B-161868, SEP. 21, 1967

B-161868: Sep 21, 1967

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LOW BIDDER WHO DID NOT INCLUDE A CERTIFICATE OF COMPLIANCE AND ULTRAVIOLET TRANSMISSION REPORT WITH BID FOR SUNBURN PREVENTATIVE BUT WHO UNDER THE INVITATION WAS REQUIRED TO DELIVER ITEM USING ONLY INGREDIENTS AND AMOUNT SPECIFIED AND THAT MEETS ULTRAVIOLET TRANSMISSION REQUIREMENTS WAS NOT IMPROPERLY CONSIDERED SINCE REQUIRED DATA COULD ONLY BE USED FOR DETERMINATION OF ABILITY OF BIDDERS TO COMPLY WITH REQUIREMENTS AND REJECTION WOULD HAVE BEEN IMPROPER. TO LABRUM AND DOAK: FURTHER REFERENCE IS MADE TO A TELEGRAM DATED JUNE 23. YOUR PROTEST IS MADE PRIMARILY ON THE GROUND THAT OCTAGON PROCESS. YOU THEREFORE CONTEND ITS BID WAS RENDERED NONRESPONSIVE. ACCORDINGLY YOU BELIEVE SEABOARD IS THE LOWEST RESPONSIVE BIDDER.

B-161868, SEP. 21, 1967

BIDS - DESCRIPTIVE DATA, ETC. DECISION CONCERNING PROTEST BY SEABOARD MANUFACTURING LABORATORIES, INC., TO AWARD TO OCTAGON PROCESS, INC., FOR SUNBURN PREVENTATIVE BY DEFENSE SUPPLY AGENCY, RICHMOND. LOW BIDDER WHO DID NOT INCLUDE A CERTIFICATE OF COMPLIANCE AND ULTRAVIOLET TRANSMISSION REPORT WITH BID FOR SUNBURN PREVENTATIVE BUT WHO UNDER THE INVITATION WAS REQUIRED TO DELIVER ITEM USING ONLY INGREDIENTS AND AMOUNT SPECIFIED AND THAT MEETS ULTRAVIOLET TRANSMISSION REQUIREMENTS WAS NOT IMPROPERLY CONSIDERED SINCE REQUIRED DATA COULD ONLY BE USED FOR DETERMINATION OF ABILITY OF BIDDERS TO COMPLY WITH REQUIREMENTS AND REJECTION WOULD HAVE BEEN IMPROPER.

TO LABRUM AND DOAK:

FURTHER REFERENCE IS MADE TO A TELEGRAM DATED JUNE 23, 1967, AND TO YOUR SUBSEQUENT CORRESPONDENCE ON BEHALF OF SEABOARD MANUFACTURING LABORATORIES, INC., PROTESTING AWARD OF A CONTRACT TO ANY FIRM NOT COMPLYING WITH THE DATA REQUIREMENTS LISTED IN THE SPECIFICATION UNDER INVITATION FOR BIDS NO. DSA-400-67-B-7798, ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, DEFENSE SUPPLY AGENCY, RICHMOND, VIRGINIA.

THE IFB REQUESTED BIDS FOR A QUANTITY OF 2-OUNCE CANS OF SUNBURN PREVENTIVE PREPARATION IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-S 11262C, DATED JANUARY 30, 1967. THE IFB ALSO RESTRICTED THE PROCUREMENT TO SMALL BUSINESS CONCERNS.

YOUR PROTEST IS MADE PRIMARILY ON THE GROUND THAT OCTAGON PROCESS, INC., THE LOW BIDDER, FAILED TO SUBMIT WITH ITS BID CERTAIN DATA REQUIRED BY THE INVITATION, AND YOU THEREFORE CONTEND ITS BID WAS RENDERED NONRESPONSIVE. ACCORDINGLY YOU BELIEVE SEABOARD IS THE LOWEST RESPONSIVE BIDDER, AND THAT IT SHOULD BE AWARDED A CONTRACT UNDER THIS INVITATION.

THE PERTINENT PARAGRAPHS OF THE REFERENCED SPECIFICATION WHICH ARE FOR CONSIDERATION HERE ARE AS FOLLOWS:

"6.3 APPROVED SUNSCREENING COMPOUNDS.- APPROVAL OF SUNSCREENING COMPOUNDS AND MAXIMUM AMOUNT FOR USE UNDER THIS SPECIFICATION IS THE RESPONSIBILITY OF THE U.S. ARMY NATICK LABORATORIES, NATICK, MASSACHUSETTS, AND IS BASED ON TESTS, INCLUDING THOSE FOR TOXICITY, WHICH ARE NOT SET FORTH IN THIS SPECIFICATION. THE SURGEON GENERAL WILL ACT AS ADVISOR TO U.S. ARMY NATICK LABORATORIES, NATICK, MASSACHUSETTS, ON QUESTIONS RELATIVE TO TOXICITY EVALUATION. BECAUSE OF THE TIME NECESSARY TO CONDUCT FULL EVALUATIONS, ONLY THOSE SUNSCREENING COMPOUNDS APPROVED AND SO LISTED IN THE INVITATION FOR BIDS OR REQUEST FOR PROPOSALS SHALL BE CONSIDERED ACCEPTABLE FOR THE RELATED PROCUREMENT.

