMENT DESCRIBED IN THE DATA SUBMITTED BY THE ELGIN SWEEPER COMPANY DEVIATES MATERIALLY FROM THE SPECIFICATIONS AND ELGIN HAS NOT BY THIS DATA DEMONSTRATED ITS TECHNICAL KNOWLEDGE OF THE REQUIREMENT. IN SUPPORT OF THIS VIEW THE FOLLOWING DEVIATIONS WITH REGARD TO BOTH MODELS OF SWEEPERS OFFERED BY ELGIN ARE NOTED:

1. LIGHTS. THE ATTACHED MINIMUM SPECIFICATIONS PROVIDE:

"LIGHTS: (MINIMUM)

"NOT LESS THAN TWO HEADLAMPS: TWO COMBINATION TAIL AND STOP LIGHTS: FRONT AND REAR ELECTRIC TURNSIGNALS WITH AUDIBLE AND FLASHING INDICATOR: ONE ADJUSTABLE FLOOD LIGHT FOR EACH GUTTER BROOM: FRONT AND REAR CLEARANCE LIGHTS: ONE RED FLASHER LIGHT ON TOP OF CAB VISIBLE THROUGH 360 DEGREES IN THE HORIZONTAL PLANE AND REAR FLOOD LIGHTS BUILT INTO REAR GUARD;,

IT IS NOTED THAT WHILE ELGIN INSERTED IN ITEM 22 OF THE QUESTIONNAIRE, HEADED "EQUIPMENT" THE WORDS "ALL AS SPECIFIED," ITS LETTER OF JUNE 14, 1961, WHICH ACCOMPANIED THE BID MAKES THE STATEMENT,"COMPLETE SPECIFICATIONS AND LITERATURE DESCRIBING BOTH MODELS ACCOMPANY THIS BID.' THE LITERATURE ENCLOSED WITH THE BID SHOWS THAT ELGIN'S BID DID NOT OFFER ELECTRIC TURNSIGNALS WITH AUDIBLE AND FLASHING INDICATOR, FRONT AND REAR CLEARANCE LIGHTS, ONE RED FLASHER LIGHT ON TOP OF CAB VISIBLE THROUGH 360 DEGREES IN THE HORIZONTAL PLANE, OR REAR FLOOD LIGHTS BUILT INTO REAR GUARD.

2.BRAKES. THE SPECIFICATIONS PROVIDE "BRAKES--- SERVICE: POWER HYDRAULIC" WHILE THE DESCRIPTIVE LITERATURE INDICATES THAT THE ELGIN UNITS ARE EQUIPPED WITH HYDRAULICALLY ACTUATED FOOT BRAKES, NOT WITH POWER HYDRAULIC BRAKES, AS SPECIFIED.

3. GENERATOR. THE SPECIFICATIONS PROVIDE THAT THE GENERATOR "SHALL BE HEAVY DUTY WITH MINIMUM 40 AMPERE CAPACITY.' THE DESCRIPTIVE DATA AND ITEM 17 OF THE QUESTIONNAIRE INDICATE THAT THE GENERATORS IN BOTH ELGIN UNITS HAVE A CAPACITY OF ONLY 30 AMPERES.

4. FIRE EXTINGUISHER. THE SPECIFICATIONS PROVIDE THAT A FIRE EXTINGUISHER "SHALL BE PROVIDED AND MOUNTED VERTICALLY AND READILY ACCESSIBLE TO THE OPERATOR.' ELGIN'S DESCRIPTIVE LITERATURE FAILS TO INDICATE THAT A FIRE EXTINGUISHER WILL BE FURNISHED. IT LISTS ONLY THAT ONE FILLING HOSE AND ONE WASHDOWN HOSE ARE FURNISHED AS STANDARD EQUIPMENT.

