B-159434, OCT. 14, 1966

B-159434, OCT. 14, 1966

TO THE SECRETARY OF THE ARMY:

ENCLOSED IS A COPY OF OUR DECISION OF TODAY ON THE REJECTION OF A BID OF AGAC-DERRITRON, INCORPORATED, AS NONRESPONSIVE TO IFB (A) AMC/R) 29-040-66 -585.

ALTHOUGH WE HAVE DENIED THE PROTEST, WE HAVE ALSO POINTED TO SEVERAL DEFICIENCIES WHICH SHOULD BE AVOIDED IN FUTURE PROCUREMENTS. IN ADDITION, WE BELIEVE SOME COMMENT IS REQUIRED WITH RESPECT TO THE OPINION OF THE TECHNICAL REVIEW AUTHORITIES AT U.S. ARMY TEST AND EVALUATION COMMAND, THAT AGAC'S BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE TO THE "REQUIREMENT FOR A TECHNICAL SUMMARY" CLAUSE IN THE IFB. THIS OPINION WAS GROUNDED ON THE BELIEF THAT THE LETTER, ACCOMPANYING AGAC'S BID, WHICH WAS SUBMITTED TO DESCRIBE THE CHARACTERISTICS OF THE ITEM IT OFFERED, REPRESENTED A ,TECHNICAL SUMMARY" WHICH DID NOT ADEQUATELY SHOW HOW AGAC WOULD COMPLY WITH CERTAIN PURCHASE DESCRIPTION REQUIREMENTS.

A REQUIREMENT FOR DATA ON HOW A BIDDER WILL PERFORM (EVEN WHERE THE DATA IS RELATED TO THE CHARACTER, DESIGN OR PERFORMANCE OF THE ITEM) WOULD APPEAR TO SERVE THE PURPOSE OF PROVIDING AN INSIGHT INTO THE BIDDER'S UNDERSTANDING OF COMPLEX SPECIFICATIONS, AND OF FORESTALLING AWARDS TO IMPRUDENT BIDDERS WHO ARE NOT INFORMED AS TO THE TRUE CAPACITY REQUIRED OF THE CONTRACTOR. B-152000, DATED SEPTEMBER 12, 1963; 41 COMP. GEN. 755. NEVERTHELESS, HOWEVER WORTHY A REQUIREMENT FOR SUCH DATA MAY BE, IT CLEARLY DOES NOT APPEAR TO HAVE BEEN INCLUDED IN THE IFB FOR THE PURPOSE OF OBTAINING DATA TO DECIDE PRECISELY WHAT THE BIDDER PROPOSED TO FURNISH AND WHETHER IT WAS RESPONSIVE TO STATED REQUIREMENTS. ON THE CONTRARY, THE PURPOSE IS PATENTLY ONE FOR DETERMINING WHETHER A BIDDER KNOWS HOW, I.E., HAS THE ABILITY TO, MANUFACTURE AN ITEM WHICH MEETS PERFORMANCE REQUIREMENTS, AND THUS IS RELATED TO SUCH MATTERS AS THE BIDDER'S TECHNICAL CAPABILITIES, KNOW HOW AND SKILLS. SEE ASPR 1-903. CONSEQUENTLY, THE REQUIREMENT FOR THE "TECHNICAL SUMMARY" IS RELATED TO ESTABLISHING A BIDDER'SRESPONSIBILITY, AND TO THE EXTENT THE DATA IS SO USED, CANNOT PROVIDE A BASIS FOR REJECTING A BID AS NONRESPONSIVE. SEE 42 COMP. GEN. 464; B-150622, DATED JUNE 6, 1963.

THE INSTANT "REQUIREMENT FOR DESCRIPTIVE LITERATURE" CLAUSE REQUIRES ONLY SUCH LITERATURE AS SPECIFIED IN THE IFB, BUT "DESCRIPTIVE LITERATURE" AS SUCH IS NOT ELSEWHERE SPECIFIED. ALTHOUGH THE ONLY OTHER REQUIREMENT FOR DESCRIPTIVE DATA OR INFORMATION IS THE ONE FOR THE "TECHNICAL SUMMARY," WHICH IS RELATED TO ESTABLISHING A BIDDER'S RESPONSIBILITY, THE DEFINITION OF ,DESCRIPTIVE LITERATURE" IN ASPR 2 202.5 EXCLUDES DATA FURNISHED IN CONNECTION WITH THE RESPONSIBILITY OF BIDDERS. IN VIEW OF THE DEFINITION OF " DESCRIPTIVE LITERATURE," AND SINCE THE CLAUSES APPEAR TO HAVE DIFFERENT PURPOSES, WE CONCLUDE THAT YOUR AGENCY INTENDED EACH OF THEM TO BE SELF-EXECUTING AND TO OPERATE INDEPENDENTLY OF THE OTHER.

