B-158688, MAY 19, 1966

B-158688: May 19, 1966

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KEESLING AND MARTIN: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 8 AND YOUR LETTER OF MARCH 10. DON LEE'S LOW BID WAS REJECTED BECAUSE IT DID NOT INCLUDE DESCRIPTIVE LITERATURE AS REQUIRED BY PARAGRAPH 4 OF THE "CONTRACT CONDITIONS" IN THE IFB. DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH. (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. THE PROCURING ACTIVITY REPORTS THAT THE REQUIREMENT FOR DESCRIPTIVE LITERATURE WAS ESSENTIAL BECAUSE WITHOUT IT THE ACTIVITY COULD NOT DETERMINE WHAT THE BIDDER WAS OFFERING WITH RESPECT TO THE APPROXIMATE SIZE.

B-158688, MAY 19, 1966

TO ALLAN, MILLER, GROEZINGER, KEESLING AND MARTIN:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 8 AND YOUR LETTER OF MARCH 10, 1966, IN WHICH YOU PROTEST, ON BEHALF OF YOUR CLIENT, DON LEE ELECTRONICS COMPANY, AGAINST THE AWARD OF A CONTRACT BY THE FEDERAL AVIATION AGENCY (FAA) FOR REMOTE CONTROL SYSTEMS AS DESCRIBED BY PERFORMANCE-TYPE SPECIFICATIONS IN INVITATION FOR BIDS (IFB) AL42-6-29.

DON LEE'S LOW BID WAS REJECTED BECAUSE IT DID NOT INCLUDE DESCRIPTIVE LITERATURE AS REQUIRED BY PARAGRAPH 4 OF THE "CONTRACT CONDITIONS" IN THE IFB, WHICH PROVIDES:

"DESCRIPTIVE LITERATURE: (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. DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSE OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCT THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, MATERIALS, COMPONENTS, PERFORMANCE CHARACTERISTICS, METHODS OF MANUFACTURE, CONSTRUCTION, ASSEMBLY, OR OPERATION. (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.'

THE PROCURING ACTIVITY REPORTS THAT THE REQUIREMENT FOR DESCRIPTIVE LITERATURE WAS ESSENTIAL BECAUSE WITHOUT IT THE ACTIVITY COULD NOT DETERMINE WHAT THE BIDDER WAS OFFERING WITH RESPECT TO THE APPROXIMATE SIZE, ASSEMBLY DETAIL, AND POWER REQUIREMENTS OF THE PROPOSED EQUIPMENT, OR WHETHER THE OFFERED EQUIPMENT WOULD MEET THE PERFORMANCE TYPE SPECIFICATIONS. THE ELEMENTS OF SIZE AND POWER REQUIREMENTS WERE NOT INCLUDED IN THE SPECIFICATIONS IN DETAIL BECAUSE THE ACTIVITY DID NOT HAVE SUFFICIENT INFORMATION ABOUT THE EQUIPMENT OF VARIOUS MANUFACTURERS TO DETERMINE IF INCLUSION OF SUCH ELEMENTS IN THE IFB WOULD UNNECESSARILY RESTRICT COMPETITION. IF THE LOW RESPONSIVE BIDDER HAD OFFERED EQUIPMENT WHICH WOULD HAVE OCCUPIED SUCH A SPACE AS TO REQUIRE BUILDING EXPANSION AND/OR POWER PLANT REVISION, THE ACTIVITY REPORTS THE AWARD TO THAT BIDDER WOULD NOT HAVE BEEN MADE AND THE SPECIFICATIONS WOULD HAVE HAD TO HAVE BEEN REWRITTEN.

