B-155854, JUN. 29, 1965

B-155854: Jun 29, 1965

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THE INVITATION WAS ISSUED ON NOVEMBER 6. THE SIRENS WERE DESCRIBED IN THE IFB AS FOLLOWS: "VEHICULAR. BIDS WERE OPENED ON DECEMBER 7. FIVE BIDS WERE RECEIVED. WAS LOW. WAS SECOND LOW. YOU ADVISED THAT DRAWINGS AND DESCRIPTIVE DATA WERE NOT AVAILABLE. YOU ALSO ADVISED THAT YOU COULD NOT FURNISH A MODEL UAL WHICH HAD BEEN PREVIOUSLY MANUFACTURED BY YOU SINCE THE MODEL UAL WAS NOT AN OFF-THE-SHELF ITEM. NONE OF THE MODEL UAL'S WHICH YOU HAD FURNISHED UNDER PRIOR CONTRACTS WAS AVAILABLE AT THE PROCURING ACTIVITY FOR EVALUATION. THE BID WAS REJECTED AS NONRESPONSIVE. YOU QUESTION THE REJECTION OF YOUR BID AND IN THIS CONNECTION YOU CONTEND THAT THERE WAS NO INDICATION IN YOUR BID THAT THE MODEL WHICH YOU PROPOSED TO FURNISH WOULD NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS.

B-155854, JUN. 29, 1965

TO SIRENO SIGNAL MANUFACTURING CORPORATION:

WE REFER TO YOUR TELEGRAM DATED DECEMBER 28, 1964, AND LETTER OF JANUARY 6, 1965, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO ENGLEWOOD ELECTRIC SUPPLY COMPANY, CHICAGO, ILLINOIS, UNDER INVITATION FOR BIDS NO. AMC/T/-23-195-65-74.

THE INVITATION WAS ISSUED ON NOVEMBER 6, 1964, BY THE UNITED STATES ARMY MOBILITY EQUIPMENT CENTER, ST. LOUIS, MISSOURI, FOR THE PROCUREMENT OF 250 ELECTRIC MOTOR OPERATED SIRENS TO BE DELIVERED F.O.B. ATLANTA ARMY DEPOT, FOREST PARK, GEORGIA, AND 100 OF THE SIRENS TO BE DELIVERED F.O.B. SHARPE ARMY DEPOT, LATHROP, CALIFORNIA. THE SIRENS WERE DESCRIBED IN THE IFB AS FOLLOWS:

"VEHICULAR, 12 VOLT, DC, NON-RE SONATED; BRACKET MOUNTED WITH FRONT FLASHER LIGHT WEATHER ROOF; MOTOR CONTROL SWITCH FOOT OPERATED, HEAVY DUTY, DIRECT CONTACT TYPE AND 10 FOOT OF MOTOR CABLE WITH LUGS, IN ACCORDANCE WITH TYPE 1, CLASS B OF MILITARY SPECIFICATION MIL-S-3485A DATED 5 MARCH 1958.'

BIDS WERE OPENED ON DECEMBER 7, 1964, AND FIVE BIDS WERE RECEIVED. YOUR BID WHICH QUOTED A UNIT PRICE OF $46.00 FOR EACH OF THE ITEMS LESS A DISCOUNT OF FIVE PERCENT, 20 DAYS, WAS LOW. HOWEVER, YOU INSERTED THE FOLLOWING STATEMENT IN YOUR BID AFTER THE DESCRIPTION: " "SIRENO MODEL NO. L," AS PREVIOUSLY FURNISHED.' THE BID OF ENGLEWOOD ELECTRIC SUPPLY COMPANY, WHICH QUOTED A PRICE OF $45.69 FOR EACH OF THE ITEMS LESS A DISCOUNT OF TWO PERCENT, 20 DAYS, WAS SECOND LOW.

