B-155912, FEB. 23, 1965

B-155912: Feb 23, 1965

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TO THE HONORABLE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED JANUARY 6. THE SPECIFIED MINIMUM GAUGES FOR THE STEEL PARTS WERE CONSIDERED ESSENTIAL TO PROVIDE RIGID SHELVING OF SUFFICIENT STRENGTH. THE FURNISHING OF DESCRIPTIVE LITERATURE TO SHOW CONFORMANCE OF THE PRODUCT OFFERED WITH THE PURCHASE DESCRIPTION WAS REQUIRED BY THE FOLLOWING PROVISION OF THE INVITATION: "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 DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH FOR THE PURPOSE OF BID EVALUATION AND AWARD DETAILS OF THE PRODUCTS THE BIDDER PROPOSED TO FURNISH.

B-155912, FEB. 23, 1965

TO THE HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 6, 1965, WITH ENCLOSURES, FROM THE DIRECTOR OF PROCUREMENT AND PRODUCTION, HEADQUARTERS, UNITED STATES ARMY MATERIAL COMMAND, REQUESTING A DECISION CONCERNING THE PROPRIETY OF THE AWARD MADE TO THE FRICK GALLAGHER MANUFACTURING COMPANY, WELLSTON, OHIO, UNDER IFB NO. AMC/R/29-040-64-266 ISSUED MAY 15, 1964, AT THE WHITE SANDS MISSILE RANGE, NEW MEXICO.

THE INVITATION SOLICITED BIDS ON FURNISHING MERCHANDISE DISPLAY SHELVING CONSISTING OF 15 MAJOR COMPONENTS IN ACCORDANCE WITH THE PURCHASE DESCRIPTION CONTAINED THEREIN WHICH SET FORTH THE DIMENSIONS, MINIMUM ACCEPTABLE GAUGE STEEL FOR INDIVIDUAL PARTS, AND OTHER NECESSARY CONSTRUCTION DETAILS AND FEATURES FOR THE UNITS DESIRED. THE SPECIFIED MINIMUM GAUGES FOR THE STEEL PARTS WERE CONSIDERED ESSENTIAL TO PROVIDE RIGID SHELVING OF SUFFICIENT STRENGTH, DURABILITY AND VERSATILITY TO SUPPORT AND DISPLAY THE MANY ITEMS RANGING FROM HEAVY TOOLS, BATTERIES, CONTAINERS OF PAINT, ETC., TO SMALL ELECTRONIC COMPONENTS PECULIAR TO MISSILE TESTS AND DEVELOPMENTS, TOGETHER WITH OFFICE AND OTHER SUPPLIES USED BY THE WHITE SANDS MISSILE RANGE ACTIVITIES.

THE FURNISHING OF DESCRIPTIVE LITERATURE TO SHOW CONFORMANCE OF THE PRODUCT OFFERED WITH THE PURCHASE DESCRIPTION WAS REQUIRED BY THE FOLLOWING PROVISION OF THE INVITATION:

"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 PROPOSED TO FURNISH, AND HOW THE PURCHASE DESCRIPTION IS TO BE MET.

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE PURCHASE DESCRIPTION AND OTHER REQUIREMENTS OF THE 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 PROVISIONS FOR CONSIDERING LATE BIDS AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.'

THE FIVE BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE (EXCEPT FOR PROMPT PAYMENT DISCOUNTS) AS FOLLOWS:

CHART

LOZIER CORPORATION, OMAHA, NEBRASKA $14,648.68

HARRY L. HUSSMAN, JR., INC., EL PASO, TEXAS 20,789.87

WEBER SHOWCASE AND FIXTURE COMPANY, LOS ANGELES,

CALIF. 21,611.20

FRICK-GALLAGHER MANUFACTURING COMPANY, WELLSTON,

OHIO 21,811.68

SLATER SHELVING SYSTEM, OAKLAND, CALIFORNIA 23,947.50

LOZIER'S LOW BID WAS REJECTED FOR THE PRIMARY REASON THAT THE DESCRIPTIVE LITERATURE INCLUDED THEREWITH TOOK THE FOLLOWING EXCEPTIONS TO THE PURCHASE DESCRIPTION:

(1) PROPOSED TO FURNISH BASE FRONTS OF APPROXIMATELY 20 GAUGE STEEL IN LIEU OF 18 GAUGE AS SPECIFIED.

