B-148769, MAY 14, 1962, 41 COMP. GEN. 755

B-148769: May 14, 1962

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THE FACT THAT THE LOW BID OMITTED A BLANKET OFFER TO CONFORM IS IMMATERIAL. NOTWITHSTANDING THE RESERVATION IN AN INVITATION THAT BIDDERS MAY BE REQUIRED TO SUBMIT ADDITIONAL DATA AFTER BIDS ARE OPENED SHOULD DATA SUBMITTED BE INSUFFICIENT FOR PROPER BID EVALUATION. IF THE ADDITIONAL DATA IS FOR THE PURPOSE OF DETERMINING RESPONSIBILITY. BIDS WERE SOLICITED ON A NUMBER OF ALTERNATIVES. ITEM 2 ( ALTERNATE "A") WAS DESCRIBED IN THE INVITATION AS PREFERRED AND HAS BEEN SELECTED FOR AWARD. 000 WAS SUBMITTED BY O. THE NEXT LOW ACCEPTABLE BID IS $917. B. THE GOVERNMENT RESERVES THE RIGHT TO DETERMINE THE AMOUNT OF DATA REQUIRED IN ORDER TO PROPERLY EVALUATE THE BIDS AND MAY REQUEST ADDITIONAL DATA AFTER THE OPENING OF BIDS IF THE DATA SUBMITTED ARE INSUFFICIENT FOR A PROPER EVALUATION OF A BID.

B-148769, MAY 14, 1962, 41 COMP. GEN. 755

CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - INADEQUATE--- CONTRACTS SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED AN INVITATION THAT RESERVED TO THE GOVERNMENT THE RIGHT TO REQUEST ADDITIONAL INFORMATION AFTER BID OPENING, AND TO REJECT ANY BID SHOULD BIDDERS FAIL TO COMPLY, BUT DID NOT NOTIFY BIDDERS THAT SUBMISSION OF INADEQUATE DESCRIPTIVE DATA WOULD BE CAUSE FOR REJECTION OF BIDS DOES NOT CONVEY THE IMPRESSION THAT FAILURE TO CONFORM WITH DESCRIPTIVE DATA REQUIREMENTS AT TIME OF BID SUBMISSION WOULD BE CAUSE FOR REJECTION OF BIDS; THEREFORE, THE INADEQUACY OF DESCRIPTIVE DATA SUBMITTED WITH LOW BID THAT DID NOT INCLUDE AN OVERALL OFFER TO COMPLY WITH ALL THE REQUIREMENTS OF THE INVITATION DOES NOT REQUIRE REJECTION OF BID, AND THE FACT THAT THE LOW BID OMITTED A BLANKET OFFER TO CONFORM IS IMMATERIAL, AN OVERALL OFFER TO CONFORM NOT OVERCOMING THE NEED TO CONFORM WITH THE DESCRIPTIVE DATA REQUIREMENT OF THE INVITATION. NOTWITHSTANDING THE RESERVATION IN AN INVITATION THAT BIDDERS MAY BE REQUIRED TO SUBMIT ADDITIONAL DATA AFTER BIDS ARE OPENED SHOULD DATA SUBMITTED BE INSUFFICIENT FOR PROPER BID EVALUATION, IF BIDS CANNOT BE EVALUATED FOR CONFORMANCE WITH ADVERTISED REQUIREMENTS SOLELY ON THE BASIS OF CONTENT AT THE TIME OF BID OPENING, THE INVITATION MUST BE CANCELED AS DEFECTIVE; HOWEVER, IF THE ADDITIONAL DATA IS FOR THE PURPOSE OF DETERMINING RESPONSIBILITY, OR SOME OTHER FACTOR NOT RELATED TO RESPONSIVENESS, THE BIDS MAY BE CONSIDERED FOR AWARD.

