B-155657, JAN. 28, 1965

B-155657: Jan 28, 1965

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TO GENISCO SYSTEMS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20. "SCHAEVITZ ENGINEERING MODEL M-2-A 1000 OR EQUAL" WAS CITED IN THE INVITATION AFTER THE DESCRIPTION OF THE EQUIPMENT. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH. DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN OR PERFORMANCE CHARACTERISTICS. "/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.

B-155657, JAN. 28, 1965

TO GENISCO SYSTEMS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20, 1964, WITH ENCLOSURE, PROTESTING AGAINST THE ACTION OF THE EDGEWOOD ARSENAL, MARYLAND, IN REJECTING YOUR BID SUBMITTED IN RESPONSE TO INVITATION NO. AMC/A/-18-035-65-224.

THE INVITATION REQUESTED BIDS FOR FURNISHING ONE ROTARY ACCELERATOR CENTRIFUGE, IN ACCORDANCE WITH THE DETAILED PURCHASE DESCRIPTION CONTAINED THEREIN. THE BRAND NAME,"SCHAEVITZ ENGINEERING MODEL M-2-A 1000 OR EQUAL" WAS CITED IN THE INVITATION AFTER THE DESCRIPTION OF THE EQUIPMENT. THE ADDITIONAL TERMS AND CONDITIONS OF THE INVITATION FOR BIDS CONTAINED THE BRAND NAME OR EQUAL TERMS CLAUSE OF ASPR 1 1206.3. IN ADDITION, NOTE NO. 5 OF THE SCHEDULE OF THE INVITATION INCLUDED "TERMS PERTAINING TO FURNISHING OF DESCRIPTIVE LITERATURE," AS FOLLOWS:

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BID 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 OR PERFORMANCE CHARACTERISTICS.

"/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 IN THIS INVITATION FOR BIDS.'

TWO BIDS WERE RECEIVED AND OPENED ON SEPTEMBER 28, 1964. THE LOWEST BID IN THE AMOUNT OF $3,990 WAS SUBMITTED BY YOUR FIRM AND YOU OFFERED TO FURNISH GEMISCO MODEL NO. A903. IT IS REPORTED THAT WITH YOUR BID YOU SUBMITTED BULLETIN 902-3-2-64-A.P. AND A LETTER DATED SEPTEMBER 23, 1964, IN WHICH YOU MADE THE FOLLOWING STATEMENTS:

"GENISCO IS PLEASED TO SUBMIT THE ATTACHED IFB IN RESPONSE TO YOUR REQUEST. WE ARE QUOTING OUR MODEL A903 WHICH IS COMPARABLE TO THE REQUESTED MACHINE AND WHICH MEETS THE PERFORMANCE CHARACTERISTICS SET FORTH IN YOUR IFB.

"WE ARE ALSO ENCLOSING OUR BULLETIN 902-3-2-64-A.P. DESCRIBING THE CHARACTERISTICS OF THE QUOTED MODEL A903 G-ACCELERATOR FOR YOUR REVIEW.' THE ONLY OTHER BID IN THE AMOUNT OF $7,015 WAS SUBMITTED BY SCHAEVITZ ENGINEERING.

A TECHNICAL EVALUATION INDICATED THAT YOUR BID WAS NONRESPONSIVE IN THAT THE EQUIPMENT YOU PROPOSED TO FURNISH DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS. ON OCTOBER 12, 1964, A CONTRACT WAS AWARDED TOSCHAEVITZ ENGINEERING, AND IT IS REPORTED THAT THE ROTARY ACCELERATOR CENTRIFUGE WAS DELIVERED BY SCHAEVITZ ON DECEMBER 8, 1964.

YOU STATE THAT IN THE LETTER WHICH ACCOMPANIED YOUR BID YOU STATED "WE ARE QUOTING OUR MODEL A-903 * * * WHICH MEETS THE PERFORMANCE CHARACTERISTICS SET FORTH IN YOUR IFB.'

IT IS REPORTED THAT YOUR BID WAS REJECTED BECAUSE OF THE FOLLOWING DEFICIENCIES:

"THE GENISCO MODEL WEIGHT CAPACITY WAS ADEQUATE FOR 2.5 POUND OBJECTS AT 1000 G, WHILE THE SPECIFICATIONS CALLED FOR 5.0 POUNDS OBJECTS AT 1000 G. THE GENISCO MODEL WAS CAPABLE OF A SPEED OF 0-1650 RPM. GENISCO OFFERED A ONE HORSE POWER MOTOR WHILE THE SPECIFICATIONS CALLED FOR A THREE HORSE POWER MOTOR. THE GENISCO BID OFFERED A TACHOMETER FOR RPM, WHILE THE SPECIFICATIONS CALLED FOR A FOUR DECADE ELECTRONIC COUNTER FOR ACCURACY.'

WHILE YOU DID STATE IN YOUR COVER LETTER THAT YOUR MODEL A903 ACCELERATOR WOULD MEET THE PERFORMANCE CHARACTERISTICS SET FORTH IN THE INVITATION FOR BIDS, THE FACT REMAINS THAT THE CONTRACTING OFFICER DETERMINED FROM THE LITERATURE FURNISHED BY YOU THAT YOUR MODEL A903 ACCELERATOR DOES NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS. THE RESPONSIVENESS OF A BID MUST BE DETERMINED SOLELY ON THE BASIS OF THE BID AND ANY EXPLANATORY INFORMATION SUBMITTED THEREWITH PRIOR TO BID OPENING. IF A BID IS SO PREPARED AS TO CREATE A REASONABLE DOUBT CONCERNING THE BIDDER'S INTENTION TO COMPLY WITH THE INVITATION REQUIREMENTS, ANY NEGOTIATIONS WITH THE BIDDER TO CLARIFY SUCH INTENTION WOULD BE OBJECTIONABLE ON THE GROUNDS THAT NO BIDDER SHOULD BE AFFORDED A SECOND CHANCE TO BID AFTER BIDS ARE OPENED. SEE 36 COMP. GEN. 705.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT AND TO DETERMINE FACTUALLY WHETHER EQUIPMENT OFFERED BY BIDDERS MEETS THOSE SPECIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE PROCUREMENT ACTIVITY. SEE 17 COMP. GEN. 554, 19 ID. 587 AND 40 ID. 35. THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE PROCUREMENT ACTIVITY, REASONABLY MEET THE ACTIVITY'S NEED.

ACCORDINGLY, AND IN VIEW OF THE MANDATORY REQUIREMENTS OF 10 U.S.C. 2305 (C) THAT AWARDS UNDER FORMAL ADVERTISED PROCEDURES SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID "CONFORMS TO THE INVITATION" AND WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, WE MUST CONCLUDE THAT NO LEGAL BASES EXIST FOR QUESTIONING THE REJECTION OF YOUR BID.