B-147875, FEBRUARY 2, 1962, 41 COMP. GEN. 510

B-147875: Feb 2, 1962

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ITEMS - DISCLOSURE A RESTRICTION ON THE DISCLOSURE OF DESCRIPTIVE DATA BY A BIDDER WHO OFFERS A STANDARD OFF-THE-SHELF ITEM WHICH IS KNOWN TO THE INDUSTRY AND WHICH REQUIRES ONLY MINOR BUT OBVIOUS MODIFICATIONS TO MAKE IT CONFORM TO THE DETAILED DESCRIPTION IN THE INVITATION DID NOT PREVENT COMPETING BIDDERS FROM KNOWING THE ESSENTIAL NATURE OF THE PRODUCT OFFERED SO AS TO MAKE THE BID NONRESPONSIVE UNDER THE DESCRIPTIVE LITERATURE RESTRICTION PROVISIONS IN SECTION 1-2.404-4 OF THE FEDERAL PROCUREMENT REGULATIONS. 1962: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 9. 918-A WAS ISSUED ON NOVEMBER 24. PARAGRAPH 1.1 OF THE PURCHASE DESCRIPTION STATES THAT THE DESCRIPTION COVERS THE PROCUREMENT OF A "COMMERCIALLY AVAILABLE" TRANSMITTER-RECEIVER FOR GENERAL COMMUNICATIONS USE AND THAT " OFF-THE SHELF EQUIPMENT SUITABLY MODIFIED TO MEET THE REQUIREMENTS OF THIS PURCHASE DESCRIPTION IS DESIRED.'.

B-147875, FEBRUARY 2, 1962, 41 COMP. GEN. 510

CONTRACTS - PROPRIETARY, ETC., ITEMS - DISCLOSURE A RESTRICTION ON THE DISCLOSURE OF DESCRIPTIVE DATA BY A BIDDER WHO OFFERS A STANDARD OFF-THE-SHELF ITEM WHICH IS KNOWN TO THE INDUSTRY AND WHICH REQUIRES ONLY MINOR BUT OBVIOUS MODIFICATIONS TO MAKE IT CONFORM TO THE DETAILED DESCRIPTION IN THE INVITATION DID NOT PREVENT COMPETING BIDDERS FROM KNOWING THE ESSENTIAL NATURE OF THE PRODUCT OFFERED SO AS TO MAKE THE BID NONRESPONSIVE UNDER THE DESCRIPTIVE LITERATURE RESTRICTION PROVISIONS IN SECTION 1-2.404-4 OF THE FEDERAL PROCUREMENT REGULATIONS.

TO ADMIRAL A. C. RICHMOND, UNITED STATES COAST GUARD, FEBRUARY 2, 1962:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 9, 1962, AND A LETTER FROM CAPTAIN W. W. CHILDRESS, COMPTROLLER, DATED JANUARY 15, 1962, SUBMITTING A REPORT AND OTHER DOCUMENTS RELATING TO YOUR REQUEST FOR A RULING ON THE VALIDITY OF THE AWARD OF CONTRACT NO. TCG-41889 TO MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., FOR THE FURNISHING OF 800 " PORTABLE VHF FM TRANSMITTER-1RECEIVER SETS.'

INVITATION FOR BIDS NO. CG-53,918-A WAS ISSUED ON NOVEMBER 24, 1961, AND CALLED FOR BIDS ON FOUR ITEMS. ITEM 1 REQUESTED BIDS ON THE ABOVE MENTIONED TRANSMITTER-RECEIVER SETS IN ACCORDANCE WITH U.S. COAST GUARD PURCHASE DESCRIPTION NO. EEE-6-62, DATED NOVEMBER 1, 1961, IN OPTIONAL QUANTITIES OF 200, 400, 600 AND 800 UNITS. ITEM 2 CALLED FOR TECHNICAL MANUALS IN ACCORDANCE WITH PARAGRAPH 1.3.1 OF THE PURCHASE DESCRIPTION. ITEM 3 CALLED FOR DESCRIPTION SHEETS IN ACCORDANCE WITH PARAGRAPH 1.3.2 OF THE PURCHASE DESCRIPTION AND ITEM 4 REQUESTED BIDS ON SPECIAL TEST SETS AND TOOL SETS IN ACCORDANCE WITH PARAGRAPH 1.3.3 OF THE PURCHASE DESCRIPTION IN OPTIONAL QUANTITIES OF 40, 80, 120 AND 160.

