B-156205, APR. 21, 1965

B-156205: Apr 21, 1965

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THE RECORD BEFORE US SHOWS THAT YOUR BID WAS REJECTED AS NON RESPONSIVE AFTER AN EVALUATION OF THE DESCRIPTIVE LITERATURE SUBMITTED WITH YOUR BID. - "* * * OR SIMILAR AND EQUAL AND EACH FORK LIFT TRUCK SHALL HAVE THE FOLLOWING CHARACTERISTICS: "G. PAGE 20 OF THE INVITATION PROVIDED WITH RESPECT TO "BRAND NAME OR EQUAL:" "/A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A "BRAND NAME OR EQUAL" DESCRIPTION. SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE. IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS. "/B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN "EQUAL" PRODUCT.

B-156205, APR. 21, 1965

TO HYDRAULIC SERVICES, INC.:

WE REFER TO YOUR LETTER OF FEBRUARY 22, 1965, WITH ENCLOSURE, PROTESTING AGAINST THE REJECTION OF YOUR LOW BID SUBMITTED UNDER ITEM 5 B OF INVITATION FOR BIDS NO. ENG-/NASA/-01-076-65-26, ISSUED ON DECEMBER 1, 1964, BY THE U.S. ARMY ENGINEER DISTRICT, MOBILE, ALABAMA, FOR THREE 6,000 -POUND LIFT TRUCKS.

THE RECORD BEFORE US SHOWS THAT YOUR BID WAS REJECTED AS NON RESPONSIVE AFTER AN EVALUATION OF THE DESCRIPTIVE LITERATURE SUBMITTED WITH YOUR BID. THE TECHNICAL PROVISIONS OF THE INVITATION PROVIDED IN SECTION 1-05 THAT THE LIFT TRUCKS SHALL BE PARTICULAR BRAND NAMES AND MODELS---

"* * * OR SIMILAR AND EQUAL AND EACH FORK LIFT TRUCK SHALL HAVE THE FOLLOWING CHARACTERISTICS:

"G. GUARD. OVERHEAD GUARDS SHALL BE PROVIDED.'

PAGE 20 OF THE INVITATION PROVIDED WITH RESPECT TO "BRAND NAME OR EQUAL:"

"/A) IF ITEMS CALLED FOR BY THIS INVITATION FOR BIDS HAVE BEEN IDENTIFIED IN THE SCHEDULE BY A "BRAND NAME OR EQUAL" DESCRIPTION, SUCH IDENTIFICATION IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS TO INDICATE THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WILL BE SATISFACTORY. BIDS OFFERING "EQUAL" PRODUCTS WILL BE CONSIDERED FOR AWARD IF SUCH PRODUCTS ARE CLEARLY IDENTIFIED IN THE BIDS AND ARE DETERMINED BY THE GOVERNMENT TO BE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME PRODUCTS REFERENCED IN THE INVITATION FOR BIDS.

"/B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING AN "EQUAL" PRODUCT, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME PRODUCT REFERENCED IN THE INVITATION FOR BIDS.

"/C) (1) IF THE BIDDER PROPOSES TO FURNISH AN "EQUAL" PRODUCT, THE BRAND NAME, IF ANY, OF THE PRODUCT TO BE FURNISHED SHALL BE INSERTED IN THE SPACE PROVIDED IN THE INVITATION FOR BIDS, OR SUCH PRODUCT SHALL BE OTHERWISE CLEARLY IDENTIFIED IN THE BID. THE EVALUATION OF BIDS AND THE DETERMINATION AS TO EQUALITY OF THE PRODUCT OFFERED SHALL BE THE RESPONSIBILITY OF THE GOVERNMENT AND WILL BE BASED ON INFORMATION FURNISHED BY THE BIDDER OR IDENTIFIED IN HIS BID, AS WELL AS OTHER INFORMATION REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. CAUTION TO BIDDERS: THE PURCHASING ACTIVITY IS NOT RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH IS NOT IDENTIFIED IN THE BID AND REASONABLY AVAILABLE TO THE PURCHASING ACTIVITY. ACCORDINGLY, TO INSURE THAT SUFFICIENT INFORMATION IS AVAILABLE, THE BIDDER MUST FURNISH AS A PART OF HIS BID ALL DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) NECESSARY FOR THE PURCHASING ACTIVITY TO (I) DETERMINE WHETHER THE PRODUCT OFFERED MEETS THE REQUIREMENTS OF THE INVITATION FOR BIDS AND (II) ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. THE INFORMATION FURNISHED MAY INCLUDE SPECIFIC REFERENCE TO INFORMATION PREVIOUSLY FURNISHED OR TO INFORMATION OTHERWISE AVAILABLE TO THE PURCHASING ACTIVITY.

"/2) IF THE BIDDER PROPOSES TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE INVITATION FOR BIDS, HE SHALL (I) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS.'

