B-150079, NOV. 26, 1962

B-150079: Nov 26, 1962

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 4. AS A BASIS FOR YOUR PROTEST YOU CONTENDED THAT THE ACCEPTANCE OF YOUR BID WOULD HAVE EFFECTED A SAVING TO THE GOVERNMENT OF APPROXIMATELY $10. SHOULD NOT HAVE BEEN REFUSED ON THE BASIS OF THE TECHNICALITY OFFERED BY THE DEFENSE GENERAL SUPPLY CENTER. IN WHICH IT APPEARS THAT YOU HAVE IN EFFECT ABANDONED YOUR PROTEST. SINCE YOU STILL SEEM TO FEEL THAT YOUR BID WAS ERRONEOUSLY REJECTED WE WILL REPLY TO YOUR COMPLAINT ON THE BASIS OF THE INFORMATION NOW BEFORE US. THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE OTHER TWO BIDDERS WERE THE JOY MANUFACTURING COMPANY WHICH SUBMITTED A BID OF $204 EACH. BIDDERS OFFERING "EQUAL" PRODUCTS WERE REQUIRED.

B-150079, NOV. 26, 1962

TO REMSEL INDUSTRIES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 4, 1962, ADDRESSED TO THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND 12, VIRGINIA, PROTESTING THE AWARD OF A CONTRACT TO OTHER THAN YOUR CONCERN PURSUANT TO INVITATION FOR BIDS NO. DSA-4-63-221-T-F-517, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER UNDER DATE OF AUGUST 3, 1962. THERE HAS ALSO BEEN RECEIVED YOUR LETTER DATED OCTOBER 23, 1962, WITH ENCLOSURES, RELATING TO THE MATTER OF YOUR PROTEST.

AS A BASIS FOR YOUR PROTEST YOU CONTENDED THAT THE ACCEPTANCE OF YOUR BID WOULD HAVE EFFECTED A SAVING TO THE GOVERNMENT OF APPROXIMATELY $10,000, AND SHOULD NOT HAVE BEEN REFUSED ON THE BASIS OF THE TECHNICALITY OFFERED BY THE DEFENSE GENERAL SUPPLY CENTER, THE "TECHNICALITY," HOWEVER, NOT BEING EXPLAINED IN YOUR LETTER. WITH YOUR LETTER OF OCTOBER 23, 1962, YOU ENCLOSED COPIES OF CORRESPONDENCE BETWEEN YOUR CONCERN AND THE DEFENSE GENERAL SUPPLY CENTER, INCLUDING A COPY OF A LETTER DATED OCTOBER 12, 1962, IN WHICH IT APPEARS THAT YOU HAVE IN EFFECT ABANDONED YOUR PROTEST. HOWEVER, SINCE YOU STILL SEEM TO FEEL THAT YOUR BID WAS ERRONEOUSLY REJECTED WE WILL REPLY TO YOUR COMPLAINT ON THE BASIS OF THE INFORMATION NOW BEFORE US, WHICH INCLUDES THE RECORD OF THE DEFENSE SUPPLY AGENCY ON THE MATTER.

THE RECORD INDICATES THAT BY THE CITED INVITATION FOR BIDS THE DEFENSE GENERAL SUPPLY CENTER REQUESTED BIDS FOR FURNISHING 160 FANS, VANEAXIAL, NO. FSN 4140-540-2362 FOR DELIVERY TO VARIOUS DESTINATIONS, THE BIDS TO BE OPENED AT 3:30 P.M. ON AUGUST 31, 1962. THE ITEM NOMENCLATURE CITED "CROSLEY DIV. OF AVCO MFG. CO., PART NO. 728353; JOY MFG. CO., PART NO. X702-128A, OR EQUAL.' THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, THE APPARENT LOW BID BEING THAT SUBMITTED BY YOUR CONCERN AT THE UNIT PRICE OF $134.80 EACH. THE OTHER TWO BIDDERS WERE THE JOY MANUFACTURING COMPANY WHICH SUBMITTED A BID OF $204 EACH, AND DYNAMIC AIR ENGINEERING, INC., WHICH SUBMITTED BIDS OF $267.15, $266.90, $266.40, AND $266.20 FOR THE FOUR DESTINATIONS INVOLVED.

UNDER THE TERMS OF THE INVITATION FOR BIDS, ARTICLE 46 (C) OF THE ADDITIONAL PROVISIONS, BIDDERS OFFERING "EQUAL" PRODUCTS WERE REQUIRED, IN ORDER TO INSURE THAT THE GOVERNMENT HAD SUFFICIENT INFORMATION, TO FURNISH AS A PART OF THEIR BIDS ALL DESCRIPTIVE MATERIAL NECESSARY FOR THE PURCHASING ACTIVITY TO DETERMINE WHETHER THE PRODUCT OFFERED MET THE REQUIREMENT OF THE INVITATION FOR BIDS AND TO ESTABLISH EXACTLY WHAT WAS BEING OFFERED. ON PAGE 1 YOU INDICATED YOUR INTENTION TO FURNISH YOUR BRAND "REMSELAIRE NO. AV 5500-300.' THE CONTRACTING OFFICE REPORTS, HOWEVER THAT NO DRAWING OR DESCRIPTION OF ANY NATURE ACCOMPANIED YOUR BID. THE TECHNICAL ADVISORY BRANCH, DIRECTORATE FOR CATALOGING AND STANDARDIZATION, ADVISED THE CONTRACTING OFFICER THAT IT WAS UNABLE TO MAKE AN EVALUATION OF THE OFFERED ITEMS SINCE IT HAD NO INFORMATION AVAILABLE ON THE INDICATED MODEL. IT MAY BE SAID AT THIS POINT THAT YOUR FAILURE TO FURNISH A DRAWING OR DESCRIPTIVE LITERATURE WAS NO MERE "TECHNICALITY"--- IT WAS AN ESSENTIAL REQUIREMENT FOR A PROPER EVALUATION OF YOUR BID. ACCORDINGLY, YOUR BID WAS REJECTED AS NOT BEING RESPONSIVE TO THE TERMS OF THE INVITATION FOR BIDS, AND UNDER DATE OF SEPTEMBER 27, 1962, AN AWARD OF THE ENTIRE QUANTITY WAS MADE TO THE JOY MANUFACTURING COMPANY, THE LOW RESPONSIVE BIDDER. THERE FOLLOWED CONSIDERABLE CORRESPONDENCE BETWEEN YOUR CONCERN AND THE PROCURING ACTIVITY RELATING TO THE REJECTION OF YOUR BID.

THE CONTRACTING OFFICER REPORTS THAT WITH LETTER DATED OCTOBER 9, 1962--- AFTER THE AWARD HAD BEEN MADE--- YOUR CONCERN SUBMITTED A DRAWING NUMBER AVO 5500-300, NOT AV 5500-300, AS STATED IN THE BID. THE TECHNICAL ADVISORY BRANCH ADVISED THE CONTRACTING OFFICER THAT THE MODEL REPRESENTED IN YOUR DRAWING WAS NOT EQUAL TO THE MODEL CITED IN THE NOMENCLATURE OF THE INVITATION FOR BIDS. BY LETTER OF OCTOBER 24, 1962, THE CONTRACTING OFFICER ADVISED YOU OF THE ADMINISTRATIVE DETERMINATION THAT THE MODEL OFFERED BY YOU WAS NOT EQUAL TO THE BRAND NAME CITED IN THE INVITATION, ETC.

IN A DECISION DATED NOVEMBER 21, 1956, B-129041, TO THE SECRETARY OF THE INTERIOR, PUBLISHED AT 36 COMP. GEN. 415, WE HELD THAT THE FAILURE OF A BIDDER TO COMPLY WITH AN INVITATION SPECIFICALLY CALLING FOR DESCRIPTIVE DATA WHICH WAS DEEMED MATERIAL AND WHICH WOULD BE CONSIDERED IN THE EVALUATION OF BIDS MAY NOT BE WAIVED BY THE CONTRACTING OFFICER UNDER AN INVITATION FOR BIDS WHICH RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT ALL BIDS NOT IN COMPLIANCE WITH THE REQUIREMENTS. OUR OFFICE HAS ALSO HELD THAT DESCRIPTIVE MATERIAL FURNISHED SUBSEQUENT TO BID OPENING IN AN ATTEMPT TO DESCRIBE THE ITEM OFFERED IS NOT PROPERLY FOR CONSIDERATION EXCEPT IN CONNECTION WITH POSSIBLE FUTURE PROCUREMENTS OF THE ITEM. THE QUESTION INVOLVED IN CASES OF THIS KIND GOES TO THE RESPONSIVENESS OF THE BID, RATHER THAN THE RESPONSIBILITY OF THE BIDDER WHICH IS SUBJECT TO DETERMINATION AFTER BID OPENING. THE FUNCTION OF A PRE-AWARD SURVEY SUCH AS REFERRED TO IN YOUR CORRESPONDENCE IS TO ASCERTAIN RESPONSIBILITY AND NOT RESPONSIVENESS.

FOR THE REASONS SET FORTH ABOVE WE CONCLUDE THAT THERE IS NO PROPER BASIS FOR OBJECTION BY OUR ..END :