B-150373, MARCH 7, 1963, 42 COMP. GEN. 464

B-150373: Mar 7, 1963

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS NOT APPROPRIATE FOR DETERMINING BIDDER RESPONSIBILITY. 1963: REFERENCE IS MADE TO LETTER DATED DECEMBER 26. DECISION IS ALSO REQUESTED WHETHER THE BID OF AERONAUTICAL ELECTRONICS. A MERE REPETITION OF THE INVITATION REQUIREMENTS AND/OR SPECIFICATIONS IS NOT ACCEPTABLE. THIS DATA WILL BE USED IN EVALUATING THE BID (1) AS EVIDENCE OF THE BIDDER'S TECHNICAL KNOWLEDGE AND (2) TO DETERMINE. THE DATA SUBMITTED PURSUANT TO THIS CLAUSE WILL NOT BE INCLUDED ON ANY RESULTING CONTRACT. FAILURE OF THE BIDDER TO SUBMIT DESCRIPTIVE DATA WITH THE BID WILL PRECLUDE CONSIDERATION OF THE BID ON THE BASIS THAT IT IS NOT RESPONSIVE. IT IS REPORTED THAT WHEN EQUIPMENT BEING PROCURED IS OF SUFFICIENT COMPLEXITY.

B-150373, MARCH 7, 1963, 42 COMP. GEN. 464

CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - CAPACITY AND RESPONSIBILITY A "DESCRIPTIVE DATA" CLAUSE IN AN INVITATION SEEKING NOT INFORMATION OF THE CHARACTERISTICS OR CONSTRUCTION OF THE PRODUCT OFFERED, BUT INFORMATION AS TO THE BIDDER'S TECHNICAL KNOWLEDGE AND COMPREHENSION OF THE SPECIFICATION IN ORDER TO EVALUATE HIS CAPACITY, AS DEFINED IN SECTION 1-1.708.1 OF THE FEDERAL PROCUREMENT REGULATIONS, WITH PROVISION FOR REJECTION OF BIDS FAILING TO SUBMIT THE REQUIRED DATA, IS NOT APPROPRIATE FOR DETERMINING BIDDER RESPONSIBILITY; THEREFORE, THE LOW BID OF A SMALL BUSINESS CONCERN UNACCOMPANIED BY THE REQUIRED DESCRIPTIVE DATE SHOULD NOT BE CONSIDERED NONRESPONSIVE AND THE BIDDER AFTER BID OPENING MAY SUBMIT INFORMATION AS TO HIS CAPACITY OR RESPONSIBILITY, AND IF DEFICIENT THE BID SHOULD NOT BE REJECTED WITHOUT GIVING THE SMALL BUSINESS ADMINISTRATION AN OPPORTUNITY TO ISSUE A CERTIFICATE OF COMPETENCY, AND THE CONCLUSION THAT QUESTIONS AS TO CAPACITY OR RESPONSIBILITY MAY NOT BE TREATED AS QUESTIONS OF BID RESPONSIVENESS ON THE BASIS OF A STATEMENT TO THAT EFFECT IN THE BID INVITATION APPLIES TO ALL BIDDERS REGARDLESS OF SIZE.

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, MARCH 7, 1963:

REFERENCE IS MADE TO LETTER DATED DECEMBER 26, 1962, FROM THE ACTING DIRECTOR FOR INSTALLATION AND MATERIEL SERVICE, FURNISHING A REPORT RELATIVE TO THE PROTEST BY AERONAUTICAL ELECTRONICS, INCORPORATED, TO A POSSIBLE REJECTION OF ITS BID UNDER INVITATION FOR BIDS NO. 90-3 544B1. DECISION IS ALSO REQUESTED WHETHER THE BID OF AERONAUTICAL ELECTRONICS, INCORPORATED, MAY PROPERLY BE CONSIDERED A RESPONSIVE BID.

THE INVITATION REQUESTED BIDS TO BE OPENED ON NOVEMBER 5, 1962, FOR FURNISHING A QUANTITY OF TRANSCEIVERS, VHF, PORTABLE, COMPLETE WITH CRYSTALS FOR TRANSMITTING ON CERTAIN FREQUENCIES, IN ACCORDANCE WITH ATTACHED SPECIFICATION FAA-R-1262A AND OTHER APPLICABLE SPECIFICATIONS LISTED THEREIN, TOGETHER WITH INSTRUCTION BOOKS AND OTHER DATA. CLAUSE VII OF THE SPECIAL CONDITIONS, PAGE 6 OF THE BID SCHEDULE, PROVIDED AS FOLLOWS:

DESCRIPTIVE DATA.--- THE BIDDER MUST SUBMIT WITH HIS BID A DETAILED DESCRIPTION OF THE EQUIPMENT HE INTENDS TO FURNISH, INCLUDING SCHEMATIC DIAGRAMS, AND OUTLINE AND PERSPECTIVE DRAWINGS AND PHOTOGRAPHS (OR A COMBINATION THEREOF) SHOWING THE LAYOUT OF BASIC COMPONENTS WHICH MAY BE NECESSARY TO MEET THE SPECIFIED REQUIREMENTS.

