B-150868, APRIL 29, 1963, 42 COMP. GEN. 598

B-150868: Apr 29, 1963

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LACKING SUFFICIENT PARTICULARITY TO PUT BIDDERS ON NOTICE AS TO WHY THE DESCRIPTIVE DATA WAS NECESSARY AND THE EXTENT OF THE DETAIL REQUIRED IN THE DESCRIPTIVE DATA FOR THE BID TO BE CONSIDERED RESPONSIVE. IS A DEFECTIVE INVITATION. IS REQUIRED. 1963: WE HAVE RECEIVED A LETTER FROM THE ASSISTANT CHIEF FOR PURCHASING. AFTER BIDS WERE OPENED. NIAGARA ADVISED THE PROCURING ACTIVITY THAT THE BID OF SECREST WAS NONRESPONSIVE FOR SEVERAL SPECIFIC REASONS. THE PROCURING ACTIVITY DETERMINED THAT THE SECREST BID WAS NONRESPONSIVE BECAUSE ITS ACCOMPANYING DESCRIPTIVE LITERATURE. CLEARANCE NOT SPECIFIED BLADE CROSS SECTION NOT SPECIFIED HOLDOWN CENTER DISTANCE NOT SPECIFIED BALL TRANSFERS IN TABLE NEITHER SHOWN NOR SPECIFIED FIVE DAYS AFTER AWARD WAS MADE TO NIAGARA.

B-150868, APRIL 29, 1963, 42 COMP. GEN. 598

CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - SUFFICIENCY OF DETAILS AN INVITATION TO BID REQUIRING BIDDERS TO SUBMIT "SUFFICIENT" BUT UNSPECIFIED DATA ON UNDESIGNATED COMPONENTS, AND LACKING SUFFICIENT PARTICULARITY TO PUT BIDDERS ON NOTICE AS TO WHY THE DESCRIPTIVE DATA WAS NECESSARY AND THE EXTENT OF THE DETAIL REQUIRED IN THE DESCRIPTIVE DATA FOR THE BID TO BE CONSIDERED RESPONSIVE, IS A DEFECTIVE INVITATION, AND THE PROCURING ACTIVITY FAILING TO JUSTIFY WHY AN ACCEPTABLE PRODUCT COULD NOT BE OBTAINED WITHOUT THE SUBMISSION OF THE DESCRIPTIVE DATA, AS REQUIRED BY PARAGRAPH 2-202.5 (C) OF THE ARMED SERVICES PROCUREMENT REGULATION, CANCELLATION OF THE CONTRACT AWARD UNDER THE DEFECTIVE INVITATION TO THE SECOND LOW BIDDER, WHO ALSO HAD FAILED TO INDICATE PERFORMANCE IN THE AREAS THAT JUSTIFIED THE REJECTION OF THE LOW BID, IS REQUIRED.

TO THE SECRETARY OF THE NAVY, APRIL 29, 1963:

WE HAVE RECEIVED A LETTER FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, DATED FEBRUARY 18, 1963, REQUESTING OUR DECISION AS TO THE LEGALITY OF CONTRACT N156-42392 WITH THE NIAGARA MACHINE AND TOOL WORKS, HEREINAFTER REFERRED TO AS NIAGARA.

THE RECORD ESTABLISHES THAT IN RESPONSE TO INVITATION FOR BIDS 156 046- 63, WHICH SOLICITED BIDS TO SUPPLY ONE POWER SQUARING SHEAR, THE PROCURING ACTIVITY RECEIVED A LOW OFFER FROM SECREST MACHINE CORPORATION, HEREINAFTER REFERRED TO AS SECREST, IN THE AMOUNT OF $23,761, AND A SECOND LOW OFFER FROM NIAGARA IN THE AMOUNT OF $25,763. AFTER BIDS WERE OPENED, BUT PRIOR TO AWARD, NIAGARA ADVISED THE PROCURING ACTIVITY THAT THE BID OF SECREST WAS NONRESPONSIVE FOR SEVERAL SPECIFIC REASONS. UPON EVALUATION, THE PROCURING ACTIVITY DETERMINED THAT THE SECREST BID WAS NONRESPONSIVE BECAUSE ITS ACCOMPANYING DESCRIPTIVE LITERATURE, A COMMERCIAL BROCHURE, DID NOT ,INDICATE CONFORMANCE IN THE FOLLOWING SPECIFIC AREAS:

CHART

MODEL NO. OF SHEAR (ASSUMED TO BE 1250) NOT SPECIFIED

LENGTH OF KNIVES NOT SPECIFIED

SHEARING CAPACITY, WITHOUT ADJ. CLEARANCE NOT SPECIFIED

BLADE CROSS SECTION NOT SPECIFIED

HOLDOWN CENTER DISTANCE NOT SPECIFIED

BALL TRANSFERS IN TABLE NEITHER SHOWN NOR

SPECIFIED

FIVE DAYS AFTER AWARD WAS MADE TO NIAGARA, SECREST PROTESTED TO THE PROCURING ACTIVITY AND MAINTAINED THAT IF ITS BID WAS NONRESPONSIVE, THEN THE NIAGARA BID WAS NONRESPONSIVE TOO, BECAUSE NIAGARA HAD ALSO FAILED TO INDICATE CONFORMANCE IN SOME OF THE SAME AREAS WHICH ALLEGEDLY JUSTIFIED REJECTION OF THE SECREST BID. UPON RECONSIDERATION, IT WAS DETERMINED THAT THE NIAGARA BID WAS NOT RESPONSIVE BECAUSE ITS DESCRIPTIVE LITERATURE ALSO FAILED TO FURNISH INFORMATION CONCERNING BLADE SIZE. THE PROCURING ACTIVITY PROPOSED TO CANCEL THE CONTRACT, BUT NIAGARA REFUSED TO ACCEPT THIS DETERMINATION.

AT THE OUTSET IT SHOULD BE NOTED THAT THE INSTANT CASE IS NOT ONE WHERE THE DESCRIPTIVE DATA ALLEGEDLY SHOWS THAT THE ARTICLE OFFERED DOES NOT COMPLY WITH THE SPECIFICATIONS. CF. 37 COMP. GEN. 763. IT SHOULD ALSO BE NOTED THAT THE INVITATION REQUIREMENT FOR "SUCH DETAIL AS IS NECESSARY TO SHOW SUCH COMPLETE COMPLIANCE WITH SUCH SPECIFICATIONS" IS APPARENTLY UNRELATED AND ADDITIONAL TO THE ONE REQUIRING "CONCISE DETAILS AS TO THE NATURE OF THE PROPOSED MODIFICATIONS" OF STANDARD EQUIPMENT. THE REJECTION OF THE LOW BIDS IN THE INSTANT CASE DOES NOT SEEM TO BE BASED ON WHETHER THE BIDDERS SUPPLIED ENOUGH INFORMATION TO DETERMINE IF THE STANDARD EQUIPMENT THEY OFFERED HAD BEEN SATISFACTORILY MODIFIED, BUT RATHER ON WHETHER SUCH EQUIPMENT, MODIFIED OR NOT, WAS DESCRIBED IN SUFFICIENT DETAIL TO PROVE "COMPLETE COMPLIANCE" WITH REQUIRED SPECIFICATIONS. CF. B 143057, DATED JUNE 30, 1960.

