B-157012, JUN. 29, 1965

B-157012: Jun 29, 1965

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RADKE: WE HAVE YOUR TELEGRAPHIC MESSAGE OF JUNE 10. THE PERTINENT PROVISIONS OF THE IFB ARE: "GENERAL PROVISIONS AND REQUIREMENTS "PARTS SERVICE: * * *" "BIDDER SHALL SPECIFY NEAREST LOCATION OF PERMANENT PARTS DEPOTS FROM WHICH PARTS MAY BE OBTAINED IN NECESSARY QUANTITIES AT ANY TIME DURING THE DAY OR NIGHT. AVAILABILITY OF PARTS AND SERVICE WILL BE A FACTOR IN MAKING THE AWARD. AN INFERENCE MAY BE ESTABLISHED THAT SUCH DATA IS REGARDED AS ESSENTIAL AND THAT FAILURE TO SUBMIT IT WITH THE BID MAY WARRANT REJECTION. 39 COMP. YOU EXPLAIN THAT THE ABSENCE IN THE IFB OF ANY SUCH STATEMENT AS IS RECOMMENDED IN 36 COMP. WAS DUE TO AN OVERSIGHT. IT DID NOT SPECIFICALLY STATE THAT THE DATA WAS TO BE SUBMITTED WITH THE BID.

B-157012, JUN. 29, 1965

TO MR. D. R. RADKE:

WE HAVE YOUR TELEGRAPHIC MESSAGE OF JUNE 10, 1965, AND LETTER DATED JUNE 11, 1965, WITH ENCLOSURES, REQUESTING OUR VIEWS ON THE PROPRIETY OF YOUR PROPOSED REJECTION OF THE LOW BID OF ELECTRIC CORPORATION ON INVITATION FOR BIDS (IFB) NO. 65-52 FOR THE FURNISHING OF LABOR AND MATERIALS NECESSARY TO INSTALL A 300 KW STANDBY DIESEL ELECTRIC GENERATOR AT A VETERANS ADMINISTRATION HOSPITAL IN ROSEBURG, OREGON.

THE PERTINENT PROVISIONS OF THE IFB ARE:

"GENERAL PROVISIONS AND REQUIREMENTS

"PARTS SERVICE: * * *"

"BIDDER SHALL SPECIFY NEAREST LOCATION OF PERMANENT PARTS DEPOTS FROM WHICH PARTS MAY BE OBTAINED IN NECESSARY QUANTITIES AT ANY TIME DURING THE DAY OR NIGHT. AVAILABILITY OF PARTS AND SERVICE WILL BE A FACTOR IN MAKING THE AWARD.

"INFORMATION TO BE FURNISHED BY BIDDER:

DRAWINGS OF THE GENERATOR SET AND ITS FOUNDATION REQUIREMENTS.

LITERATURE DESCRIBING THE UNIT.

DRAWINGS AND/OR LITERATURE DESCRIBING AUXILIARY EQUIPMENT TO BE

FURNISHED.

SPECIFICATIONS FOR A SUITABLE FUEL.

LIST OF ONE OR MORE INSTALLATIONS, USING MAJOR COMPONENTS OF THE SAME

OR SIMILAR TYPE FURNISHED FOR THIS APPLICATION.

ESTIMATED CALENDAR DAYS REQUIRED TO SHIP UNIT AFTER RECEIPT OF A FIRM

ORDER.

MAKE OF ENGINE.

NUMBER OF CYLINDERS.

BORE, INCHES.

STROKE, INCHES.

MAKE AND TYPE OF GENERATOR.

GENERATOR ELECTRICAL RATING, KVA.

NUMBER AND TYPE OF GENERATOR BEARINGS.

EXCITER TYPE AND DRIVE.

"SECTION S

INV.

