B-160378, JAN. 11, 1967

B-160378: Jan 11, 1967

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TO WESTINGHOUSE ELECTRIC CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 7. FOUR BIDS WERE RECEIVED AND OPENED ON OCTOBER 1. SYLVANIA WAS THE NEXT LOW BIDDER AT $448. AWARD WAS MADE TO SHIBADEN ON NOVEMBER 4. THIS PARAGRAPH WAS AMENDED SEPTEMBER 23. BY INVITATION AMENDMENT NO. 1 TO DELETE THE LAST SENTENCE AND ADD THE FOLLOWING: "ANNEX IX (WHICH WAS ATTACHED TO THE SPECIFICATION) LISTS THE MINIMUM ACCEPTABLE PREVENTIVE MAINTENANCE REQUIRED OF THE SUCCESSFUL BIDDER.'. BIDDERS WERE ADVISED IN THE INVITATION WITH PARTICULAR REFERENCE TO THE SPECIFICATION THAT: "BIDDERS ARE CAUTIONED TO CAREFULLY REVIEW THE ATTACHED SPECIFICATION POD -C-282A (RE). SINCE NUMEROUS CHANGES HAVE BEEN MADE SUBSEQUENT TO THE EARLIER ADVERTISEMENT.

B-160378, JAN. 11, 1967

TO WESTINGHOUSE ELECTRIC CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 7, 1966, WITH ENCLOSURES, IN WHICH YOU PROTEST AGAINST ANY AWARD BY THE POST OFFICE DEPARTMENT TO THE SHIBADEN CORPORATION OF AMERICA OR SYLVANIA ELECTRIC PRODUCTS, INCORPORATED, UNDER INVITATION FOR BIDS NO. 1073.

THE INVITATION DATED SEPTEMBER 8, 1966, SOLICITED BIDS FOR 25 CLOSED CIRCUIT TELEVISION SYSTEMS IN 18 LOCATIONS THROUGHOUT THE COUNTRY. FOUR BIDS WERE RECEIVED AND OPENED ON OCTOBER 1, 1966.

WESTINGHOUSE SUBMITTED A BID OF $483,492 AND SHIBADEN OFFERED TO FURNISH THE SYSTEMS FOR $416,565. SYLVANIA WAS THE NEXT LOW BIDDER AT $448,750. AWARD WAS MADE TO SHIBADEN ON NOVEMBER 4, 1966, AS THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION. YOUR PROTEST CONCERNS THE FAILURE OF THE TWO LOW BIDDERS TO SUBMIT DETAILED DESCRIPTIONS OF THEIR PROPOSED PREVENTIVE MAINTENANCE PROGRAM WITH THEIR BIDS.

THE INVITATION SPECIFICATION POD-C-282A (RE) DATED AUGUST 2, 1966, PROVIDED, IN PARAGRAPH 3.13, MAINTENANCE, AS FOLLOWS:

"THE CONTRACTOR, OR AN AUTHORIZED RESPONSIBLE FIRM ACTING AS HIS AGENT, SHALL PERFORM ALL PREVENTIVE MAINTENANCE, BREAKDOWN MAINTENANCE, AND REPAIRS FOR A PERIOD OF ONE (1) YEAR FOLLOWING ACCEPTANCE OF EACH CLOSED CIRCUIT TELEVISION SYSTEM, TO ASSURE OPTIMUM OPERATION OF THE SYSTEMS AT ALL TIMES. REPAIRS SHALL BE MADE WITHIN TWENTY-FOUR (24) HOURS AFTER NOTIFICATION BY THE POST OFFICE FACILITY. THIS SHALL INCLUDE ALL PARTS, LABOR, TRAVEL, AND SUBSISTENCE REQUIRED. THE REQUIRED MAINTENANCE PROGRAM FOR THE ONE YEAR PERIOD FOLLOWING ACCEPTANCE, SHALL BE DESCRIBED IN DETAIL BY EACH BIDDER, AND SUBMITTED WITH HIS BID. THE COST OF THE MAINTENANCE PROGRAM SHALL BE SHOWN AS A SEPARATE PART OF THE BID, AND NOT INCLUDED IN THE EQUIPMENT OR INSTALLATION COST.' HOWEVER, THIS PARAGRAPH WAS AMENDED SEPTEMBER 23, 1966, BY INVITATION AMENDMENT NO. 1 TO DELETE THE LAST SENTENCE AND ADD THE FOLLOWING:

"ANNEX IX (WHICH WAS ATTACHED TO THE SPECIFICATION) LISTS THE MINIMUM ACCEPTABLE PREVENTIVE MAINTENANCE REQUIRED OF THE SUCCESSFUL BIDDER.'

ALSO, BIDDERS WERE ADVISED IN THE INVITATION WITH PARTICULAR REFERENCE TO THE SPECIFICATION THAT:

"BIDDERS ARE CAUTIONED TO CAREFULLY REVIEW THE ATTACHED SPECIFICATION POD -C-282A (RE), DATED AUGUST 2, 1966, SINCE NUMEROUS CHANGES HAVE BEEN MADE SUBSEQUENT TO THE EARLIER ADVERTISEMENT. THE EARLIER REQUIREMENT FOR BID DATA OR DESCRIPTIVE LITERATURE HAS BEEN DELETED AND BIDDER SHALL MAKE CERTAIN THAT THE SYSTEM WHICH THEY PROPOSE TO FURNISH MEETS THE REQUIREMENTS OF THIS INVITATION IN ALL RESPECTS.'

WESTINGHOUSE SUBMITTED WITH ITS BID A "MAINTENANCE PROGRAM PER ANNEXIV," AS TO WHICH THE POST OFFICE ADVISES MERELY "PARROTS" THE EXACT WORDS INCLUDED IN ANNEX IV OF THE INVITATION. IT IS YOUR CONTENTION THAT THE FAILURE OF SHIBADEN OR SYLVANIA TO SUBMIT SIMILAR DATA RENDERED THEIR BIDS NONRESPONSIVE. IN SUPPORT THEREOF, YOU ADVISED:

"WE BELIEVE THAT IT SHOULD BE NOTED THAT THIS IS NOT A CASE WHERE THE TWO LOW BIDDERS HAVE MERELY FAILED TO FURNISH CERTAIN REQUIRED DESCRIPTIVE DATA. IT IS, RATHER, A CASE WHERE NEITHER OF THEM HAS FULFILLED THE BASIC REQUIREMENT OF DESCRIBING WHAT IT WILL FURNISH. PAGE 3 OF THE INVITATION, ITSELF, INDICATES UNDER ITEM 1 THAT BIDDERS ARE REQUIRED TO "FURNISH, INSTALL, MAINTAIN .... AND TO PERFORM BUILDING MODIFICATIONS" FOR THE REQUIRED SYSTEM. THUS, THE MAINTENANCE PROGRAM WHICH THE TWO LOW BIDDERS HAVE FAILED TO DESCRIBE AS REQUIRED BY THE INVITATION IS A BASIC REQUIREMENT OF THE CONTRACT TO THE SAME EXTENT AS ARE THE CLOSED CIRCUIT TELEVISION SYSTEMS THEMSELVES.'

YOU CITE THREE OF OUR DECISIONS--- 36 COMP. GEN. 415, 40 ID. 132, 43 ID. 707--- IN SUPPORT OF YOUR POSITION.

IN THIS RESPECT, THE AGENCY ADVISES AS FOLLOWS:

"AFTER THE BIDS WERE OPENED IT BECAME APPARENT THAT THE REQUIREMENT FOR BIDDERS TO FURNISH A DETAILED DESCRIPTION OF THE MAINTENANCE PROGRAM WITH THE BID SHOULD HAVE BEEN DELETED AT THE TIME AMENDMENT I WAS ISSUED. THE INVITATION DID NOT PROVIDE INFORMATION TO THE BIDDER OF WHAT DETAIL WAS REQUIRED, THE PURPOSE FOR WHICH IT WAS REQUIRED, OR THE EXTENT TO WHICH IT WOULD BE CONSIDERED IN THE EVALUATION OF THE BID. SEE FPR 1-2.202.5 (C). NOT ONLY WAS THE BIDDER NOT ADVISED THAT THE DETAIL WOULD BE CONSIDERED IN THE EVALUATION OF THE BID, BUT TO THE CONTRARY, THE NOTE ON PAGE 1 ADVISED THE BIDDER THAT BID DATA OR DESCRIPTIVE LITERATURE HAD BEEN DELETED. ANNEX IV REPRESENTS A DETAILED AND COMPLETE REQUIREMENT FOR PREVENTIVE MAINTENANCE AND THE DEPARTMENT HAS NO NEED FOR MAINTENANCE IN EXCESS OF WHAT IS DETAILED. ANY BID OFFERING PREVENTIVE MAINTENANCE IN ADDITION TO THAT REQUIRED BY ANNEX IV WOULD NOT HAVE BEEN ENTITLED TO PREFERENTIAL CONSIDERATION ON THIS ACCOUNT.'

"THE SEPARATE PRICES FOR MAINTENANCE REQUIRED BY THE INVITATION WERE FOR INFORMATION PURPOSES ONLY, AS STATED IN THE BID. THE BID WAS EVALUATED ON THE BASIS OF THE TOTAL PRICE BID ON PAGE 3. THE SUCCESSFUL BID OF $416,565 WAS APPROXIMATELY 7 PERCENT LESS THAN THE NEXT LOW BID OF $448,750 SUBMITTED BY THE SYLVANIA ELECTRIC PRODUCTION, INC., NOT CONSIDERING THE DISCOUNT. THE SURVEY TEAM WHICH REVIEWED THE FACILITIES OF SHIBADEN AND CONSIDERED ITS OVERALL CAPABILITY TO PERFORM, DISCUSSED THE MAINTENANCE REQUIREMENTS IN DETAIL WITH CORPORATE MANAGEMENT AND FOUND A SUFFICIENT AWARENESS OF THESE CONTRACT REQUIREMENTS.'

ON THE MATTER OF DESCRIPTIVE DATA REQUIREMENTS, THE ABOVE-CITED PROCUREMENT REGULATIONS ROVIDE:

"/B) POLICY. BIDDERS SHALL NOT BE REQUIRED TO FURNISH DESCRIPTIVE LITERATURE AS A PART OF THEIR BIDS UNLESS THE CONTRACTING AGENCY DEEMS THAT SUCH LITERATURE IS NEEDED TO ENABLE IT TO DETERMINE BEFORE AWARD WHETHER THE PRODUCTS OFFERED MEET THE SPECIFICATION REQUIREMENTS OF THE INVITATION FOR BIDS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH. IT MAY BE APPROPRIATE TO REQUIRE DESCRIPTIVE LITERATURE IN THE PROCUREMENT OF HIGHLY TECHNICAL OR SPECIALIZED EQUIPMENT OR WHERE CONSIDERATIONS SUCH AS DESIGN OR STYLE ARE IMPORTANT IN DETERMINING ACCEPTABILITY OF THE PRODUCT.

"/C) JUSTIFICATION. THE REASONS WHY ACCEPTABLE PRODUCTS CANNOT BE PROCURED WITHOUT THE SUBMISSION OF DESCRIPTIVE LITERATURE SHALL BE SET FORTH AND FILED IN THE CASE FILE, EXCEPT WHERE SUCH SUBMISSION IS REQUIRED BY THE FORMAL SPECIFICATIONS (FEDERAL, MILITARY, DEPARTMENTAL, ETC.) APPLICABLE TO THE PROCUREMENT.

