B-151901, JUL. 17, 1963

B-151901: Jul 17, 1963

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THE AIR CONDITIONERS REQUIRED BY ITEMS 1 AND 2 WERE IDENTICAL EXCEPT THAT THE ONE UNIT REQUIRED BY ITEM 1 WAS TO BE STYLE B. THE TWO UNITS REQUIRED BY ITEM 2 WERE TO BE STYLE A. ALL ITEMS WERE TO BE IN STRICT CONFORMANCE WITH MILITARY SPECIFICATION MIL-A-22286A "AIR CONDITIONERS WITH REMOTE CONDENSING UNITS OR REMOTE AIR-COOLED CONDENSER UNITS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH. (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.

B-151901, JUL. 17, 1963

TO THERM-AIR MANUFACTURING COMPANY, INC.:

THE DEPARTMENT OF THE NAVY FORWARDED FOR OUR CONSIDERATION YOUR LETTER OF JUNE 4, 1963, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 204-73-63 ISSUED BY THE U.S. NAVAL AIR STATION, PENSACOLA, FLORIDA.

THE INVITATION, OPENED ON MAY 7, 1963, REQUESTED BIDS UNDER ITEMS 1 AND 2 FOR THREE FLOOR MOUNTED AIR CONDITIONERS, TYPE III. THE AIR CONDITIONERS REQUIRED BY ITEMS 1 AND 2 WERE IDENTICAL EXCEPT THAT THE ONE UNIT REQUIRED BY ITEM 1 WAS TO BE STYLE B, WITH CONNECTIONS FOR DUCTWORK, AND THE TWO UNITS REQUIRED BY ITEM 2 WERE TO BE STYLE A, WITH PLENUMS. ALL ITEMS WERE TO BE IN STRICT CONFORMANCE WITH MILITARY SPECIFICATION MIL-A-22286A "AIR CONDITIONERS WITH REMOTE CONDENSING UNITS OR REMOTE AIR-COOLED CONDENSER UNITS," DATED 13 JUNE 1962.

UPON RECOMMENDATION OF THE REQUISITIONING ACTIVITY, THE CONTRACTING OFFICER DETERMINED THAT BIDDERS SHOULD BE REQUIRED TO FURNISH DATA DESCRIBING THE AIR CONDITIONER OFFERED AND FOR THIS PURPOSE THE INVITATION PROVIDED AS FOLLOWS:

"DESCRIPTIVE LITERATURE - ITEMS 1 AND 2:

BIDDERS SHALL SUBMIT WITH THEIR BID SPECIFICATION AND PERFORMANCE DATA IN DUPLICATE, CLEARLY DESCRIBING THE ITEMS OFFERED.

"REQUIREMENT FOR DESCRIPTIVE LITERATURE (OCT. 1960):

(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 PURPOSE OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, METHODS OF CONSTRUCTION AND OPERATION.

(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.'

BLANKS WERE PROVIDED UNDER EACH ITEM FOR BIDDERS TO INSERT THE MANUFACTURER'S NAME, BRAND, AND NUMBER FOR THE ITEM OFFERED.

IN RESPONSE TO THE INVITATION, YOU OFFERED WEATHERTROL AIV-5 AND VB 5 AIR CONDITIONER UNITS. NO EXCEPTIONS WERE TAKEN TO THE ADVERTISED SPECIFICATIONS, BUT NEITHER WAS IT STATED IN THE BID THAT THE MODELS OFFERED WOULD BE MODIFIED. THE DESCRIPTIVE MATERIAL SUBMITTED SHOWED THAT THE AIV UNITS ARE AIR-COOLED PACKAGED UNITS CONTAINING BOTH COMPRESSOR AND CONDENSER, AND THAT THE VB UNITS CONTAIN ONLY THE EVAPORATOR AND BLOWER ASSEMBLY.

THE APPLICABLE SPECIFICATION, MIL-A-22286A OF JUNE 13, 1962, DEFINES THE TYPE III AIR-CONDITIONER CALLED FOR BY THE INVITATION AS CONSISTING OF TWO PACKAGED UNITS: ONE UNIT A COMPLETE AIR CONDITIONER LESS CONDENSER, THE OTHER UNIT A REMOTE AIR-COOLED CONDENSER. PARAGRAPH 3.1.2.1 STATES THAT THE FIRST UNIT SHALL CONSIST OF COMPRESSOR, CONTROLS, CONDENSER-RECEIVER OR RECEIVER, TOGETHER WITH EVAPORATOR, BLOWER, AND BLOWER MOTOR WITH CONTROLS AND OTHER ACCESSORIES; PARAGRAPH 3.1.2.2 STATES THAT THE REMOTE AIR-COOLED CONDENSER UNIT SHALL CONSIST OF CONDENSER COIL OR COILS, FANS, MOTORS AND CONTROLS, WIRING, AND OTHER NECESSARY CONTROLS.

