B-165424, NOV. 19, 1968

B-165424: Nov 19, 1968

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

INC.: REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF THE BID OF YOUR DEVERE-LOCKE DIVISION. WHICH WAS REFERRED TO US BY REPRESENTATIVE ARCH A. THE SUBJECT INVITATION WAS ISSUED ON JUNE 13. THE BIDS WERE OPENED AS SCHEDULED ON JULY 16. THE BID OF DEVERE-LOCKE IN THE AMOUNT OF $398 PER UNIT WAS THE LOWEST RECEIVED. THE BID OF KUT-KWICK CORPORATION IN THE AMOUNT OF $468 EACH WAS THE NEXT LOW BID. ATTACHED TO THE BID WAS PRINTED LITERATURE FOR THE DEVERE LOCKE PMR SERIES MOWERS WHICH DESCRIBED IN A GENERAL MANNER THE FEATURES OF THE ITEM OFFERED. THE BID OF DEVERE-LOCKE WAS INTERPRETED BY THE CONTRACTING OFFICER AS OFFERING ONLY ITS CITED MODEL NUMBERS AS DESCRIBED IN THE LITERATURE ATTACHED.

B-165424, NOV. 19, 1968

TO LOCKE MANUFACTURING COMPANIES, INC.:

REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF THE BID OF YOUR DEVERE-LOCKE DIVISION, OF RACINE, WISCONSIN, UNDER INVITATION FOR BIDS NO. DSA-700-68-B-3473, WHICH WAS REFERRED TO US BY REPRESENTATIVE ARCH A. MOORE, JR., WITH COPIES OF YOUR CORRESPONDENCE WITH HIM.

THE SUBJECT INVITATION WAS ISSUED ON JUNE 13, 1968, BY THE DEFENSE SUPPLY AGENCY, COLUMBUS, OHIO, FOR SUPPLYING 103 POWER LAWN MOWERS, IN ACCORDANCE WITH INTERIM FEDERAL SPECIFICATION NO. 00-M-00681C/GSA-FSS), DATED APRIL 30, 1965, AND AMENDMENT 2, DATED APRIL 29, 1966. SIX COMPANIES SUBMITTED BIDS. THE BIDS WERE OPENED AS SCHEDULED ON JULY 16, 1968. THE BID OF DEVERE-LOCKE IN THE AMOUNT OF $398 PER UNIT WAS THE LOWEST RECEIVED. THE BID OF KUT-KWICK CORPORATION IN THE AMOUNT OF $468 EACH WAS THE NEXT LOW BID.

THE INVITATION DID NOT REQUEST BIDDERS TO FURNISH MODEL INFORMATION OR LITERATURE WITH THEIR BIDS. DEVERE-LOCKE, HOWEVER, INSERTED ON PAGE 3 OF ITS BID IMMEDIATELY BELOW ITS PRICE QUOTATION, THE STATEMENT: "BIDDING DEVERE-LOCKE, ITEM 130-PMR, 9 HP POWER UNIT; ITEM 132-PM38, ROTARY 38" CUTTER UNIT; ITEM 137, STANDARD TWO-WHEEL SULKY.' ATTACHED TO THE BID WAS PRINTED LITERATURE FOR THE DEVERE LOCKE PMR SERIES MOWERS WHICH DESCRIBED IN A GENERAL MANNER THE FEATURES OF THE ITEM OFFERED.

THE BID OF DEVERE-LOCKE WAS INTERPRETED BY THE CONTRACTING OFFICER AS OFFERING ONLY ITS CITED MODEL NUMBERS AS DESCRIBED IN THE LITERATURE ATTACHED. SINCE A DETERMINATION COULD NOT BE MADE THEREFROM BY TECHNICAL PERSONNEL THAT THE ARTICLES OFFERED MET OR EXCEEDED THE REQUIREMENTS OF THE SPECIFICATION, AND THE GOVERNMENT WOULD NOT KNOW PRECISELY WHAT IT WOULD RECEIVE IF AWARD WAS MADE TO DEVERE-LOCKE, THE CONTRACTING OFFICER REJECTED ITS BID AS NON-RESPONSIVE. THE FOLLOWING PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.2 WERE RELIED UPON IN REACHING THIS CONCLUSION:

"/D) ORDINARILY, A BID SHOULD BE REJECTED WHERE THE BIDDER ATTEMPTS TO IMPOSE CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT, SINCE TO ALLOW THE BIDDER TO IMPOSE SUCH CONDITIONS WOULD BE PREJUDICIAL TO OTHER BIDDERS. FOR EXAMPLE, BIDS SHALL BE REJECTED IN WHICH THE BIDDER -

"/V)REQUIRES THAT GOVERNMENT IS TO DETERMINE THAT BIDDER'S PRODUCT MEETS GOVERNMENT SPECIFICATION; * * *.'

WHILE IT MAY BE THAT IN STIPULATING PARTICULAR MODEL NUMBERS AND SUBMITTING ITS DESCRIPTIVE LITERATURE DEVERE-LOCKE DID NOT INTEND TO QUALIFY ITS BID, WE BELIEVE THAT AS A MATTER OF LAW IT IS CLEAR THAT UPON ACCEPTANCE OF ITS BID IT WOULD HAVE BEEN OBLIGATED TO DELIVER, AND THE GOVERNMENT WOULD HAVE BEEN ENTITLED TO RECEIVE,ONLY ITS STANDARD MODELS REFERRED TO, WHETHER OR NOT THEY CONFORMED FULLY TO THE GOVERNMENT'S DETAILED SPECIFICATIONS. SINCE THE ONLY INFORMATION FURNISHED CONCERNING THE CHARACTERISTICS OF THE DESIGNATED MODELS WAS THAT CONTAINED IN THE PRINTED LITERATURE SUBMITTED WITH THE BID, AND THAT FAILED TO SHOW THAT THOSE MODELS MET THE SPECIFICATION REQUIREMENTS, WE BELIEVE THE ACTION OF THE CONTRACTING OFFICER WAS CORRECT AND IN ACCORDANCE WITH THE CITED REGULATION, AS WELL AS WITH ASPR 2-202.5 (F), WHICH PROVIDES THAT IF THE FURNISHING OF DESCRIPTIVE LITERATURE IS NOT REQUIRED BY THE INVITATION FOR BIDS, BUT SUCH LITERATURE IS FURNISHED WITH A BID, IT WILL NOT BE CONSIDERED AS QUALIFYING THE BID, AND WILL BE DISREGARDED, UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE INTENTION OF THE BIDDER TO QUALIFY THE BID. THE CIRCUMSTANCES IN THIS CASE WARRANT THE LATTER CONCLUSION.

WHILE IN YOUR LETTER OF SEPTEMBER 24, 1968, TO REPRESENTATIVE MOORE YOU QUOTED THE DESCRIPTION OF THE REQUIRED ARTICLES CONTAINED IN THE SCHEDULE OF THE INVITATION FOR BIDS, AND STATED THAT THE EQUIPMENT OFFERED "MEETS THE REQUIREMENTS OF THE ABOVE SPECS EXCTLY," YOU FAILED TO MENTION THAT THE INTERIM FEDERAL SPECIFICATION CITED THEREIN CONSISTS OF 16 PAGES OF EXHAUSTIVE DETAILS OF CONSTRUCTION, MATERIALS, AND PERFORMANCE, FEW OF WHICH ARE MENTIONED IN YOUR LITERATURE. SPECIFICALLY, IT IS REPORTED THAT TECHNICAL DATA COVERING MATERIALS, CONSTRUCTION, OPERATING SPEEDS, FUEL AND IGNITION SYSTEMS, GOVERNOR, CLUTCHES, CONTROLS, DRIVE TRAIN, AND CUTTING BLADES, AMONG OTHERS, ARE NOT REFLECTED IN THE LITERATURE. ADDITION IT IS NOTED THAT PARAGRAPH 3.2.2 OF THE REFERENCED SPECIFICATIONS REQUIRES GUARDS FOR ALL RECIPROCATING, ROTATING OR MOVING PARTS, WHEREAS THE PICTURE OF THE PROPULSION UNIT ON THE DEVERE-LOCKE EQUIPMENT OFFERED APPARENTLY SHOWS UNENCLOSED AND UNGUARDED BELTS.

SINCE THIS WAS A FORMALLY ADVERTISED PROCUREMENT, NEGOTIATION WITH DEVERE -LOCKE AFTER OPENING OF BIDS TO DETERMINE WHETHER OR NOT IT ACTUALLY INTENDED TO SUPPLY A PRODUCT CONFORMING TO THE SPECIFICATIONS WOULD NOT HAVE BEEN PROPER. THEREFORE, WE ARE SATISFIED THAT ACCEPTANCE OF THE DEVERE-LOCKE BID AS PRESENTED WOULD HAVE RESULTED IN A CONTRACT WITH TERMS DIFFERING FROM THOSE ON WHICH BIDS WERE SOUGHT AND OTHER BIDS BASED, IN THAT UPON DELIVERY OF THE MOWERS BY YOU THE GOVERNMENT WOULD NOT HAVE BEEN ENTITLED TO REJECT THEM FOR DEVIATIONS FROM THE CITED SPECIFICATIONS, BUT ONLY IF THEY WERE NOT THE DESIGNATED MODELS AS DESCRIBED IN THE DEVERE- LOCKE CIRCULAR.

OUR OFFICE HAS FREQUENTLY HELD THAT A NONRESPONSIVE BID MAY NOT BE CONSIDERED FOR CORRECTION REGARDLESS OF THE CIRCUMSTANCES, SINCE TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY ALTERATION OF HIS BID AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW OFFER. 38 COMP. GEN. 819; 40 ID. 132. TO GIVE THE BIDDER AN OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY AGREEING TO ABIDE BY THE INVITATION OR TO PRECLUDE AWARD BY INSISTING ON ADHERENCE TO ITS OFFER, PROVIDES AN UNFAIR ADVANTAGE OVER THOSE OTHER BIDDERS WHOSE BIDS CONFORMED IN EVERY WAY TO THE INVITATION AND WERE LEFT WITHOUT OPTIONS. TO PERMIT THE CONTRACTING OFFICER TO ACCEPT A BID UNDER THE CIRCUMSTANCES PRESENT HERE WOULD RENDER MEANINGLESS THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS.

WITH REGARD TO DEVERE-LOCKE'S LETTER OF OCTOBER 11, 1968, TO REPRESENTATIVE MOORE CONCERNING ITS RECEIPT OF A POSTCARD FROM DCSC INDICATING A DIFFERENT REASON FOR FINDING ITS BID NONRESPONSIVE, WE HAVE BEEN FURNISHED A COPY OF DSA'S REPLY LETTER OF OCTOBER 29, 1968, WHEREIN IT WAS EXPLAINED THAT THE REMARKS ON THE POSTCARD WERE APPLICABLE TO ANOTHER BIDDER AND THAT IT WAS SENT TO DEVERE-LOCKE THROUGH ADMINISTRATIVE ERROR.

FOR THE REASONS STATED, WE FIND NO LEGAL BASIS FOR OBJECTING TO THE ACTION OF THE PURCHASING AGENCY, AND THE PROTEST IS THEREFORE DENIED.