B-161506, SEP. 21, 1967

B-161506: Sep 21, 1967

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BIDDER WHO PROTESTS REJECTION OF BID FOR FAILURE TO SUBMIT DESCRIPTIVE LITERATURE WHEN ITEMS APPEARS ON FEDERAL SUPPLY SCHEDULE AND LITERATURE IS ON FILE IN GSA MUST HAVE PROTEST DENIED SINCE THE KNOWLEDGE THAT THE INFORMATION WAS ON FILE WITH GSA MAY NOT BE IMPUTED TO REPRESENTATIVES OF F.D.A. ATTORNEYS AT LAW: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 7. THE SUBJECT INVITATION WAS ISSUED ON MARCH 29. TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE BID OF BAIRD WAS REJECTED AS NONRESPONSIVE BECAUSE OF ITS FAILURE TO SUBMIT DESCRIPTIVE LITERATURE FOR THE RECORDER IT PROPOSED TO FURNISH AND THE CONTRACT WAS AWARDED TO AMERICAN. YOU STATE THAT THE EQUIPMENT OFFERED BY BAIRD WAS EQUAL TO THE BRAND NAME MODEL SPECIFIED AND THAT BAIRD SUBMITTED WITH ITS BID DESCRIPTIVE LITERATURE WHICH ADEQUATELY DESCRIBED THE EQUIPMENT TO CLEARLY SHOW THAT IT WAS EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME EQUIPMENT.

B-161506, SEP. 21, 1967

BIDS - DESCRIPTIVE DATA, ETC. DECISION REGARDING PROTEST OF BAIRD-ATOMIC, INC. (BAIRD) AGAINST AWARD TO AMERICAN INSTRUMENT CO. UNDER INVITATION BY FOOD AND DRUG ADMIN. BIDDER WHO PROTESTS REJECTION OF BID FOR FAILURE TO SUBMIT DESCRIPTIVE LITERATURE WHEN ITEMS APPEARS ON FEDERAL SUPPLY SCHEDULE AND LITERATURE IS ON FILE IN GSA MUST HAVE PROTEST DENIED SINCE THE KNOWLEDGE THAT THE INFORMATION WAS ON FILE WITH GSA MAY NOT BE IMPUTED TO REPRESENTATIVES OF F.D.A. AND THE PURCHASING AGENCY OF SUCH AGENCY SHOULD NOT BE RESPONSIBLE FOR SECURING THE REQUIRED DESCRIPTIVE INFORMATION. THEREFORE, FAILURE OF THE BIDDER TO COMPLY WITH THE DESCRIPTIVE LITERATURE REQUIREMENT REQUIRED REJECTION OF THE BID.

TO GADSBY, MAGUIRE AND HANNAH, ATTORNEYS AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 7, AS SUPPLEMENTED BY YOUR LETTER OF AUGUST 25, 1967, PROTESTING ON BEHALF OF BAIRD-ATOMIC, INC. (BAIRD) AGAINST THE AWARD OF A CONTRACT TO THE AMERICAN INSTRUMENT COMPANY (AMERICAN) UNDER INVITATION FOR BIDS NO. PROC 6744 (B) ISSUED BY THE FOOD AND DRUG ADMINISTRATION (FDA).

THE SUBJECT INVITATION WAS ISSUED ON MARCH 29, 1967, REQUESTING BIDS FOR FURNISHING EQUIPMENT CONSISTING OF A SPECTROPHOTOFLUOROMETER, AMERICAN INSTRUMENT COMPANY MODEL 4-8202, OR EQUAL, WITH X-Y RECORDER AND OTHER ACCESSORIES AND COMPONENTS. PARAGRAPH 1 (C) (1) OF THE SUPPLEMENTAL PROVISIONS OF THE INVITATION REQUIRED BIDDERS OFFERING TO FURNISH AN "EQUAL" PRODUCT TO SUBMIT WITH THEIR BIDS DESCRIPTIVE MATERIAL TO ESTABLISH EXACTLY WHAT THEY PROPOSED TO FURNISH. TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. BAIRD SUBMITTED THE LOW BID IN THE AMOUNT OF $24,923.50 OFFERING TO FURNISH EQUIPMENT EQUAL TO THAT SPECIFIED. AMERICAN OFFERED TO FURNISH THE MODEL SPECIFIED FOR THE AMOUNT OF $26,109. THE BID OF BAIRD WAS REJECTED AS NONRESPONSIVE BECAUSE OF ITS FAILURE TO SUBMIT DESCRIPTIVE LITERATURE FOR THE RECORDER IT PROPOSED TO FURNISH AND THE CONTRACT WAS AWARDED TO AMERICAN.