YOU PROTEST THE AWARD OF THE SUBJECT CONTRACT ON THE GROUNDS THAT (1) DON LEE HAD IN FACT SUBMITTED THE REQUIRED INFORMATION, (2) IF THE GOVERNMENT HAD REQUIRED ADDITIONAL INFORMATION REGARDING DON LEE'S RESPONSIBILITY, IT COULD HAVE REQUESTED THAT INFORMATION AFTER BID OPENING, AND (3) IF THE INFORMATION DON LEE SUBMITTED WAS NOT SUFFICIENT IN DETAIL FOR THE GOVERNMENT'S TECHNICAL EVALUATION, THE IFB WAS DEFECTIVE SINCE IT DID NOT SPECIFY THE NATURE AND EXTENT OF THE REQUESTED DESCRIPTIVE DATA WITH SUFFICIENT PARTICULARITY TO PUT DON LEE ON NOTICE OF WHAT WAS DESIRED. YOU ASSERT THAT SINCE THERE WAS NO VALID REASON TO AWARD THE CONTRACT TO THE SECOND LOW BIDDER, THE CONTRACT SHOULD BE CANCELED AND AN AWARD SHOULD BE MADE TO DON LEE.

WITH RESPECT TO YOUR FIRST ALLEGATION, THE RECORD INDICATES THAT THE ONLY PERTINENT ,INFORMATION" DON LEE SUBMITTED WITH ITS BID WAS (1) THE ALLEGATION THAT IT IS PRESENTLY MANUFACTURING EQUIPMENT FOR THE FAA IN ACCORDANCE WITH SPECIFIC SPECIFICATIONS AND WITH FAA-R-777E "GENERAL SPECIFICATIONS" FOR ELECTRONIC EQUIPMENT, WHICH EQUIPMENT IS SIMILAR TO THAT DESCRIBED IN THE SUBJECT IFB; (2) THE ALLEGATION THAT THE QUALITY OF THE EQUIPMENT ON WHICH IT WAS BIDDING WOULD BE CONSISTENT WITH THE ABOVE- MENTIONED "GENERAL SPECIFICATIONS FAA-R 777E; " (3) AN INSTRUCTION BOOK FOR THE EQUIPMENT SIMILAR TO THAT DESCRIBED IN THE IFB; AND (4) THE ASSURANCE THAT CERTAIN OUTLINE DRAWINGS WERE BEING PREPARED. WHILE THE ABOVE IS "INFORMATION," ITS RELATIONSHIP TO THE DESCRIPTIVE LITERATURE REQUIRED BY THE IFB FOR THIS PROCUREMENT IS OBSCURE. AT BEST, WE BELIEVE YOUR CLIENT'S PASSING REFERENCES TO "FAA-R-777E" WAS THE EQUIVALENT OF A STATEMENT DESCRIBING ELECTRONIC EQUIPMENT GENERALLY, AND WE MUST THEREFORE AGREE WITH THE AGENCY'S CONCLUSION THAT "DON LEE FAILED TO FURNISH ANY DESCRIPTIVE LITERATURE WHATSOEVER" ON THE SPECIFIC EQUIPMENT DESCRIBED IN THE SUBJECT IFB.

YOUR POSITION THAT THE GOVERNMENT COULD HAVE REQUESTED INFORMATION REGARDING DON LEE'S RESPONSIBILITY AFTER BID OPENING APPEARS TO MISS THE MARK, SINCE THE REQUIREMENT FOR DESCRIPTIVE LITERATURE WAS NOT INCLUDED IN THE IFB FOR THE PURPOSE OF ESTABLISHING THE RESPONSIBILITY OF BIDDERS.

THE FAA CONCEDES THAT YOUR THIRD ALLEGATION HAS MERIT, AND INFORMS US THE PROCURING ACTIVITY WILL BE ADVISED THAT IN FUTURE PROCUREMENTS ITS IFBS SHOULD SET FORTH ANY NECESSARY REQUIREMENT FOR DESCRIPTIVE LITERATURE WITH SUCH PARTICULARITY THAT BIDDERS WILL KNOW WHAT LITERATURE AND WHAT DETAIL THEY ARE EXPECTED TO SUPPLY. THE FAA EXPLICITLY RECOGNIZES THAT THE MERE RECITATION IN THE DESCRIPTIVE LITERATURE REQUIREMENT OF THE CATEGORIES OF GENERAL SUBJECTS, WHICH ARE LISTED IN THE FOOTNOTE TO SECTION 1-2.205-5 OF THE FEDERAL PROCUREMENT REGULATIONS AS SUBJECTS WHICH MIGHT REQUIRE DESCRIPTION, IS ORDINARILY NOT SUFFICIENT TO ESTABLISH A COMMON BASIS FOR EVALUATION OF BIDS.