A MERE REPETITION OF THE INVITATION REQUIREMENTS AND/OR SPECIFICATIONS IS NOT ACCEPTABLE. THIS DATA WILL BE USED IN EVALUATING THE BID (1) AS EVIDENCE OF THE BIDDER'S TECHNICAL KNOWLEDGE AND (2) TO DETERMINE, WITHOUT FURTHER REFERENCE TO THE BIDDER, WHETHER THE BIDDER COMPREHENDS THE SPECIFICATION REQUIREMENTS AND PROPOSES TO MEET THE REQUIREMENTS BY EMPLOYING METHODS WHICH CAN REASONABLY BE EXPECTED TO RESULT IN FULL COMPLIANCE WITH THE SPECIFICATIONS. THE DATA SUBMITTED PURSUANT TO THIS CLAUSE WILL NOT BE INCLUDED ON ANY RESULTING CONTRACT. FAILURE OF THE BIDDER TO SUBMIT DESCRIPTIVE DATA WITH THE BID WILL PRECLUDE CONSIDERATION OF THE BID ON THE BASIS THAT IT IS NOT RESPONSIVE, AND THE SUBMISSION OF DESCRIPTIVE DATA DESCRIBING EQUIPMENT THAT DEVIATES MATERIALLY FROM THE SPECIFICATIONS SHALL BE CAUSE FOR REJECTION OF THE BID.

IT IS REPORTED THAT WHEN EQUIPMENT BEING PROCURED IS OF SUFFICIENT COMPLEXITY, OR IS A NEW ITEM, THE "DESCRIPTIVE DATA" CLAUSE QUOTED ABOVE IS INCLUDED IN THE INVITATION FOR BIDS. WE HAVE BEEN ADVISED FURTHER THAT THE PURPOSE OF THE CLAUSE IN THE PRESENT CASE WAS TO ELICIT DATA FOR USE IN EVALUATING THE BIDDER'S "CAPACITY" AS DEFINED IN SECTION 1-1.708.1 OF THE FEDERAL PROCUREMENT REGULATIONS. THAT SECTION DEFINES CAPACITY AS---

* * * THE OVERALL ABILITY OF A PROSPECTIVE SMALL BUSINESS CONTRACTOR TO MEET QUALITY, QUANTITY, AND TIME REQUIREMENTS OF A PROPOSED CONTRACT AND INCLUDES ABILITY TO PERFORM, ORGANIZATION, EXPERIENCE, TECHNICAL KNOWLEDGE, SKILLS,"KNOWHOW," TECHNICAL EQUIPMENT, AND FACILITIES.

WHILE THE ABOVE DEFINITION IS BY ITS TERMS APPLICABLE ONLY TO SMALL BUSINESS BIDDERS, SUCH AS AERONAUTICAL ELECTRONICS, INCORPORATED, WE MUST ASSUME THAT THE DATA REQUESTED WAS INTENDED FOR UNIFORM USE IN EVALUATING THE "CAPACITY" OF ALL BIDDERS REGARDLESS OF SIZE. IT IS ALSO STATED TO BE THE PRACTICE OF YOUR AGENCY TO CONSIDER THAT A BIDDER HAS COMPLIED WITH THE "DESCRIPTIVE DATA" CLAUSE IF HE IS OR HAS BEEN A CURRENT OR RECENT PRODUCER OF THE IDENTICAL EQUIPMENT AND STATES IN HIS BID THAT HE PROPOSES TO FURNISH THE SAME ITEM AS UNDER THE CONTRACT UNDER WHICH HE HAS PRODUCED OR IS PRODUCING.

FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE LOWEST BID WAS SUBMITTED BY AERONAUTICAL ELECTRONICS, INCORPORATED. HOWEVER, THE BID WAS NOT SUPPORTED BY THE DESCRIPTIVE DATA CALLED FOR BY CLAUSE VII OF THE INVITATION, NOR WAS ANY REFERENCE MADE IN THE BID TO AN EXISTING OR PREVIOUS CONTRACT, ALTHOUGH YOU STATE THAT THE COMPANY WAS EXPECTED TO BEGIN DELIVERIES UNDER A CURRENT CONTRACT FOR THE IDENTICAL ITEM DURING JANUARY 1963, AND THAT YOU HAD AMPLE INFORMATION AT BID OPENING TO SHOW CONCLUSIVELY THAT THE COMPANY IS CAPABLE AS TO ENGINEERING ABILITY AND FACILITIES TO FURNISH EQUIPMENT MEETING SPECIFICATIONS.

SUBSEQUENT TO THE OPENING OF BIDS A REPRESENTATIVE OF AERONAUTICAL ELECTRONICS, INCORPORATED, CONTACTED THE CONTRACTING OFFICE BY PHONE ABOUT THE BIDS RECEIVED ON THE SUBJECT INVITATION AND ASKED HOW HIS FIRM STOOD. WHEN ADVISED THAT NO DESCRIPTIVE DATA WAS RECEIVED WITH THE BID, THE REPRESENTATIVE ASKED IF THE DESCRIPTIVE DATA COULD STILL BE SUBMITTED AND HE WAS ADVISED THAT SUCH DATA WOULD HAVE TO BE SUBMITTED ON A VOLUNTARY BASIS AND THAT NO GUARANTEE COULD BE MADE THAT IT WOULD BE CONSIDERED. LETTER DATED NOVEMBER 7, 1962, APPARENTLY THE SAME DATE AS THE TELEPHONE CONVERSATION, AERONAUTICAL ELECTRONICS, INCORPORATED, SUBMITTED DRAWINGS OF THE UNITS IT PROPOSED TO FURNISH IN SAID LETTER IT WAS STATED THAT THE DATA WAS PREPARED AND CLIPPED TO THE BID BUT APPARENTLY SOMEHOW BECAME SEPARATED FROM THE BID BEFORE BEING PLACED IN THE MAILING CONTAINER. IS ALLEGED THAT THE NUMBER AND COMPLEXITY OF THE DRAWINGS DEMONSTRATE THAT THEY HAD BEEN AVAILABLE FOR SOME TIME AND WERE NOT MADE UP AFTER THE OPENING OF THE BIDS; THAT THE FAILURE OF THE DRAWINGS TO BE INCLUDED WITH THE BID WAS DUE TO AN OBVIOUS CLERICAL ERROR; AND THAT THE BID SHOULD NOT BE DECLARED NONRESPONSIVE FOR SUCH REASON.

IN OUR OPINION THE LANGUAGE OF THE "DESCRIPTIVE DATA" CLAUSE IS NOT APPROPRIATE FOR THE PURPOSE FOR WHICH IT WAS INTENDED. THERE ARE BASICALLY ONLY TWO VALID REASONS FOR THE SUBMISSION BY BIDDERS OF DESCRIPTIVE DATA. THE FIRST, AND THE ONLY ONE CONTEMPLATED BY THE FEDERAL PROCUREMENT REGULATIONS (SECTION 1-2.202-5), IS TO REQUIRE A BIDDER THEREBY TO SHOW THE CHARACTERISTICS OR CONSTRUCTION OF THE PRODUCT WHICH HE IS OFFERING TO FURNISH BY HIS BID. IN SUCH CASE, AS STATED IN THE MANDATORY INVITATION PROVISION SET OUT IN SECTION 1 2.202-5 (D) (1) FPR, THE DESCRIPTIVE DATA OR LITERATURE IS A PART OF THE BID AND FAILURE TO FURNISH IT OR MATERIAL DEVIATIONS THEREIN REQUIRE REJECTION OF THE BID AS NONRESPONSIVE.