AGAC SUBMITTED A FIVE PAGE LETTER TO DESCRIBE THE CHARACTERISTICS OF ITS PRODUCT, BUT DID NOT SPECIFICALLY DESIGNATE SUCH LETTER EITHER AS "DESCRIPTIVE LITERATURE" OR AS A "TECHNICAL SUMMARY.' THE CONTRACTING OFFICER TOOK THE INFORMATION IN THE LETTER AS DESCRIPTIVE LITERATURE, AND USED IT TO DETERMINE THE RESPONSIVENESS OF THE BID. THE PROPRIETY OF SUCH USE, ALTHOUGH SUBJECT TO SOME QUESTION SINCE TECHNICALLY THE IFB DID NOT SPECIFY ANY "LITERATURE" TO BE FURNISHED, HAS BEEN IMPLICITLY UPHELD IN OUR DECISION OF TODAY. THE BASIS FOR UPHOLDING ITS USE FOR DETERMINING RESPONSIVENESS IS THAT THE "JUSTIFICATION FOR DESCRIPTIVE LITERATURE" CLEARLY ESTABLISHED THE ACTIVITY'S INTENT TO USE THE INFORMATION FOR THAT PURPOSE (ALTHOUGH IT DID NOT ESTABLISH THE LEGITIMACY OF THE ACTIVITY'S NEED FOR SUCH INFORMATION), AND THAT AGAC DID IN FACT SUBMIT THE INFORMATION WITH ITS BID FOR THE STATED PURPOSE OF DESCRIBING IN DETAIL WHAT IT WAS OFFERING.

THE TECHNICAL REVIEW AUTHORITIES APPARENTLY TOOK THE SAME INFORMATION IN AGAC'S LETTER AS A ,TECHNICAL SUMMARY," AND USED IT AS AN AID IN DETERMINING THAT THE BIDDER WAS NOT RESPONSIBLE, E., THAT THE BIDDER HAD NOT INDICATED HOW IT WOULD COMPLY WITH STATED REQUIREMENTS. ALTHOUGH WE THINK THE IFB SHOULD HAVE MORE CLEARLY INDICATED WHAT USES WOULD BE MADE OF THE INFORMATION SUBMITTED BY BIDDERS, WE FIND NOTHING DISQUIETING IN THE FACT THAT THE INFORMATION SUBMITTED BY AGAC WAS USED FOR DUAL PURPOSES. WHAT IS DISQUIETING IS THAT THE TECHNICAL REVIEWING AUTHORITIES WOULD NOT HAVE GIVEN AGAC AN OPPORTUNITY AFTER BID OPENING TO DISCUSS HOW THAT FIRM INTENDED TO COMPLY WITH THOSE STATED REQUIREMENTS TO WHICH IT TOOK NO EXCEPTION, SIMPLY BECAUSE THE IFB STATED IN EFFECT THAT A BID WOULD BE CONSIDERED NONRESPONSIVE IF ITS "TECHNICAL SUMMARY" FAILED TO COVER THE MATTER. THIS POSITION IS INCONSISTENT WITH THE VIEW OF OUR OFFICE THAT EVEN IN CASES WHERE BIDDERS ARE WARNED THAT FAILURE TO SUPPLY DESCRIPTIVE DATA WITH THEIR BIDS WILL RESULT IN REJECTION OF SUCH BIDS, THE DATA, IF USED TO DETERMINE THE RESPONSIBILITY OF THE BIDDER RATHER THAN THE RESPONSIVENESS OF THE BID, MAY BE CHANGED OR PROVIDED SUBSEQUENT TO BID OPENING WITHOUT PREJUDICE TO CONSIDERATION OF THE BID. 39 COMP. GEN. 655, AND CASES CITED THEREIN. ALSO, SEE 41 COMP. GEN. 107.

IF A BID AND ITS ACCOMPANYING DESCRIPTIVE LITERATURE CANNOT BE SAID TO TAKE SPECIFIC EXCEPTION TO ANY REQUIREMENT STATED IN THE IFB, DOUBTS CREATED BY INFORMATION IN THE LITERATURE OR OTHER DATA AS TO WHETHER THE BIDDER IN FACT HAS THE KNOW-HOW TO BUILD A CONFORMING ITEM WHICH MEETS PERFORMANCE REQUIREMENTS, SHOULD BE RESOLVED BY DISCUSSION WITH THE BIDDER OR BY A PRE-AWARD SURVEY. IF THE DOUBTS REMAIN, AND THERE IS A REASONABLE BASIS FOR SUCH DOUBTS, THE BIDDER MAY BE REJECTED AS NOT RESPONSIBLE FOR THE PARTICULAR PROCUREMENT. HOWEVER, WE THINK IT IS UNFAIR TO BIDDERS AND CONTRARY TO LAW TO REJECT A BID AS NONRESPONSIVE WHERE NEITHER THE BID NOR THE DESCRIPTIVE INFORMATION ACCOMPANYING IT SHOWS AN INTENTION TO SUPPLY AN ITEM WHICH DOES NOT CONFORM TO STATED REQUIREMENTS. A BID MUST BE REJECTED AS NONRESPONSIVE ONLY IF IT, OR THE DESCRIPTIVE INFORMATION WHICH ACCOMPANIES IT AND WHICH IS SHOWN TO HAVE BEEN REQUIRED FOR THE PURPOSE OF DESCRIBING EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH, AFFIRMATIVELY SHOWS AN INTENTION NOT TO CONFORM TO THE IFB. WE THEREFORE SUGGEST CONSIDERATION BE GIVEN TO SUCH STEPS AS MAY BE NECESSARY TO ASSURE PROPER REQUIREMENTS FOR DESCRIPTIVE LITERATURE, AND PROPER EVALUATION OF SUCH LITERATURE, IN FUTURE PROCUREMENTS.

RETURNED HEREWITH IS THE ADMINISTRATIVE FILE WHICH WAS SUBMITTED IN CONNECTION WITH THE PROTEST UNDER A COVER LETTER DATED AUGUST 26, 1966, FROM THE ACTING DIRECTOR OF PROCUREMENT AND PRODUCTION, HEADQUARTERS, U.S. ARMY MATERIEL COMMAND.