B-161779, AUG. 7, 1967

B-161779: Aug 7, 1967

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THEREFORE EVEN IF PRODUCT WAS PROPERLY IDENTIFIED. CONTRACTING OFFICER FOUND THAT NUMBER OF PRODUCT FURNISHED AFTER OPENING WAS NOT INCLUDED IN THE QUALIFIED PRODUCTS LIST FOR THIS PROCUREMENT. INC.: REFERENCE IS MADE TO YOUR LETTERS OF JUNE 10. ON PAGE THREE THE SOLICITATION INCORPORATED BY REFERENCE VARIOUS CLAUSES LISTED IN THE "DEFENSE INDUSTRIAL SUPPLY CENTER CLAUSE BOOK" AND "SUPPLEMENT NUMBER TWO CLAUSES" WHICH WERE THEN IDENTIFIED BY NUMBER AND TITLE. ONLY THOSE PROVISIONS WHICH WERE PRECEDED BY AN "X" WERE TO BE INCORPORATED INTO THE CONTRACT. OFFERORS WERE ADVISED THAT CLAUSES PRECEDED BY AN X" AND AN ASTERISK CONTAINED SPACES FOR APPROPRIATE COMPLETIONS. THE FOLLOWING WARNING WAS INSERTED ON PAGE THREE OF THE INVITATION IMMEDIATELY PRECEDING THE LISTING OF THE CLAUSES: "IN MANY INSTANCES.

B-161779, AUG. 7, 1967

BIDS - QUALIFIED - PRODUCTS DECISION TO NEW YORK FLUORESCENT MFG. CO., INC., WHO PROTESTS AGAINST AWARD BY DEFENSE INDUSTRIAL SUPPLY CENTER FOR PROCUREMENT OF RADIO CABLE. BIDDER WHO FAILED TO IDENTIFY QUALIFIED PRODUCT OFFERED IN SOME WAY HAS SUBMITTED A BID WITH A MATERIAL DEVIATION REQUIRING REJECTION AND TO PERMIT BIDDER TO MAKE BID RESPONSIVE BY ADDING IDENTIFICATION WOULD BE TANTAMOUNT TO PERMITTING BIDDER TO SUBMIT NEW BID. THEREFORE EVEN IF PRODUCT WAS PROPERLY IDENTIFIED, CONTRACTING OFFICER FOUND THAT NUMBER OF PRODUCT FURNISHED AFTER OPENING WAS NOT INCLUDED IN THE QUALIFIED PRODUCTS LIST FOR THIS PROCUREMENT, HENCE PROTEST MUST BE DENIED.

TO MR. S. DENMARK, NEW YORK FLUORESCENT MANUFACTURING COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 10, 1967, AND JUNE 24, 1967, IN WHICH YOU PROTEST AGAINST THE AWARD OF A CONTRACT MADE BY THE DEFENSE INDUSTRIAL SUPPLY CENTER UNDER IFB NO. DSA-500-67-B5223. ISSUED ON MARCH 27, 1967, THE SOLICITATION REQUESTED BIDS ON A TOTAL OF 6,000 FEET OF CABLE, RADIO, FREQUENCY, IN ACCORDANCE WITH SPECIFICATION MIL-C-17D AS AMENDED BY AMENDMENT NO. 1 DATED SEPTEMBER 14, 1964, SPECIFICATION SHEET MIL-C 17/42A DATED FEBRUARY 28, 1958, TYPE RG 87A/U, TO BE DELIVERED IN QUANTITIES OF 2,000 FEET EACH TO THREE DESTINATIONS. ON PAGE THREE THE SOLICITATION INCORPORATED BY REFERENCE VARIOUS CLAUSES LISTED IN THE "DEFENSE INDUSTRIAL SUPPLY CENTER CLAUSE BOOK" AND "SUPPLEMENT NUMBER TWO CLAUSES" WHICH WERE THEN IDENTIFIED BY NUMBER AND TITLE, AND IN SOME INSTANCES SET FORTH IN MODIFIED FORM, ON THE FOLLOWING EIGHT PAGES OF THE INVITATION. ONLY THOSE PROVISIONS WHICH WERE PRECEDED BY AN "X" WERE TO BE INCORPORATED INTO THE CONTRACT. IN ADDITION, OFFERORS WERE ADVISED THAT CLAUSES PRECEDED BY AN X" AND AN ASTERISK CONTAINED SPACES FOR APPROPRIATE COMPLETIONS. THE FOLLOWING WARNING WAS INSERTED ON PAGE THREE OF THE INVITATION IMMEDIATELY PRECEDING THE LISTING OF THE CLAUSES:

"IN MANY INSTANCES, FAILURE OF THE OFFEROR TO PROPERLY COMPLETE OR TO FURNISH THE REQUIRED INFORMATION PRIOR TO THE TIME SET FOR OPENING OF OFFERS WILL RENDER THE OFFER NONRESPONSIVE.'

ON PAGE SEVEN THE NOTICE QUALIFIED END PRODUCTS CLAUSE 1-/A/1107.2 WAS INCORPORATED AND INDICATED SPACES FOR COMPLETIONS AS FOLLOWS:

"/X) *1-/A/1107.2 NOTICE QUALIFIED END PRODUCTS (JAN. 1965/S

AWARDS FOR ANY END ITEMS WHICH ARE REQUIRED TO BE

QUALIFIED PRODUCTS WILL BE MADE ONLY WHEN SUCH

ITEMS HAVE BEEN TESTED AND HAVE QUALIFIED FOR INCLUSION

IN A QUALIFIED PRODUCTS LIST IDENTIFIED BELOW

(WHETHER OR NOT ACTUALLY INCLUDED IN THE LIST)

BEFORE THE TIME SET FOR OPENING OF BIDS, OR THE

TIME OF AWARD IN THE CASE OF NEGOTIATED CONTRACTS

. . . THE OFFEROR SHALL INSERT THE ITEM NAME AND THE TEST

NUMBER (IF KNOWN) OF EACH QUALIFIED PRODUCT IN THE

BLANK SPACES BELOW: ITEM NAME -------------- TEST

NO. ---------------- --------------

---------------- ITEM NO. QUALIFIED PRODUCTS

QUALIFICATION ------- LIST NO.

OFFICE ------------------

------------- 1, 2, 3 MIL-C-17U.S.

ARMY ELECTRONICS

COMMAND FT. MONMOUTH,

N.J.'

ALTERATION NO. 10, LISTED ON PAGE ELEVEN OF THE SOLICITATION, MODIFIED CLAUSE 1-/A/1107.2 BY PROVIDING AS FOLLOWS:

"10. IF CLAUSE 1-/A/1107.2, -NOTICE QUALIFIED END PRODUCTS (JAN 1965/-S, HAS BEEN MADE APPLICABLE TO THIS SOLICITATION, DELETE THE WORD -HAVE- IN THE SECOND LINE BETWEEN THE WORDS -AND- AND -QUALIFIED- AND THE WORD - BEFORE- IN THE THIRD LINE AND INSERT THE WORDS -ARE- AND -AT- RESPECTIVELY IN THEIR PLACES. CHANGE THE DATE OF THE CLAUSE TO (DEC 1965). NOTE ALSO THAT THIS CLAUSE PROVIDES THAT ANY BID WHICH DOES NOT IDENTIFY THE QUALIFIED PRODUCT BEING OFFERED EITHER IN THE CLAUSE OR ELSEWHERE IN THE BID WILL BE REJECTED.'