TO THE ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, MAY 14, 1962:

BY LETTER OF APRIL 26, 1962, WITH ENCLOSURES, SIGNED BY THE ACTING DIRECTOR, PROCUREMENT AND SUPPLY, YOUR REFERENCE BRR/1JMC/ACW, THERE HAS BEEN FORWARDED TO OUR OFFICE FOR RESOLUTION THE MATTERS OF THE PROPER DISPOSITION OF THE LOW BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. L-1985, ISSUED DECEMBER 7, 1961, FOR DESIGNING, FURNISHING, INSTALLING AND TESTING A HELIUM LIQUEFIER, ENVIRONMENTAL CHAMBER, AND RELATED FACILITIES.

BIDS WERE SOLICITED ON A NUMBER OF ALTERNATIVES. ITEM 2 ( ALTERNATE "A") WAS DESCRIBED IN THE INVITATION AS PREFERRED AND HAS BEEN SELECTED FOR AWARD. THE LOW BID ON THE ITEM AT $842,000 WAS SUBMITTED BY O. G. KELLEY AND COMPANY; THE NEXT LOW ACCEPTABLE BID IS $917,980.

PAGE 2 OF THE INVITATION INCLUDES A DESCRIPTIVE DATA REQUIREMENT AS FOLLOWS:

BID SUBMITTAL DATA:

A. BIDS SHALL BE ACCOMPANIED BY PRELIMINARY DRAWINGS, SPECIFICATIONS AND DATA IN SUFFICIENT DETAIL TO ENABLE THE GOVERNMENT TO EVALUATE THE BIDS WITH A MINIMUM OF DELAY. THE MINIMUM PRELIMINARY INFORMATION TO BE SUPPLIED SHALL BE AS FOLLOWS:

1. CALCULATIONS AND DATA AFFECTING THE PERFORMANCE REQUIREMENTS AS STATED IN PARAGRAPH 4B-03.

2. TYPE, MANUFACTURE AND MODEL OF ALL VACUUM PUMPS AND VACUUM INSTRUMENTATION HE PROPOSES TO USE IN FULFILLING THIS CONTRACT. THIS INFORMATION MAY BE SUBMITTED AS A LABELED SCHEMATIC.

3. PRELIMINARY DRAWINGS FOR THE VACUUM CHAMBER, CONTROL PANEL SCHEMATIC, EQUIPMENT LAYOUT IN BLOCK FORM.

B. THE GOVERNMENT RESERVES THE RIGHT TO DETERMINE THE AMOUNT OF DATA REQUIRED IN ORDER TO PROPERLY EVALUATE THE BIDS AND MAY REQUEST ADDITIONAL DATA AFTER THE OPENING OF BIDS IF THE DATA SUBMITTED ARE INSUFFICIENT FOR A PROPER EVALUATION OF A BID. IMMEDIATE COMPLIANCE WITH SUCH REQUEST WILL BE REQUIRED AND THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY BIDS FROM BIDDERS WHO FAIL TO COMPLY.

TWO OF THE OTHER BIDDERS CONTEND THAT THE LOW BID SHOULD BE REJECTED FOR FAILURE TO INCLUDE SUFFICIENT DATA TO COMPLY WITH PARAGRAPH A QUOTED ABOVE. THE LETTER OF APRIL 26 STATES THAT THE DATA ACCOMPANYING THE LOW BID IS DEFICIENT IN THE FOLLOWING RESPECTS:

1. CALCULATIONS AND DATA AFFECTING PERFORMANCE REQUIREMENTS WERE NOT SUPPLIED;

2. A CONTROL PANEL SCHEMATIC DRAWING WAS NOT SUBMITTED; AND

3. AN EQUIPMENT LAYOUT IN BLOCK FORM WAS NOT SUBMITTED.

THE COMPANY DID SUBMIT A SHEET LABELED " EQUIPMENT ARRANGEMENT," BUT THIS DID NOT PROVIDE THE BASIC DESIGN NORMALLY ASSOCIATED WITH AN EQUIPMENT LAYOUT.

