B-163063, FEB. 1, 1968

B-163063: Feb 1, 1968

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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 4. BIDS WERE OPENED ON NOVEMBER 6. 510 WAS THE LOW BID SUBMITTED. WAS THE NEXT LOW BIDDER IN THE AMOUNT OF $59. YOUR BID WAS ACCOMPANIED BY ONLY ONE GENERAL ADVERTISING BROCHURE AND DID NOT CONTAIN THE DESCRIPTIVE LITERATURE AND SPECIFICATIONS REQUESTED BY THE INVITATION. YOUR BID WAS ACCOMPANIED ALSO BY A LETTER OF NOVEMBER 3. SPECIFICATIONS AND BLUEPRINTS WERE LATE FOR THIS MAILING. IF WE ARE AWARDED THIS BID WE WILL ACCEPT THE CONDITION THAT IT IS SUBJECT TO YOUR ACCEPTANCE OF OUR BLUEPRINTS. IT IS POINTED OUT THAT THIS BID IS AS PER YOUR SPECIFICATIONS.'. THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE FOR FAILURE TO SUBMIT THE REQUESTED DESCRIPTIVE LITERATURE FOR BID EVALUATION.

B-163063, FEB. 1, 1968

BIDS - DEVIATIONS - DESCRIPTIVE LITERATURE DECISION TO MOBILE TRAILER LEASING, INC., DENYING PROTEST AGAINST REJECTION OF BID AND AWARD TO U-BETCHA, INC. BY DEFENSE ATOMIC SUPPORT AGENCY, SANDIA BASE, ALBUQUERQUE, NEW MEXICO. LOW BIDDER WHO DID NOT FURNISH DESCRIPTIVE LITERATURE AS REQUIRED FOR BID EVALUATION PURPOSES HAD BID PROPERLY REJECTED AS NONRESPONSIVE. WHERE PROTESTANT RECOGNIZES THAT AWARD WOULD BE CONDITIONED UPON ACCEPTANCE OF SPECIFIATIONS AND BLUEPRINTS NOT FURNISHED WITH BID THE ALLEGATION THAT THE GOVT. FAILED TO EXPLICITY SET OUT THE REQUIREMENT MAY NOT BE SAID TO PREJUDICE THE PROTESTANT.

TO MOBILE TRAILER LEASING, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 4, 1967, TRANSMITTED TO THIS OFFICE BY REPRESENTATIVE BYRON C. ROGERS, WHICH ALLEGES IMPROPER REJECTION OF YOUR BID SUBMITTED PURSUANT TO INVITATION FOR BIDS NO. DASA 02-68-B-0022, ISSUED OCTOBER 16, 1967, BY THE DEFENSE ATOMIC SUPPORT AGENCY, SANDIA BASE, ALBUQUERQUE, NEW MEXICO, FOR FIFTEEN OFFICE TRAILERS.

PAGE THREE OF THE INVITATION PROVIDED: "SPECIAL INSTRUCTIONS: REQUEST ALL BIDDERS SUBMIT COMPLETE SET OF SPECIFICATION FOR EVALUATION WITH BID. "BIDDER MUST FURNISH DESCRIPTIVE LITERATURE AND SPECIFICATIONS OF ITEMS HE PROPOSES TO FURNISH. FAILURE TO FURNISH LITERATURE AND SPECIFICATIONS MAY BE CAUSE FOR REJECTION OF BID.' BIDS WERE OPENED ON NOVEMBER 6, 1967, AND YOUR BID OF $54,510 WAS THE LOW BID SUBMITTED. U-BETCHA, INCORPORATED, WAS THE NEXT LOW BIDDER IN THE AMOUNT OF $59,595. HOWEVER, YOUR BID WAS ACCOMPANIED BY ONLY ONE GENERAL ADVERTISING BROCHURE AND DID NOT CONTAIN THE DESCRIPTIVE LITERATURE AND SPECIFICATIONS REQUESTED BY THE INVITATION. YOUR BID WAS ACCOMPANIED ALSO BY A LETTER OF NOVEMBER 3, 1967, STATING IN PART AS FOLLOWS: ,SPECIFICATIONS AND BLUEPRINTS WERE LATE FOR THIS MAILING, HOWEVER, IF WE ARE AWARDED THIS BID WE WILL ACCEPT THE CONDITION THAT IT IS SUBJECT TO YOUR ACCEPTANCE OF OUR BLUEPRINTS. IT IS POINTED OUT THAT THIS BID IS AS PER YOUR SPECIFICATIONS.' ON NOVEMBER 16, 1967, THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE FOR FAILURE TO SUBMIT THE REQUESTED DESCRIPTIVE LITERATURE FOR BID EVALUATION. ACCORDINGLY, AWARD WAS MADE ON THE SAME DATE TO U-BETCHA, INCORPORATED, AS THE LOW RESPONSIVE BIDDER. YOU CONTEND THAT ACCEPTANCE OF YOUR BID WAS IN THE BEST INTEREST OF THE GOVERNMENT ON THE BASIS OF YOUR EARLY DELIVERY SCHEDULE AND LOWER PRICE BY MORE THAN $5,000 OR TEN PERCENT.

