B-161479, SEP. 22, 1967

B-161479: Sep 22, 1967

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LOW BIDDER WHO PROTESTS CANCELLATION OF INVITATION AND READVERTISEMENT FOR DEFICIENT DESCRIPTIVE LITERATURE REQUIREMENTS AND OVERSTATEMENT OF NEEDS ON BASIS THAT DESCRIPTIVE LITERATURE SHOULD NOT HAVE BEEN CONSIDERED IN REJECTION OF ALL BIDS MUST HAVE PROTEST DENIED SINCE PROCUREMENT AGENCY ADVISES THAT AN ACCEPTABLE PRODUCT CANNOT BE PROCURED WITHOUT DESCRIPTIVE LITERATURE AND SINCE MINIMUM NEEDS WERE OVERSTATED REJECTION OF ALL BIDS AND READVERTISEMENT WAS PROPER ACTION TO NATIONAL STEEL PARTITION CO. INC.: REFERENCE IS MADE TO YOUR CORRESPONDENCE DATED MAY 9. THE INVITATION WAS ISSUED ON FEBRUARY 14. BIDS WERE OPENED ON MARCH 21. FOUR BIDS WERE RECEIVED AND YOUR COMPANY WAS THE APPARENT LOW BIDDER.

B-161479, SEP. 22, 1967

BIDS - REJECTION AND READVERTISEMENT - JUSTIFICATION DECISION TO NATIONAL STEEL PARTITION CO., INC., RE CANCELLATION AND READVERTISEMENT OF REQUIREMENTS FOR RELOCATABLE PARTITIONS BY GSA SUPPLY DEPOTS. LOW BIDDER WHO PROTESTS CANCELLATION OF INVITATION AND READVERTISEMENT FOR DEFICIENT DESCRIPTIVE LITERATURE REQUIREMENTS AND OVERSTATEMENT OF NEEDS ON BASIS THAT DESCRIPTIVE LITERATURE SHOULD NOT HAVE BEEN CONSIDERED IN REJECTION OF ALL BIDS MUST HAVE PROTEST DENIED SINCE PROCUREMENT AGENCY ADVISES THAT AN ACCEPTABLE PRODUCT CANNOT BE PROCURED WITHOUT DESCRIPTIVE LITERATURE AND SINCE MINIMUM NEEDS WERE OVERSTATED REJECTION OF ALL BIDS AND READVERTISEMENT WAS PROPER ACTION

TO NATIONAL STEEL PARTITION CO., INC.:

REFERENCE IS MADE TO YOUR CORRESPONDENCE DATED MAY 9, MAY 16, AND AUGUST 25, 1967, PROTESTING AGAINST THE ACTION OF THE GENERAL SERVICES ADMINISTRATION (GSA), FEDERAL SUPPLY SERVICE, NEW YORK, NEW YORK, IN REJECTING ALL BIDS RECEIVED IN RESPONSE TO INVITATION FOR BIDS NO. NY 1JN0 -097760. YOU REQUEST THAT THE BID REJECTION ACTION BE RESCINDED AND THAT FURTHER CONSIDERATION BE GIVEN THE BID OF YOUR COMPANY.

THE INVITATION COVERED REQUIREMENTS FOR RELOCATABLE PARTITIONS FOR GSA SUPPLY DEPOTS IN REGION 2, FOR THE PERIOD FROM THE DATE OF AWARD THROUGH APRIL 30, 1968. THE INVITATION WAS ISSUED ON FEBRUARY 14, 1967, AND, IN ACCORDANCE WITH THE TERMS OF AMENDMENT NO. 1, BIDS WERE OPENED ON MARCH 21, 1967.

FOUR BIDS WERE RECEIVED AND YOUR COMPANY WAS THE APPARENT LOW BIDDER. LETTER OF MARCH 22, 1967, EQUIPT-ALL PRODUCTS CO., INC., ADVISED GSA THAT THE SOUND CERTIFICATION INCLUDED IN YOUR BID DID NOT CONFORM TO PRESENT DAY REQUIREMENTS AND THAT YOUR COMPANY WAS NOT FINANCIALLY ABLE TO PERFORM THE RESULTING CONTRACT. THE LETTER ALSO ALLEGED THAT THE TEST SUBMITTED BY MANNING STEEL PARTITIONS, INC., DID NOT CONFORM TO SPECIFICATIONS. LETTER DATED MARCH 30, 1967, YOU WERE ADVISED BY GSA THAT ALL BIDS, TEST REPORTS, PLANS AND SPECIFICATIONS, AND BROCHURES, HAD BEEN REFERRED TO THE ENGINEERING STAFF OF THE PUBLIC BUILDINGS SERVICE (PBS) FOR A DETERMINATION AS TO WHETHER ALL BIDDERS' PRODUCTS FULLY COMPLIED WITH THE SPECIFICATIONS CONTAINED IN THE INVITATION.