THE OTHER JUSTIFICATION FOR DESCRIPTIVE DATA IS THAT STATED TO HAVE BEEN INTENDED IN THE PRESENT CASE, NAMELY, TO EVALUATE A BIDDER'S "CAPACITY" TO PERFORM IN TERMS OF HIS TECHNICAL KNOWLEDGE, UNDERSTANDING OF THE SPECIFICATIONS, SKILL,"KNOW-HOW," OR OTHER ATTRIBUTES MENTIONED IN SECTION 1-1.708.1, FPR. THE ATTRIBUTES TO BE EVALUATED ON THE BASIS OF DATA SUBMITTED FOR THIS PURPOSE PERTAIN NOT TO THE RESPONSIVENESS OF THE BID BUT TO THE BIDDER'S RESPONSIBILITY. IT SHOULD BE NOTED THAT A SMALL BUSINESS BIDDER'S DEFICIENCY IN THIS AREA DOES NOT, WITH CERTAIN EXCEPTIONS, JUSTIFY REJECTION OF HIS BID, IF OTHERWISE ACCEPTABLE, WITHOUT GIVING THE SMALL BUSINESS ADMINISTRATION OPPORTUNITY TO ISSUE HIM A CERTIFICATE OF COMPETENCY. SECTION 1.1.708-2, FPR. CONSEQUENTLY, IF THE PURPOSE TO BE SERVED BY DESCRIPTIVE DATA IS ASSISTANCE IN EVALUATING A BIDDER'S RESPONSIBILITY OR CAPACITY, AS IS STATED TO HAVE BEEN THE USE INTENDED FOR THE DATA IN THE INSTANT CASE,IT CONTRAVENES APPLICABLE LAW AND REGULATIONS, AT LEAST IN THE CASE OF SMALL BUSINESS BIDDERS, TO PROVIDE THAT FAILURE TO FURNISH SUCH DATA WILL FOR THAT REASON ALONE REQUIRE REJECTION OF THE BID.

IN THE PRESENT CASE THE "DESCRIPTIVE DATA" CLAUSE IS STATED TO HAVE BEEN INTENDED TO ELICIT INFORMATION AS TO BIDDERS' CAPACITY, AND THE LANGUAGE USED SUPPORTS THIS INTENTION. THE CLAUSE STATES THAT THE DATA IS TO BE USED "AS EVIDENCE OF THE BIDDER'S TECHNICAL KNOWLEDGE," AND TO DETERMINE WHETHER THE BIDDER "COMPREHENDS THE SPECIFICATIONS" AND PROPOSES TO MEET THEM "BY EMPLOYING METHODS WHICH CAN REASONABLY BE EXPECTED TO RESULT IN FULL COMPLIANCE WITH THE SPECIFICATIONS.' THE CLAUSE FURTHER STATES SPECIFICALLY THAT THE DATA SUBMITTED "WILL NOT BE INCLUDED IN ANY RESULTING CONTRACT.' THERE CAN BE NO QUESTION, IT SEEMS TO US, THAT THIS LANGUAGE SERVES TO NOTIFY BIDDERS THAT THE DATA REQUESTED IS NOT TO BE CONSIDERED AS A DESCRIPTIVE LIMITATION OF WHAT IS TO BE FURNISHED, AND THAT THEY WILL BE REQUIRED TO MEET THE SPECIFICATION REQUIREMENTS, WHICH ARE PREPONDERANTLY OF THE "PERFORMANCE" TYPE, EVEN THOUGH THIS REQUIRES CHANGE IN THE PRODUCT DESCRIBED BY THE DATA SUBMITTED.

WE HAVE HERETOFORE HELD THAT A BIDDER'S CAPACITY OR RESPONSIBILITY MAY BE DETERMINED ON THE BASIS OF INFORMATION SUBMITTED AFTER BID OPENING. COMP. GEN. 247; ID. 655; ID. 881; 41 ID. 555. WE HAVE ALSO HELD THAT QUESTIONS AS TO THE CAPACITY OR RESPONSIBILITY OF A SMALL BUSINESS BIDDER MAY NOT BE TREATED AS QUESTIONS OF RESPONSIVENESS OF HIS BID BECAUSE OF A STATEMENT TO THAT EFFECT IN THE BID INVITATION. 40 COMP. GEN. 106. WHILE THE INSTANT CASE INVOLVES A SMALL BUSINESS BIDDER, WE BELIEVE THE RULE SHOULD BE APPLIED EQUALLY TO ALL BIDDERS.

IN VIEW OF WHAT HAS BEEN SAID ABOVE, IT IS OUR OPINION THAT THE LAST SENTENCE OF CLAUSE VII IN THE PRESENT CASE, WHICH CALLS FOR REJECTION OF BIDS UNACCOMPANIED BY DATA, IS NOT COMPATIBLE WITH THE RULES APPLICABLE TO THE FURNISHING OF DATA PERTAINING TO CAPACITY OR RESPONSIBILITY AND SHOULD NOT BE CONSIDERED CONTROLLING. THE BID OF AERONAUTICAL ELECTRONICS, INCORPORATED, THEREFORE, SHOULD NOT BE CONSIDERED NONRESPONSIVE BECAUSE IT WAS NOT ACCOMPANIED BY THE DATA REQUESTED. IF THAT COMPANY IS NOW DETERMINED TO BE A RESPONSIBLE BIDDER, AND ITS BID IS OTHERWISE RESPONSIVE AND ACCEPTABLE, THE BID SHOULD BE CONSIDERED ELIGIBLE FOR AWARD.