BECAUSE OF YOUR FAILURE TO INDICATE THE IDENTITY OF THE QUALIFIED PRODUCT YOU OFFERED, EITHER BY INSERTING THE ITEM NAME AND TEST NUMBER UNDER CLAUSE 1-/A/1107.2 OR BY LISTING THE PLACE OF PERFORMANCE, NAME OF THE MANUFACTURER OR THE SHIPPING POINT OF THE QUALIFIED PRODUCT ELSEWHERE IN YOUR BID, THE CONTRACTING OFFICER COULD NOT DETERMINE AT BID OPENING THAT YOU WERE OFFERING A QUALIFIED PRODUCT IN ACCORD WITH THE INVITATION, AND HE THEREFORE DECLARED YOUR OFFER NONRESPONSIVE. YOU CONTEND THAT YOUR OFFER WAS REJECTED BECAUSE OF FAILURE TO INSERT THE ,INSIGNIFICANT QPL NUMBER" AND THAT YOU SHOULD HAVE BEEN GIVEN A CHANCE TO CORRECT THE OMISSION AFTER BID OPENING.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1107.1/A) PROVIDES THAT WHENEVER QUALIFIED PRODUCTS ARE TO BE PROCURED BY THE GOVERNMENT, ONLY BIDS OR PROPOSALS OFFERING PRODUCTS WHICH ARE QUALIFIED PRIOR TO THE OPENING OF BIDS OR AWARD OF NEGOTIATED CONTRACTS SHALL BE CONSIDERED IN MAKING AWARDS. ASPR 1-1107.2/A) REQUIRES THE USE OF APPROPRIATE LANGUAGE IN THE PROCUREMENT SOLICITATION TO GIVE EFFECT TO ASPR 1-1107.1/A), WHICH IS ACCOMPLISHED BY CLAUSE 1-/A/1107.2 IN THE INSTANT SOLICITATION. SINCE THESE REGULATIONS ARE ISSUED PURSUANT TO THE ARMED SERVICES PROCUREMENT ACT, 10 U.S.C. 2301, ET SEQ., THEY HAVE THE FORCE OF LAW AND ARE BINDING NOT ONLY UPON BIDDERS BUT ALSO UPON THE HEAD OF THE PROCURING AGENCY AND SUBSIDIARY OFFICERS. PAUL V. UNITED STATES, 371 U.S. 245. IN LIGHT OF THE LEGAL EFFECT OF THE CITED REGULATIONS A BIDDER'S FAILURE TO INDICATE THE IDENTITY OF HIS QUALIFIED PRODUCT IN SOME WAY SO AS TO PERMIT THE GOVERNMENT TO DETERMINE THAT HIS PRODUCT IS QUALIFIED, MUST BE CONSIDERED A MATERIAL OMISSION RENDERING HIS OFFER NONRESPONSIVE.