WE HAVE RECOGNIZED THAT IN THE PROCUREMENT OF HIGHLY SPECIALIZED EQUIPMENT, AN ADMINISTRATIVE AGENCY PROPERLY MAY REQUIRE BIDDERS TO SUPPLY DESCRIPTIVE DATA IN ORDER TO ENABLE IT TO CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY THE MAKING OF AN AWARD. 36 COMP. GEN. 415, 416-417. HOWEVER, IN THE DECISION CITED ABOVE, WHICH ARTICULATES THE GENERAL RULE, THE BIDDER HAD FAILED TO COMPLY WITH AN INVITATION REQUIREMENTS TO SUPPLY SPECIFIC DATA ON SPECIFIC COMPONENTS OF THE ITEMS BEING PROCURED. IN THE INSTANT CASE, THE BIDDER MUST SUBMIT "SUFFICIENT" BUT UNSPECIFIED DATA ON UNDESIGNATED COMPONENTS. IN SHORT, THE DISTINCTION IS THAT THIS INVITATION DOES NOT STATE THE EXTENT OF THE DETAIL REQUIRED BEFORE A BID MAY BE CONSIDERED RESPONSIVE. FURTHERMORE, THERE IS NOW A REQUIREMENT AT PARAGRAPH 2 202.5 (C), ARMED SERVICES PROCUREMENT REGULATION, THAT THE CONTRACT FILE CONTAINS REASONS TO JUSTIFY WHY AN ACCEPTABLE PRODUCT COULD NOT HAVE BEEN PROCURED WITHOUT THE SUBMISSION OF SUCH DESCRIPTIVE DATA. WE NOTE THAT WHILE THE PROCURING ACTIVITY HAS CONCLUDED THAT BIDS CANNOT BE PROPERLY EVALUATED WITHOUT DESCRIPTIVE DATA, IT HAS OFFERED NO REASONS EITHER IN THE CONTRACT FILE OR IN TWO REPORTS TO EXPLAIN THIS CONCLUSION.

IT IS DIFFICULT FOR US TO DETERMINE FROM THE RECORD WHAT THESE REASONS FOR REQUIRING DESCRIPTIVE DATA MIGHT HAVE BEEN. ONE OF THE REASONS GIVEN FOR REJECTING THE SECREST BID IS THAT THE ACCOMPANYING DATA DID NOT INDICATE THE SIZE OF THE BLADE CROSS SECTION. SINCE THE SIZE IS CLEARLY STATED AND REQUIRED BY THE SPECIFICATIONS, WE FAIL TO UNDERSTAND WHAT IT IS THE BIDDER IS SUPPOSED TO DESCRIBE. A NOTATION ON THE COMMERCIAL BROCHURE TO THE EFFECT THAT THE BLADE IS THE REQUIRED SIZE WOULD PROVIDE LITTLE ADDITIONAL ASSURANCE THAT THE BLADE WOULD IN FACT CONFORM TO THE SPECIFICATIONS, NOR WOULD IT RENDER THE BIDDER ANY MORE LIABLE FOR NOT SUPPLYING A CONFORMING BLADE. FURTHERMORE, IT APPEARS THAT THE PROCURING ACTIVITY ALSO EXPERIENCED SOME CONFUSION AS TO WHETHER THIS DATA WAS AN ESSENTIAL PART OF THE "SUCH DETAIL" REQUIRED BY THE INVITATION. FIRST IT ACCEPTED THE NIAGARA BID AND REJECTED THE SECREST BID, ALTHOUGH BOTH CONTAINED THE IDENTICAL ALLEGED DEFICIENCY. THEN IT WAS DECIDED THAT THE DEFICIENCY REQUIRED REJECTION OF NIAGARA'S BID TOO. NOW THE PROCURING ACTIVITY REPORTS THAT THE CROSS SECTION SIZE OF THE BLADES IS NORMALLY STANDARD WITH THE MACHINE TOOL MANUFACTURER AND THAT THE ABSENCE OF DESCRIPTIVE DATA FOR THE BLADE IS NOT CONSIDERED ESSENTIAL TO DETERMINE COMPLIANCE WITH THE SPECIFICATIONS. THE REPORT ALSO STATES THAT, WHILE SUFFICIENT DESCRIPTIVE DATA WAS NOT SUBMITTED WITH THE SECREST BID TO PERMIT A COMPLETE TECHNICAL EVALUATION, THE PROCURING ACTIVITY BELIEVES THAT THE MACHINE OFFERED BY SECREST DID MEET THE REQUIREMENTS OF THE SPECIFICATION AS ADVERTISED. AT NO PLACE IN THE INVITATION OR THE REPORT IS THERE A STATEMENT AS TO WHAT DESCRIPTIVE DATA IS REQUIRED FOR A COMPLETE TECHNICAL EVALUATION. NOR ARE WE TOLD THE BASIS FOR BELIEVING THAT THE SECREST PRODUCT, WHICH ALLEGEDLY WAS INADEQUATELY DESCRIBED, WOULD MEET THE REQUIREMENTS OF THE SPECIFICATION.

