B-149512, SEP. 4, 1962

B-149512: Sep 4, 1962

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INC: REFERENCE IS MADE TO LETTER OF JULY 21. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH. MATERIALS AND COMPONENTS. "/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE. A TOTAL OF 10 BIDS WAS RECEIVED. THE LOW BIDDER FAILED TO FURNISH DESCRIPTIVE LITERATURE WITH HIS BID AND HIS BID WAS THEREFORE REJECTED. THE NEXT LOW BIDDER SUBMITTED AN INCOMPLETE BID AND HIS BID WAS REJECTED.

B-149512, SEP. 4, 1962

TO RANDALL MANUFACTURING COMPANY, INC:

REFERENCE IS MADE TO LETTER OF JULY 21, 1962, FROM YOUR ATTORNEY, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. IFB600-1201-62 ISSUED BY THE U.S. NAVY PURCHASING OFFICE ON APRIL 25, 1962.

THE INVITATION SOLICITED BIDS--- TO BE OPENED ON JUNE 4, 1962--- FOR FURNISHING 75 MOBILE ELECTRIC PURGE ASSEMBLIES AND RELATED TECHNICAL DATA AND PUBLICATIONS, IN ACCORDANCE WITH CERTAIN SPECIFICATIONS SET FORTH IN THE INVITATION. PAGE 6 OF THE SCHEDULE FORMING A PART OF THE INVITATION CONTAINED THE FOLLOWING REQUIREMENT:

"REQUIREMENT FOR DESCRIPTIVE LITERATURE:

(SEE PARAGRAPH 6.3 OF PURCHASE DESCRIPTION BUWEPS-SEQ-45 OF MARCH 1962)

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, MATERIALS AND COMPONENTS.

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISION FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.'

A TOTAL OF 10 BIDS WAS RECEIVED. THE LOW BIDDER FAILED TO FURNISH DESCRIPTIVE LITERATURE WITH HIS BID AND HIS BID WAS THEREFORE REJECTED. THE NEXT LOW BIDDER SUBMITTED AN INCOMPLETE BID AND HIS BID WAS REJECTED. YOUR ALTERNATE BID WAS REJECTED BECAUSE THE INVITATION (PAGE 6 OF SCHEDULE) ADVISED ALL BIDDERS THAT ALTERNATE BIDS WOULD NOT BE CONSIDERED. YOUR LOW BID (THE THIRD LOWEST BID SUBMITTED) WAS REJECTED BECAUSE THE RATINGS OF THE BLOWER MOTOR STARTER AND HEATER STARTER, REQUIRED BY PARAGRAPH 6.3/4) (D) (2) AND (3) OF PURCHASE DESCRIPTION BUWEPS-SEQ-45 DATED MARCH 10, 1962, WERE NOT FURNISHED. AWARD WAS MADE TO KING NUTRONICS CORPORATION ON JUNE 25, 1962.

IT IS CONTENDED IN YOUR BEHALF AS FOLLOWS:

"/3) THE ONLY REASON PROFFERED BY N.P.O. FOR THROWING OUT THE RANDALL MANUFACTURING COMPANY BID IS, ACCORDING TO N.P.O. REPRESENTATIVES: THAT RANDALL MANUFACTURING COMPANY IN THEIR BID FAILED TO SUBMIT "A RATING" ON TWO OF THE ITEMS CALLED FOR IN THE INVITATION, I.E., A BLOWER MOTOR STARTER AND A HEATER STARTER. THE FOLLOWING APPEARED ON PAGE 2 OF THE RANDALL COMPANY SPECIFICATIONS:

TABLE

"BLOWER MOTOR - U.S. MOTOR, 5HP, 220/440/360, 3600 RPM

EXPLOSION PROOF, SEE ENCLOSURE, EXHIBIT D.

"BLOWER STARTER: FURNAS STYLE NUMBER 14 EA 32AA, SEE

EXHIBIT E.

