B-164816, AUG. 26, 1968

B-164816: Aug 26, 1968

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 6. IS GIVEN AS GUIDE INFORMATION IN ACCORDANCE WITH PARAGRAPHS A-11. EACH BIDDER WAS REQUIRED BY THE INVITATION TO FURNISH WITH ITS BID DESCRIPTIVE LITERATURE SHOWING THAT THE OFFERED PRODUCT MET THE SPECIFICATIONS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH. PROVIDED AS FOLLOWS: "/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE.

B-164816, AUG. 26, 1968

TO BRANDTJEN AND KLUGE, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 6, 1968, PROTESTING AGAINST THE ACTION OF THE BUREAU OF ENGRAVING AND PRINTING, DEPARTMENT OF THE TREASURY, WASHINGTON, D.C., IN REJECTING YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. BEP-112.

THE INVITATION, ISSUED ON APRIL 30, 1968, SOLICITED BIDS FOR FURNISHING TWO 10-INCH BY 15-INCH AUTOMATIC PLATEN LETTERPRESSES, TO BE MANUFACTURED IN ACCORDANCE WITH BUREAU OF ENGRAVING AND PRINTING SPECIFICATIONS DATED APRIL 22, 1968. PARAGRAPH 4 OF THE SPECIFICATIONS PROVIDED:

"GUIDE INFORMATION: 10 INCHES X 15 INCHES AUTOMATIC PLATEN LETTERPRESS AS MANUFACTURED BY HEIDELBERG EASTERN, INC., IS GIVEN AS GUIDE INFORMATION IN ACCORDANCE WITH PARAGRAPHS A-11, A-11.01 AND 11.02 OF THE GENERAL CONDITIONS.'

EACH BIDDER WAS REQUIRED BY THE INVITATION TO FURNISH WITH ITS BID DESCRIPTIVE LITERATURE SHOWING THAT THE OFFERED PRODUCT MET THE SPECIFICATIONS. THE SUPPLEMENTAL PROVISIONS, ATTACHED TO THE INVITATION, CONTAINED THE USUAL "BRAND NAME OR EQUAL" CLAUSE. THE "REQUIREMENT FOR DESCRIPTIVE LITERATURE" CLAUSE PROVIDED: "/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED, IN ACCORDANCE WITH PARAGRAPH 3 OF THE SPECIFICATIONS, PARAGRAPH A-10 OF THE GENERAL CONDITIONS AND 9 (A) OF ATTACHMENT CC, AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE ARTICLE THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, MATERIALS, COMPONENTS AND PERFORMANCE CHARACTERISTICS. "/B) REFER TO PARAGRAPH 9 (B) OF CC REGARDING FAILURE TO FURNISH APPROPRIATE LITERATURE.' PARAGRAPH 9 (B) OF THE SUPPLEMENTAL PROVISIONS, ATTACHMENT CC, PROVIDED AS FOLLOWS:

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.'

BIDS WERE OPENED ON MAY 15, 1968, AND YOUR BID OF $9,894 WAS THE LOWEST BID SUBMITTED. YOU OFFERED TO FURNISH PRESSES OF YOUR OWN MANUFACTURE. E. H. WALKER SUPPLY CO., INC., THE ONLY OTHER BIDDER, OFFERED TO FURNISH TWO "HEIDELBERG" PRESSES MANUFACTURED IN WEST GERMANY AT A PRICE OF $10,394.21. HOWEVER, YOUR BID DID NOT INCLUDE DESCRIPTIVE LITERATURE REQUIRED BY THE INVITATION. YOUR BID WAS ACCOMPANIED BY A LETTER OF MAY 8, 1968, STATING IN PART AS FOLLOWS: "WE PROPOSE TO SUPPLY YOU WITH THE FOLLOWING EQUIPMENT IN PLACE OF THE HEIDELBERG WHICH IS OUTLINED IN YOUR BID SPECIFICATION. "WE WILL SUPPLY YOU WITH TWO 11X17 -D- SERIES 6-ROLLER KLUGE AUTOMATIC PRESS COMPLETE WITH ALL STANDARD EQUIPMENT INCLUDING 1-1/2 H.P., 208VOLT, 60 CYCLE, THREE PHASE MOTOR, TWO-UP FEEDING ATTACHMENT, OFFSET SPRAY ATTACHMENT, MODEL DR REDINGTON COUNTER, TWO SETS OF ROLLERS, FIVE EXTRA CHASES, BIJURE LUBRICATION SYSTEM FOR 16 POINTS, DELIVERED F.O.B. YOUR FLOOR FOR $9,894.00. WE CAN OFFER SHIPMENT OF THE EQUIPMENT OFFERED WITHIN SIX TO EIGHT WEEKS AFTER RECEIPT OF AN ORDER FROM YOU. OUR TERMS ARE NET 30 DAYS. "WE WOULD APPRECIATE RECEIVING NOTIFICATION OF WHOM THE BID IS AWARDED TO IN THE EVENT WE ARE NOT AWARDED THE CONTRACT. "WE ALSO ARE ENCLOSING A BROCHURE COVERING THE STANDARD AND ELECTRICAL SPECIFICATIONS OF THE EQUIPMENT FOR YOUR REFERENCE AND CONSIDERATION.'

