B-150098, DEC. 6, 1962

B-150098: Dec 6, 1962

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ESQUIRE: REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 10 AND NOVEMBER 21 AND 26. INCLUDED IN THE INVITATION WAS A "REQUIREMENT FOR DESCRIPTIVE LITERATURE" CLAUSE AS FOLLOWS: "/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 DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH. "DESCRIPTIVE LITERATURE REQUIRED FOR EVALUATION PURPOSES SHALL CONSIST OF: "/1) OUTLINE DRAWINGS OF THE UNIT ON WHICH THE BID IS BASED DEPICTING DETAILS SUCH AS SIZE. FINISH AND GENERAL ARRANGEMENT OF CONTROLS AND INDICATORS. "/2) A LIST OF RECOMMENDED SPARE PARTS FOR THE UNITS BID UPON. "/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.

B-150098, DEC. 6, 1962

TO DAVID FROMSON, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 10 AND NOVEMBER 21 AND 26, 1962, CONCERNING THE PROTEST OF GREER HYDRAULICS, INC., AGAINST AN AWARD TO ANY OTHER BIDDER UNDER IFB 600-19-63.

THE SUBJECT INVITATION REQUESTED BIDS FOR FURNISHING A TYPE IV, CLASS 1, POWER SUPPLY. INCLUDED IN THE INVITATION WAS A "REQUIREMENT FOR DESCRIPTIVE LITERATURE" CLAUSE AS FOLLOWS:

"/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 AND PERFORMANCE CHARACTERISTICS.

"DESCRIPTIVE LITERATURE REQUIRED FOR EVALUATION PURPOSES SHALL CONSIST OF:

"/1) OUTLINE DRAWINGS OF THE UNIT ON WHICH THE BID IS BASED DEPICTING DETAILS SUCH AS SIZE, WEIGHT, FINISH AND GENERAL ARRANGEMENT OF CONTROLS AND INDICATORS.

"/2) A LIST OF RECOMMENDED SPARE PARTS FOR THE UNITS BID UPON.

"/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.'

THE BID FROM GREER HYDRAULICS, OPENED ALONG WITH 17 OTHERS ON AUGUST 20, 1962, DID NOT CONTAIN ANY OF THE REQUIRED DESCRIPTIVE LITERATURE. HOWEVER, THE BIDDER CONTENDS THE DESCRIPTIVE LITERATURE WAS MAILED UNDER SEPARATE COVER ON AUGUST 13, 1962. IN SUPPORT OF THAT POSITION, IT HAS FURNISHED COPIES OF THE MATERIAL AND AFFIDAVITS FROM ITS INDIVIDUAL PERSONNEL THAT HANDLED THE ORIGINAL MATERIAL AT THAT TIME. THE ORIGINAL MATERIAL HAS NEVER BEEN RECEIVED BY THE NAVY PURCHASING OFFICE. THEREFORE, IT PROPOSES TO REJECT THE GREER HYDRAULICS BID AS NONRESPONSIVE FOR FAILURE OF THE DESCRIPTIVE LITERATURE TO HAVE BEEN TIMELY RECEIVED WITHIN THE CONTEMPLATION OF THE INVITATION.

IT IS YOUR POSITION THAT THE BID SHOULD NOT BE REJECTED. YOU POINT OUT THAT IN B-149134, SEPTEMBER 20, 1962, THERE WAS CONSIDERED A PROVISION IN THE INVITATION THAT "ERASURES OR OTHER CHANGES MUST BE INITIALED BY THE PERSON SIGNING THE BID" AND IT WAS HELD THAT NOTWITHSTANDING THE USE OF THE MANDATORY LANGUAGE IN THE PROVISION, THE FAILURE TO INITIAL A CHANGE OR PRICE COULD BE WAIVED. HOWEVER, THAT SITUATION IS DIFFERENT FROM THE IMMEDIATE ONE. IN THE ERASURE CASE, FAILURE TO INITIAL IS FAILURE TO CONFORM TO A MATTER OF FORM, BUT IN THE IMMEDIATE CASE, FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE IS FAILURE TO CONFORM TO A MATTER OF SUBSTANCE. ON THE LATTER POINT, IT HAS BEEN SAID IN B-146168, JUNE 30, 1961:

"WE HAVE CONSISTENTLY TAKEN THE POSITION IN THE PAST SEVERAL YEARS THAT THE CONTRACTING OFFICER MAY INSERT ANY REQUIREMENTS IN THE INVITATION WHICH ARE REASONABLY RELATED TO THE PURPOSE OF THE PROCUREMENT AND THAT WE WILL REQUIRE THE ENFORCEMENT OF THOSE REQUIREMENTS, PROVIDING THEY ARE CLEARLY SPELLED OUT AND THE BIDDERS ARE MADE AWARE OF THE CONSEQUENCES OF FAILURE TO CONFORM BY THE TERMS OF THE INVITATION. THUS WE HAVE HELD, WITH CERTAIN EXCEPTIONS NOT RELEVANT TO THE PRESENT INQUIRY, THAT THE FAILURE TO COMPLY WITH THE DESCRIPTIVE LITERATURE REQUIREMENT, WHERE THE DATA REQUIREMENTS ARE MADE PART OF THE BID AND BIDDERS ARE CLEARLY ADVISED THAT FAILURE TO CONFORM WILL RESULT IN REJECTION, IS A SUBSTANTIVE REQUIREMENT WHICH CANNOT BE WAIVED. 40 COMP. GEN. 132, 135; 37 COMP. GEN. 763, 765. * * *.'

FURTHER, YOU ATTRIBUTE THE FACT THAT THE DESCRIPTIVE LITERATURE WAS NEVER RECEIVED TO THE DELAY THAT WAS ENCOUNTERED IN OBTAINING FROM THE CONTRACTING AGENCY THE SPECIFICATIONS UPON WHICH THE DESCRIPTIVE DATA WAS TO BE BASED WITH THE RESULTANT EFFECT THAT THE DATA COULD NOT BE SENT IN TIME TO ACCOMPANY THE BID IN THE SAME ENVELOPE WHICH WAS RECEIVED. YOU SUGGEST THAT THIS SHOULD HAVE SOME BEARING IN CONSIDERING WHETHER THE BID CAN BE CONSIDERED WITHOUT THAT DATA. HOWEVER, THE DESCRIPTIVE DATA WAS MADE A MATERIAL PART OF THE BID BY THE DESCRIPTIVE LITERATURE REQUIREMENT IN THE BID. REGARDLESS OF WHO WAS AT FAULT IN RESPECT TO THE NON-RECEIPT OF THE DATA, THE FACT REMAINS THAT WITHOUT IT THE BID WAS MATERIALLY INCOMPLETE AND WAS INCAPABLE OF BEING EVALUATED IN THE MANNER CONTEMPLATED BY THE INVITATION.

WE CONCUR IN YOUR VIEW THAT THE ORIGINAL DATA IS NOT SUBJECT TO THE RULES PERTAINING TO LATE BIDS, BUT NOT FOR THE REASON ADVANCED BY YOU THAT SUCH TECHNICAL DATA DID NOT FORM A PART OF THE BID, AS THE PLAIN STATEMENT IN THE DESCRIPTIVE LITERATURE CLAUSE IS THAT THE "DESCRIPTIVE LITERATURE * * * MUST BE FURNISHED AS A PART OF THE BID," BUT FOR THE REASON THAT IT WAS NOT RECEIVED BY THE OFFICE DESIGNATED IN THE INVITATION AND SUCH RECEIPT IS MADE BY THE TERMS OF THE INVITATION A CONDITION PRECEDENT TO THE APPLICATION OF THE LATE BID RULES. THE ONLY DATA THAT HAS BEEN RECEIVED IS THAT WHICH THE BIDDER MAILED ON SEPTEMBER 5, 1962, SEVERAL WEEKS AFTER THE BID OPENING, AND SUCH MATERIAL OBVIOUSLY CANNOT BE CONSIDERED AS HAVING BEEN TIMELY MAILED. WHILE YOU POINT OUT THERE IS A PROVISION THAT AN OTHERWISE SUCCESSFUL BIDDER MAY MODIFY HIS BID AT ANY TIME AND SUGGEST THAT WAS BEING ACCOMPLISHED BY THE MAILING OF THE DATA ON SEPTEMBER 5, WE MUST EMPHASIZE THAT SUCH PROVISION AUTHORIZES A MODIFICATION OF THE BID OF THE SUCCESSFUL BIDDER ONLY AND DOES NOT PERMIT MODIFICATION OF A BID IN ORDER TO QUALIFY AS A SUCCESSFUL BIDDER, SUCH AS IS THE IMMEDIATE CASE.