SECTION 2305 (C), TITLE 10, U.S.C. STATES IN PART:

"/C) * * * AWARD SHALL BE MADE * * * TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.' OUR OFFICE HAS LONG UNDERSTOOD THAT STATUTORY REQUIREMENT TO PRECLUDE AWARD TO A LOW RESPONSIBLE BIDDER WHOSE BID DOES NOT CONFORM TO A MATERIAL REQUIREMENT OF THE INVITATION. 38 COMP. GEN. 819, 821, WHEREIN WE STATED: "AN UNRESPONSIVE 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 * * * WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID.' THE RESPONSIVENESS OF A BIDDER IS DETERMINED BY THE INTENTION OF THE BIDDER MANIFESTED IN THE BID, AND TO ALLOW A BIDDER TO ESTABLISH THE RESPONSIVENESS OF HIS BID BY FURNISHING DESCRIPTIVE LITERATURE SUBSEQUENT TO BID OPENING WOULD BE CONTRARY TO THE ESTABLISHED PRINCIPLES GOVERNING PROCUREMENT THROUGH FORMAL ADVERTISING. SEE 36 COMP. GEN. 705. FAILURE OF A BIDDER TO COMPLY WITH A DATA FURNISHING REQUIREMENT IN AN INVITATION, WHICH WARNED THAT FAILURE TO FURNISH THE DATA "MAY BE CAUSE" FOR BID REJECTION, RENDERS THE BID NONRESPONSIVE AND REQUIRES ITS REJECTION. COMP. GEN. 132. ACCORDINGLY, WE MUST CONCUR IN THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR BID WAS NONRESPONSIVE AND THEREFORE UNACCEPTABLE.

GENERALLY WHEN DESCRIPTIVE LITERATURE IS REQUIRED, BIDDERS SHOULD BE ADVISED OF THE PURPOSE AND EFFECT OF THE REQUIREMENT. FURTHER, ARMED SERVICES PROCUREMENT REGULATION 2-202.5 (C) REQUIRES THE CONTRACT FILE CONTAIN JUSTIFICATION WHY AN ACCEPTABLE PRODUCT COULD NOT HAVE BEEN PROCURED WITHOUT SUBMISSION OF DESCRIPTIVE DATA. WE RECOGNIZE THE ABOVE REQUIREMENTS WERE NOT FULLY COMPLIED WITH AND IN CERTAIN INSTANCES MIGHT RENDER THE INVITATION FOR BIDS SO DEFECTIVE AS TO NECESSITATE READVERTISEMENT OR CANCELLATION OF AWARD. HOWEVER, IN THIS CASE THE BIDDERS WERE APPRISED OF THE NEED FOR THE DESCRIPTIVE DATA AND COMPETITION WAS NOT ADVERSELY AFFECTED. SEE 43 COMP. GEN. 23. FURTHER, IN YOUR LETTER OF NOVEMBER 3, 1967, PREVIOUSLY QUOTED, YOU EXPLICITLY RECOGNIZED THAT AWARD TO YOUR FIRM WOULD BE CONDITIONED UPON ACCEPTANCE BY THE GOVERNMENT OF THE SPECIFICATIONS AND BLUEPRINTS NOT FURNISHED WITH THE BID. INASMUCH AS THE ABOVE LETTER RECOGNIZED THAT AT BEST ONLY A CONDITIONAL AWARD COULD BE MADE TO YOUR FIRM DUE TO THE FAILURE TO SUBMIT DESCRIPTIVE LITERATURE, WE CANNOT CONCLUDE THAT FAILURE TO MORE EXPLICITLY SET OUT THE REQUIREMENT FOR THE SAME IN FACT PREJUDICED YOUR FIRM.

FOR THE ABOVE REASONS WE FIND NO BASIS TO QUESTION THE AWARD MADE TO U- BETCHA, INCORPORATED, AS THE LOW RESPONSIVE BIDDER, NOTWITHSTANDING YOUR UNACCEPTABLE BID WAS TEN PERCENT LOWER.