IT IS REPORTED THAT THE BROCHURE MENTIONED IN THE ABOVE LETTER WAS NOT ENCLOSED IN THE BID ENVELOPE CONTAINING YOUR BID. ON MAY 21, 1968, THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE FOR FAILURE TO SUBMIT THE REQUIRED DESCRIPTIVE LITERATURE FOR BID EVALUATION PURPOSES. ACCORDINGLY, AWARD WAS MADE ON THE SAME DATE TO E.H. WALKER SUPPLY CO., INC., AS THE LOW RESPONSIVE BIDDER. THE RECEIVING REPORT INDICATES THAT THE LETTERPRESSES WERE RECEIVED BY THE BUREAU OF ENGRAVING AND PRINTING ON JUNE 13, 1968.

YOU CONTEND THAT THE SPECIFICATIONS COVERING THE PRESSES ARE UNDULY RESTRICTIVE SINCE THEY ARE BASED ON EQUIPMENT MANUFACTURED BY HEIDELBERG EASTERN, INC., A FOREIGN MANUFACTURER. YOU STATE THAT IT IS STRANGE THAT A FOREIGN-MANUFACTURED PRODUCT WAS SPECIFIED WHEN AN EQUAL OR SUPERIOR PRODUCT IS MANUFACTURED HERE IN THE UNITED STATES. YOU CONTEND THAT THE SELECTION BY THE BUREAU OF ENGRAVING AND PRINTING OF EQUIPMENT MANUFACTURED IN A FOREIGN COUNTRY ADVERSELY AFFECTS THE BALANCE OF PAYMENTS PROGRAM.

IN REGARD TO YOUR ALLEGATION THAT THE SPECIFICATIONS WERE RESTRICTIVE AND THE REASONS WHY THE BID OF YOUR FIRM WAS REJECTED AS NONRESPONSIVE, WE ARE ADVISED BY THE BUREAU OF ENGRAVING AND PRINTING AS FOLLOWS:

"INSOFAR AS THE SPECIFICATIONS BEING RESTRICTIVE AND/OR SPECIFYING A FOREIGN PRODUCT THE FOLLOWING CLAUSES WERE CONTAINED IN THE SPECIFICATIONS DATED APRIL 22, 1968 AND THE GENERAL CONDITIONS FOR MECHANICAL EQUIPMENT MADE PART OF THE SOLICITATION:

"-4. GUIDE INFORMATION: 10 INCHES X 15 INCHES AUTOMATIC PLATEN LETTERPRESS AS MANUFACTURED BY HEIDELBERG EASTERN, INC., IS GIVEN AS GUIDE INFORMATION IN ACCORDANCE WITH PARAGRAPHS A-11, A-11.01 AND 11.02 OF THE GENERAL CONDITIONS.-

"THE GENERAL CONDITIONS FOR MECHANICAL AND ELECTRICAL EQUIPMENT READS IN PART AS FOLLOWS:

"-A-11 GUIDE INFORMATION: IN THE INTEREST OF EXPEDIENCY, REFERENCES ARE SOMETIMES MADE IN BUREAU SPECIFICATIONS TO EQUIPMENT OF A PARTICULAR MANUFACTURER. SUCH REFERENCES ARE INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND ARE INTENDED TO INDICATE THE QUALITY AND CHARACTERISTICS OF EQUIPMENT THAT WILL BE ACCEPTABLE. BIDS OFFERING EQUIVALENT EQUIPMENT WILL BE CONSIDERED FOR AWARD PROVIDING THAT SUCH EQUIPMENT IS DETERMINED BY THE BUREAU TO BE OF COMPARABLE QUALITY AS THE REFERENCED EQUIPMENT AND FURTHER PROVIDED THAT SUCH EQUIVALENT EQUIPMENT IS CAPABLE TO MEETING ALL SPECIFIED FUNCTIONAL AND DETAIL REQUIREMENTS.-

