B-156984, JUN. 29, 1965, 44 COMP. GEN. 833

B-156984: Jun 29, 1965

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THE LOW BIDDER ON THE NON-SET-ASIDE WHO SUBMITTED A SAMPLE IN LIEU OF THE LITERATURE MAY NOT BE AWARDED A CONTRACT ON THE BASIS THE SAMPLE IS AN "ILLUSTRATION" WITHIN THE MEANING OF PARAGRAPH 2-202.5 OF THE ARMED SERVICES PROCUREMENT REGULATION. THE INVITATION IS DEFECTIVE AND SHOULD BE CANCELED. 1965: REFERENCE IS MADE TO LETTER DATED JUNE 10. COVERS THE ESTIMATED CONTINUING REQUIREMENTS FOR MAGNETIC TAPE FOR A ONE-YEAR PERIOD AND IS DESIGNED TO RESULT IN THE AWARD OF AN INDEFINITE QUANTITY REQUIREMENTS TYPE CONTRACT WITH A STATED MINIMUM OF 1. THE SAME QUANTITIES WERE SET ASIDE FOR AWARD TO ONE OR MORE SMALL BUSINESS BIDDERS UNDER THE TERMS STATED IN THE INVITATION. THE PREVIOUS PRACTICE WAS TO PROCURE MAGNETIC TAPE ON REELS ENCASED IN PLASTIC CONTAINERS FOR HANDLING AND STORAGE.

B-156984, JUN. 29, 1965, 44 COMP. GEN. 833

CONTRACTS - SPECIFICATIONS - DEVIATIONS - DESCRIPTIVE LITERATURE - BID REJECTION UNDER AN INVITATION PROVIDING FOR SMALL BUSINESS SET-ASIDES AND AWARD OF A REQUIREMENTS CONTRACT, WHICH CONTAINED A DESCRIPTIVE LITERATURE CLAUSE COVERING A NEWLY AVAILABLE PART FOR THE PRODUCT TO BE FURNISHED, BUT NOT THE PURPOSE FOR THE REQUIREMENT, THE LOW BIDDER ON THE NON-SET-ASIDE WHO SUBMITTED A SAMPLE IN LIEU OF THE LITERATURE MAY NOT BE AWARDED A CONTRACT ON THE BASIS THE SAMPLE IS AN "ILLUSTRATION" WITHIN THE MEANING OF PARAGRAPH 2-202.5 OF THE ARMED SERVICES PROCUREMENT REGULATION, EVEN THOUGH THE SAMPLE SERVED A BETTER PURPOSE, AND THE MATERIAL DEVIATION REQUIRES REJECTION OF THE BID; HOWEVER, ALL BIDDERS HAVING OFFERED A PART COMPLYING WITH THE SPECIFICATIONS, THE REJECTION WOULD BE PREJUDICIAL TO THE LOW BIDDER AND CONTRARY TO THE BEST INTERESTS OF THE GOVERNMENT, AND THE DESCRIPTIVE LITERATURE REQUIREMENT NOT HAVING BEEN JUSTIFIED NOR ITS PURPOSE STATED AS REQUIRED BY PARAGRAPH 2-202.5, THE INVITATION IS DEFECTIVE AND SHOULD BE CANCELED.

TO THE SECRETARY OF THE NAVY, JUNE 29, 1965:

REFERENCE IS MADE TO LETTER DATED JUNE 10, 1965, WITH ATTACHMENTS, FROM THE ACTING ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS (FILE R1) REQUESTING OUR DECISION IN CONNECTION WITH INVITATION FOR BIDS NO. IFB 104-1386-65, ISSUED ON APRIL 23, 1965, BY THE NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA.

THE INVITATION, AS AMENDED, COVERS THE ESTIMATED CONTINUING REQUIREMENTS FOR MAGNETIC TAPE FOR A ONE-YEAR PERIOD AND IS DESIGNED TO RESULT IN THE AWARD OF AN INDEFINITE QUANTITY REQUIREMENTS TYPE CONTRACT WITH A STATED MINIMUM OF 1,000 REELS AND A MAXIMUM OF 5,000 REELS. THE SAME QUANTITIES WERE SET ASIDE FOR AWARD TO ONE OR MORE SMALL BUSINESS BIDDERS UNDER THE TERMS STATED IN THE INVITATION.

REPORTEDLY, THE PREVIOUS PRACTICE WAS TO PROCURE MAGNETIC TAPE ON REELS ENCASED IN PLASTIC CONTAINERS FOR HANDLING AND STORAGE. FOR THIS PROCUREMENT, IT WAS DECIDED TO PROCURE TAPE ON SOLID FLANGE LEXAN REELS, ENCASED IN COLLARS OR WRAP-AROUNDS, IN LIEU OF THE CUSTOMARY CONTAINERS. THE PROCURING ACTIVITY WAS AWARE THAT A SUITABLE COLLAR MADE OF LEXAN WAS NEWLY AVAILABLE ON THE MARKET, AND HAD IN FACT INSPECTED SAMPLES OF SUCH COLLARS AND FOUND THEM SATISFACTORY. THEY DID NOT KNOW, HOWEVER, WHETHER SUITABLE COLLARS WERE AVAILABLE FROM MORE THAN ONE SOURCE. IN ORDER TO MAKE SURE THAT COLLARS OFFERED BY ANY BIDDER WOULD BE SATISFACTORY, THE AGENCY INCLUDED IN THE INVITATION A REQUIREMENT FOR DESCRIPTIVE LITERATURE, AS FOLLOWS:

"DESCRIPTIVE LITERATURE CLAUSE

"/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 PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO "DESIGN, MATERIAL AND 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 PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.