IN 40 COMP. GEN. 132 THE PROTESTING BIDDER ARGUED THAT SINCE IT COULD BE PRESUMED THAT DETAILS WERE NOT REQUIRED FOR EVERY NUT AND BOLT OF THE EQUIPMENT, IT SHOULD ALSO HAVE BEEN ASSUMED THAT THE EQUALIZING AMPLIFIER, A SMALL COMPONENT OF THE EQUIPMENT HE OFFERED, WOULD CONFORM COMPLETELY TO THE SPECIFICATIONS. THIS ARGUMENT WAS REJECTED BECAUSE THE SPECIFICATIONS SPECIFICALLY REQUIRED DESCRIPTIONS LITERATURE ON THE AMPLIFIERS. IN THE INSTANT CASE, NO ADVICE IS GIVEN AS TO WHICH COMPONENTS REQUIRE DETAILED DESCRIPTIONS, AND IF "COMPLETE COMPLIANCE" IS TAKEN LITERALLY, DETAILS AS TO EACH NUT AND BOLT WOULD BE REQUIRED. WHILE IT SEEMS HIGHLY UNLIKELY THAT THIS MEANING WAS INTENDED, WE BELIEVE BIDDERS MUST HAVE BEEN SOMEWHAT AT A LOSS TO DECIDE FROM THE INVITATIONS WHICH COMPONENTS OF THE EQUIPMENT REQUIRED DETAILED EXPLANATIONS.

THE CONFUSION AND UNCERTAINTY OF BOTH THE BIDDERS AND THE PROCURING ACTIVITY APPEAR TO BE THE RESULT OF NOT HAVING EXPLAINED IN THE FIRST PLACE WHY DESCRIPTIVE DATA WAS NECESSARY, AND WAS COMPOUNDED BY FAILURE TO DEFINE THE EXTENT OF THE DETAIL REQUIRED IN THE DESCRIPTIVE DATA. THE PRESENT DIFFICULTIES WERE PREFIGURED IN AN EARLIER PROCUREMENT WHERE WE ADVISED YOUR OFFICE THAT WHERE DATA WAS NEEDED TO DESCRIBE "MAJOR COMPONENTS," THE INVITATION SHOULD STATE DEFINITELY THE COMPONENTS CONCERNING WHICH DATA WAS REQUIRED. B-146211, DATED OCTOBER 6, 1961. MOREOVER, WE HAVE HELD THAT AN INVITATION FOR BIDS IS DEFECTIVE IF IT DOES NOT SPECIFY THE NATURE AND EXTENT OF THE DESCRIPTIVE MATERIAL ASKED FOR WITH SUFFICIENT PARTICULARITY TO PUT BIDDERS ON NOTICE OF WHAT WAS DESIRED. 38 COMP. GEN. 59, 63.

WHILE WE ARE IN NO POSITION TO DETERMINE WHETHER THE OFFERED PRODUCTS COMPLY WITH THE TECHNICAL SPECIFICATIONS, OR WHETHER AN ACCEPTABLE PRODUCT COULD HAVE BEEN PROCURED WITHOUT DESCRIPTIVE DATA, WE MAY SAY, ON THE BASIS OF THE INFORMATION IN THE PRESENT RECORD, THAT NOT ONLY DID THE PROCURING ACTIVITY FAIL TO STATE ITS REASONS FOR REQUIRING THIS DATA, BUT WAS ITSELF UNCERTAIN AS TO THE COMPONENTS CONCERNING WHICH DATA WAS NEEDED, AND AS TO THE EXTENT OF DETAIL REQUIRED TO DESCRIBE THESE COMPONENTS. UNDER THE CIRCUMSTANCES, IT IS CLEAR THAT THE INVITATION LACKED SUFFICIENT PARTICULARITY TO PUT BIDDERS ON NOTICE OF WHAT WAS DESIRED. ACCORDINGLY, THE INVITATION WAS DEFECTIVE AND THE AWARD MADE THEREUNDER SHOULD BE CANCELED.

THE ATTACHMENTS TO LETTER OF FEBRUARY 4, 1963, ARE RETURNED HEREWITH AS REQUESTED.