IT IS SETTLED THAT THE GOVERNMENT'S FAILURE TO DEFINE WITH PARTICULARITY THE EXTENT OF DETAIL DESIRED IN THE DESCRIPTIVE LITERATURE BIDDERS ARE REQUIRED TO SUBMIT RENDERS THE IFB DEFECTIVE. 38 COMP. GEN. 59; 42 COMP. GEN. 598. HOWEVER, SUCH A DEFECT IN THE IFB DOES NOT NECESSARILY REQUIRE CANCELLATION OF A CONTRACT AWARDED TO A BIDDER OFFERING EQUIPMENT WHICH MEETS THE NEEDS OF THE PROCURING ACTIVITY. 42 COMP. GEN. 737. IN THE INSTANT CASE, FOR THE REASONS SET FORTH BELOW, WE DO NOT THINK THE SUBJECT CONTRACT SHOULD BE CANCELED.

ONE OF THE PRIMARY EVILS TO BE CURED BY SPELLING OUT DESCRIPTIVE LITERATURE REQUIREMENTS WITH PARTICULARITY ARISES WHERE A LOW BIDDER SUBMITS DATA WHICH HE MAY REASONABLY BELIEVE SATISFIES A BROADLY STATED REQUIREMENT FOR DESCRIPTIVE LITERATURE, BUT WHICH DOES NOT IN FACT PROVIDE THE INFORMATION THE PROCURING ACTIVITY NEEDS TO EVALUATE BIDS. OUR DECISIONS CITED ABOVE HAVE HELD IN THESE CIRCUMSTANCES THAT THE REJECTION OF THE LOW BID MAY BE PREJUDICIAL TO THE LOW BIDDER AND DEPRIVE THE GOVERNMENT OF THE LOWEST PRICE FOR THE ITEM BEING PROCURED. HOWEVER, IN THE INSTANT CASE, YOUR CLIENT DOES NOT APPEAR TO HAVE SUBMITTED ANY INFORMATION WHICH MAY REASONABLY BE REGARDED AS DESCRIPTIVE LITERATURE. THEREFORE, WE MUST ASSUME THAT DON LEE KNEW OR SHOULD HAVE KNOWN IT WAS SUBMITTING A NON-RESPONSIVE BID, AND HOLD THAT DON LEE CANNOT NOW BE HEARD TO SAY IT MISUNDERSTOOD OR WAS MISLED BY THE VAGUELY STATED REQUIREMENT FOR DESCRIPTIVE LITERATURE. AT BEST, YOUR CLIENT MAY HAVE CONSIDERED THE SUBJECT REQUIREMENT TO BE ERRONEOUS, AMBIGUOUS OR IMPOSSIBLE OF ATTAINMENT. IF THIS IS THE CASE, DON LEE'S FAILURE TO POINT THIS OUT TO THE CONTRACTING OFFICER BEFORE BID OPENING MUST BE HELD FATAL TO ITS PROTEST. SEE B-156825, DATED JULY 26, 1965, AND PARAGRAPH 2 OF THE BIDDING INSTRUCTIONS FOR THE INSTANT IFB.

IN VIEW OF THE ABOVE, AND THE ABSENCE OF EVIDENCE ESTABLISHING A PREJUDICIAL EFFECT OF THE DESCRIPTIVE LITERATURE REQUIREMENT ON ONE OR MORE BIDDERS, WE FIND NO BASIS TO QUESTION THE VALIDITY OF THE CONTRACT AS AWARDED, AND ACCORDINGLY, MUST DENY YOUR PROTEST.