PARAGRAPH 1.1 OF THE PURCHASE DESCRIPTION STATES THAT THE DESCRIPTION COVERS THE PROCUREMENT OF A "COMMERCIALLY AVAILABLE" TRANSMITTER-RECEIVER FOR GENERAL COMMUNICATIONS USE AND THAT " OFF-THE SHELF EQUIPMENT SUITABLY MODIFIED TO MEET THE REQUIREMENTS OF THIS PURCHASE DESCRIPTION IS DESIRED.' PARAGRAPH 2.1 OF THE PURCHASE DESCRIPTION STATES, AMONG OTHER THINGS, THAT THE ,EQUIPMENT OFFERED SHALL BE OF STANDARD MANUFACTURE, OF A TYPE AND MODEL HAVING HAD SATISFACTORY ACTUAL USE, AND SHALL BE THE LATEST MODEL PRODUCED BY THE MANUFACTURER.'

A CLAUSE APPEARING ON PAGE 4 OF THE INVITATION PROVIDES THAT:

BID INFORMATION, GENERAL DATA AND MANUFACTURING EXPERIENCE AS REQUIRED UNDER PARAGRAPHS 4.1 TO 4.3, INCLUSIVE, OF THE PURCHASE DESCRIPTION SHALL BE FURNISHED WITH BIDS. BIDDERS THAT DO NOT SUBMIT SUCH BID DATA WILL BE CONSIDERED TO BE NON-RESPONSIVE.

UNDER THE CITED PARAGRAPHS OF THE PURCHASE DESCRIPTION THE DESCRIPTIVE LITERATURE CALLED FOR WAS REQUIRED TO CONTAIN A NARRATIVE DESCRIPTION OF THE PROPOSED EQUIPMENT WITH BLOCK DIAGRAMS OR SCHEMATICS AS APPROPRIATE; ADDITIONAL TECHNICAL DATA AS TO THE QUALITY OF COMPONENT PARTS, SPECIAL CONSTRUCTION FEATURES, ETC.; APPROXIMATE DIMENSIONS, OUTLINE DRAWINGS AND ESTIMATED WEIGHTS OF THE ASSEMBLED EQUIPMENT; A TECHNICAL MANUAL FOR EQUIPMENT PROPOSED TO BE FURNISHED; AND A STATEMENT OF SPECIFIC EXPERIENCE IN THE MANUFACTURE OF RADIO EQUIPMENT OF THE GENERAL NATURE OF THAT CALLED FOR OR, IN LIEU THEREOF, A DETAILED STATEMENT SHOWING THAT THE BIDDER EMPLOYS SUPERVISING PRODUCTION PERSONNEL AND ENGINEERS IN THE REQUISITE ADVANCED TECHNICAL LEVELS WHO HAVE HAD SUCH EXPERIENCE. BIDDERS WERE WARNED THAT BIDS CONTAINING ANY EXCEPTIONS TO THE REQUIREMENTS OF THE PURCHASE DESCRIPTION WOULD BE CONSIDERED NONRESPONSIVE AND WERE ALSO INFORMED THAT " DATA MUST BE IN SUFFICIENT DETAIL TO ALLOW EVALUATION OF THE FEASIBILITY AND/OR PROBABILITY OF THE PROPOSED EQUIPMENT MEETING SPECIFICATIONS, AND SUITABILITY FOR USE UNDER TYPICAL COAST GUARD OPERATING CONDITIONS.'

BIDS WERE OPENED ON DECEMBER 14, 1961. IT IS REPORTED THAT THREE BIDS WERE RECEIVED. THE TWO LOWEST BIDS, FROM REPCO. INC., AND GENERAL ELECTRIC COMPANY, WERE DETERMINED TO BE NONRESPONSIVE IN THAT THE EQUIPMENT OFFERED FAILED TO MEET THE SPECIFICATIONS. THE THIRD BID, THAT OF MOTOROLA, WAS DETERMINED TO BE RESPONSIVE AND THE CONTRACT WAS AWARDED TO THAT COMPANY ON DECEMBER 19, 1961.

IN SUBMITTING ITS BID, HOWEVER, MOTOROLA ENCLOSED A COVER LETTER DATED DECEMBER 12, 1961, ALONG WITH ITS BID AND DESCRIPTIVE DATA WHICH READS IN PERTINENT PART AS FOLLOWS:

THANK YOU FOR THIS OPPORTUNITY TO BID. TO MEET YOUR REQUIREMENTS, WE OFFER A SLIGHTLY MODIFIED VERSION OF OUR MODEL H23BAC-1001AR HANDIE- 1TALKIE WITH A MODEL NLN-6130A CARRYING CASE.

IN MAKING OUR OFFERING, WE TAKE NO EXCEPTION TO YOUR PURCHASE DESCRIPTION ON DELIVERY REQUIREMENTS.