AS PREVIOUSLY INDICATED, THE PROVISIONS OF CLAUSE VIII OF THE SPECIAL INVITATION CONDITIONS AND CLAUSE 46 OF THE SUPPLEMENTAL GENERAL PROVISIONS ARE NOT ENTIRELY CONSISTENT. FOR ONE THING CLAUSE 46 DOES NOT CONTAIN A SPECIFIC NOTICE, AS DOES CLAUSE VIII, THAT THE SUBMISSION OF DATA DESCRIBING EQUIPMENT THAT DEVIATES MATERIALLY FROM THE SPECIFICATIONS SHALL BE CAUSE FOR REJECTION OF BIDS. WE DO NOT FEEL, HOWEVER, THAT ANY INCONSISTENCY EXISTING BETWEEN THE TWO CLAUSES CAUSED THE BIDDERS ON ITEM 9 TO BE MISLED AS TO THE PURPOSE OR TYPE OF DESCRIPTIVE LITERATURE REQUIRED TO BE SUBMITTED OR AS TO THE EFFECT TO BE GIVEN THE SUBMISSION OF LITERATURE DEVIATING MATERIALLY FROM THE SPECIFICATIONS. IT SHOULD BE NOTED THAT BY THE NOTICE APPEARING ON PAGE 6 AND BY THE TERMS OF CLAUSE I OF THE SPECIAL INVITATION CONDITIONS THE INVITATION FOR BIDS CONTAINED MORE THAN ADEQUATE NOTICE THAT BIDDERS WOULD BE REQUIRED TO CONFORM TO THE PROVISIONS OF CLAUSE VIII. FURTHERMORE, IF ANY DOUBT AS TO THE PRECEDENCE OF CLAUSE VIIIOVER CLAUSE 46 EXISTED, CLAUSE IX OF THE SPECIAL INVITATION CONDITIONS WOULD CLEAR UP THE MATTER SINCE UNDER THE TERMS OF THAT CLAUSE, CLAUSE VIII BEING ONE OF THE PROVISIONS OF STANDARD FORM 33 WITH ITS CONTINUATION SHEETS HAS PRECEDENCE, IN CASE OF CONFLICT, OVER THE SUPPLEMENTAL GENERAL PROVISIONS. FURTHERMORE, IT WOULD APPEAR ON THE BASIS OF THE PRESENT RECORD THAT ELGIN WAS FULLY AWARE OF THE REQUIREMENTS OF CLAUSE VIII SINCE IT SUBMITTED, ALONG WITH ITS DESCRIPTIVE DATA, THE QUESTIONNAIRE CALLED FOR BY CLAUSE VIII BUT NOT MENTIONED BY CLAUSE 46. IT SHOULD ALSO BE NOTED THAT NOWHERE IN THE PRESENT RECORD DOES ELGIN CONTEND THAT CLAUSES VIII AND 46 ARE INCONSISTENT OR THAT THE INCONSISTENCY MISLED IT AS TO THE REQUIREMENTS OF THE INVITATION.

WE HAVE CONSISTENTLY TAKEN THE POSITION IN THE PAST SEVERAL YEARS THAT PROCUREMENT AGENCIES MAY INSERT ANY REQUIREMENTS IN THE INVITATION FOR BIDS WHICH ARE REASONABLY RELATED TO THE PURPOSES OF THE PROCUREMENT AND THAT WE WILL REQUIRE THE ENFORCEMENT OF THOSE REQUIREMENTS, PROVIDED THEY ARE CLEARLY SPELLED OUT AND THE BIDDERS ARE MADE AWARE OF THE CONSEQUENCES OF FAILURE TO CONFORM TO THE TERMS OF THE INVITATION. THUS WE HAVE HELD, WITH CERTAIN EXCEPTIONS NOT RELEVANT HERE, THAT THE FAILURE TO COMPLY WITH THE DESCRIPTIVE LITERATURE REQUIREMENT, WHERE THE DATA REQUIREMENTS ARE MADE A PART OF THE BID AND BIDDERS ARE CLEARLY ADVISED THAT FAILURE TO CONFORM WILL RESULT IN REJECTION, IS A SUBSTANTIVE REQUIREMENT WHICH CANNOT BE WAIVED. 37 COMP. GEN. 763; 40 ID. 132.

THE PRIMARY PURPOSE FOR REQUIRING THE SUBMISSION OF DESCRIPTIVE LITERATURE IS TO DETERMINE WHETHER THE PRODUCT OFFERED COMPLIES WITH THE ADVERTISED SPECIFICATIONS AND TO ENABLE THE GOVERNMENT TO INTELLIGENTLY CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY THE MAKING OF AN AWARD. 36 COMP. GEN. 415. SEE, ALSO, PARAGRAPH 1-2.202 5 (B) OF THE FEDERAL PROCUREMENT REGULATIONS. WHERE AN INVITATION REQUIRES THE SUBMISSION OF DESCRIPTIVE LITERATURE, SUCH LITERATURE SUBMITTED WITH THE BID BECOMES A PART OF THE BID AND IF THE LITERATURE DEVIATES OR FAILS TO CONFORM TO THE SPECIFICATIONS IT QUALIFIES THE BID REQUIRING ITS REJECTION. 17 COMP. GEN. 940; 36 ID. 705.