(2) SHELVES OF APPROXIMATELY 21 GAUGE STEEL WHERE NOT LESS THAN 20 GAUGE WAS SPECIFIED.

(3) PROPOSED CHANNEL REINFORCED WITH APPROXIMATELY 22 GAUGE STEEL, WHEN NOT LESS THAN 19 GAUGE WAS SPECIFIED.

THE NEXT TWO LOW BIDS OF HUSSMAN AND WEBER SHOWCASE WERE REJECTED BECAUSE THEIR DESCRIPTIVE LITERATURE FAILED TO SPECIFY THE STEEL GAUGE FOR ANY OF THE COMPONENTS OF THE PRODUCT THEY PROPOSED TO FURNISH, AND ALSO TOOK EXCEPTIONS TO OTHER PROVISIONS OF THE PURCHASE DESCRIPTION. AWARD WAS THEN MADE BY THE CONTRACTING OFFICER TO FRICK-GALLAGHER AS THE LOW "RESPONSIVE" AND RESPONSIBLE BIDDER.

IN ITS REVIEW OF THE PROCUREMENT ACTION UNDER DATE OF JULY 30, 1964, THE ARMY TEST AND EVALUATION COMMAND, ABERDEEN PROVING GROUND, MARYLAND, MAKES THE FOLLOWING OBSERVATIONS CONCERNING THE FRICK GALLAGHER BID:

"8. * * * IT IS NOTED IN REVIEWING THE ENCLOSED COPY OF THE SUCCESSFUL BID (INCL 2) THAT THE DESCRIPTIVE LITERATURE DOES NOT INDICATE THE GAUGE OF STEEL FOR BASE PLATES OR SUPPORTING BRACKETS WHEREAS NOT LESS THAN 18 GAUGE FOR THE BASE PLATES AND AT LEAST 12 GUAGE FOR THE SUPPORTING BRACKETS WERE SPECIFIED. NEITHER DOES THE DESCRIPTIVE LITERATURE INDICATE CONFORMANCE WITH THE PURCHASE DESCRIPTION WITH RESPECT TO SPECIFIED 1 INCH DEEP AND NOT MORE THAN 2 INCHES WIDE STIFFENERS. ALSO, THERE IS ACTUALLY NO INDICATION AS TO THE HEIGHT OF THE SHELVING BIDDER IS GOING TO SUPPLY SINCE THE PURCHASE DESCRIPTION SPECIFIES 54 INCHES HIGH PLUS OR MINUS 2 INCHES AND DESCRIPTIVE LITERATURE INDICATES HEIGHTS AT 60 INCHES - 66 INCHES WITH A NOTATION THAT SPECIAL SIZES ARE QUOTED ON REQUEST. YET, THE TECHNICAL EVALUATION UTILIZED BY THE CONTRACTING OFFICER IN MAKING AN AWARD TO THE FRICK GALLAGHER MANUFACTURING COMPANY ASSERTS THIS BIDDER'S BID TO BE 100 PERCENT TECHNICALLY SUFFICIENT.'

THE ACTION TAKEN PURSUANT TO SUCH FINDINGS IS STATED IN PARAGRAPH 9 OF THE REPORT:

"9. BASED UPON THE FOREGOING IT IS THE OPINION OF THIS HEADQUARTERS THAT THE BID SUBMITTED BY THE FRICK-GALLAGHER MANUFACTURING COMPANY WAS ALSO NON-RESPONSIVE AND SHOULD HAVE BEEN REJECTED. ACCORDINGLY, WHITE SANDS MISSILE RANGE HAS BEEN DIRECTED TO ISSUE A "STOP WORK" ORDER ON CONTRACT DA-29-040-AMC-874/R).'

IN ADDITION, THE RECORD SHOWS THAT THE DESCRIPTIVE LITERATURE FURNISHED WITH THE BID OF SLATER SHELVING SYSTEM, THE REMAINING BIDDER, ALSO DOES NOT SHOW CONFORMITY TO THE SPECIFIED MINIMUM GAUGE STEEL REQUIREMENTS, DIMENSIONS AND NUMBER PER SHELF OF CHANNEL TYPE REINFORCING STIFFENERS AS SET FORTH IN THE PURCHASE DESCRIPTION.