"6.4 ULTRAVIOLET TRANSMISSION REPORT.- EACH BIDDER SHALL FURNISH AN ULTRAVIOLET TRANSMISSION REPORT ON THE SUNSCREENING PREVENTIVE PREPARATION WHICH IS TO BE SUPPLIED. THIS REPORT IS IN ADDITION TO THE CERTIFICATE OF COMPLIANCE SHOWING COMPOSITION OF THE FINISHED ITEM FORMULATION INCLUDING THE SUNSCREENING AGENT. CONSIDERATION FOR AWARD WILL BE GIVEN ONLY TO THOSE FURNISHING AN ULTRAVIOLET TRANSMISSION REPORT SHOWING COMPLIANCE WITH THE REQUIREMENTS OF 3.8 OF THIS SPECIFICATION AND A CERTIFICATE OF COMPLIANCE IDENTIFYING THE SUNSCREENING COMPOUND AND THE AMOUNT IN THE MATERIAL TO BE APPLIED.'

IN YOUR LETTER DATED JUNE 26, 1967, YOU HAVE STATED THAT:

"FAILURE TO COMPLY WITH THIS REQUIREMENT DENIES THE CONTRACTING AGENCY THE MOST CRUCIAL DATA CONCERNING THE CHARACTER OF THE PRODUCT WHICH THE BIDDER PROPOSES TO FURNISH. IT THEREFORE RENDERS THE BID NONRESPONSIVE.

"THE IMPORTANCE OF THIS REQUIREMENT IS OBVIOUS--IT FILLS THE CONTRACTING OFFICER'S NEED TO KNOW, BEFORE AWARD, THAT EACH BID HE EVALUATES IS IN FACT A COMMITMENT BY THE BIDDER TO SUPPLY MATERIAL WHICH WILL ACTUALLY MEET THE SPECIFICATIONS AND FULFILL THE PURPOSE FOR WHICH IT IS BEING PROCURED.' IN A SUBSEQUENT LETTER DATED SEPTEMBER 7, 1967, YOU HAVE CITED DECISIONS OF OUR OFFICE TO SUPPORT YOUR POSITION THAT (1) IT IS PROPER TO CONDITION THE CONSIDERATION AND EVALUATION OF BIDS UPON THE FURNISHING OF DESCRIPTIVE DATA; (2) WHERE LANGUAGE REQUIRES SUBMISSION OF DATA WITH THE BID, ANY FAILURE TO COMPLY THEREWITH IS A MATERIAL DEVIATION AND CANNOT BE WAIVED; (3) THE MANDATORY WORD "SHALL" AS USED IN SPECIFICATION PARAGRAPH 6.4 REQUIRES THE SUBMISSION OF DATA WITH THE BID; (4) THE FACT THAT THE BIDDER COMMITS ITSELF TO COMPLY WITH THE SPECIFICATION DOES NOT RELIEVE IT OF THE REQUIREMENT TO SUBMIT REQUIRED DATA; AND (5) WHERE DESCRIPTIVE DATA IS REQUIRED FOR THE PURPOSES OF BID EVALUATION, IT CANNOT BE SUBMITTED AFTER BID OPENING.

IN A REPORT TO THIS OFFICE THE CONTRACTING OFFICER REJECTS YOUR POSITION THAT THE DATA WAS REQUIRED TO BE SUBMITTED PRIOR TO BID OPENING SINCE THE PROCUREMENT DOCUMENTS DO NOT STATE A TIME LIMIT THEREFOR. THE POSITION TAKEN BY THE PROCURING AGENCY IS STATED IN THE CONTRACTING OFFICER'S REPORT AS FOLLOWS:

"7. THE SPECIFICATION IS DETAILED IN THAT IT LISTS EACH INGREDIENT AND THE PARTS BY WEIGHT EXCEPT FOR THE SUNSCREENING AGENT. IT STATES THAT THE SUNSCREENING COMPOUND AND ITS MAXIMUM AMOUNT SHALL BE IN ACCORDANCE WITH THE APPROVED LIST IN THE INVITATION FOR BIDS. THE APPROVED LIST SHOWN IN THE INVITATION INCLUDES SIX APPROVED COMPOUNDS AND THE MAXIMUM AMOUNTS OF EACH. THE SPECIFICATION IS FURTHER DETAILED IN THAT IT INCLUDES TESTS AND EXAMINATIONS OF THE COMPONENTS AND THE END ITEM. SPECIFICALLY, REPRESENTATIVE SAMPLES OF THE END ITEM ARE TO BE TESTED FOR ULTRAVIOLET TRANSMISSION. ACCORDINGLY, ANY BIDDER WHO SUBMITS A BID THAT TAKES NO EXCEPTION TO THE PROVISIONS OF THE INVITATION IS COMMITTED IN ADVANCE TO SUPPLY, IF ITS BID IS ACCEPTED, A SPECIFICATION PRODUCT MADE UP OF SEVEN COMPONENTS, WITH ITS ONLY CHOICE BEING AMONG SIX EQUALLY APPROVED SUNSCREENING AGENTS, AND PASSING DETAILED TESTS AND EXAMINATIONS INCLUDING THE ULTRAVIOLET TRANSMISSION TEST. THE LOW BIDDER'S POSITION IN THE PRESENT CASE IS ANALOGOUS TO THE POSITION OF THE LOW BIDDER IN THE CASE SET FORTH IN 39 COMP. GEN. 684 IN THAT THE BID OFFERED TO MEET WITHOUT RESERVATION THE REQUIREMENTS OF THE SPECIFICATION AND IS SUBJECT TO ACCEPTANCE EVEN IF THE BIDDER WERE TO REFUSE TO FURNISH DATA. ACCORDINGLY, IF THE CONTRACTING OFFICER REQUESTS THE DATA AT THIS TIME, THE LOW BIDDER WOULD NOT HAVE AN UNFAIR ADVANTAGE IN THAT IT COULD NOT DECLINE AWARD BY FAILURE OR REFUSAL TO SUBMIT THE DATA. SINCE THE SPECIFICATION TOGETHER WITH THE LIST OF APPROVED SUNSCREENING AGENTS IN THE INVITATION ADEQUATELY AND COMPLETELY DESCRIBES THE GOVERNMENT'S NEEDS, A REQUIREMENT IN THE INVITATION THAT DESCRIPTIVE LITERATURE OR DATA BE FURNISHED WITH THE BID WOULD HAVE BEEN IMPROPER. SEE B-157012 DATED 29 JUNE 1965. IT IS SPECIFICALLY NOTED THAT THE SUBSTANCE OF PARAGRAPH 6.4 IS CARRIED OVER FROM THE EARLIER REVISION OF THE SPECIFICATION (MIL-S- 11262B) WHICH DID NOT LIMIT THE SUNSCREENING AGENT THAT COULD BE INCLUDED IN THE COMPOUND TO A PARTICULAR LIST OF SUNSCREENING AGENTS AND COULD BE READ TO PERMIT THE FURNISHING OF SEVERAL LISTED SUNSCREENING COMPOUNDS OR ANY OTHER NONINJURIOUS COMPOUND THE CONTRACTING OFFICER WOULD APPROVE (EX 7). AT THE PRESENT TIME THE ONLY APPARENT PURPOSES THAT WOULD BE SERVED BY OBTAINING THE CERTIFICATE OF COMPLIANCE AND THE ULTRAVIOLET TRANSMISSION REPORT WOULD BE TO ESTABLISH THAT THE BIDDER UNDERSTANDS THE SPECIFICATION AND HAS THE CAPACITY TO PRODUCE AN ITEM MEETING THE DETAILED REQUIREMENTS OF THE SPECIFICATION. THE SPECIFICATION PREPARING ACTIVITY HAS ADVISED INFORMALLY THAT PARAGRAPH 6.4 WILL BE DELETED FOR FUTURE PROCUREMENTS.'

AS A GENERAL RULE OUR OFFICE HAS HELD THAT THERE ARE BASICALLY ONLY TWO VALID REASONS FOR THE SUBMISSION BY BIDDERS OF DESCRIPTIVE DATA: (1) TO REQUIRE A BIDDER TO SHOW THE CHARACTERISTICS OR CONSTRUCTION OF THE PRODUCT WHICH THE BIDDER IS OFFERING TO FURNISH BY HIS BID, AND (2) TO EVALUATE HIS ABILITY IN TERMS OF TECHNICAL KNOWLEDGE, UNDERSTANDING OF THE SPECIFICATIONS, SKILL, KNOW-HOW, OR OTHER ATTRIBUTES. GENERALLY IF ONLY THE LATTER PURPOSE IS TO BE SERVED BY DESCRIPTIVE DATA IT CONTRAVENES APPLICABLE LAW AND REGULATIONS, AT LEAST IN THE CASE OF SMALL BUSINESS BIDDERS, TO REQUIRE REJECTION OF THE BID FOR FAILURE TO FURNISH SUCH REQUIRED DATA. SEE 42 COMP. GEN. 464.