YOUR BID OFFERED TO FURNISH THE WINDHAM POWER LIFT MODEL FW6'S AND YOU ATTACHED TO YOUR BID A FOUR-PAGE DESCRIPTIVE CATALOG OF SUCH PROPOSED LIFT TRUCK. HOWEVER, SUCH LITERATURE FAILED TO SHOW THAT AN OVERHEAD GUARD WOULD BE FURNISHED AS REQUIRED BY SECTION 1-05G OF THE SPECIFICATIONS QUOTED ABOVE. THE PROCUREMENT OFFICE MADE AN EFFORT TO LOCATE ADDITIONAL INFORMATION IN THEIR POSSESSION WHICH MIGHT SHOW THAT AN OVERHEAD GUARD IS NORMALLY FURNISHED WITH THE MODEL LIFT TRUCK OFFERED BY YOU BUT SUCH INFORMATION WAS NOT OF RECORD.

IT IS CLEAR THAT ALL BIDDERS WERE FULLY APPRISED OF THE INFORMATION THAT WAS REQUIRED BY THE PROCUREMENT OFFICE TO PROPERLY EVALUATE BIDS PROPOSING TO FURNISH EITHER A "BRAND NAME" OR A ,SIMILAR AND EQUAL"LIFT TRUCK. BUT YOU FAILED TO FURNISH APPROPRIATE DETAILS OF THE TRUCK YOU PROPOSED TO FURNISH SO THAT THE PROCUREMENT OFFICE WAS UNABLE TO DETERMINE WHETHER YOUR PROPOSED TRUCK WOULD MEET THE ADVERTISED SPECIFICATIONS. WHILE IT MAY BE THAT AN OVERHEAD GUARD WOULD BE NORMALLY FURNISHED WITH THE MODEL YOU PROPOSED, YOUR BID AS SUBMITTED DID NOT OFFER THE LIFT TRUCK MEETING THE SPECIFICATIONS AS A SIMILAR OR EQUAL PRODUCT. WE THINK THAT THE PRESENT CASE IS SIMILAR TO THAT DESCRIBED IN 41 COMP. GEN. 366 WHEREIN WE HELD THAT WHEN A BIDDER PROPOSES TO FURNISH AN ARTICLE OTHER THAN THE BRAND NAME ARTICLE SPECIFIED IN THE INVITATION, HIS BID MAY NOT BE INTERPRETED TO INCLUDE THE CHARACTERISTICS OF THE REQUIRED ITEM UNLESS HE CLEARLY IDENTIFIES THE PROPOSED ARTICLE AS REQUIRED.

ADDITIONALLY, THE RECORD BEFORE US SHOWS THAT THE LITERATURE SUBMITTED WITH YOUR BID WAS DEFICIENT IN OTHER RESPECTS, THAT IS, AS TO THE FORK LENGTH, TYPE OF ELECTRICAL SYSTEM, AND TYPE OF TRANSMISSION.

CONCERNING YOUR STATEMENT THAT SINCE THE SPECIFICATIONS PROVIDE FOR INSPECTION OF THE LIFT TRUCKS BEFORE ACCEPTANCE, REJECTION OF NONSPECIFICATION EQUIPMENT SHOULD BE MADE AFTER INSPECTION, THERE IS QUOTED BELOW A PERTINENT PORTION OF 41 COMP. GEN. 366, 368:

"A BID IS AN OFFER WHICH UPON PROPER ACCEPTANCE RIPENS INTO A CONTRACT BINDING UPON THE PARTIES. TO BE VALID AN OFFER MUST BE SUFFICIENTLY CERTAIN TO ENABLE A COURT TO UNDERSTAND WHAT THE PROMISOR UNDERTAKES AND WHAT HE AGREES TO ACCEPT IN RETURN IF THE OFFER IS ACCEPTED. 1 WILLISTON ON CONTRACTS, 3D EDITION, SEC. 24. SEE ALSO THE RESTATEMENT OF CONTRACTS, SEC. 32. THE PURPOSE OF REQUIRING DATA TO BE SUBMITTED WITH A BID IN A CASE SUCH AS THIS IS TO PERMIT A DETERMINATION BY THE PROCURING AGENCY OF PRECISELY WHAT THE BIDDER PROPOSES, AND WILL BE BOUND TO FURNISH IF AWARDED THE CONTRACT. 39 COMP. GEN. 595, 598. IN EFFECT, THE DESCRIPTIVE DATA REQUIREMENT IS IN PART A DEVICE TO INSURE THE RECEIPT OF AN OFFER SUFFICIENTLY DEFINITE IN SUBJECT MATTER AS TO RESULT IN A BINDING CONTRACT UPON ACCEPTANCE. FROM THE FOREGOING WE BELIEVE IT IS FAIR TO STATE THAT A BID WHICH DOES NOT CONFORM TO A PROPERLY UTILIZED DESCRIPTIVE DATA REQUIREMENT IS DEFECTIVE NOT ONLY BECAUSE IT FAILS TO COMPLY WITH A MATERIAL PROVISION OF THE INVITATION BUT, GENERALLY, BECAUSE AS AN OFFER IT IS TOO INDEFINITE TO MEET THE STATED TEST.'

ACCORDINGLY, WE FIND NO PROPER BASIS FOR CONCLUDING THAT REJECTION OF YOUR BID WAS IMPROPER.