B-170370(2), B-170387(2), DEC. 21, 1970

B-170370(2),B-170387(2): Dec 21, 1970

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PAINTING TECHNIQUE SUCH CHANGES WERE ACCURATELY REGARDED AS MATERIAL AND THE BID PROPERLY REJECTED AS NONRESPONSIVE. THE FACT THAT THE PRODUCT OFFERED MAY HAVE BEEN SUPERIOR AND THAT THE DEVIATIONS WERE APPROVED ORALLY BEFORE BID OPENING ARE INSUFFICIENT TO SUPPORT PROTEST. TO GENERAL DISPLAYS: REFERENCE IS MADE TO YOUR LETTERS OF JULY 15 AND AUGUST 25. THREE BIDS WERE RECEIVED AND OPENED ON JUNE 30. WAS TO BE CONSIDERED AS PART OF THE BID. THE ACCOMPANYING LETTER REFERS TO A CONVERSATION WITH "THE GENTLEMEN IN CHARGE" AT THE MEDICAL ILLUSTRATION SERVICE IN WHICH THERE IS AN ALLEGED AGREEMENT TO A "FEW MINOR VARIATIONS WHICH ACTUALLY MAKE PRODUCTION SIMPLER. THE PROPOSED VARIATIONS FROM THE SPECIFICATIONS ARE SET FORTH BELOW: AREA OF PROPOSED VARIATION PROPOSED VARIATION 1.

B-170370(2), B-170387(2), DEC. 21, 1970

BID PROTEST - BIDDER RESPONSIVENESS DENIAL OF PROTEST OF GENERAL DISPLAYS, LOW BIDDER, AGAINST THE AWARD OF AN ADVERTISED CONTRACT FOR 800 PLAQUES REPRESENTING INSIGNIA OF THE U.S. ARMY MEDICAL CENTER, WASHINGTON, D.C., TO SCULPTURAL PROMOTIONS, INC., ON THE BASIS THAT BID CONTAINED MATERIAL DEVIATIONS FROM THE SPECIFICATIONS. WHERE PROTESTANT PROPOSED VARIATIONS AS TO SIZE, MATERIAL, AND PAINTING TECHNIQUE SUCH CHANGES WERE ACCURATELY REGARDED AS MATERIAL AND THE BID PROPERLY REJECTED AS NONRESPONSIVE. THE FACT THAT THE PRODUCT OFFERED MAY HAVE BEEN SUPERIOR AND THAT THE DEVIATIONS WERE APPROVED ORALLY BEFORE BID OPENING ARE INSUFFICIENT TO SUPPORT PROTEST.

TO GENERAL DISPLAYS:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 15 AND AUGUST 25, 1970, WITH ENCLOSURES, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS (IFB) NO. DADA15-70-B-0157 ISSUED BY THE PURCHASING AND CONTRACTING BRANCH, WALTER REED ARMY MEDICAL CENTER, WASHINGTON, D.C.

THE SUBJECT INVITATION, ISSUED ON JUNE 12, 1970, REQUESTED BIDS FOR THE FURNISHING OF 800 PLAQUES REPRESENTING INSIGNIA OF THE UNITED STATES ARMY MEDICAL DEPARTMENT AND THE VARIOUS COMPONENT CORPS IN ACCORDANCE WITH SPECIFICATIONS ATTACHED THERETO. THREE BIDS WERE RECEIVED AND OPENED ON JUNE 30, 1970. YOU SUBMITTED THE LOWEST BID IN THE AMOUNT OF $4,960 AND SCULPTURAL PROMOTIONS, INC., SUBMITTED THE NEXT LOW BID IN THE AMOUNT OF $6,570. YOUR BID INCLUDED A LETTER DATED JUNE 25, 1970, WHICH, ACCORDING TO ITS INTRODUCTORY SENTENCE, WAS TO BE CONSIDERED AS PART OF THE BID. THE ACCOMPANYING LETTER REFERS TO A CONVERSATION WITH "THE GENTLEMEN IN CHARGE" AT THE MEDICAL ILLUSTRATION SERVICE IN WHICH THERE IS AN ALLEGED AGREEMENT TO A "FEW MINOR VARIATIONS WHICH ACTUALLY MAKE PRODUCTION SIMPLER, BETTER AND LESS EXPENSIVE." THE PROPOSED VARIATIONS FROM THE SPECIFICATIONS ARE SET FORTH BELOW:

AREA OF PROPOSED VARIATION PROPOSED VARIATION

1. THICKNESS OF PLAQUES THICKNESS INCREASED BY 1/8";

PROTRUDING BACK FLANGE INCLUDED

2. CENTER CORE MATERIAL WOOD FIBERWOOD TO BE USED IN

LIEU OF CELLOTEX

3. RIM AND LETTERING OF MEDICAL FLATTENING OF RIMS AND LETTERS

DEPARTMENT PLAQUE TO CONFORM TO OTHER PLAQUES

4. MANNER OF PAINTING RAISED AREAS SILK SCREEN OR SPRAY PAINT

TECHNIQUE IN LIEU OF HANDPAINTING

THE CONTRACTING OFFICER CONSIDERED YOUR BID TO BE NONRESPONSIVE BECAUSE OF THE QUALIFYING COMMENTS IN THE ACCOMPANYING LETTER AND MADE AWARD TO SCULPTURAL PROMOTIONS ON JUNE 30, 1970, AT THE PRICE OF $6,570. AS A RESULT OF YOUR PROTEST AND PENDING RESOLUTION OF THE MATTER, WE ARE ADVISED THAT PERFORMANCE ON THE CONTRACT HAS BEEN SUSPENDED.