"FROM THE FOREGOING IT MAY BE SEEN THAT A FOREIGN MADE PRESS WAS NOT SPECIFIED AS THE PARTICULAR PRESS REQUIRED NOR WAS THE GUIDE INFORMATION INTENDED TO BE RESTRICTIVE. THE FACT THAT BRANDTJEN AND KLUGE, INC., SUBMITTED A QUOTATION WOULD INDICATE THAT THEY FELT THAT THEIR PRODUCT WAS COMPARABLE, IF NOT SUPERIOR TO, THE PRESS SPECIFIED. IT WAS NOT UNTIL MAY 20, 1968, FIVE DAYS AFTER THE BIDS OPENED AND TWENTY DAYS AFTER THE INVITATION WAS ISSUED, THAT THE BUREAU'S PROCUREMENT OFFICER HAD ANY KNOWLEDGE THAT BRANDTJEN AND KLUGE, INC., HAD ANY OBJECTIONS TO THE SPECIFICATIONS. * * *

"THE PRIMARY REASON FOR THE REJECTION OF THE BRANDTJEN AND KLUGE, INC., QUOTATION WAS THEIR FAILURE TO SUBMIT DESCRIPTIVE LITERATURE. IN THEIR LETTER OF JUNE 6, 1968, ADDRESSED TO MR. S. C. DARNE, BRANDTJEN AND KLUGE, INC., STATED:

"-OUR LETTER OF TRANSMITTAL WHICH ACCOMPANIED OUR BID INDICATES A BROCHURE COVERING THE PRESS OFFERED WAS ENCLOSED. WE CAN ONLY ASSUME THAT IT WAS.- (UNDERLINING SUPPLIED.)

"THE PROCUREMENT AGENT WHO HAD ISSUED THE INVITATION AND ATTENDED THE BID OPENING CERTIFIED IN WRITING THAT THE BROCHURE MENTIONED IN THE ABOVE LETTER WAS NOT ENCLOSED IN THE BID ENVELOPE.

"THERE WAS NOTHING SUBMITTED WITH BRANDTJEN AND KLUGE'S BID TO INDICATE THAT THE PRESS THEY WERE OFFERING MET THE REQUIREMENTS OF PARAGRAPH 8 OF THE SPECIFICATIONS, AS TO PAPER STOCK SIZE, TWO-UP, RANGE TO STOCK THICKNESS, INSIDE CHASE DIMENSIONS, MAXIMUM SPEED OR IMPRESSION STRENGTH.

"IN THE LETTER ACCOMPANYING BRANDTJEN AND KLUGE'S BID THEY OFFERED ONLY FIVE EXTRA CHASES TO BE SUPPLIED WITH EACH PRESS, WHEREAS THE SPECIFICATIONS IN PARAGRAPH 9 REQUIRED EIGHT TO BE FURNISHED. NO MENTION WAS MADE AS TO THEIR INTENTION TO FURNISH A ROLLER WASH-UP DEVICE OR A SET OF TOOLS.

"NEITHER DID BRANDTJEN AND KLUGE SUBMIT ANY DATA WHICH WOULD ENABLE THE BUREAU TO DETERMINE THAT THE REQUIREMENTS OF PARAGRAPH 10 OF THE SPECIFICATIONS WOULD BE INCORPORATED IN THE PRESSES THEY WERE OFFERING. THESE REQUIREMENTS, VIZ: CYLINDER TYPE INKING AND DISTRIBUTIONS SYSTEM; ROTARY GRIPPER SYSTEM FOR POSITIVE SHEET CONTROL THOUGHOUT THE PRINTING CYCLE; SHEET SEPARATING FEEDER; CONTROLLED SHEET DELIVERY; COLLAPSIBLE INK FOUNTAIN; BUILT IN JOGGER; CENTRAL LUBRICATION SYSTEM; ADJUSTABLE ROLLER TRACKS AND BALL BEARING FORM ROLLERS, ALL IMPORTANT FEATURES, REQUIRED BY THE BUREAU FOR EFFICIENT PRODUCTION OF PRECISE PRINTED MATTER.'