FROM THE FOREGOING IT SEEMS APPARENT, AS STATED IN THE LETTER OF JANUARY 6, THAT WITH RESPECT TO MEETING THE INVITATION'S REQUIREMENTS, NO BIDDER'S DESCRIPTIVE LITERATURE CONTAINED AN AFFIRMATIVE SHOWING OF COMPLIANCE WITH ALL DETAILS OF THE SPECIFICATIONS.

THE PRIMARY PURPOSES FOR REQUIRING THE SUBMISSION OF DESCRIPTIVE LITERATURE ARE TO DETERMINE WHETHER THE PRODUCT OFFERED COMPLIES WITH THE ADVERTISED SPECIFICATIONS AND TO ENABLE THE GOVERNMENT TO INTELLIGENTLY CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKINGAN AWARD. UNDER 10 U.S.C. 2305/C) A CONTRACT MAY BE AWARDED, AFTER FORMALLY ADVERTISING FOR BIDS, ONLY TO A RESPONSIBLE BIDDER "WHOSE BID CONFORMS TO THE INVITATION.' IN DECIDING THE CONFORMITY OF THE EQUIPMENT OFFERED, THE CONTRACTING OFFICER MAY WAIVE MINOR VARIANCES PROVIDING THAT SUCH WAIVER WOULD NOT WORK AN INJUSTICE ON OTHER BIDDERS AND THE VARIANCES ARE THOSE MINOR INFORMALITIES OR DEFECTS OF FORM WHICH DO NOT GO TO THE SUBSTANCE OF THE BID. 37 COMP. GEN. 763, 765.

IN THE PRESENT CASE THERE CAN BE NO REASONABLE DOUBT AS TO THE PROPRIETY OF, AND NECESSITY FOR, STATING IN THE PURCHASE DESCRIPTION MINIMUM GAUGE STEEL REQUIREMENTS FOR THE SHELVES, BASE PLATES, SUPPORTING BRACKETS, ETC., IN ORDER TO OBTAIN A STRONG AND DURABLE PRODUCT SUITABLE FOR THE USE INTENDED. CLEARLY SUCH REQUIREMENTS GO TO THE SUBSTANCE OF THE BID AND MAY NOT BE CONSIDERED MERE INFORMALITIES WHICH CAN BE WAIVED. DESCRIPTIVE LITERATURE WAS NECESSARY TO DETERMINE CONFORMITY IT WAS, THEREFORE, MANDATORY UPON THE CONTRACTING OFFICER (AS EXPRESSLY PROMISED IN THE INVITATION'S ABOVE-QUOTED DESCRIPTIVE LITERATURE CLAUSE) TO REJECT THOSE BIDS WHOSE DESCRIPTIVE LITERATURE FAILED TO SHOW CONFORMANCE WITH SUCH REQUIREMENTS.

40 COMP. GEN. 132, 135. FURTHERMORE, SINCE ALL THE BIDS HAVE IDENTICAL OR SIMILAR DEFECTS, IN THAT THEY EITHER SHOWED THAT THE ITEMS OFFERED DID NOT MEET THE SPECIFICATIONS OR FAILED TO SHOW THAT THEY DID, WE PERCEIVE NO ADEQUATE BASIS FOR REJECTING THE LOWER BIDS BECAUSE OF THEIR FAILURE TO SHOW CONFORMITY TO THE PURCHASE DESCRIPTION, WHILE ACCEPTING A HIGHER BID WHICH ALSO APPEARS DEFICIENT IN SUCH RESPECT. A SITUATION OF THAT NATURE GIVES IMMEDIATE RISE TO THE SUSPICION OF FAVORITISM, AND IF PERMITTED TO STAND WOULD HAVE AN ADVERSE EFFECT ON THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM.

FOR THE FOREGOING REASONS, WE CONCUR IN THE OPINION EXPRESSED BY YOUR DIRECTOR OF PROCUREMENT AND PRODUCTION IN HIS LETTER OF JANUARY 6 THAT NONE OF THE BIDS SHOULD HAVE BEEN CONSIDERED RESPONSIVE, AND THAT THE CONTRACT AWARDED TO FRICK-GALLAGHER UNDER THE INVITATION SHOULD BE CANCELLED.

AS REQUESTED, WE ARE FORWARDING COPIES OF THIS DECISION TO THOSE MEMBERS OF CONGRESS WHO HAVE EXPRESSED AN INTEREST IN THE ABOVE AWARD.

THE FILE FORWARDED WITH THE LETTER FROM THE DIRECTOR OF PROCUREMENT AND PRODUCTION IS RETURNED.