BASED ON A TECHNICAL STUDY MADE BY PBS OF ALL BIDS FOR COMPLIANCE WITH THE SPECIFICATIONS, IT WAS DETERMINED THAT NONE OF THE BIDS DEMONSTRATED COMPLETE COMPLIANCE WITH SPECIFICATION REQUIREMENTS. THAT STUDY ADVISED THAT NATIONAL'S TEST REPORT WHICH WAS SUBMITTED IN RESPONSE TO THE INVITATION WAS UNACCEPTABLE; THAT VIRGINIA METAL PRODUCTS COMPANY WAS THE ONLY BIDDER FURNISHING DETAILS OF PERIMETER SOUND GASKETING, AND THAT EQUIPT-ALL WAS THE ONLY BIDDER OFFERING 18 GAUGE STEEL IN THE DOOR PANELS AS REQUIRED BY THE SPECIFICATIONS.-

SUBSEQUENTLY, ALL OF THE BIDDERS WERE ADVISED THAT NONE OF THE BIDS RECEIVED FULLY COMPLIED WITH THE SPECIFICATIONS; THAT NO AWARD WOULD BE MADE, AND THAT THE REQUIREMENT WOULD BE READVERTISED.

YOU CONTEND THAT YOUR BID WAS REJECTED BECAUSE OF TWO MINOR TECHNICALITIES; ONE INVOLVED THE SOUND TEST REQUIREMENT CONTAINED IN PARAGRAPH 4-1 D OF THE SPECIFICATIONS, AND THE OTHER INVOLVED THE GAUGE OF THE STEEL TO BE USED IN THE DOOR PANEL. IT IS ALSO YOUR OPINION THAT THE INVITATION REQUIREMENT FOR DESCRIPTIVE LITERATURE, WHICH DID NOT CONFORM TO PROCUREMENT PROCEDURES, SHOULD NOT HAVE BEEN CONSIDERED A FACTOR IN REJECTING ALL BIDS.

WE ARE ADVISED THAT THE DESCRIPTIVE DATA REQUIREMENTS OF THE INVITATION SET FORTH IN PARAGRAPHS 4-1 C AND 4-1 P DID NOT COMPLY WITH FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.202-5 REGARDING DESCRIPTIVE LITERATURE. FOR EXAMPLE, THE DESCRIPTIVE LITERATURE REQUIREMENTS OF THE INVITATION DO NOT CLEARLY DESCRIBE THE DATA TO BE FURNISHED, THE PURPOSE FOR WHICH THE LITERATURE IS REQUIRED, THE EXTENT TO WHICH IT WOULD BE CONSIDERED IN THE EVALUATION OF THE BIDS, OR THE RULES WHICH WOULD APPLY IF THE BIDDER FAILED TO FURNISH THE LITERATURE BEFORE BID OPENING OR IF THE LITERATURE FURNISHED DID NOT COMPLY WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS. FURTHERMORE, PARAGRAPH 4-1 D OF THE SPECIFICATIONS, REGARDING THE CERTIFICATION RELATIVE TO SOUND CONTROL REQUIREMENTS, WAS NOT CLEAR AND DEFINITE IN THAT IT FAILED TO SPECIFY WHEN THE CERTIFICATION WAS TO BE SUBMITTED OR WHETHER THE BID WOULD BE REJECTED IF THE CERTIFICATION INDICATED THE SOUND TRANSMISSION CLASS (STC) TO BE LESS THAN 40. WE ARE ADVISED, IN THIS PARTICULAR CASE, THAT AN ACCEPTABLE PRODUCT CANNOT BE PROCURED WITHOUT DETAILED DESCRIPTIVE LITERATURE. HOWEVER, THE DESCRIPTIVE LITERATURE CLAUSE UTILIZED WAS DEFECTIVE FOR THE REASONS STATED ABOVE. IN THIS CIRCUMSTANCE, WE HAVE HELD THAT NO PROPER AWARD MAY BE MADE WHERE BIDDERS ARE NOT FULLY APPRISED OF THE CONSEQUENCES FOR FAILURE TO COMPLY WITH THE DESCRIPTIVE LITERATURE CLAUSE WHICH WAS ALSO DEFICIENT AS TO THE DETAILED INFORMATION REQUIRED. SEE 42 COMP. GEN. 598; 46 ID. 1.