BROCHURES AND SHOP DRAWINGS

"SUBMITTALS: BEFORE EXECUTING ANY WORK, SUBMIT IN QUADRUPLICATE, IN ACCORDANCE WITH THE SECTION TITLED BROCHURES AND SHOP DRAWINGS, INFORMATION SUFFICIENT TO EVIDENCE FULL COMPLIANCE WITH CONTRACT REQUIREMENTS ON ITEMS PROPOSED TO BE FURNISHED. SUCH INFORMATION SHALL INCLUDE, AS APPROPRIATE, MANUFACTURER'S NAME, TRADE NAMES, CATALOGUES, MODEL OR CATALOG NUMBER, NAME PLATE DATE (SIZE, CAPACITY, RATING) AND CORRESPONDING SPECIFICATION REFERENCE (FEDERAL OR PROJECT SPECIFICATION NUMBER AND PARAGRAPH).

"S-1 GENERAL: SUBMIT FOR APPROVAL, SHOP DRAWINGS, CERTIFICATES AND MANUFACTURERS' LITERATURE AND DATA, WITH INFORMATION SUFFICIENT TO EVIDENCE FULL COMPLIANCE WITH CONTRACT REQUIREMENTS.

"D. SUBMIT SHOP DRAWINGS, CERTIFICATES, MANUFACTURERS' LITERATURE AND DATA IN SUFFICIENT TIME TO PERMIT PROPER CONSIDERATION AND APPROVAL ACTION BY GOVERNMENT. * * *"

ELECTRIC CORPORATION DID NOT SUBMIT WITH ITS BID EITHER THE NEAREST LOCATION OF PERMANENT PARTS DEPOTS OR ANY OF THE ITEMS LISTED IN THE ABOVE "INFORMATION TO BE FURNISHED BY BIDDER.' HOWEVER, THE DAY AFTER BID OPENING IT DID SUBMIT THE "INFORMATION," WHICH CONSISTED OF A MANUFACTURER'S BROCHURE IDENTICAL TO THAT SUBMITTED WITH THE BIDS OF THE TWO OTHER FIRMS WHICH RESPONDED TO THE IFB. YOU PROPOSE TO REJECT ELECTRIC'S BID BECAUSE THAT COMPANY DID NOT SUPPLY THE REQUIRED ,INFORMATION" UNTIL AFTER BID OPENING.

IN 36 COMP. GEN. 376 WE RECOGNIZED THE RIGHT OF CONTRACTING AGENCIES TO REQUIRE THAT BIDS BE ACCOMPANIED BY DESCRIPTIVE DATA. HOWEVER, WE STATED THAT IF SUCH INFORMATION HAD TO BE SUBMITTED WITH THE BID, THE IFB SHOULD DEFINE THE PURPOSE AND EFFECT OF THE REQUIREMENT, CONTAIN AN AFFIRMATIVE STATEMENT TO THE EFFECT THAT SUCH MATERIAL WOULD BE IN STRICT COMPLIANCE WITH THE SPECIFICATIONS, AND DECLARE THAT A FAILURE TO SUBMIT SUCH MATERIAL WITH THE BID WOULD PRECLUDE ITS CONSIDERATION. THIS RULE HAS BEEN EXTENDED TO THE POINT THAT, WHERE THE IFB REQUIRES THE DESIGNATED DATA TO BE SUBMITTED WITH THE BID, AN INFERENCE MAY BE ESTABLISHED THAT SUCH DATA IS REGARDED AS ESSENTIAL AND THAT FAILURE TO SUBMIT IT WITH THE BID MAY WARRANT REJECTION. 39 COMP. GEN. 247.

