B-166382, APRIL 8, 1969, 48 COMP. GEN. 659

B-166382: Apr 8, 1969

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WHICH HAD AS ITS PURPOSE DETERMINING WHETHER THE PRODUCT OFFERED WILL CONCEIVABLY MEET THE SPECIFICATIONS AND TO GENERALLY ESTABLISH WHAT THE BIDDER PROPOSED TO FURNISH. IS A REQUIREMENT DIRECTED TOWARD DETERMINING THE RESPONSIBILITY OF A BIDDER RATHER THAN THE RESPONSIVENESS OF THE BID AND THERE IS NO VALID BASIS FOR REJECTING THE LOW BID SOLELY FOR FAILURE TO SUBMIT DRAWINGS AND DATA. 1969: REFERENCE IS MADE TO A PROTEST BY ELCTRO IMPULSE LABORATORY. YOUR ASSISTANT ADMINISTRATOR FOR ADMINISTRATION HAS ADVISED THAT FOUR BIDS WERE RECEIVED IN THIS PROCUREMENT AND THAT THE LOW BIDDER AND ONE OTHER FAILED TO SUBMIT WITH THEIR BIDS PRELIMINARY DRAWINGS AND OTHER DESCRIPTIVE DATA OUTLINED IN THE SPECIFICATIONS.

B-166382, APRIL 8, 1969, 48 COMP. GEN. 659

CONTRACTS--SPECIFICATIONS--DESCRIPTIVE LITERATURE--PURPOSE THE REQUIREMENT FOR THE INCLUSION OF DRAWINGS AND DESCRIPTIVE DATA IN BIDS ON DEHUMIDIFIERS WITHOUT DEFINING ITS PURPOSE AND EFFECT AND WITHOUT STATING NONCOMPLIANCE WOULD PRECLUDE BID CONSIDERATION, AND WHICH HAD AS ITS PURPOSE DETERMINING WHETHER THE PRODUCT OFFERED WILL CONCEIVABLY MEET THE SPECIFICATIONS AND TO GENERALLY ESTABLISH WHAT THE BIDDER PROPOSED TO FURNISH, IS A REQUIREMENT DIRECTED TOWARD DETERMINING THE RESPONSIBILITY OF A BIDDER RATHER THAN THE RESPONSIVENESS OF THE BID AND THERE IS NO VALID BASIS FOR REJECTING THE LOW BID SOLELY FOR FAILURE TO SUBMIT DRAWINGS AND DATA. HOWEVER, IF AN ACCEPTABLE PRODUCT CANNOT BE PROCURED WITHOUT DESCRIPTIVE LITERATURE INDICATING EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH, THE INVITATION SHOULD BE CANCELED AND REISSUED IN COMPLIANCE WITH SECTION 1-2.202-5 OF THE FEDERAL PROCUREMENT REGULATIONS.

TO THE ADMINISTRATOR, MARITIME ADMINISTRATION, APRIL 8, 1969:

REFERENCE IS MADE TO A PROTEST BY ELCTRO IMPULSE LABORATORY, INC; TO THE PROPOSED REJECTION OF ITS LOW BID UNDER INVITATION FOR BIDS NO. BI MA69-7, COVERING A QUANTITY OF DEHUMIDIFIERS CONFORMING TO MARITIME ADMINISTRATION SPECIFICATION NO. RF-MA-4.

IN A LETTER DATED MARCH 6, 1969, YOUR ASSISTANT ADMINISTRATOR FOR ADMINISTRATION HAS ADVISED THAT FOUR BIDS WERE RECEIVED IN THIS PROCUREMENT AND THAT THE LOW BIDDER AND ONE OTHER FAILED TO SUBMIT WITH THEIR BIDS PRELIMINARY DRAWINGS AND OTHER DESCRIPTIVE DATA OUTLINED IN THE SPECIFICATIONS.

THE PERTINENT PROVISIONS OF THE SPECIFICATIONS ARE: D. REQUIREMENTS WITH BID

D-1. PRELIMINARY DRAWINGS. EACH BIDDER SHALL SUBMIT WITH HIS BID TWO (2) COPIES EACH OF A DRAWING OR DRAWINGS WHICH SHOW:

(A) PLAN, ELEVATION AND SIDE VIEWS OF EACH UNIT COMPLETE WITH APPROXIMATE OVERALL DIMENSIONS AND WEIGHT;

(B) GENERAL ARRANGEMENT AND APPROXIMATE DIMENSIONS OF COMPONENT PARTS OF EACH UNIT;

(C) GENERAL DETAILS OF THE MANNER IN WHICH THE DESICCANT WILL BE SET UP WITHIN THE UNIT TO DRY THE ENTERING AIR AND IN TURN, TO BE DRIED ITSELF BY THE REACTIVATION AIR;

(D) WIRING DIAGRAM, AIR FLOW SCHEMATIC, AND DESCRIPTION OF ALL CONTROLS:

(E) SIZE AND LOCATION OF DISCHARGE AND INLET OPENINGS;

(F) CALCULATIONS OF THE AMOUNT OF AIR TO BE HANDLED BY THE UNIT'S BLOWERS (CFM) TO PRODUCE THE REQUIRED MOISTURE REMOVING CAPACITY OF THE UNIT (SUBSECTION B-3). OR IN LIEU THEREOF, TWO COPIES EACH OF PERFORMANCE DATA SHEETS WHICH VALIDATE THE VOLUME REGULARLY USED BY THE CONTRACTOR TO OBTAIN THE GIVEN MRC:

(G) THE IDENTIFICATION SYMBOL OF THE INVITATION TO BID AND THE SIZE OF THE UNIT (SUBSECTION B-2) TO WHICH THE DRAWING APPLIES. IN ADDITION TO THE ABOVE, EACH BIDDER SHALL FURNISH A STATEMENT WHICH COVERS TWO (2) FEATURES OF THE UNIT HE PROPOSES TO FURNISH:

(1)THE ACTUAL WATER REMOVAL RATE AND CORRESPONDING AMOUNT OF AIR (CFM) WHICH THE UNIT WILL DELIVER AT ITS RATED BACK PRESSURE MEASURED IN INCHES OF WATER AT THE UNIT'S INSIDE AIR OUTLET;

(2) THE ACTUAL ENERGY CONSUMPTION OF THE UNIT UNDER THE CONDITIONS NOTED IN SUBSECTION B-4, PLUS A CURVE WHICH SHOWS ENERGY CONSUMPTION PER POUNDS OF WATER ABSORBED FOR INTERMEDIATE DRY BULL, CONDITIONS (BETWEEN 30 DEGREES F. AND 70 DEGREES F.) OF ENTERING AIR AT 35% R.H.

YOUR REPORT OF MARCH 6 TAKES THE POSITION THAT THE DEHUMIDIFICATION MACHINERY INVOLVED HERE IS A HIGHLY SPECIALIZED PIECE OF EQUIPMENT AND THAT THE REQUIRED DATA "IS NECESSARY TO DETERMINE, BEFORE AWARD, WHETHER THE PRODUCT OFFERED WILL CONCEIVABLY MEET THE SPECIFICATION REQUIREMENTS AND TO GENERALLY ESTABLISH WHAT THE BIDDER PROPOSES TO FURNISH." ACCORDINGLY, IT IS PROPOSED THAT THE LOW BID BE REJECTED AS NONRESPONSIVE TO THE INVITATION.

IT IS THE PROTESTOR'S POSITION THAT THE SUPPORTING LITERATURE IS REQUIRED MERELY TO ESABLISH TECHNICAL CAPABILITIES AND IN VIEW OF THE COMPLETE TECHNICAL SPECIFICATIONS WHICH WERE A PART OF THIS INVITATION THE DRAWINGS AND DESIGN INFORMATION ARE UNNECESSARY TO ESTABLISH WHAT IS BEING OFFERED.

WE HAVE RECOGNIZED THAT IN PROCURING HIGHLY SPECIALIZED EQUIPMENT AN ADMINISTRATIVE AGENCY MAY REQUIRE BIDDERS TO SUPPLY SPECIFIC DESCRIPTIVE DATA ON SPECIFIC COMPONENTS OF ITEMS BEING PROCURED TO ENABLE IT TO CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD. COMP. GEN. 415 AND B-158740, MAY 3, 1966. HOWEVER, FROM THE EARLIEST STAGES OF THE DEVELOPMENT OF THE PRESENT DAY USAGE OF DESCRIPTIVE DATA REQUIREMENTS WE HAVE TAKEN THE POSITION THAT, IF SUCH INFORMATION MUST BE SUBMITTED WITH THE BID, THE INVITATION SHOULD DEFINE THE PURPOSE AND EFFECT OF THE REQUIREMENT, INCLUDING THE EFFECT TO BE GIVEN TO THE REQUIRED DATA IN EVALUATION OF BIDS AND THE EXTENT TO WHICH IT WILL BE EMBODIED IN THE CONTRACT; SHOULD CONTAIN AN AFFIRMATIVE STATEMENT TO THE EFFECT THAT SUCH MATERIAL MUST DESCRIBE ITEMS WHICH WOULD BE IN STRICT COMPLIANCE WITH THE SPECIFICATIONS; AND SHOULD DECLARE THAT A FAILURE TO SUBMIT SUCH MATERIAL WITH THE BID WOULD PRECLUDE ITS CONSIDERATION. COMP. GEN. 376.

IN DECEMBER 1960, THE SUBSTANCE OF OUR VIEWS WAS INCORPORATED IN THE FEDERAL PROCUREMENT REGULATIONS (FPR) AT SECTION 1-2.202-5 (B), (C), AND (D), WHICH PROVIDE IN PERTINENT PART:

(B) POLICY. BIDDERS SHALL NOT BE REQUIRED TO FURNISH DESCRIPTIVE LITERATURE AS A PART OF THEIR BIDS UNLESS THE CONTRACTING AGENCY DEEMS THAT SUCH LITERATURE IS NEEDED TO ENABLE IT TO DETERMINE BEFORE AWARD WHETHER THE PRODUCTS OFFERED MEET TH SPECIFICATION REQUIREMENTS OF THE INVITATION FOR BIDS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH. IT MAY BE APPROPRIATE TO REQUIRE DESCRIPTIVE LITERATURE IN THE PROCUREMENT OF HIGHLY TECHNICAL OR SPECIALIZED EQUIPMENT, OR WHERE CONSIDERATIONS SUCH AS DESIGN OR STYLE ARE IMPORTANT IN DETERMINING ACCEPTABILITY OF THE PRODUCT.

(C) JUSTIFICATION. THE REASONS WHY ACCEPTABLE PRODUCTS CANNOT BE PROCURED WITHOUT THE SUBMISSION OF DESCRIPTIVE LITERATURE SHALL BE SET FORTH AND FILED IN THE CASE FILE, EXCEPT WHERE SUCH SUBMISSION IS REQUIRED BY THE FORMAL SPECIFICATIONS (FEDERAL, MILITARY, DEPARTMENTAL, ETC.) APPLICABLE TO THE PROCUREMENT.

(D) REQUIREMENTS OF INVITATION FOR BIDS. WHEN DESCRIPTIVE LITERATURE IS REQUIRED, THE INVITATION FOR BIDS SHALL CLEARLY STATE WHAT DESCRIPTIVE LITERATURE IS TO BE FURNISHED, THE PURPOSE FOR WHICH IT IS REQUIRED, THE EXTENT TO WHICH IT WILL BE CONSIDERED IN THE EVALUATION OF BIDS, AND THE RULES WHICH WILL APPLY IF A BIDDER FAILS TO FURNISH IT BEFORE BID OPENING OR IF THE LITERATURE FURNISHED DOES NOT COMPLY WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS. WHERE DESCRIPTIVE LITERATURE IS NOT CONSIDERED NECESSARY AND A WAIVER OF THE LITERATURE REQUIREMENTS OF A SPECIFICATION HAS BEEN AUTHORIZED, A STATEMENT SHALL BE INCLUDED IN THE INVITATION FOR BIDS THAT NOTWITHSTANDING THE REQUIREMENTS OF THE SPECIFICATIONS, DESCRIPTIVE LITERATURE WILL NOT BE REQUIRED.

(1) EXCEPT AS PROVIDED IN (D) (2) OF THIS SECTION, IF BIDDERS ARE TO FURNISH DESCRIPTIVE LITERATURE AS A PART OF THEIR BIDS, A PROVISION SUBSTANTIALLY AS FOLLOWS MODIFIED, IF APPROPRIATE, IN ACCORDANCE WITH (E) (1) OF THIS SECTION) SHALL BE INCLUDED IN THE INVITATION FOR BIDS: REQUIREMENT FOR DESCRIPTIVE LITERATURE

(A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED 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 PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO (* ).

* CONTRACTING OFFICER SHALL INSERT SIGNIFICANT ELEMENTS SUCH AS DESIGN, MATERIALS, COMPONENTS, OR PERFORMANCE CHARACTERISTICS, OR METHODS OF MANUFACTURE, CONSTRUCTION, ASSEMBLY, OR OPERATION, AS APPROPRIATE.

(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.

THE INVITATION IN THE PRESENT CASE CONTAINS NEITHER THE CLAUSE PRESCRIBED BY THE QUOTED REGULATION, NOR ANY OTHER PROVISION COMPLYING IN ANY SUBSTANTIAL MEASURE WITH THE CITED REGULATION AND OUR RECOMMENDATION IN 36 COMP. GEN. 376. YOUR REPORT OF MARCH 6, HOWEVER, TAKES THE POSITION THAT IN THIS CASE BIDDERS SHOULD READILY HAVE UNDERSTOOD THE PURPOSE AND THE REASONS FOR REQUIRING SUBMISSION OF THE DATA WITH THE BID, AND YOU HAVE CITED OUR DECISION B-154320, AUGUST 5, 1964, IN SUPPORT OF THE PROPOSITION THAT THE MANDATORY LANGUAGE OF THE SPECIFICATION CLEARLY IMPLIES THAT THE FAILURE TO COMPLY WILL LEAD TO REJECTION OF BIDS.

WHILE IT DOES APPEAR THAT IN B-154320 THE DATA PROVISIONS IN THE INVITATION EMPLOYED MANDATORY LANGUAGE SIMILAR TO THAT IN THE SUBJECT INVITATION, BUT OTHERWISE FAILED TO COMPLY IN ANY RESPECT WITH THE REQUIREMENT IN FPR 1-2.202-5 (D), THE CONCLUSION REACHED THEREIN WAS SUPPORTED ONLY BY CITATION OF CASES WHICH AROSE PRIOR TO THE EFFECTIVE DATE OF THE APPLICABLE REGULATION, AND THERE IS NOTHING IN THAT DECISION TO INDICATE THAT THE REGULATION WAS TAKEN INTO CONSIDERATION.

AS INDICATED BY THE PROVISIONS OF FPR 1-2.202-5(B) AND (D), BIDDERS SHOULD NOT BE REQUIRED TO FURNISH DESCRIPTIVE LITERATURE WITH THEIR BIDS UNLESS IT IS NECESSARY TO KNOW EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH, AND WHETHER THE ITEM WHICH THE BIDDER PROPOSES TO FURNISH WILL MEET THE SPECIFICATION REQUIREMENTS. IT IS OUR OPINION THAT A PROVISION IN THE INVITATION WHICH REQUIRES REJECTION OF A BID WHICH EITHER FAILS TO INCLUDE SUCH LITERATURE OR WHICH INCLUDES LITERATURE THAT DESCRIBES AN ITEM WHICH DOES NOT MEET THE SPECIFICATION REQUIREMENTS, CAN BE JUSTIFIED ONLY IN A PROCUREMENT WHERE THE DESCRIPTION IN THE BIDDER'S LITERATURE WILL OPERATE TO DEFINE OR LIMIT THE BIDDER'S OBLIGATION UNDER A CONTRACT AWARDED TO THAT BIDDER. THE PROVISIONS OF FPR 1-2.202-5 (D) REQUIRING INVITATIONS TO STATE THE PURPOSE FOR WHICH THE LITERATURE IS REQUIRED, THE EXTENT TO WHICH IT WILL BE CONSIDERED IN EVALUATING BIDS, AND THE RESULT OF EITHER FURNISHING LITERATURE WHICH DOES NOT COMPLY WITH INVITATION REQUIREMENTS, SUCH AS THE SPECIFICATIONS, OR THE RESULT OF FAILING TO FURNISH SUCH LITERATURE, ARE CLEARLY DIRECTED TO THAT END.

AS NOTED ABOVE, YOUR ADMINISTRATIVE REPORT TAKES THE POSITION THAT THE DATA REFERRED TO IN THIS CASE WAS NECESSARY TO DETERMINE WHETHER THE PRODUCT OFFERED WOULD "CONCEIVABLY" MEET THE SPECIFICATION REQUIREMENTS AND TO "GENERALLY ESTABLISH" WHAT THE BIDDER PROPOSES TO FURNISH. SUCH USE WOULD APPEAR TO BE DIRECTED TO DETERMINING THE RESPONSIBILITY OF THE BIDDER, RATHER THAN THE RESPONSIVENESS OF THE BID TO THE SPECIFICATION REQUIREMENTS. ADDITIONALLY, WE NOTE THAT SPECIFICATION RF-MA-4 WOULD APPEAR TO REQUIRE THAT THE SUCCESSFUL BIDDER MUST COMPLY WITH THE SPECIFICATION REQUIREMENTS RATHER THAN THE PRELIMINARY DRAWINGS SUBMITTED WITH HIS BID, AS INDICATED BY THE REQUIREMENT IN SECTION C FOR POST AWARD SUBMISSION OF DETAILED DRAWINGS, AND THE REQUIREMENT IN SECTION G FOR SUBMISSION AND APPROVAL OF A PREPRODUCTION SAMPLE WHICH CONFORMS TO EVERY REQUIREMENT OF THE SPECIFICATION. IN VIEW THEREOF, IT IS OUR OPINION THE RECORD PRESENTS NO VALID BASIS FOR REJECTING BIDS SOLELY FOR FAILURE TO SUBMIT PRELIMINARY DRAWINGS WITH THE BID.

IF UPON FURTHER ANALYSIS IT IS BELIEVED THAT AN ACCEPTABLE PRODUCT COULD NOT BE PRODUCED WITHOUT DESCRIPTIVE LITERATURE INDICATING EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH, AS OPPOSED TO THE GENERAL JUSTIFICATION GIVEN IN YOUR REPORT, CANCELLATION OF THE INVITATION AND RESOLICITATION UNDER AN INVITATION WHICH COMPLIES FULLY WITH FPR 1 2.202-5 WOULD BE IN ORDER. OTHERWISE, THE LOW BID OF ELCTRO IMPULSE MUST BE CONSIDERED FOR AWARD IF OTHERWISE PROPER.

ELECTRO IMPULSE IS BEING FURNISHED A COPY OF THIS DECISION.