AS STATED BY THE CONTRACTING OFFICER THE SPECIFICATION REQUIRES THAT THE BASIC PREPARATION MUST CONFORM TO THE LISTED INGREDIENTS AND IN THE QUANTITIES STIPULATED, EXCEPT FOR THE SUNSCREENING AGENT, WHICH IS REQUIRED TO CONFORM IN KIND AND QUANTITY TO ONLY THOSE AGENTS PREVIOUSLY APPROVED AND LISTED IN THE INVITATION. THE INVITATION LISTS SIX APPROVED SUNSCREENING AGENTS AND THE MAXIMUM ACCEPTABLE AMOUNTS OF EACH AND FURTHER WARNS THAT EITHER MIXTURES OF APPROVED AGENTS OR OTHER UNLISTED COMPOUNDS WILL NOT BE ACCEPTED UNLESS SPECIFICALLY APPROVED BY THE CONTRACTING OFFICER. ALTHOUGH IT IS YOUR POSITION THAT THE INVITATION PERMITS CONTRACTORS TO USE OTHER SUNSCREENING AGENTS THAN THOSE LISTED IN THE INVITATION AND THE DATA THEREFORE BECOMES ESSENTIAL FOR EVALUATING BIDS, WE ARE OF THE OPINION THAT A BIDDER WHO DOES NOT STATE AN INTENTION TO USE A SUNSCREENING AGENT OTHER THAN THOSE LISTED IN THE INVITATION CAN BE HELD TO DELIVER A PRODUCT WHICH INCLUDES ONE OF THE AGENTS LISTED IN THE INVITATION, SINCE THE GOVERNMENT IS NOT REQUIRED TO APPROVE THE USE OF ANY ADDITIONAL AGENTS. THE SPECIFICATION ALSO REQUIRES THAT THE END ITEM OFFERED IN PERFORMANCE OF THE CONTRACT SHALL SHOW NOT MORE THAN 1 PERCENT ULTRAVIOLET LIGHT TRANSMISSION WHEN A FILM THICKNESS OF 0.001 INCH IS TESTED AS SPECIFIED. IT WOULD THEREFORE APPEAR THAT THE INVITATION SETS OUT A DEFINITIVE EXPLANATION OF WHAT THE GOVERNMENT'S EXACT REQUIREMENTS ARE, AND WHAT A SUCCESSFUL BIDDER COULD BE HELD TO DELIVER. CONSEQUENTLY, WE ARE OF THE OPINION THAT THE FAILURE OF THE LOW BID TO INCLUDE A CERTIFICATE OF COMPLIANCE AND AN ULTRAVIOLET TRANSMISSION REPORT DOES NOT ALTER THE BIDDER'S COMMITMENT IN ITS OTHERWISE UNQUALIFIED BID TO DELIVER AN END ITEM USING ONLY THE INGREDIENTS, IN KIND AND AMOUNT, REQUIRED BY THE SPECIFICATION AND INVITATION AND WHICH MEETS THE STATED ULTRAVIOLET TRANSMISSION REQUIREMENTS. IN VIEW OF THE ABOVE WE BELIEVE THE REQUIRED DATA CAN VALIDLY BE USED ONLY FOR DETERMINING THE ABILITY OF BIDDERS TO COMPLY WITH SPECIFICATION REQUIREMENTS, AND IT THEREFORE WOULD BE IMPROPER TO REQUIRE REJECTION OF THE LOW BID FOR FAILURE TO FURNISH SUCH DATA WITH THE BID. SEE 42 COMP. GEN. 464. SEE ALSO OUR DECISION OF OCTOBER 14, 1966, B-159434, IN WHICH WE ADVISED THE SECRETARY OF THE ARMY THAT A BID MUST BE REJECTED AS NONRESPONSIVE ONLY IF IT, OR THE DESCRIPTIVE INFORMATION WHICH ACCOMPANIES IT AND WHICH IS SHOWN TO HAVE BEEN REQUIRED FOR THE PURPOSE OF DESCRIBING EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH, AFFIRMATIVELY SHOWS AN INTENTION NOT TO CONFORM TO THE IFB.

ACCORDINGLY, YOUR PROTEST AGAINST CONSIDERATION OF THE LOW BID FOR AWARD MUST BE DENIED.