B-158474, APR. 7, 1966

B-158474, APR. 7, 1966

TO SPECIALTY CLOSURES, INC.:

YOUR TELEGRAM OF FEBRUARY 7, 1966, AS SUPPLEMENTED BY YOUR LETTER OF FEBRUARY 8, PROTESTS THE REJECTION OF A BID SUBMITTED BY YOU UNDER INVITATION FOR BIDS (IFB) NO. DSA-4-66-2501, ISSUED NOVEMBER 23, 1965, BY THE DEFENSE SUPPLY AGENCY, DEFENSE GENERAL SUPPLY CENTER (DGSC), RICHMOND, VIRGINIA.

THE IFB SOLICITED BIDS TO FURNISH STATED QUANTITIES OF TWO TYPES OF STEEL STRAPPING SEALS, A CLOSED TYPE SEAL DESIGNATED AS ITEM A AND AN OPEN TYPE SEAL DESIGNATED AS ITEM B. ITEM A IS NOT INVOLVED IN YOUR PROTEST; THEREFORE, OUR DISCUSSION WILL BE CONFINED TO ITEM B, AWARD OF WHICH WAS RESTRICTED TO SMALL BUSINESS CONCERNS.

ITEM B, WHICH CONSISTS OF FIVE SUBITEMS, WAS DESCRIBED ON PAGE 4 OF THE IFB AS FOLLOWS:

"FSN 8135-239-5287 (2353) SEAL, STEEL STRAPPING: OPEN TYPE, W/O CARS, STEEL PAINTED, ZINC OR CADMIUM COATED, U/W 5/8 IN. WIDE STRAP, 1.094 IN. LENGTH, 0.662 IN. WIDE, U/W ACME SEALER, MODEL CIA5, IN ACCORDANCE WITH ACME STEEL CO. PART NO. 51, 5000 TO BOX.'

IN ADDITION, THE FOLLOWING PERTINENT NOTATIONS APPEAR BELOW THE DESCRIPTION OF ITEM B:

"SEE ARTICLE 44, ADDITIONAL GENERAL PROVISIONS, CONTAINED ON DGSC-P 2. SPECIFICATION/S) FOR ITEM/S) ARE NOT AVAILABLE.

CAUTION - THE BIDDER SHOULD ASCERTAIN THE DESCRIPTIVE MATERIAL THAT MAY BE REQUIRED WITH HIS BID IN ACCORDANCE WITH PARAGRAPH (C) OF ARTICLE 44 CONTAINED ON DGSC-P-2.'

ARTICLE 44 (C), INCLUDED IN THE IFB PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1206.3 (B), READS, IN PERTINENT PART, AS FOLLOWS:

"/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.'

BIDS WERE OPENED ON DECEMBER 14, 1965, AS SCHEDULED. OF THE SIX BIDS RECEIVED ON ITEM B, TWO WERE REJECTED BECAUSE THE BIDDERS WERE LARGE BUSINESS CONCERNS. OF THE FOUR BIDS SUBMITTED BY SMALL BUSINESS CONCERNS, YOUR BID WAS LOW ON TWO SUBITEMS. EXAMINATION OF YOUR BID, HOWEVER, DISCLOSED THAT YOU HAD IDENTIFIED THE ITEM OFFERED AS YOUR "SECURE SEAL," THE SAME DESCRIPTION YOU GAVE FOR THE ITEM YOU OFFERED TO SUPPLY AS ITEM A, A DIFFERENT SIZE AND TYPE OF SEAL. FURTHER, YOU LISTED NO MODEL NUMBER, AND YOU DID NOT FURNISH EITHER SAMPLES OR DESCRIPTIVE LITERATURE WITH YOUR BID FROM WHICH THE PROCURING ACTIVITY COULD EVALUATE THE ITEM OFFERED BY YOU. SUBSEQUENT TO BID OPENING, THE PROCUREMENT ACTIVITY ADVISED YOU BY TELEPHONE OF THE DEFICIENCY IN YOUR BID, BUT PENDING OUR DECISION ON YOUR PROTEST TO OUR OFFICE, DSA HAS TAKEN NO ACTION ON YOUR BID AND HAS DEFERRED AWARD.

IN YOUR LETTER OF FEBRUARY 8, YOU STATE THAT YOU PROPOSE TO FURNISH UNDER ITEM B THE SAME TYPE OF SEAL WHICH YOU HAVE SUPPLIED TO THE DGSC UNDER A PRIOR CONTRACT AND THAT YOU SO ADVISED THE DGSC AFTER BID OPENING. YOU FURTHER STATE THAT AT THE TIME YOU FURNISHED SAMPLES WITH THE BID ON WHICH THE EARLIER CONTRACT AWARD WAS BASED A DGSC REPRESENTATIVE ADVISED YOU THAT ONCE SAMPLES WERE ACCEPTED THERE WAS NO NEED TO SUBMIT ADDITIONAL SAMPLES FOR SUBSEQUENT PROCUREMENTS. ACCORDINGLY, AND ON THE BASIS THAT YOU TOOK NO EXCEPTIONS TO THE SPECIFICATIONS IN THE CURRENT IFB, YOU CONTEND THAT YOUR BID SHOULD NOT BE REJECTED.

