B-149380, AUG. 8, 1962

B-149380, AUG. 8, 1962

TO MR. J. L. ROEMISCH:

REFERENCE IS MADE TO YOUR LETTER OF JULY 5, 1962, PROTESTING THE REJECTION OF THE LOW BID YOUR FIRM SUBMITTED UNDER IFB-207-68-62.

THE SUBJECT INVITATION SOLICITED BIDS FOR CERTAIN ELECTRONIC GENERATORS ON A "BRAND NAME OR EQUAL BASIS. THE "BRAND NAME OR EQUAL" CLAUSE PROVIDED THAT IF A BIDDER DID NOT INTEND TO FURNISH THE BRAND NAME ARTICLE, IT HAD TO FURNISH AS A PART OF ITS BID ALL DESCRIPTIVE LITERATURE NECESSARY FOR THE PURCHASING ACTIVITY TO DETERMINE WHETHER THE OFFERED PRODUCT MET THE REQUIREMENTS OF THE INVITATION AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. THE CLAUSE FURTHER PROVIDED THAT IF THE BIDDER PROPOSED TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE GOVERNMENT'S REQUIREMENTS, IT SHOULD INCLUDE IN ITS BID A CLEAR DESCRIPTION OF THE PROPOSED MODIFICATIONS AND MARK ITS DESCRIPTIVE DATA TO SHOW THE MODIFICATIONS. THE CLAUSE INDICATED THAT THE INFORMATION WAS REQUIRED TO PERMIT THE COMPLETE EVALUATION OF BIDS.

YOUR FIRM OFFERED AN "OR EQUAL" PRODUCT. THE BID STATED:

"TIC SUBMITS THEIR STANDARD 4000 SERIES FREQUENCY CONVERTERS, MODIFIED SLIGHTLY TO MEET ALL OF THE ABOVE REFERENCED SPECIFICATIONS (PAGE 5 TO 8 INCLUSIVE).

"ENCLOSED ARE COPIES OF OUR STANDARD LITERATURE VERIFYING THE 400 DIFFERENT MODELS OF MODULAR DESIGN FREQUENCY CONVERTERS THUS ENABLING US TO MEET YOUR SPECIFICATIONS FROM SHELF-STOCKED ASSEMBLIES.'

A BROCHURE, ENTITLED "TIC PRODUCT INFORMATION, FREQUENCY CONVERTERS 4000 SERIES," ACCOMPANIED THE BID, BUT NEITHER THE LITERATURE NOR THE BID SHOWED THE ACTUAL MODIFICATIONS THAT WOULD BE MADE IN THE PRODUCT TO MAKE IT CONFORM TO THE INVITATION REQUIREMENTS. THE CONTRACTING OFFICE REFERRED THE MATTER TO LEGAL COUNSEL WHO ADVISED THAT THE OMISSION OF THE DATA DESCRIBING THE MODIFICATIONS RENDERED THE BID NONRESPONSIVE. THE BID WAS THEREFORE REJECTED. HOWEVER, YOU CONTEND THAT SINCE THE FIRM AGREED TO MEET THE SPECIFICATIONS, ITS BID SHOULD HAVE BEEN CONSIDERED RESPONSIVE.

OUR OFFICE HAS HELD THAT THE FAILURE OF A BIDDER TO COMPLY WITH AN INVITATION REQUIREMENT SPECIFICALLY CALLING FOR DESCRIPTIVE DATA WHICH WILL BE CONSIDERED IN THE EVALUATION OF BIDS IS NOT OVERCOME BY THE BIDDER'S BLANKET OFFER TO COMPLY WITH THE SPECIFICATIONS. 36 COMP. GEN. 415. ACCORDINGLY, IN THE CIRCUMSTANCES, THERE IS NO LEGAL BASIS UPON WHICH WE COULD OBJECT TO THE DETERMINATION TO REJECT THE BID SUBMITTED BY YOUR COMPANY.

THE LISTING IN THE COMMERCE BUSINESS DAILY THAT A CONTRACT HAD BEEN AWARDED TO YOUR FIRM UNDER THE IMMEDIATE INVITATION OBVIOUSLY WAS ERRONEOUS AND HAS NO BEARING ON THE OUTCOME OF THIS MATTER.