"REQUIREMENT FOR DESCRIPTIVE LITERATURE

EACH BIDDER SHALL SUBMIT WITH HIS BID A CUT, ILLUSTRATION, DRAWING OR BROCHURE OF THE PRODUCT OFFERED IN HIS BID WHICH CLEARLY DEFINES DIMENSIONS, LOCKING DEVICE, STACKING FEATURE AND SPACER GUIDE FOR REEL FLANGE PROTECTION.'

BY AMENDMENT, THE INVITATION WAS CLARIFIED TO STATE THAT THESE REQUIREMENTS APPLIED ONLY TO THE COLLARS. THE LETTER STATES THAT NO INFORMATION RELATIVE TO FURNISHING SAMPLES WAS PROVIDED FORMALLY TO PROSPECTIVE BIDDERS; BUT THE PURCHASING ACTIVITY HAS ADVISED THAT THE SUBJECT OF SAMPLES WAS DISCUSSED OVER THE TELEPHONE WITH AT LEAST ONE PROSPECTIVE BIDDER, MEMOREX CORPORATION, AT WHICH TIME IT WAS LEARNED THAT THE COMPANY WAS HAVING DIFFICULTY OBTAINING LITERATURE DUE TO THE NEWNESS OF THE LEXAN COLLAR. THE PURCHASING ACTIVITY FURTHER REPORTS THAT THE REPRESENTATIVE OF MEMOREX MENTIONED THAT THE SUBMISSION OF A SAMPLE WAS CONTEMPLATED AND THAT HE WAS CAUTIONED THAT IF SUCH SUBMISSION WERE TO BE PART OF HIS FIRM'S BID, IT SHOULD BE MAILED IN A MANNER TO INSURE ITS ARRIVAL PRIOR TO THE TIME SET FOR OPENING OF BIDS, AND IF RECEIVED LATE ITS CONSIDERATION WOULD BE GOVERNED BY THE LATE BID PROVISION IN THE INVITATION.

THE BIDS WERE OPENED ON MAY 18, 1965. SEVEN BIDS WERE RECEIVED, FOUR FROM LARGE BUSINESS CONCERNS AND THREE FROM SMALL BUSINESS CONCERNS. THE LOWEST BIDDER, COMPUTRON, INC., A LARGE BUSINESS CONCERN, WHICH BID A UNIT PRICE OF $17.75, DID NOT FURNISH DESCRIPTIVE LITERATURE AS REQUIRED BY THE INVITATION. IT WAS DISCOVERED SHORTLY AFTER BID OPENING ON MAY 18, 1965, THAT COMPUTRON HAD FURNISHED SAMPLES OF A LEXAN COLLAR IT INTENDED TO FURNISH THROUGH PERSONAL DELIVERY BY ITS REPRESENTATIVES TO THE REQUIREMENT ORGANIZATION ON MAY 13, 1965, THESE SAMPLES HAVING BEEN IN ADDITION TO SAMPLES PREVIOUSLY FURNISHED BY COMPUTRON, ON THE BASIS OF WHICH THE DECISION TO BUY THE REELS WITH COLLARS HAD APPARENTLY BEEN REACHED. THE ADMINISTRATIVE REPORT STATES THAT THESE SAMPLES WERE NOT MARKED AS APPLYING TO THE PROCUREMENT COVERED BY THE INVITATION NOR WERE THEY REFERENCED IN THE BID, ALTHOUGH AT THE TIME THEY WERE DELIVERED IT WAS STATED VERBALLY THAT THEY WERE "FOR THE BID.' EXAMINATION OF COMPUTRON'S SAMPLES SHOWED THEM TO BE IN ACCORDANCE WITH THE REQUIREMENTS.

THE OTHER SIX BIDDERS SUBMITTED BIDS AS FOLLOWS:

CHART

MEMOREX CORP. SMALL BUSINESS SUBMITTED SAMPLE

$21 PER UNIT OF COLLAR AS PART

OF BID

AMPEX CORP. LARGE BUSINESS SUBMITTED

$21.40 PER UNIT DESCRIPTIVE

LITERATURE

AUDIO DEVICES SMALL BUSINESS SUBMITTED

$21.75 PER UNIT LITERATURE ON TAPE

AND TAPE REELS, BUT

NOT ON COLLARS.