"/D) REQUIREMENTS OF INVITATION FOR BIDS. WHEN DESCRIPTIVE LITERATURE IS REQUIRED, THE INVITATION FOR BIDS SHALL CLEARLY STATE WHAT DESCRIPTIVE LITERATURE IS TO BE FURNISHED, THE PURPOSE FOR WHICH IT IS REQUIRED, THE EXTENT TO WHICH IT WILL BE CONSIDERED IN THE EVALUATION OF BIDS, AND THE RULES WHICH WILL APPLY IF A BIDDER FAILS TO FURNISH IT BEFORE BID OPENING OR IF THE LITERATURE FURNISHED DOES NOT COMPLY WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS. * * *" THE REGULATORY PROVISIONS RESPECTING THE INCLUSION OF DESCRIPTIVE DATA REQUIREMENTS IN INVITATIONS FOR BIDS WERE NOT MET IN THE INSTANT CASE ESPECIALLY SINCE THE MANDATORY DESCRIPTIVE LITERATURE CLAUSE WAS NOT INCLUDED IN THE INVITATION.

IN B-158505, JULY 1, 1966, 46 COMP. GEN. ----, WE HELD IN PERTINENT PART:

"MOREOVER, IT IS DIFFICULT TO UNDERSTAND WHY DESCRIPTIVE LITERATURE WAS CONSIDERED NECESSARY SINCE THE SPECIFICATIONS OF THE EQUIPMENT BEING PROCURED ARE STATED IN SUCH DETAIL THAT THEY LEAVE NOTHING FOR THE BIDDER TO DESCRIBE IN THE WAY OF PERFORMANCE CHARACTERISTICS, AND FURNISH NO STANDARDS FOR EVALUATION OF DESIGN, MATERIALS OR COMPONENTS EXCEPT TO THE EXTENT THAT SUCH ELEMENTS ARE SPECIFICALLY PRESCRIBED IN THE SPECIFICATIONS. THAT THIS CLAUSE WAS NOT JUSTIFIED IS CONFIRMED BY THE STATEMENT IN THE LETTER FROM THE DEPUTY COMMANDER, PURCHASING, NAVAL SUPPLY SYSTEMS COMMAND, THAT "TECHNICAL PERSONNEL AT THE PURCHASING ACTIVITY HAVE REVIEWED THE SPECIFICATIONS AND DETERMINED THAT DESCRIPTIVE LITERATURE SHOULD NOT HAVE BEEN A REQUIREMENT OF THIS INVITATION FOR BIDS.' * * *" WE CONCLUDED IN THAT CASE THAT THE DESCRIPTIVE DATA CLAUSE WAS IMPROPERLY INCLUDED IN THE INVITATION.

IN B-159579, JULY 20, 1966, WE CRITICIZED THE INCLUSION OF A DATA FURNISHING REQUIREMENT AS FOLLOWS:

"THE ADMINISTRATIVE FILE FURNISHED IN THIS CASE DOES NOT INCLUDE ANY MEMORANDUM JUSTIFYING INCLUSION OF THE REQUIREMENT IN THE SUBJECT INVITATION. THE SPECIFICATIONS OF THE EQUIPMENT BEING PROCURED APPEAR TO BE STATED IN SUCH DETAIL AS TO "THE NATURE AND CAPABILITIES OF THE EQUIPMENT OFFERED" THAT THEY LEAVE ALMOST NOTHING FOR THE BIDDER TO DESCRIBE IN THOSE RESPECTS, AND FURNISH NO STANDARDS FOR EVALUATION OF DESIGN, MATERIALS OR COMPONENTS EXCEPT TO THE EXTENT THAT SUCH ELEMENTS ARE SPECIFICALLY PRESCRIBED IN THE SPECIFICATIONS. NOTHING IN THE RECORD INDICATES THAT THE ARTICLES CALLED FOR BY THE SPECIFICATIONS ARE OF SUCH A NOVEL, COMPLEX, OR UNUSUAL CHARACTER AS TO LEAVE ROOM FOR DOUBT AS TO WHETHER THEY COULD BE PRODUCED BY A COMPETENT AND EXPERIENCED MANUFACTURER OF ARTICLES OF THE SAME GENERAL NATURE. EVEN IF IT WERE SHOWN THAT AN ACCEPTABLE PRODUCT COULD NOT BE PROCURED WITHOUT DESCRIPTIVE LITERATURE, A REQUIREMENT FOR SUCH LITERATURE SHOULD ADVISE BIDDERS WITH PARTICULARITY BOTH AS TO THE EXTENT OF THE DETAIL REQUIRED AND THE PURPOSE IT IS EXPECTED TO SERVE. 38 COMP. GEN. 59; 42 ID. 598; FPR 1-2.202-5 (D). ORDER FOR EACH BIDDER TO BE ON AN EQUAL BASIS IN SUPPLYING DESCRIPTIVE LITERATURE, IT IS ESSENTIAL THAT THE NEED FOR SUCH LITERATURE BE SET FORTH IN THE INVITATION IN THE GREATEST DETAIL PRACTICAL. THE MERE STATEMENT THAT THE BIDS SHALL INCLUDE "SUFFICIENT TECHNICAL DATA, DESCRIPTIVE MATERIAL AND DRAWINGS TO CLEARLY INDICATE THE NATURE AND CAPABILITIES OF THE EQUIPMENT" IS NOT SUFFICIENT TO MEET THIS REQUIREMENT WHERE, AS IN THIS INSTANCE, THOSE CHARACTERISTICS ARE CLEARLY AND DEFINITELY STATED IN THE SPECIFICATIONS.'