THE RECORD SHOWS THAT ON DECEMBER 10, 1964, IN RESPONSE TO A TELEPHONE CALL FROM THE PROCURING ACTIVITY REQUESTING DRAWINGS OR OTHER DESCRIPTIVE DATA REGARDING THE MODEL UAL, YOU ADVISED THAT DRAWINGS AND DESCRIPTIVE DATA WERE NOT AVAILABLE. YOU ALSO ADVISED THAT YOU COULD NOT FURNISH A MODEL UAL WHICH HAD BEEN PREVIOUSLY MANUFACTURED BY YOU SINCE THE MODEL UAL WAS NOT AN OFF-THE-SHELF ITEM, BUT YOU DID GIVE A LIST OF THREE PRIOR GOVERNMENT CONTRACTS UNDER WHICH YOU HAD FURNISHED THE MODEL UAL. HOWEVER, NONE OF THE MODEL UAL'S WHICH YOU HAD FURNISHED UNDER PRIOR CONTRACTS WAS AVAILABLE AT THE PROCURING ACTIVITY FOR EVALUATION. ACCORDINGLY, SINCE IT COULD NOT BE DETERMINED THAT YOUR MODEL UAL WOULD MEET REQUIREMENTS, THE BID WAS REJECTED AS NONRESPONSIVE.

YOU QUESTION THE REJECTION OF YOUR BID AND IN THIS CONNECTION YOU CONTEND THAT THERE WAS NO INDICATION IN YOUR BID THAT THE MODEL WHICH YOU PROPOSED TO FURNISH WOULD NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS. YOU ASSERT THAT THE REQUEST FOR INFORMATION BY THE PROCURING ACTIVITY REGARDING PRIOR CONTRACTS FOR THE MODEL UAL WAS UNNECESSARY. YOU CONTEND THAT IN ANY EVENT, YOUR LETTER TO THE PROCURING ACTIVITY OF DECEMBER 10, 1964, WHICH LISTED THREE PRIOR CONTRACTS UNDER WHICH YOU FURNISHED THE MODEL UAL SHOULD HAVE BEEN SUFFICIENT TO ESTABLISH THE RESPONSIVENESS OF YOUR BID, SINCE THE SPECIFICATIONS FOR THE PRIOR PROCUREMENTS WERE BASICALLY THE SAME AS THE SPECIFICATIONS FOR THE INSTANT PROCUREMENT.

WHILE YOU STATE THAT THE INSERTION IN THE BID OF YOUR MODEL NUMBER WAS FOR INFORMATIONAL PURPOSES ONLY, WE BELIEVE YOUR BID MUST BE INTERPRETED AS AN OFFER TO FURNISH YOUR MODEL UAL AS COMPLYING WITH THE REQUIREMENTS OF THE SPECIFICATIONS. THERE WAS NOTHING IN THE BID, AS SUBMITTED, TO INDICATE THAT THE MODEL OFFERED WOULD MEET THE SPECIFICATION REQUIREMENTS AND UPON REQUEST YOU WERE UNABLE TO FURNISH ANY INFORMATION IN THIS RESPECT OTHER THAN TO REFER TO THREE PRIOR CONTRACTS UNDER WHICH YOU STATE THAT SUCH MODEL WAS FURNISHED.

SECTION 2-404.2 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES, IN PART, AS FOLLOWS:

"/D) ORDINARILY, A BID SHOULD BE REJECTED WHERE THE BIDDER ATTEMPTS TO IMPOSE CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT, SINCE TO ALLOW THE BIDDER TO IMPOSE SUCH CONDITIONS WOULD BE PREJUDICIAL TO OTHER BIDDERS. FOR EXAMPLE, BIDS SHALL BE REJECTED IN WHICH THE BIDDER---

"/V) REQUIRES THAT GOVERNMENT IS TO DETERMINED THAT BIDDER'S PRODUCT MEETS GOVERNMENT SPECIFICATION; OR * * *.'

IN DECISION OF NOVEMBER 16, 1962, B-149684, IT WAS STATED THAT THE ABOVE- QUOTED PROVISIONS OF ASPR WERE DESIGNED TO APPLY TO THE SITUATION WHERE, IN THE FACE OF A COMPLETE AND DEFINITE SPECIFICATION, A BIDDER OFFERS A PARTICULAR ARTICLE, BY BRAND NAME OR MODEL NUMBER, OR OTHER GENERAL DEFINITION, WITHOUT EITHER REPRESENTING THAT IT DOES MEET THE SPECIFICATION OR OTHERWISE OBLIGATING HIMSELF TO FURNISH AN ARTICLE WHICH WILL. THIS IS CLEARLY APPLICABLE HERE.

FOR THE FOREGOING REASONS WE FIND NO LEGAL BASIS TO QUESTION THE REJECTION OF YOUR BID AS NOT BEING RESPONSIVE TO THE INVITATION FOR BIDS. ACCORDINGLY, YOUR PROTEST AGAINST THE AWARD OF ENGLEWOOD ELECTRIC SUPPLY COMPANY IS DENIED.