DETAILS OF THE MODIFICATIONS OF OUR STANDARD " HANDIE-1TALKIE" ARE EXPLAINED IN OUR BOUND PROPOSAL " VHF PORTABLE FM TRANSMITTER 1RECEIVER SETS.' THIS PROPOSAL IS A PART OF OUR FORMAL BID OFFERING AS IS ONE MODIFIED UNIT OF OUR " HANDIE-1TALKIE" EQUIPMENT. WE CONSIDER THE INFORMATION CONTAINED IN THIS PROPOSAL AND THE MODIFICATIONS MADE OF THE UNIT TO BE OF A PROPRIETARY NATURE AND REQUEST THAT THEIR CONTENTS NOT BE MADE PUBLIC WITHOUT OUR SPECIFIC PERMISSION.

BY LETTER OF DECEMBER 21, 1961, THE GENERAL ELECTRIC COMPANY QUESTIONED THE RESPONSIVENESS OF MOTOROLA'S BID IN VIEW OF THE PROVISIONS CONTAINED IN SECTION 1-2.404-4 OF THE FEDERAL PROCUREMENT REGULATIONS. SECTION 1- 2.404-4 PROVIDES, IN PERTINENT PART, THAT:

(A) WHEN A BID IS ACCOMPANIED BY DESCRIPTIVE LITERATURE (AS DEFINED IN SECTION 1-2.202-5 (A) (, AND THE BIDDER IMPOSES A RESTRICTION THAT SUCH LITERATURE MAY NOT BE PUBLICLY DISCLOSED, SUCH RESTRICTION RENDERS THE BID NONRESPONSIVE IF IT PROHIBITS THE DISCLOSURE OF SUFFICIENT INFORMATION TO PERMIT COMPETING BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF THE PRODUCTS OFFERED OR THOSE ELEMENTS OF THE BID WHICH RELATE TO QUANTITY, PRICE AND DELIVERY TERMS. * * *

IN A REPORT DATED JANUARY 12, 1962, THE CONTRACTING OFFICER STATES THAT SECTION 1-2.404-4 OF THE FEDERAL PROCUREMENT REGULATIONS DOES NOT APPLY TO MOTOROLA'S BID FOR TWO REASONS: (1) THE COMPETING BIDDERS KNEW THE ELEMENTS OF THE BID RELATING TO QUANTITY, PRICE AND DELIVERY TERMS, BECAUSE MOTOROLA'S BID TOOK NO EXCEPTION TO THE DELIVERY REQUIREMENTS AND THE BID PRICE FOR VARIOUS QUANTITIES WAS, AND IS, A MATTER OF PUBLIC RECORD; AND (2) THE COMPETING BIDDERS KNEW THE ESSENTIAL NATURE AND TYPE OF THE PRODUCT OFFERED BECAUSE MOTOROLA'S LETTER WHICH WAS A PART OF ITS BID AND AVAILABLE FOR PUBLIC INFORMATION DISCLOSED THAT MOTOROLA WAS OFFERING A SLIGHTLY MODIFIED VERSION OF ITS MODEL H23BAC-1001AR HANDIE- 1TALKIE WITH A MODEL NLN-6130A CARRYING CASE. THIS MODEL IS A STANDARD CATALOG ITEM, AND THE SLIGHT MODIFICATIONS NEEDED TO MEET THE REQUIREMENTS OF THE COAST GUARD PURCHASE DESCRIPTION WERE READILY APPARENT BY PERUSAL OF THE PURCHASE DESCRIPTION WHICH THE COMPETING BIDDERS HELD.

IT HAS BEEN FURTHER REPORTED THAT ONLY TWO MINOR MODIFICATIONS WERE NEEDED ON MOTOROLA'S STANDARD MODEL " HANDIE-1TALKIE" TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE PURCHASE DESCRIPTION. FIRST, A NEW HANDSET CRADLE WAS SUPPLIED WHICH RAISED THE HANDSET A FRACTION OF AN INCH HIGHER THAN NORMAL TO PERMIT OPERATION OF THE RADIO WHEN THE HANDSET IS IN THE CRADLE. SECONDLY, THE STANDARD MODEL WAS PAINTED A DARK GREY COLOR AS REQUIRED BY THE PURCHASE DESCRIPTION.