IN A REPORT DATED MARCH 7, 1966, THE CONTRACTING OFFICER STATES THAT PRIOR TO THE INITIATION OF THE PROCUREMENT IN QUESTION, AN OPEN TYPE SEAL HAD BEEN PURCHASED BY THE DGSC FROM YOU UNDER ANOTHER CONTRACT BASED UPON EVALUATION OF A SAMPLE SUBMITTED WITH YOUR BID. IT IS POINTED OUT, HOWEVER, THAT YOUR BID UNDER IFB NO. DSA-4-66-2501 DID NOT INDICATE THAT YOU WERE OFFERING THE ITEM PREVIOUSLY SUPPLIED, AND ABSENT ANY SAMPLE OR DESCRIPTIVE DATA, THE DGSC HAD NO WAY OF KNOWING AT THE TIME OF BID OPENING WHAT ITEM WOULD BE SUPPLIED BY YOU WERE YOUR BID ON ITEM B ACCEPTED.

WHERE A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION IS USED AND THE INVITATION FOR BIDS INCLUDES THE CLAUSE PRESCRIBED BY ASPR 1-1206.3 (B), WHICH REQUIRES THE FURNISHING OF IDENTIFYING INFORMATION WITH BIDS OFFERING ITEMS OTHER THAN THE REFERENCED BRAND NAME ITEMS AND ADVISES BIDDERS THAT FAILURE TO FURNISH SUCH INFORMATION MAY RESULT IN HIS REJECTION, THE RESPONSIBILITY IS ON THE BIDDER TO SEE THAT HIS BID INCLUDES THE REQUIRED INFORMATION BEFORE BID OPENING. MOREOVER, A BLANKET OFFER TO COMPLY WITH SPECIFICATIONS OR THE ABSENCE OF AN EXCEPTION TO THE SPECIFICATIONS DOES NOT FULFILL THE DATA REQUIREMENT. 41 COMP. GEN. 366. UNDER SUCH RULES, YOUR FAILURE TO FURNISH WITH YOUR BID THE INFORMATION REQUIRED BY THE IFB, EITHER DESCRIBING ADEQUATELY THE SEAL YOU OFFERED OR IDENTIFYING THE SAMPLE PREVIOUSLY FURNISHED TO THE DGSC OR REFERRING TO THE CONTRACT UNDER WHICH YOU HAD SUPPLIED YOUR SEAL, RENDERED YOUR BID NONRESPONSIVE SINCE THE CONTRACTING OFFICER COULD NOT DETERMINE THE RESPONSIVENESS OF YOUR BID AT THE TIME OF BID OPENING. FURTHER, WHILE IT WELL MAY BE THAT HAVING ONCE FURNISHED A SAMPLE, YOU WOULD NOT HAVE BEEN REQUIRED TO FURNISH AN ADDITIONAL SAMPLE, AS YOU STATE YOU WERE ADVISED BY THE DGSC, YOU WERE NOT THEREBY RELIEVED OF COMPLYING WITH THE REQUIREMENTS OF THE IFB, WHICH CALLED FOR, AS A MINIMUM,"SPECIFIC REFERENCES TO INFORMATION PREVIOUSLY FURNISHED.' WE THEREFORE CAN RAISE NO LEGAL OBJECTION TO THE CONTRACTING OFFICER'S CONCLUSION THAT YOUR BID COULD NOT BE ACCEPTED.

WE ARE ADVISED, HOWEVER, THAT THE CONTRACTING OFFICER HAS DECIDED TO MAKE NO AWARD FOR ITEM B UNDER THE SUBJECT INVITATION, BUT WILL READVERTISE UNDER A PURCHASE DESCRIPTION, NOW BEING PREPARED BY THE DIRECTORATE OF TECHNICAL OPERATIONS AT DGSC, WHICH WILL MORE CLEARLY SPECIFY THE GOVERNMENT'S REQUIREMENTS. THIS CONCLUSION WAS REACHED UPON CONSIDERATION OF THE FACTS THAT OF THE FOUR SMALL BUSINESS BIDS RECEIVED ON THE ITEM, ONE OTHER IS SUBJECT TO THE SAME OBJECTION AS YOURS, ONE OFFERS AS ARTICLE WHICH, WHILE KNOWN TO BE SATISFACTORY FOR THE INTENDED USE, IS NOT SHOWN TO MEET THE SPECIFICATION DIMENSIONS, AND ONE IS SUBJECT TO AN ALLEGATION OF ERROR BY THE BIDDER.

IN THE CIRCUMSTANCES, AND SINCE THE "BRAND-NAME" SPECIFICATION IS RECOGNIZED TO BE THE LEAST DESIRABLE FORM OF PROCUREMENT, BEING AUTHORIZED FOR USE ONLY AS A "LAST RESORT" (SEE ASPR 1-1206.1), WE ARE OF THE OPINION THAT THERE IS AMPLE JUSTIFICATION FOR THE ACTION PROPOSED BY THE CONTRACTING OFFICER, THAT IS, TO READVERTISE THE NEED UNDER THE NEW PURCHASE DESCRIPTION WHEN IT BECOMES AVAILABLE.