"HEATER STARTER: FURNAS STYLE NUMBER 14 EA 32AA, SEE

EXHIBIT E.'

"/4) THE NUMBER "FURNAS STYLE 14 EA 32AA" WAS NOT ONLY "A RATING" BUT WAS ALSO DESCRIPTIVE OF THE STARTER TO BE USED FOR THE FOLLOWING REASONS:

"/A) A RATING OF 5HP WAS GIVEN ON THE MOTOR. THIS LOGICALLY, THEREFORE, CONTROLLED THE RATING ON THE STARTER.

"/B) A CATALOG NUMBER "14 EA 32AA" IS NOT ONLY SPECIFIC BUT COMPREHENSIVE AND UNEQUIVOCAL.

"/C) THE USE OF SUCH CATALOG NUMBERS IS CUSTOMARY AND STANDARD IN THE ELECTRICAL TRADE IN THE UNITED STATES, AS EVIDENCED BY THEIR USE BY THE UNDERWRITER LABORATORIES AND THE NATIONAL ELECTRICAL MANUFACTURERS ASSOCIATION. IT IS FURTHER EVIDENCED BY THE OTHER BIDDERS' USE OF SUCH CATALOG NUMBERS.

"/D) CATALOG NUMBERS ARE NOT SUBJECT TO EQUIVOCATION AND, THEREFORE, THE GOVERNMENT IN ACCEPTING SUCH CONCRETE IDENTIFICATION COULD NOT SUFFER ANY DETRIMENT, NOR COULD ANY OF THE OTHER COMPETING BIDDERS SUFFER DETRIMENT.

"/E) IF THE BIDDER WERE LESS SPECIFIC BY USING, SAY, A "3HP RATING," THIS WOULD BE GENERAL AND WOULD SATISFY THE REQUIREMENT OF A RATING; HOWEVER, IT WOULD BE GENERAL IN NATURE AND CONSTITUTE AN OPEN END ADVANTAGE TO THE INDIVIDUAL BIDDER.

"/F) AFFIDAVITS ARE AVAILABLE FROM MANUFACTURERS,EXPERTS, ARCHITECTS, ENGINEERS, UNDERWRITER LABORATORIES, THE NATIONAL ELECTRIC MANUFACTURERS ASSOCIATION, ETC., WHICH PROVE THE VALIDITY OF CATALOG NUMBERS AND THEIR PURPOSEFUL USE OF ESTABLISHING SPECIFIC, COMPREHENSIVE AND UNEQUIVOCAL IDENTIFICATION OF ITEMS SUCH AS MAGNETIC STARTERS.

"/G) N.P.O. COULD HAVE ACCEPTED THIS NUMBER WITH THE OTHER MATERIAL SUPPLIED AND WOULD NOT BE SUBJECT TO ANY CHARGES OF ILLEGALITY, CAPRICIOUSNESS, FAVORITISM, ETC.

"/H) THE N.P.O. ARGUES THAT THE FURNAS CATALOG WAS NOT REALLY AVAILABLE WITHIN WALKING DISTANCE OF THE REVIEWING TECHNICAL OFFICER'S DESK. ATTACHED, MARKED EXHIBIT B, IS A PAGE FROM THE FURNAS COMPANY CATALOG.

"/5) REGARDING THESE TWO ITEMS OF STARTERS, THE FOLLOWING APPEARED IN THE SO-CALLED SUCCESSFUL BIDDER'S SPECIFICATIONS:

"/E) BLOWER MOTOR STARTER:

ALLEN-BRADLEY SIZE O MAGNETIC CONTRACTOR WITH THERMAL OVERLOAD.

"/F) HEATER STARTER:

ALLEN-BRADLEY SIZE 1 MAGNETIC CONTRACTOR WITH THERMAL

OVERLOAD.'