IN THE PRESENT CASE BIDDERS WERE EXPRESSLY NOTIFIED IN CLAUSE VIII OF THE SPECIAL INVITATION CONDITIONS THAT THE SUBMISSION OF DATA DESCRIBING EQUIPMENT THAT DEVIATES MATERIALLY FROM THE SPECIFICATIONS WOULD BE CAUSE FOR REJECTION OF THE BID. SINCE YOUR AGENCY CONSIDERS THE DEVIATIONS WITH REGARD TO LIGHTS, BRAKES, GENERATORS AND FIRE EXTINGUISHERS ON THE SWEEPERS OFFERED BY ELGIN MATERIAL, WE ARE AWARE OF NO REASON WHY THE RULE REQUIRING REJECTION OF THE BID SHOULD NOT BE APPLIED IN THIS INSTANCE.

IT IS FURTHER REPORTED THAT THE ELGIN SWEEPER COMPANY SUBMITTED A LETTER ON JULY 17, 1961, IN AN ATTEMPT TO CLARIFY ITS BID AND TO ATTEST TO ITS INTENT TO CONFORM TO THE SPECIFICATIONS. THAT LETTER READS, IN PART, AS FOLLOWS:

"THE COMPANY LITERATURE AND SPECIFICATIONS SUBMITTED IN OUR JUNE 14 LETTER WERE TO SATISFY THE PROVISIONS OF YOUR SPECIFICATION (SEE THE SECOND PARAGRAPH ENTITLED STANDARD PRODUCT, SECOND SENTENCE) THAT THE SWEEPERS WE ARE BIDDING ARE "EQUAL TO THAT OFFERED THE GENERAL PUBLIC, AND SHALL CONFORM TO CURRENT ENGINEERING AND MANUFACTURING PRACTICES, ETC., " AND FROM A READING OF THIS MATERIAL YOU WILL FIND THAT THEY ARE.

"IN OTHER WORDS, THESE SPECIFICATIONS AND LITERATURE WERE INCLUDED TO SHOW THE KINDS OF PRODUCTS WE ARE SELLING IN NUMEROUS MUNICIPAL, STATE, AND INDUSTRIAL MARKETS. TO RECONFIRM OUR POSITION, WE ARE FULLY AWARE THAT WHEREVER THESE COMPANY SPECIFICATIONS DO NOT CONFORM TO THE GOVERNMENT'S SPECIFICATIONS, WE WILL MAKE ALL NECESSARY MODIFICATIONS AND ADDITIONS SO THAT THE SWEEPERS SUPPLIED BY US WILL CONFORM IN ALL RESPECTS TO THE APPLICABLE GOVERNMENT SPECIFICATIONS.'

ALTHOUGH THIS LETTER MAY BE INTERPRETED AS A BLANKET OFFER TO COMPLY WITH THE SPECIFICATIONS, THIS QUESTION IS IMMATERIAL SINCE THE LETTER WAS SUBMITTED AFTER THE BIDS WERE OPENED. WE HAVE CONSISTENTLY HELD THAT A BIDDER MAY NOT BE GIVEN AN OPPORTUNITY AFTER THE BIDS ARE OPENED TO CLARIFY DOUBT CONCERNING HIS INTENTION TO FURNISH EQUIPMENT MEETING THE REQUIREMENTS SINCE TO DO SO WOULD BE CONTRARY TO THE RULE THAT A BID RECEIVED IN RESPONSE TO A FORMAL ADVERTISEMENT FOR BIDS CANNOT BE CHANGED AFTER BIDS ARE OPENED. 36 COMP. GEN. 705; 40 ID. 132.

IN VIEW OF THE FOREGOING ANALYSIS, THE ELGIN SWEEPER COMPANY BID MAY NOT BE REGARDED AS RESPONSIVE TO THE TERMS OF THE INVITATION AND SHOULD BE REJECTED. THE ATTACHMENTS ARE RETURNED AS REQUESTED.