B-156680, JUL. 13, 1965

B-156680, JUL. 13, 1965

TO POWERCON CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 30 AND LETTER OF MAY 6, 1965, PROTESTING THE REJECTION OF YOUR BID UNDER VETERANS ADMINISTRATION INVITATION FOR BIDS NO. 65-64.

THE INVITATION DATED MARCH 29, 1965, REQUESTED BIDS ON A LOW VOLTAGE, DRAWOUT TYPE, SWITCHGEAR IN ACCORDANCE WITH ATTACHED DRAWINGS AND SPECIFICATIONS. ON PAGE 3, PARAGRAPH C, OF THE INVITATION, BIDDERS WERE ADVISED THAT ALL COMPONENTS MUST BE THE PRODUCT OF ONE MANUFACTURER. PARAGRAPH 12, ON PAGE 9 AND 10, PROVIDED THAT BIDDERS SHALL FURNISH DESCRIPTIVE LITERATURE AS PART OF THEIR BID IN ORDER TO ENABLE THE CONTRACTING OFFICER TO DETERMINE BEFORE AWARD WHETHER THE LOW-VOLTAGE SWITCHGEAR OFFERED WILL MEET THE SPECIFICATION REQUIREMENTS OF THE INVITATION FOR BIDS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH. A DESCRIPTION OF THE VARIOUS COMPONENTS OF THE SWITCHGEAR APPEARS IN PAGES 4 THROUGH 9 OF THE INVITATION AND ATTACHED DRAWING 23H- E3R.

IN THEIR REPORT DATED JUNE 1, 1965, THE VETERANS ADMINISTRATION JUSTIFIES REJECTION OF YOUR BID BECAUSE OF YOUR FAILURE TO SUBMIT ADEQUATE DESCRIPTIVE LITERATURE ON THE STATIONARY STRUCTURE. IT IS YOUR POSITION, HOWEVER, THAT THERE WAS NO SPECIFIC STATEMENT IN THE INVITATION REQUIRING SUBMISSION OF DATA ON THIS COMPONENT. ALTERNATIVELY, YOU SUGGEST THAT SINCE YOU TOOK NO EXCEPTION TO THE SPECIFICATIONS, YOUR BID MUST BE READ AS INDICATING AN INTENTION TO BE BOUND THEREBY.

THE INVITATION MAKES IT CLEAR THAT DESCRIPTIVE LITERATURE IS NECESSARY AND FAILURE TO FURNISH THE REQUESTED INFORMATION WILL RESULT IN REJECTION OF THE BID. WHERE THE SUBMISSION OF DESCRIPTIVE DATA IS CLEARLY REQUIRED AND BIDDERS ARE ADVISED OF THE CONSEQUENCES FOR NOT FURNISHING THIS INFORMATION, IT HAS BEEN OUR CONSISTENT POSITION THAT THE PROVISION SHOULD BE APPLIED IN ACCORDANCE WITH ITS CLEAR MEANING. 40 COMP. GEN. 132, 135; 37 COMP. GEN. 763, 765. ALTHOUGH YOU INFORMALLY INDICATED THAT THE STATIONARY STRUCTURE IS NOT A COMPONENT AS SUCH, WE HAVE BEEN ADVISED THAT THE PHRASE "ALL COMPONENTS" IS UNDERSTOOD BY THE TRADE TO INCLUDE STATIONARY STRUCTURES WHEN PURCHASING AN ELECTRICAL SWITCHGEAR. WHILE WE BELIEVE THAT AN INVITATION SHOULD STATE DEFINITELY THE COMPONENTS ON WHICH DATA IS REQUIRED, SINCE THE STATIONARY STRUCTURE IS EXPRESSLY MENTIONED IN THE SPECIFICATIONS (PAGE 4, ITEM 8), WE BELIEVE IT SHOULD HAVE BEEN REASONABLY REGARDED AS COMING WITHIN THE DESCRIPTIVE LITERATURE REQUIREMENT OF THE INVITATION. SEE B-146211, JUNE 28, 1961. THIS IS REINFORCED BY THE FACT THAT AT LEAST FIVE OF THE SEVEN BIDDERS FURNISHED INFORMATION ON THIS COMPONENT. THE LITERATURE OF THE SIXTH BIDDER WAS NOT EVALUATED BECAUSE OF ITS HIGH PRICE. YOUR FAILURE TO TAKE EXCEPTION TO THE SPECIFICATIONS CANNOT BE REGARDED AS COMPLYING WITH THE SPECIFIC REQUIREMENTS FOR FURNISHING MATERIAL DATA. 36 COMP. GEN. 415; 40 COMP. GEN. 132.

THE SITUATIONS DESCRIBED IN B-155077, OCTOBER 30, 1964; AND 39 COMP. GEN. 595, ARE CLEARLY DISTINGUISHED FROM THE CASE PRESENTLY UNDER CONSIDERATION. IN THE FORMER CASE, THE INVITATION REQUIRED PROSPECTIVE BIDDERS TO FURNISH WITH THEIR BIDS A ONE-LINE DIAGRAM AND OUTLINE SKETCH SHOWING THE DIMENSIONS OF THE PARTICULAR EQUIPMENT. NOTWITHSTANDING THE REQUIREMENT, WE HELD THAT THE SKETCH WAS NOT NECESSARY SINCE IT MERELY REPRESENTED A DUPLICATION OF INFORMATION ALREADY CONTAINED IN THE BID DOCUMENTS AND, CONSEQUENTLY, COULD BE CONSIDERED A MINOR INFORMALITY. THE PRESENT CASE, HOWEVER, WITHOUT SOME INDICATION AS TO THE TYPE AND KIND OF STATIONARY STRUCTURE OFFERED, THE PROCURING ACTIVITY WOULD NOT BE IN A POSITION TO DETERMINE WHETHER THE STRUCTURE WOULD IN FACT MEET THE REQUIREMENTS OF THE INVITATION. THE CASE REPORTED AT 39 COMP. GEN. 595, INVOLVED A SITUATION WHERE A BIDDER FAILED TO INCLUDE WITH HIS BID CERTAIN THEORETICAL HEAT TRANSFER CALCULATIONS. IN HOLDING THAT THE BID WAS STILL ACCEPTABLE WE STATED THAT IF AN OMISSION CAN BE REMEDIED BY THE APPLICATION OF A GIVEN OR RECOGNIZED FORMULA SO THAT THE BID CAN BE EVALUATED WITHOUT RESORT TO EXTRINSIC SOURCES, FAILURE TO FURNISH THE REQUESTED CALCULATIONS WILL NOT PRECLUDE CONSIDERATION OF THE BID. WHILE WE ADHERE TO THE PROPOSITION STATED THEREIN THAT AN AUTOMATIC REJECTION OF A BID IS NOT PROPER, WHERE DESCRIPTIVE MATERIAL OR DATA IS REQUESTED AND NEEDED, BIDDERS MUST SUPPLY SUCH DATA OR RUN THE RISK OF BEING DECLARED NONRESPONSIVE.

IN VIEW OF THE FOREGOING, WE FIND NO BASIS TO QUESTION THE REJECTION OF YOUR BID AS BEING NONRESPONSIVE AND, THEREFORE, YOUR PROTEST MUST BE DENIED.