IT SHOULD BE NOTED THAT THE FOREGOING CONTAINED NO REFERENCE WHATSOEVER TO CATALOG MATERIAL ATTACHED TO THE SPECIFICATION. A REVIEW OF SUCH CATALOG MATERIAL FAILS IN ANY WAY TO SPECIFICALLY IDENTIFY RATING OF THESE TWO ITEMS BY THE SO-CALLED SUCCESSFUL BIDDER. FURTHER, THE SO-CALLED SUCCESSFUL BIDDER DID NOT EVEN SUPPLY A SPECIFIC CATALOG NUMBER, BUT RATHER INCLUDED SOME GENERAL DESCRIPTIVE MATERIAL THAT COVERED STARTERS RANGING UP TO 250HP.

"/6) THE DETAILS, UNEQUIVOCAL AND SPECIFIC, OF RATING WERE AND ARE AVAILABLE TO N.P.O. OFFICIALS BY A LOCAL TELEPHONE CALL AND/OR A TURN OF THE PAGE. IN THIS TOO MUCH OF A BURDEN TO PLACE UPON THE TECHNICAL REVIEWING OFFICER?

"CONVERSELY, IF A BIDDER IDENTIFIED A RATING, WHICH IS ERRONEOUS, THE ERROR CAN ONLY BE VERIFIED BY A LOCAL TELEPHONE CALL OR A TURN OF THE PAGE.

"/7) IF A CATALOG NUMBER, WHICH IS SPECIFIC, COMPREHENSIVE AND UNEQUIVOCAL, WAS NOT ACCEPTED FROM THE RANDALL MANUFACTURING COMPANY, WHICH WAS LOWER IN PRICE THAN THE SO-CALLED SUCCESSFUL BIDDER, WHY WAS SOMETHING LESS ACCEPTED FROM THE SO-CALLED SUCCESSFUL BIDDER?

"/8) THE "FURNAS ELECTRIC COMPANY STARTER, 14 EA 32AA," WHICH IS A COMPLETE SPECIFIC OF A PARTICULAR STARTER, MEETS THE REQUIREMENT OF A "5HP, 220/440 MOTOR.' THIS NUMBER IS ONE OF APPROXIMATELY 150 OTHER STARTERS TESTED FOR CLASS 14. THE NUMBER IS SYNTHESIZED AS FOLLOWS:

TABLE

14 INDICATES THE CLASS OF MAGNETIC STARTER

EA INDICATES THE RATING OF THE STARTER

32 INDICATES THE NUMBER OF PHASES OR POLES

A INDICATES THE OPEN TYPE

A INDICATES THE COIL VOLTAGE

THIS STARTER, OR EQUAL, CAN BE ORDERED BY THIS NUMBER FROM ANY INDUSTRY DISTRIBUTOR OF ELECTRICAL SUPPLIES AND IS EASILY VERIFIED BY A PROCEDURE WHICH IS STANDARD AND CUSTOMARY IN THE TRADE.'

IT IS NOTED THAT YOU DO NOT CONTEND THAT YOUR BID CONTAINED THE RATINGS OF THE BLOWER MOTOR STARTER AND THE HEATER STARTER. YOUR POSITION IS THAT REFERENCE WAS MADE TO THE FURNAS ELECTRIC COMPANY STARTER, MODEL "NUMBER 14 EA 32AA.' HOWEVER, YOU DID NOT FURNISH LITERATURE OF THIS STARTER WHICH WOULD HAVE ENABLED THE CONTRACTING OFFICER TO CHECK WHETHER THE RATING MET SPECIFICATIONS. YOU CONTEND THAT THE CONTRACTING OFFICER COULD HAVE CHECKED THE RATING IN THE FURNASCATALOG AND THAT THE DETAILS OF RATINGS "WERE AND ARE AVAILABLE TO N.P.O. OFFICIALS BY A LOCAL TELEPHONE CALL AND/OR A TURN OF THE PAGE.' THE CONTRACTING OFFICER, HOWEVER, REPORTS THAT COPIES OF CATALOGS OF DETAILED COMPONENTS "ARE NOT HELD BY THE GENERAL EQUIPMENT DIVISION, THE BUREAU OF NAVAL WEAPONS LIBRARY, THE BUREAU OF SHIPS LIBRARY, OR THE NAVY DEPARTMENT LIBRARY.' ALSO, HE STATES THAT USE OF THE TELEPHONE IN OBTAINING RATINGS OR SUBSTANTIATING RATINGS IS CONSIDERED IMPRACTICAL FOR THE FOLLOWING REASONS:

"A. INFORMATION GIVEN OVER THE TELEPHONE IS NOT NECESSARILY BINDING.

"B. THE RATINGS ON MANY COMPONENTS ARE NOT FIXED, BUT VARY DEPENDING ON USE, ENVIRONMENTAL CONDITIONS, OPERATING SPEED, LIFE EXPECTANCY, ETC. THE USE OF THE TELEPHONE CAN LEND TO CONSIDERABLE CONFUSION IN SUCH CASES.

"C. LOCAL SALES OFFICES, INADVERTENTLY OR OTHERWISE, MAY PROVIDE ORAL INFORMATION WHICH IS MISLEADING OR WHICH MAY BE CONSTRUED TO THE DETRIMENT OF ALL OTHER BIDDERS AND TO THE GOVERNMENT IN A FORMALLY ADVERTISED PROCUREMENT.'

WITH REGARD TO THE ASSERTION THAT THE BID OF THE SUCCESSFUL BIDDER ALSO FAILED TO FURNISH THE RATINGS OF BLOWER MOTOR STARTER AND HEATER STARTER, IT IS STATED--- AND THE PAPERS REFERRED TO AS HAVING BEEN SUBMITTED WITH THE BID CONFIRM THE STATEMENT--- THAT PAGE 11 OF BULLETIN 706 SHOWS THAT SIZE O STARTER IS RATED AT FROM 3 TO 5 HORSEPOWER, AND SIZE 1 STARTER IS RATED AT FROM 7-1/2 TO 10 HORSEPOWER. WE HAVE BEEN INFORMALLY ADVISED BY TECHNICAL PERSONNEL OF THE DEPARTMENT OF THE NAVY THAT THE MAIN PURPOSE IN SUBMITTING THE BULLETIN WAS TO SHOW THE RATING FOR THE VARIOUS SIZES OF STARTERS. SINCE THIS BULLETIN WAS SUBMITTED WITH THE KING NUTRONIC'S BID, IT MET THE REQUIREMENT FOR THE FURNISHING OF DESCRIPTIVE DATA. INASMUCH AS YOU FAILED TO FURNISH SUCH DETAILED DESCRIPTIVE INFORMATION AND SINCE IT WAS NOT READILY AVAILABLE FOR TECHNICAL REVIEW OF YOUR BID, YOUR BID WAS PROPERLY REJECTED.

IT HAS BEEN CONSISTENTLY HELD BY OUR OFFICE THAT WHERE AN INVITATION MAKES IT CLEAR THAT DATA REQUIRED TO BE FURNISHED WILL BE USED IN EVALUATING BIDS AND THAT FAILURE TO FURNISH SUCH DATA WILL RESULT IN REJECTION OF A BID SUCH PROVISION MUST BE STRICTLY ENFORCED. 40 COMP. GEN. 132; 37 ID. 763; 36 ID. 415; B-146168, JUNE 30, 1961; AND B-148605, JUNE 22, 1962. THE HOLDING IN THESE CASES IS FOR APPLICATION HERE. MIGHT BE ADDED THAT THE LANGUAGE IN THE INVITATION HERE WAS UNMISTAKABLY CLEAR THAT A FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE NECESSARY FOR EVALUATION WOULD REQUIRE REJECTION OF A BID.