SINCE IT IS CLEAR THAT THE INVITATION PLAINLY CALLED FOR THE COMPRESSOR AND EVAPORATOR-BLOWER TO BE IN ONE PACKAGE AND THE CONDENSER IN THE OTHER, WHILE YOUR UNITS OFFERED BY YOUR BID CONSISTED OF THE EVAPORATOR-BLOWER IN ONE PACKAGE AND THE COMPRESSOR AND CONDENSER IN THE OTHER, WE SEE NO BASIS FOR OBJECTION TO THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BID AS NONRESPONSIVE TO THE INVITATION. THE UNITS WHICH YOU OFFERED APPARENTLY CONFORM TO THE SPECIFICATION DEFINITION OF TYPE I AIR CONDITIONERS, BUT THE INVITATION SPECIFIED TYPE III AND AWARD COULD PROPERLY BE MADE ONLY FOR UNITS OF THAT TYPE. ACCEPTANCE OF YOUR BID WOULD HAVE OBLIGATED YOU ONLY TO DELIVER YOUR AIV AND VB UNITS, AS DESCRIBED IN THE LITERATURE INCLUDED WITH YOUR BID, WHICH WOULD NOT MEET THE SPECIFICATION REQUIREMENT OF TYPE III UNITS.

IT IS CONTENDED, SINCE NO EXCEPTION WAS TAKEN TO THE SPECIFICATION REQUIREMENTS, IT WAS OBVIOUSLY THERM-AIR'S INTENTION TO FURNISH AIR CONDITIONERS IN ACCORDANCE WITH THE SPECIFICATIONS. WE CANNOT AGREE. UNDER THE PROVISIONS OF THE BID THE MODELS SPECIFIED AND DESCRIBED IN THE ATTACHED LITERATURE WERE OFFERED AS COMPLYING WITH REQUIREMENTS OF THE INVITATION. IN THIS CONNECTION THE DESCRIPTIVE LITERATURE CLAUSE, QUOTED ABOVE, SPECIFICALLY PROVIDED: "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, METHODS OF CONSTRUCTION, AND OPERATION.'

THE CONTENTION THAT MANUFACTURERS DO NOT HAVE READILY AVAILABLE AIR CONDITIONERS COMPLYING WITH THE MILITARY SPECIFICATIONS AND THAT THEY ARE REQUIRED TO MODIFY THEIR STANDARD UNITS TO A GREAT EXTENT OR ELSE MANUFACTURE SPECIAL UNITS IN ORDER TO COMPLY WITH THE MILITARY SPECIFICATIONS, DOES NOT APPEAR TO BE BORNE OUT BY THE RECORD. IN FACT, PARAGRAPH 3.4 OF THE REFERENCED SPECIFICATION REQUIRES THAT EQUIPMENT FURNISHED THEREUNDER SHALL BE A "REGULAR COMMERCIAL PRODUCT OF THE MANUFACTURER OR HIS SUPPLIERS.' AN AWARD WAS MADE TO THE LOW RESPONSIVE BIDDER ON MAY 13, ON STANDARD MODELS DESCRIBED IN ITS BID AND CONFORMING TO THE SPECIFICATIONS, AND THE AIR CONDITIONERS WERE DELIVERED ON MAY 31, 1963.

IN OUR DECISION REFERRED TO IN YOUR LETTER, B-150373, DATED MARCH 7, 1963, IT WAS HELD THAT THE FAILURE OF THE BIDDER TO FURNISH DESCRIPTIVE DATA WITH A BID DID NOT REQUIRE REJECTION OF THE BID AS NONRESPONSIVE, SINCE THE DATA WAS NOT TO BE A PART OF THE CONTRACT AND WAS FOR THE PURPOSE OF EVALUATING THE BIDDER'S "CAPACITY" TO PERFORM. IT WAS SPECIFICALLY RECOGNIZED IN THE DECISION THAT IN THOSE CASES WHERE THE REQUIREMENT FOR DESCRIPTIVE DATA OR LITERATURE IS FOR THE PURPOSE OF SHOWING THE CHARACTERISTICS OR CONSTRUCTION OF THE PRODUCT WHICH THE BIDDER IS OFFERING TO FURNISH BY HIS BID AND THE DATA BECOMES A PART OF THE CONTRACT, THE FAILURE TO FURNISH THE DESCRIPTIVE DATA OR MATERIAL DEVIATIONS THEREIN FROM THE ADVERTISED SPECIFICATIONS, REQUIRES REJECTION OF THE BID AS NONRESPONSIVE. SEE ASPR-2.202.5 AND FPR-1-2.202.5. SINCE THE REJECTION OF YOUR BID WAS NOT BASED UPON ANY QUESTION AS TO YOUR CAPACITY OR RESPONSIBILITY THE CITED DECISION IS INAPPLICABLE; ALSO THERE WAS NO BASIS FOR REFERENCE TO THE SMALL BUSINESS ADMINISTRATION.

FOR THE FOREGOING REASONS, YOUR PROTEST MUST BE DENIED. WE ARE ALSO ADVISED BY THE NAVY DEPARTMENT THAT THE SAME SITUATION APPARENTLY IS APPLICABLE TO YOUR BID UNDER INVITATION FOR BIDS NO. 204-68-63, ALSO ISSUED BY THE NAVAL AIR STATION, PENSACOLA, FLORIDA.