YOU EXPLAIN THAT THE ABSENCE IN THE IFB OF ANY SUCH STATEMENT AS IS RECOMMENDED IN 36 COMP. GEN. 376, CITED ABOVE, WAS DUE TO AN OVERSIGHT. HOWEVER, THE FACT REMAINS THAT NOT ONLY DID THE IFB NOT SPECIFICALLY PROVIDE FOR REJECTION IF THE REQUIRED "INFORMATION" DID NOT ACCOMPANY THE BID, BUT IT DID NOT SPECIFICALLY STATE THAT THE DATA WAS TO BE SUBMITTED WITH THE BID. IN VIEW OF THE FACT THAT THE ABOVE QUOTED SECTION S OF THE SPECIFICATIONS PROVIDES FOR THE CONTRACTOR'S FURNISHING, PRIOR TO COMMENCING WORK, SUBSTANTIALLY THE SAME MATERIAL LISTED PREVIOUSLY AS ,INFORMATION," WE MUST CONCLUDE THAT THERE WAS SUBSTANTIAL GROUND FOR THE BIDDERS TO BELIEVE THAT RECEIPT OF THE DATA BEFORE BID OPENING WAS NOT ESSENTIAL.

IN VIEW OF THE CIRCUMSTANCES, AND THE FACT THAT ELECTRIC WOULD, UPON ACCEPTANCE OF ITS BID, BE CLEARLY BOUND TO FURNISH AND INSTALL THE ITEM DESCRIBED BY WHAT ARE REFERENCED IN THE IFB AS ,DETAIL SPECIFICATIONS," AND ALSO TO SUBMIT IN SUFFICIENT TIME FOR CONSIDERATION AND APPROVAL, BEFORE EXECUTING ANY WORK, EVIDENCE OF FULL COMPLIANCE WITH CONTRACT REQUIREMENTS, WE ARE OF THE OPINION THAT REJECTION OF ELECTRIC'S BID AS NONRESPONSIVE WOULD BE IMPROPER. INASMUCH AS THE SPECIFICATIONS CALL FOR A STANDARD COMMERCIAL PRODUCT, AND APPEAR FULLY ADEQUATE TO DEFINE ALL MATERIAL REQUIREMENTS TO BE MET, IT IS AT LEAST QUESTIONABLE WHETHER THE CRITERIA OF FPR 1-2.202-5 (B) FOR USE OF A "DESCRIPTIVE LITERATURE" REQUIREMENT ARE SATISFIED, AND WE FAIL TO FIND IN THE RECORD SUCH JUSTIFICATION THEREFOR AS IS REQUIRED BY FPR 1-2.202-5 (C).

WE NOTE THAT WHILE YOU POINTED OUT IN YOUR REPORT THAT ELECTRIC DID NOT SUBMIT INFORMATION ON THE NEAREST LOCATION OF PERMANENT PARTS DEPOTS, YOU DID NOT ADVANCE THAT FACT AS A BASIS FOR REJECTING ELECTRIC'S BID AS NOT RESPONSIVE. PRESUMABLY, YOU CONCLUDED THAT ELECTRIC'S CAPABILITY TO SUPPLY SUCH PARTS WAS A FACTOR RELATED TO THE FIRM'S RESPONSIBILITY, AND THEREFORE THAT INFORMATION IN CONNECTION THEREWITH COULD BE SUBMITTED AFTER BID OPENING. WE CONCUR IN THIS CONCLUSION. SEE 39 COMP. GEN. 247. IT ALSO APPEARS THAT THE SAME CONCLUSION IS WARRANTED WITH RESPECT TO SEVERAL OF THE REQUIREMENTS UNDER THE "INFORMATION TO BE FURNISHED BY BIDDER," FOR EXAMPLE, "LIST ONE OR MORE INSTALLATIONS, USING MAJOR COMPONENTS OF THE SAME OR SIMILAR TYPE FURNISHED FOR THIS APPLICATION" (SEE 37 COMP. GEN. 420), AND "ESTIMATED CALENDAR DAYS REQUIRED TO SHIP UNIT AFTER RECEIPT OF A FIRM ORDER.'

FOR THE REASONS STATED, YOU ARE ADVISED THAT THE BID OF ELECTRIC CORPORATION SHOULD BE CONSIDERED FOR AWARD.