YOU HAVE ALSO STATED THAT THE LITERATURE IS SOUGHT BY THE GOVERNMENT TO DETERMINE THE BIDDER'S COMPREHENSION OF THE SPECIFICATIONS AND AS SUCH IS RELATED TO THE BIDDER'S RESPONSIBILITY TO PERFORM THE WORK. THIS POSITION IS GENERALLY CONCURRED IN BY THE ADMINISTRATIVE RECORD WHICH STATES THAT A REQUIREMENT FOR THE DESCRIPTIVE LITERATURE WAS INCLUDED IN THE INVITATION TO ASCERTAIN THE TECHNICAL CAPABILITIES OF BIDDERS. FOLLOWING THE LINE OF THINKING THAT THE MATERIAL IS BEING OBTAINED TO DETERMINE THE RESPONSIBILITY OF BIDDERS, YOU REFER TO THE LINE OF CASES THAT HAVE GENERALLY INDICATED THAT WHERE THE INFORMATION IS INTENDED FOR USE IN DETERMINING THE BIDDER'S RESPONSIBILITY, IT MAY BE PROVIDED SUBSEQUENT TO BID OPENING WITHOUT PREJUDICE TO CONSIDERATION OF THE BID EVEN WHERE THE INVITATION WARNS THAT FAILURE TO CONFORM MAY RESULT IN BID REJECTION. HOWEVER, ON THE SPECIFIC QUESTION OF WHETHER A BIDDER COULD BE PERMITTED TO PROVIDE AFTER BID OPENING MISSING INFORMATION THAT WOULD SHOW ITS TECHNICAL ABILITY TO UNDERSTAND AND PERFORM THE REQUIREMENTS OF THE SPECIFICATIONS WHEN THE INVITATION FOR BIDS STATED THAT SUCH INFORMATION WAS TO BE SUBMITTED PRIOR TO BID OPENING AND THAT THE FAILURE TO SUBMIT IT AT THAT TIME WOULD CAUSE THE BID TO BE REJECTED, IT WAS STATED IN B- 146168, JUNE 30, 1961:

"AS NOTED ABOVE, YOU SUGGEST THE POSSIBILITY THAT THE LOW BIDDER SHOULD BE PERMITTED TO FURNISH THE REMAINING DATA AT ANY TIME PRIOR TO AWARD ON THE PREMISE THAT THE DATA REQUIRED ARE TO BE USED FOR A DETERMINATION OF RESPONSIBILITY RATHER THAN RESPONSIVENESS. THE PURPOSE OF THE DESCRIPTIVE DATA REQUIREMENT WHICH IS BY THE TERMS OF THE INVITATION MADE A PART OF THE BID, AND WHICH THEREFORE GOES TO THE MATTER OF RESPONSIVENESS, MAY WELL BE TO GIVE ASSURANCE TO THE CONTRACTING AGENCY THAT THE BIDDER IS COMPLETELY COGNIZANT OF, AND CAPABLE OF PERFORMING, THE MATERIAL REQUIREMENTS OF THE SPECIFICATIONS. IT IS OUR POSITION THAT THE CONTRACTING OFFICER MAY MAKE THE DATA A MATTER OF RESPONSIVENESS AND BY USE OF THE LANGUAGE OF THE INVITATION QUOTED ABOVE DID SO IN THIS CASE. SEE 36 COMP. GEN. 415.'

THE DECISION CONCLUDED THAT THE BID WAS NOT RESPONSIVE TO THE TERMS OF THE INVITATION AND THAT IT SHOULD BE REJECTED.

IN VIEW OF THE FOREGOING, WE SEE NO PROPER BASIS FOR OUR OFFICE TO OBJECT TO THE REJECTION OF THE BID SUBMITTED BY GREER HYDRAULICS, INC. ..END :