B-166953, JUL. 23, 1969

B-166953: Jul 23, 1969

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SINCE BID AS SUPPLEMENTED BY DESCRIPTIVE LITERATURE DEVIATED FROM SPECIFICATIONS AND THERE IS NO BASIS TO DISAGREE WITH PROCURING AGENCY'S TECHNICAL JUDGMENT BID WAS PROPERLY REJECTED. DESCRIPTIVE LITERATURE (OR OTHER SUITABLE DOCUMENTS IF SUCH LITERATURE IS NOT AVAILABLE) 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 DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH. FAILURE OF DESCRIPTIVE LITERATURE TO SHOW 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.

B-166953, JUL. 23, 1969

BID PROTEST - DESCRIPTIVE LITERATURE - DEVIATION DECISION TO WESTRONICS, INC., LOW BIDDER DENYING PROTEST AGAINST THE REJECTION OF BID FOR FURNISHING STRIP CHART RECORDERS TO NATIONAL AIR POLLUTION CONTROL ADMINISTRATION, HEALTH, EDUCATION, AND WELFARE ON BASIS OF NONRESPONSIVENESS. SINCE BID AS SUPPLEMENTED BY DESCRIPTIVE LITERATURE DEVIATED FROM SPECIFICATIONS AND THERE IS NO BASIS TO DISAGREE WITH PROCURING AGENCY'S TECHNICAL JUDGMENT BID WAS PROPERLY REJECTED.

TO WESTRONICS, INC.:

IN YOUR LETTER OF MAY 7, 1969, WITH ENCLOSURES, YOU PROTEST THE REJECTION OF YOUR LOW BID SUBMITTED IN RESPONSE TO DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE INVITATION FOR BIDS NO. 69-49 ISSUED BY THE NATIONAL AIR POLLUTION CONTROL ADMINISTRATION, CONSUMER PROTECTION AND ENVIRONMENTAL HEALTH SERVICES, DURHAM, NORTH CAROLINA.

THE INVITATION REQUESTED BIDS FOR FURNISHING 48 STRIP CHART RECORDERS TO BE MANUFACTURED IN ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS AS SET FORTH THEREIN. THE INVITATION PROVIDED, UNDER THE CAPTION "DESCRIPTIVE LITERATURE," AS FOLLOWS:

"5.1 DESCRIPTIVE LITERATURE "A. DESCRIPTIVE LITERATURE (OR OTHER SUITABLE DOCUMENTS IF SUCH LITERATURE IS NOT AVAILABLE) 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 PURPOSE OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, ASSEMBLY, OPERATION, PERFORMANCE CHARACTERISTICS, AND PARTICULARLY CONFORMANCE TO THESE SPECIFICATIONS.'B. FAILURE OF DESCRIPTIVE LITERATURE TO SHOW 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 PROVISION FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.'

FIVE BIDS WERE RECEIVED AND OPENED ON FEBRUARY 6, 1969. THE LOWEST BID WAS SUBMITTED BY YOUR FIRM AND THE FOURTH LOWEST BID WAS SUBMITTED BY LEEDS AND NORTHRUP COMPANY. YOUR BID AND THE SECOND AND THIRD LOWEST BIDS WERE FOUND TO BE NONRESPONSIVE TO THE ADVERTISED SPECIFICATIONS AND WERE THEREFORE REJECTED. SPECIFICALLY, YOUR BID WAS REJECTED BECAUSE THE DESCRIPTIVE LITERATURE ACCOMPANYING YOUR BID INDICATED THAT THE EQUIPMENT YOU PROPOSED TO FURNISH WOULD NOT MEET THE ACCURACY REQUIREMENT OF PARAGRAPH 1.3 OF THE SPECIFICATIONS. ALSO, IN A NUMBER OF OTHER RESPECTS, THE DESCRIPTIVE LITERATURE DID NOT PROVIDE INFORMATION NECESSARY TO DETERMINE WHETHER THE EQUIPMENT PROPOSED TO BE FURNISHED BY YOUR FIRM WOULD MEET ALL THE REQUIREMENTS OF THE SPECIFICATIONS. ON FEBRUARY 12, 1969, A CONTRACT FOR FURNISHING THE REQUIRED STRIP CHART RECORDERS WAS AWARDED TO LEEDS AND NORTHRUP COMPANY AS THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDER. IT IS REPORTED THAT THE FIRST ARTICLE SUBMITTED BY LEEDS AND NORTHRUP WAS APPROVED APRIL 10, 1969; THAT DELIVERY OF THE RECORDERS IS DUE JULY 2, 1969; AND THAT LEEDS AND NORTHRUP WILL MAKE DELIVERY BY THAT DATE.

ESSENTIALLY, IT IS YOUR POSITION THAT AWARD SHOULD HAVE BEEN MADE TO WESTRONICS AS THE LOWEST RESPONSIVE BIDDER, ESPECIALLY SINCE YOUR BID SPECIFICALLY ADVISED THAT NO EXCEPTIONS TO THE SPECIFICATIONS WERE BEING TAKEN. HOWEVER, THE FACT REMAINS THAT YOUR BID AS SUPPLEMENTED BY DESCRIPTIVE DATA DEVIATED FROM THE ADVERTISED SPECIFICATIONS. IN 41 COMP. GEN. 192, 195, WE HELD THAT "A BLANKET OFFER TO COMPLY WITH SPECIFICATIONS CANNOT OVERCOME OR RENDER NEGATORY EITHER THE SPECIFIC REQUIREMENT OF AN INVITATION FOR THE FURNISHING OF DESCRIPTIVE DATA OR THE PROVISIONS THEREOF CONCERNING THE EXTENT TO WHICH SUCH DATA WILL BE CONSIDERED IN THE EVALUATION OF BIDS.'

THE DETAILS OF THE DEVIATIONS APPEARING IN YOUR FIRM'S DESCRIPTIVE LITERATURE ARE SET OUT IN A MEMORANDUM DATED FEBRUARY 10, 1969, WHICH, IN PERTINENT PART, ARE AS FOLLOWS:

"SUBJECT: TECHNICAL EVALUATION OF BIDS, NO. 69-49 "LOW BID: WESTRONICS, INC., FORT WORTH, TEXAS "AN EVALUATION OF THE DESCRIPTIVE LITERATURE SUBMITTED INDICATED THE FOLLOWING SALIENT ITEMS WHICH APPEAR TO FAIL CONFORMANCE TO THE SPECIFICATIONS.''1) THE LITERATURE INDICATES AN ACCURACY OF PLUS OR -0.25 PERCENT OF SPAN OR PLUS OR -5 MICROVOLTS, WHICHEVER IS GREATER. THIS CLEARLY DOES NOT MEET THE ACCURACY OF SPECIFICATION 1.3 REQUIRING PLUS OR - 0.3 PERCENT OF SPAN WHICH, FOR THE 1 MILLIVOLT SPAN SPECIFIED, IS PLUS OR -3 MICROVOLTS. (0.3 PERCENT X .001 VOLT EQUALS .000003 VOLT EQUALS 3 MICROVOLT). THERE IS NO MENTION IN THE LITERATURE OF A MODIFICATION TO MEET THIS REQUIREMENT.''2) THE DESCRIPTIVE LITERATURE DOES NOT INDICATE THAT THE BIDDER HAS THE -COMPLETE LOCAL FIELD FACILITIES WHICH INCLUDES A COMPLETE SERVICE SHOP FOR IN-THE-FIELD REPAIRS IN EACH OF THE CAMP CITIES' AS REQUIRED BY SPECIFICATION 1.27. MOREOVER, MY EXPERIENCE INDICATES THAT THE BIDDER, IN FACT, DOES NOT MEET THIS SPECIFICATION.''3) THERE IS NO INDICATION IN THE LITERATURE TO SHOW THAT THE STANDARD CASE OR ANY MODIFICATION THEREOF WOULD MEET THE REQUIREMENTS OF SPECIFICATION 1.16 WHICH REQUIRES A -RIGID CAST ALUMINUM CASE OR EQUIVALENT INDUSTRIAL CONSTRUCTION FOR RUGGEDNESS AND PROTECTION FROM POSSIBLE ROUGH HANDLING DURING SHIPMENT AND USE-. SPECIFICATION 1.16 FURTHER STATES THAT -THIN, SHEET METAL LABORATORY TYPE CASES ARE UNACCEPTABLE.- "/4) THERE IS NO INDICATION IN THE LITERATURE THAT EITHER THE STANDARD CHASSIS OR ANY MODIFICATION THEREOF WOULD MEET SPECIFICATION 1.17 REQUIRING -HEAVY DUTY, STRUCTURALLY RIGID CONSTRUCTION TO PREVENT LOSS OF ALIGNMENT DURING USE OR HANDLING-.''5) THE LITERATURE MAKES NO MENTION OF A DAMPING CONTROL AS REQUIRED BY SPECIFICATION 1.20.'ALL OF THE ABOVE ITEMS ARE PARTIAL CAUSES FOR HAVING TO REPLACE THE WESTRONICS RECORDERS INDICATED ON THE IFB AS TRADE-IN EQUIPMENT.''6) THE LITERATURE MAKES NO MENTION OF A GAIN CONTROL AS REQUIRED BY SPECIFICATION 1.19.''7) THERE IS NO MENTION IN THE LITERATURE OF INPUT AND OUTPUT CONNECTORS AS REQUIRED BY SPECIFICATIONS 1.14, 2.3, 3.4, AND 5.''8) THERE ARE NO DRAWINGS OR OTHER LITERATURE TO INDICATE HOW THE BIDDER SHALL PROVIDE THE RANGE SELECTOR SWITCH REQUIRED BY SPECIFICATION 4.3 AND THE INPUT SELECTOR SWITCH REQUIRED BY SPECIFICATION 4.2.'IN VIEW OF THE ABOVE, IT APPEARS THAT THE DESCRIPTIVE LITERATURE SUBMITTED BY THE BIDDER CLEARLY FAILS TO SHOW THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS,- AS REQUIRED BY PARAGRAPH 5.LB.'

THE DESCRIPTIVE LITERATURE CLAUSE INCLUDED IN THE INVITATION FOR BIDS (IFB) PROVIDES THAT DESCRIPTIVE LITERATURE,"AS SPECIFIED IN THIS INVITATION FOR BIDS," IS REQUIRED TO ESTABLISH DETAILS OF THE PRODUCT OFFERED AS TO "DESIGN, ASSEMBLY, OPERATION, PERFORMANCE CHARACTERISTICS, AND PARTICULARLY CONFORMANCE TO THESE SPECIFICATIONS.' IT ALSO PROVIDES THAT FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE, OR FAILURE OF THE DESCRIPTIVE LITERATURE TO SHOW CONFORMANCE TO THE SPECIFICATIONS, WILL REQUIRE REJECTION OF THE BID. HOWEVER, THE INVITATION FAILS TO IDENTIFY THOSE ITEMS OR SPECIFICATION FEATURES AS TO WHICH DESCRIPTIVE LITERATURE WAS REQUIRED. WE HAVE HELD THAT THE REQUIREMENT FOR SUCH LITERATURE SHOULD ADVISE BIDDERS WITH PARTICULARITY BOTH AS TO THE EXTENT OF DETAIL REQUIRED AND THE PURPOSE IT IS EXPECTED TO SERVE SO THAT BIDDERS MIGHT BE ON AN EQUAL BASIS IN MEETING THE DESCRIPTIVE LITERATURE REQUIREMENT. COMP. GEN. 59; 42 ID. 598; 46 ID. 315. IN OUR DECISION REPORTED AT 46 COMP. GEN. 1, 5, INVOLVING APPLICATION OF A PROVISION IN THE ARMED SERVICES PROCUREMENT REGULATION, WHICH IS IDENTICAL TO SECTION 1-2.202-5 (D) OF THE FEDERAL PROCUREMENT REGULATIONS, WE MADE THE FOLLOWING OBSERVATION:

"* * * THE MERE RECITAL IN THE DESCRIPTIVE LITERATURE CLAUSE OF THE CATEGORIES OF GENERAL SUBJECTS, WHICH ARE LISTED IN THE FOOTNOTE TO SUFFICIENT TO ESTABLISH A COMMON BASIS FOR EVALUATION OF BIDS. * * *" ASPR 2-205.5 (D) (2) AS SUBJECTS WHICH MIGHT REQUIRE DESCRIPTION, IS NOT

ALSO, OF RELEVANCY HERE IS THE FOLLOWING EXCERPT FROM 46 COMP. GEN. 315, 318:

"FURTHERMORE, WHILE IT IS NOT CLEAR WHAT WAS EXPECTED OF BIDDERS WITH RESPECT TO DESCRIBING PERFORMANCE CHARACTERISTICS, THE COMMENTS OF THE AGENCY REGARDING THE DEFICIENCIES IN YOUR BID WITH RESPECT TO CERTAIN PARAGRAPHS OF THE PURCHASE DESCRIPTION INDICATE IT EXPECTED BIDDERS TO RENDER THEIR BIDS RESPONSIVE MERELY BY AFFIRMING THAT THEIR EQUIPMENT WOULD INDEED MEET THE REQUIREMENTS OF THE PURCHASE DESCRIPTION WHICH THEY WOULD HAVE BEEN REQUIRED TO HAVE MET WITHOUT SUCH A SUPERFLUOUS AFFIRMATION. IF THE REQUIREMENT FOR DESCRIPTIVE LITERATURE CAN BE MET BY PARROTING BACK THE GOVERNMENT SPECIFICATIONS, THE LEGITIMACY OF THAT REQUIREMENT IS QUESTIONABLE. B-150622, DATED JUNE 6, 1963. THE LEGITIMACY OF THE REQUIRMENT CERTAINLY IS NOT HERE ESTABLISHED, AS IT SHOULD BE, BY THE -JUSTIFICATION FOR DESCRIPTIVE LITERATURE,- WHICH DOES LITTLE MORE THAN STATE A CONCLUSION THAT DESCRIPTIVE LITERATURE IS REQUIRED, AND FURNISHES NO STANDARDS FOR OR IDENTIFICATION OF PERFORMANCE CHARACTERISTICS WHICH MIGHT BE DESCRIBED, EXCEPT TO THE EXTENT SUCH ELEMENTS ARE ALREADY SPECIFICALLY PRESCRIBED BY THE PURCHASE DESCRIPTION REQUIREMENTS.' IN THIS CONNECTION, THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE HAS ADVISED THAT IT IS OF THE OPINION THAT THE DESCRIPTIVE LITERATURE CLAUSE IN THE SUBJECT INVITATION WAS VAGUE AND THAT APPROPRIATE MEASURES HAVE BEEN TAKEN TO PRECLUDE THE USE OF A SIMILAR CLAUSE.

HOWEVER, EVEN THOUGH AN IFB MAY HAVE BEEN DEFECTIVE FOR FAILURE TO STATE CLEARLY WHAT DESCRIPTIVE LITERATURE WAS TO BE FURNISHED BY THE BIDDER, A BID MAY BE PROPERLY REJECTED IF THE LITERATURE ACCOMPANYING AND QUALIFYING THE BID SHOWS THAT SUCH ITEM WILL NOT CONFORM TO A STATED REQUIREMENT OF THE PURCHASE DESCRIPTION. SEE 46 COMP. GEN. 1.

THE DESCRIPTIVE LITERATURE YOU SUBMITTED AS PART OF YOUR BID INDICATES YOU PROPOSED TO SUPPLY A RECORDER WHICH DID NOT CONFORM TO PARAGRAPH 1.3 OF THE SPECIFICATIONS, WHICH PROVIDES: "1.3 ACCURACY RATING: PLUS OR -0.3 PERCENT OF ELECTRICAL SPAN OR BETTER, OVER AT LEAST THE FULL DURATION OF THE INSTRUMENT WARRANTY PERIOD.'

IT IS REPORTED THAT YOUR DESCRIPTIVE LITERATURE INDICATES A RECORDER ACCURACY OF PLUS OR -0.25 PERCENT OF SPAN OR PLUS OR -5 MICROVOLTS, WHICHEVER IS GREATER. THE ADMINISTRATIVE AGENCY REGARDS THIS AS AN ATTEMPT TO TAKE AN EXCEPTION TO THE REQUIREMENT IN PARAGRAPH 1.3 OF THE SPECIFICATIONS FOR AN ACCURACY OF PLUS OR -0.3 PERCENT OF ELECTRICAL SPAN OR BETTER. SINCE THE IFB INDICATES THIS REQUIREMENT WAS A MATERIAL ONE, AND SINCE WE HAVE NO BASIS TO DISAGREE WITH THE PROCURING AGENCY'S TECHNICAL JUDGMENT THAT YOUR DESCRIPTIVE LITERATURE TOOK EXCEPTION TO THE MATERIAL REQUIREMENT STATED IN PARAGRAPH 1.3 OF THE SPECIFICATIONS, WE MAY NOT CONCLUDE THAT YOUR BID WAS OTHERWISE RESPONSIVE TO THE INVITATION.