IN YOUR LETTERS OF JUNE 7 AND AUGUST 25, 1967, YOU STATE THAT THE EQUIPMENT OFFERED BY BAIRD WAS EQUAL TO THE BRAND NAME MODEL SPECIFIED AND THAT BAIRD SUBMITTED WITH ITS BID DESCRIPTIVE LITERATURE WHICH ADEQUATELY DESCRIBED THE EQUIPMENT TO CLEARLY SHOW THAT IT WAS EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME EQUIPMENT. YOU POINT OUT THAT ALTHOUGH BAIRD QUOTED PRICES FOR FURNISHING ITS MODEL HR-195T-2, IT SUBMITTED LITERATURE ON MODEL HR-95T-2 X-Y RECORDER. YOU CONTEND THAT THE EIGHT-PAGE BROCHURE WHICH WAS PROVIDED DESCRIBED THE ESSENTIAL CHARACTERISTICS OF THE RECORDER WHICH WAS BID ON. YOU STATE THAT THE ONLY DIFFERENCE BETWEEN THE TWO RECORDERS IS THAT THE MODEL BID ON USES A TRANSISTOR TUBE RATHER THAN A VACUUM TUBE. IN ADDITION, YOU STATE THAT THE MODEL 195T-2 RECORDER APPEARS ON THE FEDERAL SUPPLY SCHEDULE WHICH HAS BEEN CIRCULATED TO FDA AND COMPLETE DESCRIPTIVE LITERATURE ON THIS MODEL IS ON FILE IN THE GENERAL SERVICES ADMINISTRATION WHICH IS AVAILABLE TO FDA.

YOUR STATEMENT THAT AN EIGHT-PAGE BROCHURE DETAILING THE CHARACTERISTICS OF THE RECORDER BAIRD WAS PROPOSING TO FURNISH WAS SUBMITTED WITH BAIRD'S BID IS DENIED BY THE ADMINISTRATIVE OFFICE. IT IS APPARENT THAT THESE CONFLICTING STATEMENTS CONSTITUTE A DISPUTE BETWEEN YOU AND THE ADMINISTRATIVE AGENCY CONCERNED UPON A QUESTION OF FACT. IN SUCH A CASE IT LONG HAS BEEN THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE REPORT OF THE ADMINISTRATIVE OFFICERS OF THE UNITED STATES IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY. 40 COMP. GEN. 178. FURTHERMORE, IT APPEARS FROM YOUR LETTER OF AUGUST 25, 1967, THAT THE BROCHURE WHICH YOU ALLEGE WAS FURNISHED DESCRIBED MODEL HR-95T-2 X-Y AND NOT THE MODEL WHICH BAIRD OFFERED TO DELIVER. WHILE YOU STATE THE ONLY DIFFERENCE IN THE TWO MODELS IS THE TUBE WHICH IS UTILIZED, THERE IS NOTHING TO INDICATE THAT THE GOVERNMENT REPRESENTATIVES WOULD BE ON NOTICE OF THIS FACT. ALSO, WHILE YOU STATE THAT THE LITERATURE DESCRIBING THE CHARACTERISTICS OF THE MODEL BID UPON BY BAIRD WAS AVAILABLE TO FDA REPRESENTATIVES BECAUSE IT WAS ON FILE IN THE GENERAL SERVICES ADMINISTRATION, IT IS OUR VIEW THAT THIS KNOWLEDGE MAY NOT BE ASCRIBED TO THE REPRESENTATIVES OF FDA. IN THIS CONNECTION, IT IS NOTED THAT BIDDERS WERE PLACED ON NOTICE BY THE PROVISIONS OF PARAGRAPH 1 (C) (1) OF THE SUPPLEMENTAL PROVISIONS OF THE INVITATION THAT THE PURCHASING ACTIVITY WOULD NOT BE RESPONSIBLE FOR LOCATING OR SECURING ANY INFORMATION WHICH WAS NOT IDENTIFIED IN THE BID. WE FIND NOTHING IN THE BID TO INDICATE THAT DESCRIPTIVE LITERATURE OF THE RECORDER BID UPON WAS ON FILE IN THE GSA.

WE HAVE HELD CONSISTENTLY THAT THE FAILURE OF A BIDDER TO COMPLY WITH AN INVITATION REQUIREMENT SPECIFICALLY CALLING FOR DESCRIPTIVE DATA WHICH IS DEEMED MATERIAL AND WHICH WILL BE CONSIDERED IN EVALUATION OF BIDS MAY NOT BE WAIVED AND THE BID MUST BE REJECTED AS BEING NONRESPONSIVE. 37 COMP. GEN. 763, 36 COMP. GEN. 415. IN VIEW THEREOF, AND SINCE BAIRD FAILED TO SUPPLY COMPLETE DESCRIPTIVE LITERATURE WITH ITS BID AS REQUIRED BY THE INVITATION, WE SEE NO LEGAL BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION IN REJECTING ITS BID.