SUBMITTED SAMPLES

OF COLLAR

REEVES SOUND CRAFT SMALL BUSINESS SUBMITTED

$23 PER UNIT LITERATURE BUT WAS

NON-RESPONSIVE WITH

RESPECT TO DELIVERY

OF PREPROD SAMPLES

MAC PANEL CO. LARGE BUSINESS SUBMITTED

$26.50 PER UNIT LITERATURE

IBM LARGE BUSINESS SUBMITTED

$36.75 LITERATURE

THE REPORT FROM THE ACTING ASSISTANT CHIEF FOR PURCHASING INCLUDES THE FOLLOWING STATEMENT:

"IT IS RECOGNIZED THAT THE REQUIREMENTS OF ASPR 2-202-5 (SIC) RELATIVE TO DESCRIPTIVE LITERATURE HAVE NOT BEEN COMPLIED WITH IN THAT THE INVITATION FAILS TO DESCRIBE THE SPECIFIC CHARACTERISTICS OF THE COLLAR FOR WHICH LITERATURE WAS REQUIRED. HOWEVER, THE PURCHASING ACTIVITY HAS ADVISED THAT ALL FIRMS HAVE BID ON FURNISHING THE LEXAN COLLARS DESIRED. ADDITION IBM SUBMITTED AN ALTERNATE BID ON AN IBM COLLAR. WHILE IT APPEARS THAT THIS PROCUREMENT SHOULD HAVE BEEN INITIATED ON THE BASIS OF "BRAND NAME OR EQUAL," TO CANCEL AND READVERTISE NOW THAT THE BID PRICES HAVE BEEN EXPOSED WOULD IN ALL LIKELIHOOD RESULT IN THE RECEIPT OF BIDS FROM THESE SAME BIDDERS FOR THE SAME PRODUCT THEY HAVE OFFERED IN THIS SOLICITATION.'

OUR DECISION IS REQUESTED AS TO "WHETHER IN THIS INSTANCE THE REQUIREMENTS FOR DESCRIPTIVE LITERATURE MAY BE DISREGARDED AND AWARD BE MADE TO COMPUTRON, INC., THE LOW BIDDER FOR THE NON-SET-ASIDE PORTION OR MUST THE IFB BE CANCELLED BECAUSE OF THE INADEQUACIES.'

WITH RESPECT TO THE QUESTION WHETHER THE REQUIREMENTS FOR DESCRIPTIVE LITERATURE MAY BE DISREGARDED, IT IS OUR VIEW THAT WHERE, AS HERE, THE LANGUAGE OF THE INVITATION REQUIRES THE SUBMISSION OF DESCRIPTIVE LITERATURE WITH THE BID, PROVIDING THAT FAILURE TO SUBMIT SUCH LITERATURE WILL REQUIRE THE REJECTION OF THE BID, WITH NO PROVISION FOR WAIVER, ANY FAILURE TO COMPLY WITH SUCH INVITATION REQUIREMENTS MUST BE REGARDED AS A MATERIAL DEVIATION WHICH REQUIRES THE BID TO BE REJECTED. SEE B-156539, JUNE 9, 1965, AND DECISIONS CITED THEREIN.

WE ARE UNABLE TO ACCEPT THE ARGUMENT THAT A SAMPLE IS AN "ILLUSTRATION" WITHIN THE MEANING OF THE DEFINITION OF "DESCRIPTIVE LITERATURE" CONTAINED IN ASPR 2-202-5, ALTHOUGH IT APPEARS THAT IN THIS CASE A SAMPLE MIGHT HAVE BETTER SERVED THE PURPOSES OF THE PROCURING AGENCY THAN THE DESCRIPTIVE LITERATURE CALLED FOR. AT THE SAME TIME, SINCE THE BIDDERS, OR AT LEAST ONE OF THEM, WERE APPARENTLY MISLED BY VERBAL STATEMENTS OF PROCUREMENT PERSONNEL, AND SINCE IT IS THE CONCLUSION OF THE AGENCY THAT ALL BIDDERS WERE UNDOUBTEDLY OFFERING COLLARS FULLY COMPLYING WITH THE SPECIFICATIONS, IT WOULD BE UNDULY PREJUDICIAL TO THE BIDDERS WHO SUBMITTED SAMPLES INSTEAD OF DRAWINGS, AND CONTRARY TO THE BEST INTERESTS OF THE GOVERNMENT, TO REJECT THEIR BIDS AND CONSIDER ONLY THE OTHERS.

IN THESE CIRCUMSTANCES, AND IN VIEW OF THE FAILURE OF THE RECORD TO SHOW PROPER COMPLIANCE WITH ASPR 2-202.5, WHICH REQUIRES BOTH THAT THE REQUIREMENT FOR DESCRIPTIVE LITERATURE BE JUSTIFIED IN THE CONTRACT FILE AND THAT THE SPECIFIC PURPOSE FOR WHICH IT IS REQUIRED MUST BE STATED IN THE INVITATION, WE CONCLUDE THAT THE INVITATION IN QUESTION IS DEFECTIVE AND SHOULD BE CANCELLED. B-150868, APRIL 29, 1963.