IN DETERMINING WHETHER A BID SUFFICIENTLY IDENTIFIES A QUALIFIED PRODUCT WE ARE MINDFUL THAT WE HAVE CRITICIZED CERTAIN PRACTICES ADOPTED IN THE ADMINISTRATION OF QUALIFIED PRODUCTS PROCUREMENTS WHICH RESTRICTED COMPETITION UNNECESSARILY. SEE 38 COMP. GEN. 357; 40 COMP. GEN. 348. CONSEQUENTLY, IN ORDER TO PREVENT A FURTHER, UNNECESSARY RESTRICTION OF COMPETITION BY ADOPTING UNIFORM REQUIREMENTS AS TO WHAT CONSTITUTES SUFFICIENT PRODUCT IDENTIFICATION, WE HAVE PROCEEDED ON AN AD HOC BASIS IN RESOLVING THIS QUESTION. FOR EXAMPLE, WE HAVE HELD THAT THE MERE FAILURE OF A BIDDER TO LIST THE TEST NUMBER OF HIS QUALIFIED PRODUCT DOES NOT NECESSARILY RENDER HIS BID NONRESPONSIVE IF HE HAS INCLUDED THE PLACE OF MANUFACTURE OF HIS OFFERED PRODUCT SO AS TO ALLOW THE CONTRACTING OFFICER TO DETERMINE THE PRODUCT WAS QUALIFIED. 45 COMP. GEN. 397. WHERE IDENTIFICATION OF THE PRODUCT IN THE ITEM NAME BLANK OF THE QUALIFIED PRODUCTS CLAUSE WOULD HAVE MEANT MERE REPETITION OF THE DESCRIPTION OF THE PRODUCT AS DETAILED IN THE INVITATION, A BID WAS NOT RENDERED NONRESPONSIVE BECAUSE IT FAILED TO CONTAIN THE ITEM NAME AND TEST NUMBER OF THE OFFERED PRODUCT. B 158197, APRIL 5, 1966. HOWEVER, IN THAT CASE, AS DISTINGUISHED FROM THE FACTS OF THE INSTANT ONE, THE BIDDER WAS A MANUFACTURER DETAILED ON THE APPROPRIATE QUALIFIED PRODUCTS LIST AS OFFERING A QUALIFIED PRODUCT IDENTICAL TO THE ONE DESCRIBED IN THE INVITATION. IN SUMMARY, YOU WERE FOUND NONRESPONSIVE BECAUSE OF YOUR FAILURE TO COMPLY WITH A MATERIAL PROVISION OF THE INVITATION BY NEGLECTING TO FURNISH SOME INDICATION IN YOUR BID AS TO THE IDENTITY OF THE QUALIFIED PRODUCT BEING OFFERED AND NOT MERELY BECAUSE OF YOUR FAILURE TO LIST THE TEST NUMBER IN CLAUSE 1-/A/1107.2. YOU COULD HAVE SATISFIED THIS REQUIREMENT BY LISTING THE PLACE OF MANUFACTURE OR THE NAME OF THE CORPORATION MANUFACTURING THE QUALIFIED PRODUCT ELSEWHERE IN YOUR BID. UNDER THESE CIRCUMSTANCES WE HAVE NO CHOICE OTHER THAN TO UPHOLD THE ADMINISTRATIVE DETERMINATION THAT YOUR BID WAS NONRESPONSIVE.

REFERRING TO YOUR CONTENTION THAT YOU SHOULD HAVE BEEN ALLOWED TO SUPPLY THE IDENTITY OF THE QUALIFIED PRODUCT AFTER BID OPENING, PLEASE BE ADVISED THAT A NONRESPONSIVE BID MAY NOT BE CONSIDERED FOR CORRECTION REGARDLESS OF THE CIRCUMSTANCES. 38 COMP. GEN. 819; B 147436, FEBRUARY 23, 1962. NONRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PART OF THE BID ON THE BASIS OF AN ERROR ALLEGED AFTER THE OPENING OF BIDS WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID, THEREBY UNDERMINING THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM.

WHILE THE FOREGOING PRESENTS ADEQUATE JUSTIFICATION FOR REJECTION OF YOUR BID, EVEN IF IT IS ASSUMED THAT YOUR PRODUCT WAS PROPERLY QUALIFIED, THE CONTRACTING ACTIVITY ADVISES THAT EXAMINATION OF THE QUALIFIED PRODUCTS LIST WHICH IS APPLICABLE TO THIS PROCUREMENT DOES NOT INDICATE THAT NO. QUD 3-59-962, MARCH 19, 1959 (WHICH YOUR LETTER OF JUNE 3, 1967, INDICATED WAS THE NUMBER YOU WOULD HAVE FURNISHED IN YOUR BID OR THEREAFTER IF REQUESTED), IS INCLUDED IN THE LIST.

UNDER THE CIRCUMSTANCES WE SEE NO VALID BASIS ON WHICH WE COULD DISAGREE WITH THE ACTION OF THE PROCURING AGENCY IN REJECTING YOUR BID, AND YOUR PROTEST MUST THEREFORE BE DENIED.