IN A LETTER OF MAY 7, THE LOW BIDDER DISPUTES THE CONTENTION THAT THE INFORMATION FURNISHED WITH ITS BID SHOULD, IN FACT, BE REGARDED AS INADEQUATE, PARTICULARLY IN VIEW OF THE VAGUE NATURE OF THE REQUIREMENT AS STATED IN THE INVITATION. SEE 38 COMP. GEN. 59, 64. WHETHER THE DATA FURNISHED MEET THE STATED REQUIREMENT CAN BE DETERMINED ONLY BY THOSE POSSESSING A THOROUGH TECHNICAL AND SCIENTIFIC KNOWLEDGE OF THE SUBJECT MATTER AREA. IN ACCORDANCE WITH OUR GENERAL PRACTICE, THEREFORE, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR OWN JUDGMENT FOR THAT OF THE CONTRACTING AGENCY IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY. 40 COMP. GEN. 294, 297. ACCORDINGLY, WE PROCEED ON THE ASSUMPTION THAT THE DATA FURNISHED WITH THE LOW BID ARE INADEQUATE TO SATISFY THE REQUIREMENTS IMPOSED BY PARAGRAPH A AS QUOTED ABOVE.

THE CITED PARAGRAPH DOES NOT, AS IN THE USUAL SITUATION, WARN THAT FAILURE TO CONFORM THEREWITH WILL RESULT IN REJECTION OF THE BID. SEE 36 COMP. GEN. 376. HOWEVER, WHERE THE LANGUAGE OF AN INVITATION REASONABLY CONVEYS THE IMPRESSION THAT DATA MUST ACCOMPANY A BID, FAILURE TO CONFORM REQUIRES ITS REJECTION. 39 COMP. GEN. 595, 597. THE ISSUE, THEREFORE, IS WHETHER THE LANGUAGE OF THE INVITATION MAY BE SAID TO COME WITHIN THE RULE.

IN THIS CASE, IT WILL BE NOTED, THE FIRST PARAGRAPH OF THE DATA CLAUSE SPECIFIES THE INFORMATION WHICH SHALL ACCOMPANY THE BID BUT PROVIDES NO INFORMATION AS TO THE CONSEQUENCES OF A FAILURE OF COMPLIANCE. THE NEXT PARAGRAPH PROVIDES THAT AFTER BID OPENING THE GOVERNMENT MAY REQUIRE MORE INFORMATION FOR BID EVALUATION PURPOSES AND, FURTHER, RESERVES TO THE GOVERNMENT THE RIGHT TO REJECT ANY BID FOR FAILURE TO COMPLY WITH THIS REQUIREMENT. THE TWO PARAGRAPHS OF THE CLAUSE READ TOGETHER MAY WELL BE CONSIDERED TO PROVIDE THAT FAILURE OF COMPLIANCE WILL RESULT IN BID REJECTION ONLY UNDER THE SECOND PARAGRAPH. IN CONSIDERING A SIMILAR SITUATION, WE HELD AT 39 COMP. GEN. 684, 691, AS FOLLOWS:

WITH RESPECT TO THE QUESTION WHETHER THE NATURE OF THE DESCRIPTIVE DATA SUBMITTED WITH THE BIDS OF MINNEAPOLIS-1MOLINE COMPANY WAS SUCH AS TO REQUIRE ITS BIDS TO BE REJECTED AS NONRESPONSIVE, IT SHOULD BE NOTED THAT THE PORTION OF THE INVITATION WHICH REQUIRED THE SUBMISSION OF DESCRIPTIVE DATA CONTAINED NO PROVISION ADVISING BIDDERS THAT FAILURE TO COMPLY, OR PARTIAL COMPLIANCE, WOULD BE CAUSE FOR REJECTION OF THE BID. SEE 36 COMP. GEN. 376. CONVERSELY, THE PROVISION ON ALTERNATE BIDS, WHICH APPEARED IN THE INVITATION IMMEDIATELY FOLLOWING THE DESCRIPTIVE DATA REQUIREMENT, DID PROVIDE THAT MATERIAL DEVIATIONS FROM THE SPECIFICATIONS WOULD RESULT IN BID REJECTION. WHILE THE FAILURE OF A DESCRIPTIVE DATA REQUIREMENT TO STATE SPECIFICALLY THAT NONCOMPLIANCE WILL RESULT IN BID REJECTION HAS BEEN HELD INSUFFICIENT BY THIS OFFICE TO EXCUSE A BIDDER WHO FAILED TO SUBMIT SUCH DATA, IT IS OUR OPINION THAT THE FAILURE IN THE INSTANT INVITATIONS TO INCLUDE SPECIFIC NOTICE TO BIDDERS THAT SUBMISSION OF INADEQUATE DESCRIPTIVE DATA WOULD BE CAUSE FOR BID REJECTION, WHILE INCLUDING SUCH NOTICE IN THE ALTERNATE BID PROVISION, WOULD BE SUFFICIENT TO JUSTIFY A BIDDER'S BELIEF THAT THE SUBMISSION OF LESS THAN COMPLETE DESCRIPTIVE DATA, TOGETHER WITH A BLANKET OFFER TO COMPLY WITH ALL REQUIREMENTS OF THE SPECIFICATIONS AND TO SUBMIT ADDITIONAL DESCRIPTIVE DATA IF NECESSARY, WOULD COMPLY WITH THE REQUIREMENTS OF THE INVITATIONS. WE ARE THEREFORE UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER WAS REQUIRED TO REJECT THE BIDS OF MINNEAOPOLIS-1MOLINE COMPANY SOLELY ON THE GROUND THAT SUCH DESCRIPTIVE DATA AS WAS SUBMITTED WITH ITS BIDS WAS CONSIDERED INSUFFICIENT TO EVALUATE THE BIDS. SEE 38 COMP. GEN. 59, 64.

IN THE INSTANT SITUATION, THE LOW BID DID NOT INCLUDE AN OVERALL OFFER TO COMPLY AS IN THE CITED CASE. WE DO NOT FIND THIS DISTINCTION MATERIAL, SINCE AN OVERALL OFFER TO COMPLY CANNOT BE REGARDED AS OVERCOMING A SPECIFIC PROVISION REQUIRING THE SUBMISSION OF MATERIAL DATA WITH THE BID. 40 COMP. GEN. 132, 135. ACCORDINGLY, THE INADEQUACY OF THE DATA FURNISHED MAY NOT BE REGARDED AS A SUFFICIENT BASIS FOR REJECTING THE LOW BID.

PARAGRAPH B OF THE DATA CLAUSE INDICATES THAT A BIDDER MAY BE REQUIRED TO SUBMIT ADDITIONAL DATA AFTER OPENING IF THE DATA SUBMITTED WITH THE BID ARE "INSUFFICIENT FOR A PROPER EVALUATION OF A .' THE CLEAR INFERENCE IS THAT THE BID MAY BE EVALUATED IN THE LIGHT OF INFORMATION FURNISHED BY THE BIDDER AFTER BID OPENING. BIDS MUST BE EVALUATED FOR CONFORMANCE WITH ADVERTISED REQUIREMENTS SOLELY ON THE BASIS OF THEIR CONTENT AT THE TIME OF BID OPENING IF THE COMPETITIVE BID SYSTEM IS TO RETAIN ITS INTEGRITY. OTHERWISE THE BIDS COULD BE VARIED AFTER OPENING AND PRIOR TO AWARD. COMP. GEN. 132, 135. SEE, ALSO, UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461; 17 COMP. GEN. 554. THEREFORE, IF DATA FURNISHED UNDER PARAGRAPH B OF THE DATA CLAUSE WOULD IN FACT BE UTILIZED IN THE EVALUATION OF THE BID, I.E., WHETHER THEY WOULD MATERIALLY AFFECT THE TERMS OF THE CONTRACT, THE INVITATION MUST BE CANCELED AS DEFECTIVE. IF, HOWEVER, DESPITE THE LANGUAGE USED, THE ADDITIONAL DATA COVERED BY PARAGRAPH B WOULD BE USED TO DETERMINE RESPONSIBILITY, OR SOME OTHER FACTOR NOT RELATED TO RESPONSIVENESS, THE BIDS MAY BE CONSIDERED FOR AWARD IN ACCORDANCE WITH THE FOREGOING.