ESPECIALLY PERTINENT HERE IS WHAT WE STATED IN B-159434, OCTOBER 14, 1966, 46 COMP. GEN. ----:

"IF THE REQUIREMENT FOR DESCRIPTIVE LITERATURE CAN BE MET BY PARROTING BACK THE GOVERNMENT SPECIFICATIONS, THE LEGITIMACY OF THAT REQUIREMENT IS QUESTIONABLE. B-150622, DATED JUNE 6, 63.'

WE RECOGNIZE THAT THE CASES CITED BY YOU STAND FOR THE PROPOSITION THAT DESCRIPTIVE INFORMATION MAY BE REQUIRED TO BE FURNISHED BY BIDDERS AS A MATERIAL REQUIREMENT OF THE INVITATION, AND THAT THE FAILURE TO COMPLY WITH THAT REQUIREMENT IS A BASIS FOR REJECTION WHERE THE SUBMISSION OF SUCH DATA WAS NECESSARY AND PROPER FOR BID EVALUATION PURPOSES. IN THE INSTANT CASE, MAINTENANCE PROGRAM INFORMATION WAS NOT ESSENTIAL TO THE EVALUATION OF BIDS, AND IT WOULD HAVE BEEN IMPROPER FOR THE AGENCY TO DISREGARD OTHERWISE PROPER BIDS SOLELY ON THE BASIS OF DESCRIPTIVE LITERATURE DEFICIENCY. 42 COMP. GEN. 598.

IT IS ALSO YOUR CONTENTION THAT THE IMPORTANCE OF THE PREVENTIVE MAINTENANCE PROGRAM TO THE ENTIRE PROCUREMENT DISTINGUISHES THIS CASE FROM THE USUAL DESCRIPTIVE DATA CASES. HOWEVER, THE POSITION OF THE AGENCY, QUOTED ABOVE, THAT THE PREVENTIVE MAINTENANCE PROGRAM WAS SPECIFICALLY COVERED IN DETAIL BY THE SPECIFICATION SUFFICIENTLY DISPOSES OF THIS POINT.

SINCE THE DESCRIPTIVE DATA WAS NOT ESSENTIAL TO THE PROPER EVALUATION OF THE BIDS, THE FAILURE TO INCLUDE SUCH DATA WITH OTHERWISE RESPONSIVE BIDS WOULD NOT HAVE RENDERED THE BIDS NONRESPONSIVE TO THE SPECIFICATION ADVERTISED. THEREFORE, THE POST OFFICE DEPARTMENT PROPERLY CONSIDERED THE BIDS OF SHIBADEN AND SYLVANIA FOR AWARD.

ACCORDINGLY, AND SINCE AWARD MADE TO THE SHIBADEN CORPORATION OF AMERICA IS NOT LEGALLY ..END :