YOU STATE THAT YOUR STANDARD BROCHURE, WHICH WAS ENCLOSED WITH YOUR BID, INDICATED THE USE OF 20 GAUGE STEEL IN THE DOOR PANELS ALTHOUGH THE SPECIFICATIONS REQUIRED THE DOOR PANELS TO BE MANUFACTURED FROM 18 GAUGE STEEL. YOU EXPLAIN THAT THROUGH AN OVERSIGHT, YOU FAILED TO QUALIFY YOUR BROCHURE TO INDICATE THAT YOU INTENDED TO SUPPLY 18 GAUGE STEEL AS REQUIRED, BUT THAT YOU FULLY INTENDED TO COMPLY WITH THE SPECIFICATIONS IN ALL RESPECTS. IT IS YOUR VIEW THAT THE DIFFERENCE IN COST BETWEEN 18 GAUGE STEEL AND 20 GAUGE STEEL IS LESS THAN $1 PER DOOR FOR AN AGGREGATE TOTAL OF 1/4 OF 1 PERCENT OF THE TOTAL BID. IN RELATION TO THE AMOUNT OF THE BID (IN EXCESS OF $200,000), YOU BELIEVE THAT THIS DIFFERENCE WAS INSIGNIFICANT. HOWEVER, AN AWARD TO YOUR COMPANY BASED UPON THE BID YOU SUBMITTED WOULD HAVE RESULTED IN A CONTRACT FOR SOMETHING OTHER THAN SPECIFIED IN THE INVITATION. THIS RESULT IS PATENTLY INCONSISTENT WITH AND CONTRARY TO THE FORMAL COMPETITIVE SYSTEM. SEE 38 COMP. GEN. 59. MOREOVER, THE EXPLANATION WHICH YOU OFFER COULD NOT BE CONSIDERED IN OVERCOMING THE VARIANCE IN THE DESCRIPTIVE LITERATURE YOU SUBMITTED WHICH INDICATED THE USE OF NONSPECIFICATION 20 GAUGE STEEL. UNLESS BIDS ARE EVALUATED SOLELY ON THE BASIS OF THEIR CONTENT AT THE TIME OF BID OPENING, THE COMPETITIVE BID SYSTEM WOULD LOSE ITS INTEGRITY BECAUSE, CONTRARY TO THE PURPOSES OF THE ADVERTISING STATUTES, THE EFFECT WOULD BE THAT BIDS COULD BE VARIED AFTER OPENING AND PRIOR TO AWARD. 40 COMP. GEN. 132. THE RECORD BEFORE US ESTABLISHES ALSO THAT THE INVITATION FOR BIDS OVERSTATED THE MINIMUM NEEDS OF THE GOVERNMENT IN REGARD TO THE GAUGE OF STEEL.

IT HAS CONSISTENTLY BEEN HELD THAT AN INVITATION FOR BIDS DOES NOT IMPORT ANY OBLIGATION ON THE GOVERNMENT TO ACCEPT ONE OF THE OFFERS RECEIVED, AND THAT ALL BIDS MAY BE REJECTED WHERE IT IS DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO DO SO. 37 COMP. GEN. 760, 761. SEE, ALSO, 41 U.S.C. 253 (B), AND THE INVITATION BIDDING INSTRUCTIONS, TERMS AND CONDITIONS. FURTHERMORE, FPR 1-2.404-1 (B) (4) SPECIFICALLY PROVIDES THAT AN INVITATION MAY BE CANCELED AFTER OPENING OF BIDS WHEN THE "BIDS RECEIVED INDICATE THAT THE NEEDS OF THE GOVERNMENT CAN BE SATISFIED BY A LESS EXPENSIVE ARTICLE DIFFERING FROM THAT ON WHICH THE BIDS WERE INVITED.' THEREFORE, WHEN IT IS DETERMINED THAT AN INVITATION FOR BIDS CONTAINS A SPECIFICATION WHICH EITHER OVERSTATES, OR MAY REASONABLY BE CONSTRUED TO OVERSTATE, ITS MINIMUM NEEDS, THE BEST INTEREST OF THE GOVERNMENT REQUIRES THE CANCELLATION OF THE INVITATION.

BASED ON THE FOREGOING, AND SINCE THE AUTHORITY VESTED IN THE CONTRACTING OFFICER TO REJECT ALL BIDS IS EXTREMELY BROAD, OUR OFFICE WILL NOT UNDERTAKE TO QUESTION THE ACTION TAKEN. THIS IS ESPECIALLY TRUE HERE WHERE THE GOVERNMENT'S MINIMUM NEEDS WERE OVERSTATED AND THE DESCRIPTIVE LITERATURE PROVISIONS OF THE INVITATION WERE DEFICIENT OR OTHERWISE NOT IN CONFORMANCE WITH THE PROCUREMENT REGULATIONS.

WE ARE AWARE THAT THE REJECTION OF BIDS AFTER OPENING AND EACH BIDDER HAS LEARNED HIS COMPETITORS' PRICE IS A SERIOUS MATTER AND SHOULD NOT BE PERMITTED EXCEPT FOR COGENT REASONS. NEVERTHELESS, WE HAVE RECOGNIZED THAT THE REJECTION OF ALL BIDS NOT ONLY IS PROPER BUT REQUIRED UNDER CIRCUMSTANCES SIMILAR TO THOSE CONSIDERED HERE. SEE 38 COMP. GEN. 300; AND 39 ID. 86; 41 ID. 76; ID. 565; ID. 593.