B-160395, DEC. 22, 1966

B-160395, DEC. 22, 1966

TO C AND M INDUSTRIAL ASSOCIATES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 7 AND 21, 1966, PROTESTING ON BEHALF OF ALVEY-FERGUSON OPERATIONS, HEWITT-ROBINS INCORPORATED, AGAINST THE REJECTION OF ITS LOW BID SUBMITTED IN RESPONSE TO NAVY INVITATION FOR BIDS NO. N00600-67-B-0078, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., ON JULY 26, 1966.

THE INVITATION REQUESTED BIDS, IN ACCORDANCE WITH DETAILED SPECIFICATIONS, FOR SERVICES, LABOR AND MATERIALS NECESSARY TO FURNISH AND INSTALL AN AUTOMATED MATERIALS HANDLING SYSTEM IN BUILDINGS NOS. 11 AND 12 AT THE NAVAL SUPPLY CENTER, SAN DIEGO, CALIFORNIA. THE INVITATION CONTAINED THE STANDARD "REQUIREMENT FOR DESCRIPTIVE LITERATURE" CLAUSE PRESCRIBED BY ASPR 2-202.5 (D), AND PROVIDED AS FOLLOWS:

"/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. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, COMPONENTS, PERFORMANCE CHARACTERISTICS AND 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 PROVISION FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.'

FIVE BIDS WERE RECEIVED AND OPENED AT 10:30 A.M., E.D.S.T., SEPTEMBER 30, 1966, WITH THE FOLLOWING RESULT:

BID 1. ALVEY-FERGUSON OPERATIONS, HEWITT-ROBINS INCORPORATED, $660,000, WITH 1-PERCENT DISCOUNT, 20 DAYS. BID PRICE AFTER EVALUATION $654,390.

BID 2. C. F. BUTZ ENGINEERING $933.925, NO DISCOUNT.

BID 3. AUTOMATIC SYSTEMS DIVISION, FRUEHAUF CORP., $909,836, NO DISCOUNT.

BID 4. THE RAPIDS-STANDARD COMPANY, INC., $743,393, NO DISCOUNT, WITH VOLUNTARY REDUCTION OF $44,393. REVISED BID PRICE: $699,000.

BID 5. JERVIS B. WEBB CO. OF CALIFORNIA $669,605, NO DISCOUNT.

THE BIDS WERE TECHNICALLY EVALUATED BY THE WAREHOUSE OPERATIONS AND MATERIAL HANDLING SYSTEMS DIVISION, NAVAL SUPPLY SYSTEMS COMMAND, AND, BASED UPON SUCH TECHNICAL EVALUATION, IT WAS DETERMINED THAT THE BIDS OF BOTH ALVEY-FERGUSON AND JERVIS B. WEBB WERE NONRESPONSIVE TO THE ADVERTISED SPECIFICATIONS. WE ARE ADVISED BY THE CONTRACTING AGENCY THAT THE PRIMARY DEFICIENCY, IN BOTH BIDS WAS THE FAILURE OF THEIR DESCRIPTIVE LITERATURE TO DEMONSTRATE THAT THE OFFERED ACCUMULATOR CONVEYORS WOULD NOT EXCEED 25 POUNDS OF LIVE PRESSURE AS REQUIRED IN SPECIFICATION STANDARD 1090002. THE DETAILS OF THE DEVIATIONS APPEARING IN ALVEY-FERGUSON'S DESCRIPTIVE LITERATURE ARE FULLY SET OUT IN THE REPORT OF TECHNICAL EVALUATION. IN VIEW OF THE TECHNICAL CHARACTER OF THE REPORT, WE ARE NOT COMPETENT TO REVIEW ITS FINDINGS. WE WILL THEREFORE REGARD THE REPORT AS CONCLUSIVE INSOFAR AS IT AFFECTS THE RESPONSIVENESS OF THE BID AS SUBMITTED. THERE CAN BE LITTLE QUESTION THAT THE DESCRIPTIVE LITERATURE CLAUSE CLEARLY WARNED BIDDERS THAT THE FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS WOULD REQUIRE REJECTION OF THE BID. THE PURPOSE OF THIS REQUIREMENT WAS TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH AND WHETHER THE PRODUCT DESCRIBED IN THE LITERATURE WOULD MEET THE DESIGN AND PERFORMANCE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS. THIS REQUIREMENT WAS NOT MET BY ALVEY FERGUSON AND, UNDER THIS PLAIN LANGUAGE OF THE CLAUSE, ITS BID WAS NONRESPONSIVE AND INELIGIBILE FOR AWARD UNDER THE INVITATION. COMP. GEN. 376; ID. 415. WHILE YOU CONTEND THAT ALL BIDS SHOULD HAVE BEEN REJECTED WITH PERHAPS THE EXCEPTION OF C. F. BUTZ, THE PROCUREMENT AGENCY DETERMINED THAT BIDDERS OTHER THAN ALVEY-FERGUSON AND JERVIS B. WEBB WERE RESPONSIVE TO THE ADVERTISED REQUIREMENTS. WE FIND NO BASIS IN THE RECORD TO DISPUTE SUCH FINDINGS.

WHETHER THE BID OF RAPIDS-STANDARD CONFORMS TO THE ADVERTISED SPECIFICATIONS WAS A MATTER PRIMARILY FOR DETERMINATION BY THE PROCUREMENT ACTIVITY WHICH, AFTER EVALUATION BY TECHNICAL PERSONNEL, CONCLUDED THAT ITS BID WAS FULLY RESPONSIVE. UNDER WELL-ESTABLISHED PRINCIPLES, THIS DETERMINATION WILL NOT BE DISTURBED ON THE BASIS OF YOUR PRESENTATION. COMP. GEN. 554.

YOUR PROTEST CONCERNING THE PRICE REDUCTION OFFERED BY RAPIDS STANDARD IN THAT THE CONTRACTING OFFICER WAS "NEGOTIATING" FOR A PRICE REDUCTION OF ITS BID PRICE IS NOT WELL FOUNDED. THE RAPIDS-STANDARD REPRESENTATIVE TELEPHONED THE BUYER ON OCTOBER 31, 1966, STATING THAT HE COULD OFFER A PRICE REDUCTION OF $44,393 FROM THE BID PRICE. THIS WAS CONFIRMED BY LETTER DATED THE SAME DAY. THIS LATER MODIFICATION TO THE OTHERWISE ACCEPTABLE BID, OFFERING TERMS MORE FAVORABLE TO THE GOVERNMENT, WAS ACCEPTED AS PROVIDED FOR IN ASPR 2-305 SINCE RAPIDS STANDARD WAS THE LOWEST RESPONSIVE BIDDER. IF THE GOVERNMENT ELECTS TO CONSIDER A MODIFICATION RECEIVED FROM A LOW BIDDER AFTER BID OPENING, THE LOW BIDDER CANNOT THEREAFTER COMPLAIN NOR CAN THE OTHER BIDDERS, BECAUSE THEIR RELATIVE STANDINGS ARE NOT AFFECTED. THERE IS NO VALID REASON WHY A LOW BIDDER CANNOT VOLUNTARILY DECREASE THE AMOUNT OF HIS BID. 40 COMP. GEN. 466, 468; ALECK LEITMAN V. UNITED STATES, 104 CT.CL. 324.

THEREFORE, AND SINCE THERE IS NO EVIDENCE BEFORE US THAT THE ADMINISTRATIVE ACTIONS TAKEN IN THIS CASE WERE ARBITRARY OR CAPRICIOUS, WE MAY NOT OBJECT TO AN AWARD OF A CONTRACT TO THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION.