B-169183(1), JUN. 15, 1970

B-169183(1): Jun 15, 1970

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AGENCY MISHANDLING INVITATION FOR CONVEYOR SYSTEM COMPATIBLE WITH EXISTING EQUIPMENT REQUIRED DESCRIPTIVE LITERATURE WITH WARNING THAT NONCONFORMANCE OF LITERATURE TO SPECIFICATIONS WILL REQUIRE BID REJECTION. BIDDER WHOSE BID WAS REJECTED FOR FAILURE TO ADEQUATELY COMPLY WITH DESCRIPTIVE LITERATURE REQUIREMENT AND WHO PROTESTS AWARD. OFFERS NO BASIS FOR OBJECTION SINCE LITERATURE FURNISHED WAS GENERAL AND DID NOT IDENTIFY ITEM IN BID TO WHICH IT PERTAINED AS REQUIRED BY INVITATION. SUCCESSFUL BIDDER'S TELEGRAPHIC MODIFICATION WAS LATE SOLELY DUE TO ADMINISTRATIVE ERROR AND THEREFORE CONSIDERATION THEREOF WAS APPROPRIATE. A COPY OF WHICH WAS FORWARDED TO THIS OFFICE. THIS INVITATION FOR BIDS WAS ISSUED ON NOVEMBER 26.

B-169183(1), JUN. 15, 1970

BIDS--LATE--MODIFICATION--AGENCY MISHANDLING INVITATION FOR CONVEYOR SYSTEM COMPATIBLE WITH EXISTING EQUIPMENT REQUIRED DESCRIPTIVE LITERATURE WITH WARNING THAT NONCONFORMANCE OF LITERATURE TO SPECIFICATIONS WILL REQUIRE BID REJECTION. BIDDER WHOSE BID WAS REJECTED FOR FAILURE TO ADEQUATELY COMPLY WITH DESCRIPTIVE LITERATURE REQUIREMENT AND WHO PROTESTS AWARD, OFFERS NO BASIS FOR OBJECTION SINCE LITERATURE FURNISHED WAS GENERAL AND DID NOT IDENTIFY ITEM IN BID TO WHICH IT PERTAINED AS REQUIRED BY INVITATION. SUCCESSFUL BIDDER'S TELEGRAPHIC MODIFICATION WAS LATE SOLELY DUE TO ADMINISTRATIVE ERROR AND THEREFORE CONSIDERATION THEREOF WAS APPROPRIATE. SEE COMP. GEN. DECS. CITED.

TO NAVIGATE, INCORPORATED:

THIS CONCERNS YOUR LETTER OF MARCH 3, 1970, TO THE PURCHASING AND CONTRACTING DIVISION, PUEBLO ARMY DEPOT, A COPY OF WHICH WAS FORWARDED TO THIS OFFICE, PROTESTING THE AWARD TO JERVIS B. WEBB COMPANY UNDER INVITATION FOR BIDS NO. DAAG12-70-B-0015.

THIS INVITATION FOR BIDS WAS ISSUED ON NOVEMBER 26, 1969, FOR A CONVEYOR SYSTEM AS PART OF THE SECOND PHASE OF THE STORAGE MODERNIZATION PROGRAM AT PUEBLO ARMY DEPOT. BIDS WERE TO BE OPENED ON DECEMBER 26, 1969. THE INVITATION FOR BIDS WAS AMENDED THREE TIMES. THE LAST AMENDMENT, WHICH ADDED A SUBSTITUTE ITEM IN ACCORDANCE WITH PUEBLO ARMY DEPOT SPECIFICATION AND DRAWING NO. 225, EXTENDED THE BID OPENING DATE TO JANUARY 6, 1970.

THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION: FROM SPILLYARD MACHINERY COMPANY, INCORPORATED (SPILLYARD), NAVIGATE, INCORPORATED (NAVIGATE), AND JERVIS B. WEBB COMPANY OF CALIFORNIA (WEBB). THE LOW BID FROM SPILLYARD, AND THE SECOND LOW BID FROM NAVIGATE, WERE REJECTED BY THE BOARD OF AWARDS FOR FAILURE TO ADEQUATELY COMPLY WITH THE REQUIREMENT, SET FORTH ON PAGE 10 OF THE SCHEDULE OF THE INVITATION, THAT BIDS BE ACCOMPANIED BY DESCRIPTIVE LITERATURE. IN VIEW OF THOSE DETERMINATIONS, THE BOARD OF AWARDS RECOMMENDED AWARD TO WEBB. THE CONTRACTING OFFICER AWARDED WEBB THE CONTRACT ON FEBRUARY 16, 1970.

THIS INVITATION FOR BIDS WAS FOR ITEMS SIMILAR TO THOSE PURCHASED BY THE PUEBLO ARMY DEPOT FOR THE FIRST PHASE OF THE STORAGE MODERNIZATION PROGRAM. THE INVITATION SPECIFIED THAT THE ITEMS MUST BE COMPATIBLE AND THAT ONLY ONE AWARD WOULD BE MADE. THE EQUIPMENT BEING PROCURED WAS REQUIRED TO BE COMPATIBLE WITH EXISTING EQUIPMENT AS WELL AS INTERNALLY COMPATIBLE. THE CONTRACTING OFFICER BELIEVED THAT THE SPECIFICATIONS OF THE INVITATION FOR BIDS WERE NOT SUFFICIENT BY THEMSELVES TO INSURE THAT THE EQUIPMENT OFFERED WOULD BE COMPATIBLE WITH EXISTING EQUIPMENT. THEREFORE, THE CONTRACTING OFFICER INCLUDED IN THE INVITATION FOR BIDS A REQUIREMENT FOR SUBMISSION OF DESCRIPTIVE LITERATURE.

AS A RESULT OF THIS PROTEST THE ARMY MATERIEL COMMAND REQUESTED THE TOBYHANNA ARMY DEPOT AT TOBYHANNA, PENNSYLVANIA TO INDEPENDENTLY REVIEW THE INVITATION FOR BIDS AND DETERMINE WHETHER DESCRIPTIVE LITERATURE WAS REQUIRED. BY LETTER DATED MAY 1, 1970, THE TOBYHANNA ARMY DEPOT CONCURRED WITH THE CONTRACTING OFFICER'S JUDGMENT THAT DESCRIPTIVE LITERATURE WAS NECESSARY. THAT CONCURRENCE WAS BASED, AMONG OTHER REASONS, UPON THE FACT THAT THE EQUIPMENT BEING PROCURED MUST PERFORM CONTROLLED TASKS OF LOAD ALIGNMENT, SEQUENCING AND STOP/RELEASE PECULIAR TO THE VARIETY OF MATERIAL/LOADS HANDLED, AND BE CAPABLE OF TRANSFERRING LOADS FROM ONE CONVEYANCE SYSTEM TO ANOTHER. TOBYHANNA ARMY DEPOT CONCLUDED THAT THE PUEBLO ARMY DEPOT PURCHASE DESCRIPTION IN THE INVITATION FOR BIDS WAS NOT SUFFICIENT BY ITSELF TO INSURE THAT THE CONVEYOR SYSTEM OFFERED BY A BIDDER WOULD MEET THESE REQUIREMENTS.

THIS OFFICE HAS RECOGNIZED THE PROPRIETY OF INCLUDING IN THE INVITATION FOR BIDS A REQUIREMENT FOR FURNISHING DESCRIPTIVE LITERATURE WHERE THE NATURE OF THE LITERATURE REQUIRED IS SPELLED OUT AND BIDDERS ARE ADVISED THAT THE FAILURE TO COMPLY WILL REQUIRE REJECTION OF THEIR BIDS. SEE 36 COMP. GEN. 376 (1956), ID 415 (1956). PAGE 10 OF THE SCHEDULE OF THE INVITATION FOR BIDS FULLY ADVISED BIDDERS AS TO THE NATURE OF THE DESCRIPTIVE LITERATURE REQUIRED AND THAT FAILURE TO COMPLY WOULD RESULT IN BID REJECTION.

THEREFORE, WE BELIEVE THAT UNLESS THE DESCRIPTIVE LITERATURE FURNISHED WITH YOUR BID WAS ADEQUATE TO ENABLE THE PROCURING ACTIVITY TO FULLY EVALUATE YOUR EQUIPMENT YOUR BID WAS PROPERLY REJECTED. THE CONTRACTING AGENCY'S CONCLUSION IS ENTITLED TO GREAT WEIGHT SINCE THEY HAVE THE RESPONSIBILITY TO SEE THE NEEDS OF THE GOVERNMENT ARE FULFILLED AND THEY POSSESS THE NECESSARY TECHNICAL FACILITIES, WHICH THIS OFFICE DOES NOT, TO FAIRLY EVALUATE WHAT A BIDDER PROPOSES TO FURNISH. SEE 41 COMP. GEN. 755 (1962). WE FIND NO BASIS FOR REFUSING TO ADOPT THE CONTRACTING AGENCY'S CONCLUSION IN THIS INSTANCE SINCE YOUR DESCRIPTIVE LITERATURE WAS GENERAL IN NATURE AND DID NOT IDENTIFY THE PARTICULAR ITEM IN THE BID TO WHICH IT PERTAINED AS REQUIRED BY THE INVITATION FOR BIDS. SEE PAGE 10 OF SCHEDULE, REQUIREMENT FOR DESCRIPTIVE LITERATURE, SUBPART (A). INSOFAR AS THE ALLEGATIONS RESPECTING ITEM PRICES OF WEBB'S BID AS READ AT BID OPENING WE DO NOT BELIEVE THAT ANY ACTION ON THE PART OF THIS OFFICE WOULD BE WARRANTED. EVEN ASSUMING THE CONTRACTING OFFICER INCORRECTLY ANNOUNCED WEBB'S BID PRICES, THE BID WITH THE EXCEPTION OF ITEM 6, ACTUALLY CONTAINED THE PRICES AT WHICH AWARD WAS MADE AND THOSE PRICES WERE NOT ALTERED AFTER BID OPENING. THE BID PRICE FOR ITEM 6 WAS CHANGED BY WEBB PRIOR TO BID OPENING BY A TELEGRAPHIC MODIFICATION WHICH WAS RECEIVED BY THE CONTRACTING AGENCY ON JANUARY 5, 1970, ONE DAY PRIOR TO BID OPENING. HOWEVER, DUE TO AN ADMINISTRATIVE ERROR, THIS MODIFICATION WAS NOT PRESENTED TO THE PERSON OPENING BIDS UNTIL AFTER BID OPENING. CONSIDERATION OF SUCH A BID MODIFICATION WHICH IS LATE SOLELY DUE TO AN ADMINISTRATIVE ERROR IS APPROPRIATE UNDER BOTH THE TERMS OF THE INVITATION FOR BIDS ON PAGE 5 AND THE ARMED SERVICES PROCUREMENT REGULATION 2-303.4.