THE PROCUREMENT IN QUESTION IS GOVERNED BY SECTION 303 (B) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 395, 41 U.S.C. 253 (B), WHICH PROVIDES IN PART THAT ,AWARD SHALL BE MADE * * * TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.' OUR OFFICE HAS HELD THAT SUCH STATUTORY REQUIREMENT PRECLUDES AN AWARD TO A LOW BIDDER WHOSE BID DOES NOT CONFORM TO A MATERIAL REQUIREMENT OF THE INVITATION. SEE 38 COMP. GEN. 819, 821, WHERE 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 "WILL REQUIRE REJECTION OF THE BID," 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. THE FACT THAT YOUR FIRM PREVIOUSLY FURNISHED A COPY OF YOUR BROCHURE TO THE BUREAU OF ENGRAVING AND PRINTING AND GAVE A COPY THEREOF TO A BUREAU REPRESENTATIVE WOULD NOT BE CONTROLLING SINCE SUCH BROCHURES WERE NOT SUBMITTED WITH THE BID AND, THEREFORE, COULD NOT BECOME A PART THEREOF. OUR OFFICE HAS HELD THAT CONSIDERATION OF INFORMATION AFFECTING THE RESPONSIVENESS OF A BID, WHICH INFORMATION IS SUBMITTED AFTER BID OPENING, IS UNAUTHORIZED UNDER FORMALLY ADVERTISED PROCUREMENT PROCEDURES. SEE 40 COMP. GEN. 132; 36 ID. 415, 418; AND 17 ID. 554, 558. WHILE THE BROCHURE INFORMATION WAS FURNISHED BY YOUR FIRM PRIOR TO, RATHER THAN AFTER, THE SUBMISSION OF YOUR BID, WE BELIEVE THE ABOVE-CITED RULE SHOULD APPLY.

THE ADVERTISED SPECIFICATIONS MADE REFERENCE TO AN AUTOMATIC PLATEN LETTERPRESS AS MANUFACTURED BY HEIDELBERG EASTERN, INC., A FOREIGN FIRM, SINCE THAT LETTERPRESS WAS THE ONLY KNOWN MACHINE MEETING THE SALIENT FEATURES OF THE GOVERNMENT'S REQUIREMENTS AT THE TIME OF THE SOLICITATION FOR BIDS. IN THAT CONNECTION, WE HAVE HELD THAT THE DRAFTING OF SPECIFICATIONS FOR MATERIALS OR SERVICES TO BE PURCHASED FOR GOVERNMENT USE IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES AND A DETERMINATION AS TO THEIR NEEDS WILL NOT BE QUESTIONED UNLESS OBVIOUSLY ARBITRARY OR UNREASONABLE. AS TO THIS PROCUREMENT, WE FIND NO ADEQUATE BASIS FOR HOLDING THAT THE SPECIFICATIONS WERE NOT BASED ON A BONA FIDE DETERMINATION OF THE NEEDS OF THE BUREAU OF ENGRAVING AND PRINTING. THE EXERCISE OF SUCH DETERMINATION IS VESTED IN THE PROCUREMENT OFFICIALS INVOLVED IN EACH CASE AND, IN THE ABSENCE OF BAD FAITH, IS NOT SUBJECT TO OBJECTION BY OUR OFFICE. CLEARLY, IN THE ORDERLY CONDUCT OF ITS BUSINESS THE GOVERNMENT MAY NOT BE PLACED IN A POSITION OF PERMITTING BIDDERS TO DICTATE SPECIFICATIONS TAILORED TO THEIR PRODUCTS. IN VIEW OF THE INFORMATION SUBMITTED BY THE CONTRACTING AGENCY DEMONSTRATING THAT THERE EXISTED A BONA FIDE NEED FOR THE LETTERPRESS DESCRIBED BY THE SPECIFICATIONS, WE FIND NO BASIS TO OBJECT TO THE ADMINISTRATIVE POSITION IN THIS MATTER.

YOU CONTEND THAT THE BALANCE OF PAYMENTS PROGRAM IS BEING AFFECTED BY THE ACTION OF THE BUREAU OF ENGRAVING AND PRINTING IN AWARDING A CONTRACT TO A FIRM, E.H. WALKER CO., INC., WHICH IS FURNISHING A FOREIGN-MADE PRODUCT. WHILE THE BUY AMERICAN ACT, AS IMPLEMENTED BY THE BALANCE OF PAYMENTS PROGRAM, FAVORS AMERICAN MANUFACTURERS, SUCH ACT DOES PRECLUDE THE PURCHASE OF FOREIGN-MADE PRODUCTS UNDER CERTAIN CONDITIONS. SEE FEDERAL PROCUREMENT REGULATIONS 1-6.800 ET SEQ. FOR THE ABOVE REASONS, WE FIND NO BASIS TO QUESTION THE AWARD MADE TO E.H. WALKER SUPPLY CO., INC., AS THE SOLE RESPONSIVE BIDDER.