BY THE TERMS OF SECTION 1-2.404-4 OF THE FEDERAL PROCUREMENT REGULATIONS NOT ALL RESTRICTIONS IMPOSED BY A BIDDER ON THE PUBLIC DISCLOSURE OF DESCRIPTIVE DATA SUBMITTED WITH A BID RENDERS SUCH BID NONRESPONSIVE. ONLY THOSE RESTRICTIONS WHICH RELATE TO QUANTITY, PRICE AND DELIVERY TERMS OR WHICH PROHIBIT THE DISCLOSURE OF SUFFICIENT INFORMATION TO PERMIT COMPETING BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF THE PRODUCTS OFFERED WILL HAVE THAT EFFECT. WITH REGARD TO MOTOROLA'S BID IT IS CLEAR THAT QUANTITY, PRICE AND DELIVERY TERMS WERE MATTERS OF PUBLIC RECORD SINCE MOTOROLA'S COVER LETTER WHICH WAS AVAILABLE FOR PUBLIC INSPECTION CLEARLY STATED "WE TAKE NO EXCEPTION TO YOUR PURCHASE DESCRIPTION ON DELIVERY REQUIREMENTS.' FURTHERMORE, MOTOROLA'S BID PRICE FOR VARIOUS QUANTITIES WAS STATED IN THE INVITATION FOR BIDS WHICH, ALSO, WAS AVAILABLE FOR PUBLIC INSPECTION. THE ONLY QUESTION REMAINING, THEREFORE, IS WHETHER THE RESTRICTION IN MOTOROLA'S COVER LETTER PROHIBITED THE DISCLOSURE OF SUFFICIENT INFORMATION TO PERMIT THE COMPETING BIDDERS TO KNOW THE "ESSENTIAL NATURE" AND "TYPE" OF PRODUCT OFFERED.

IN CONNECTION WITH THIS QUESTION IT IS NOTED THAT THE INSTANT INVITATION FOR BIDS CALLED FOR A COMMERCIALLY AVAILABLE TRANSMITTER RECEIVER AND THAT AN OFF-THE-SHELF UNIT SUITABLY MODIFIED TO MEET THE REQUIREMENTS OF THE PURCHASE DESCRIPTION WAS DESIRED. BIDDERS WERE WARNED THAT BIDS CONTAINING ANY EXCEPTIONS TO THE REQUIREMENTS OF THE PURCHASE DESCRIPTION WOULD BE CONSIDERED NONRESPONSIVE. THESE REQUIREMENTS WERE STATED RATHER EXTENSIVELY IN PARAGRAPH 2 OF THE PURCHASE DESCRIPTION AND COVERED SUCH THINGS AS DIMENSIONS, WEIGHT, SECTIONALIZED CONSTRUCTION AND PERFORMANCE CHARACTERISTICS.

WHILE THE FEDERAL PROCUREMENT REGULATIONS DO NOT CONTAIN A DEFINITION OF WHAT IS MEANT BY ,ESSENTIAL NATURE" AND "TYPE" OF PRODUCT OFFERED, IT IS NOT UNREASONABLE TO ASSUME THAT THE REQUIREMENTS STATED IN PARAGRAPH 2 OF THE PURCHASE DESCRIPTION ADEQUATELY DEFINE THE ESSENTIAL NATURE AND TYPE OF EQUIPMENT CALLED FOR SINCE BY THE TERMS OF THE INVITATION ANY EXCEPTIONS TAKEN TO THESE REQUIREMENTS RENDERED THE BID NONRESPONSIVE. THE REQUIREMENTS OF THE PURCHASE DESCRIPTION WERE COMMON TO ALL BIDDERS AND OBVIOUSLY WERE CONSIDERED ESSENTIAL TO THE COAST GUARD IN OBTAINING ITS NEEDS.

WE ARE IN AGREEMENT WITH THE CONTRACTING OFFICER'S DETERMINATION THAT MOTOROLA'S RESTRICTION ON PUBLIC DISCLOSURE OF ITS DESCRIPTIVE DATA DID NOT PREVENT COMPETING BIDDERS FROM KNOWING THE ESSENTIAL NATURE AND TYPE OF PRODUCT OFFERED. ALL BIDDERS HAD COPIES OF THE PURCHASE DESCRIPTION AND KNEW THE REQUIREMENTS SPECIFIED THEREIN. THE COMPETING BIDDERS KNEW THAT MOTOROLA OFFERED ITS MODEL H23BAC-1001AR HANDIE-1TALKIE, A STANDARD OFF-THE-SHELF ITEM WHICH WAS APPARENTLY WELL KNOWN IN THE INDUSTRY. FURTHERMORE, THE MINOR MODIFICATIONS NEEDED TO MAKE THE HANDIE-1TALKIE CONFORM TO THE PURCHASE DESCRIPTION REQUIREMENTS WERE NOT HIDDEN BUT OBVIOUS AND EASILY ASCERTAINED.

ACCORDINGLY, IT MUST BE CONCLUDED THAT MOTOROLA'S BID WAS RESPONSIVE AND THE AWARD TO THAT FIRM PROPER. THE MATERIAL SUBMITTED IS RETURNED AS REQUESTED.