IN YOUR LETTER OF JULY 15, 1970, YOU CONTEND THAT YOUR BID WAS "SUMMARILY REJECTED WITHOUT DISCUSSION" AND THAT THE REASON GIVEN IN PARAGRAPH 2 OF THE LETTER OF JUNE 30, 1970, FROM THE CONTRACTING OFFICER TO YOU, IS INVALID BECAUSE IT IS INFERRED THEREIN THAT INFORMATION GAINED BY DISCUSSING PRODUCTION PROBLEMS DURING YOUR VISIT TO THE TECHNICAL OFFICE WAS PREJUDICIAL TO THE OTHER TWO BIDDERS WHO, YOU ALLEGE, DID NOT VISIT THE OFFICE. YOU CONTEND FURTHER THAT THE REASON GIVEN IN PARAGRAPH 3 OF THE ABOVE-CITED LETTER THAT YOUR BID DOES NOT CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION IS ALSO INVALID. YOU ALLEGE THAT YOUR BID DOES CONFORM TO THE INVITATION AND THAT ANY DIFFERENCES WHICH DO EXIST ARE TRIVIAL AND WILL ENHANCE THE QUALITY OF THE PRODUCT. YOU THEN CONTEND THAT A SINGLE LOCAL PHONE CALL BY THE CONTRACTING OFFICER WOULD HAVE CLARIFIED THE FACT THAT YOU WOULD MANUFACTURE THE PLAQUES IN WHATEVER MANNER HE REQUESTED AND THAT SPECIFICATIONS AS ISSUED ARE AT VARIANCE WITH THE BEST TRADE PRACTICES. IN YOUR LETTER OF AUGUST 25, 1970, YOU FURTHER CONTEND THAT AS THESE PLAQUES ARE ESTHETIC ITEMS STRICT COMPLIANCE WITH RIGID SPECIFICATIONS IS NOT DESIRABLE. FINALLY YOU CONTEND THAT A BRAND NAME, "CELLOTEX," WAS USED IN THE SPECIFICATIONS FOR THE CORE MATERIAL WITHOUT THE QUALIFYING PHRASE "OR EQUAL."

CONCERNING THE CONTENTION THAT YOUR BID IS, IN FACT, RESPONSIVE BECAUSE YOUR SUGGESTED MODIFICATIONS ARE TRIVIAL AND WILL RESULT IN A SUPERIOR PRODUCT, PARAGRAPH 2-301(A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS IN ORDER TO BE CONSIDERED FOR AWARD. FURTHER, UNDER ASPR 2-404.2(B) AND (D) ANY BID WHICH FAILS TO CONFORM TO THE SPECIFICATIONS OR TO THE SUBSTANTIVE REQUIREMENTS OF THE INVITATION FOR BIDS MUST BE REJECTED. A REQUIREMENT IS SUBSTANTIVE IF IT AFFECTS PRICE, QUANTITY, OR QUALITY. SINCE THE PROPOSED VARIATION CONTAINED IN YOUR ACCOMPANYING LETTER RELATES TO EXPENSE OF PRODUCTION, SIZE, MATERIAL AND PAINTING TECHNIQUE TO BE EMPLOYED, IT IS EVIDENT THAT THE VARIATIONS AFFECT THE QUALITY OF THE PLAQUES AND MAY NOT BE WAIVED AS MERE INFORMALITIES. 30 COMP. GEN. 179 (1950); 45 ID. 487 (1966). THIS RESULT IS NOT ALTERED BY THE POSSIBILITY THAT THE PRODUCT MAY BE OF SUPERIOR QUALITY DUE TO THE PROPOSED CHANGES. ARTICLES WHICH DO NOT MEET THE ADVERTISED SPECIFICATIONS, ALTHOUGH PERHAPS SUPERIOR IN CERTAIN RESPECTS TO ITEMS CONFORMING TO THE MINIMUM REQUIREMENTS OF THE IFB, MAY NOT BE CONSIDERED FOR AWARD. 36 COMP. GEN. 705 (1957); 43 ID. 209 (1963). THE FACT THAT THE ARTICLES INVOLVED MAY BE "ESTHETIC ITEMS" IN NO WAY ALTERS THE REQUIREMENTS PRESCRIBED BY ASPR IN REGARD TO THE RESPONSIVENESS OF BIDS. ALSO THE FACT THAT "THE GENTLEMEN IN CHARGE AGREED TO A FEW MINOR VARIATIONS" PRIOR TO THE SUBMISSION OF YOUR BID IN NO WAY LEGALLY JUSTIFIES THE VARIATIONS CONTAINED IN YOUR BID. PARAGRAPH 3 OF SOLICITATION INSTRUCTIONS AND CONDITIONS (STANDARD FORM 33A), ENTITLED "EXPLANATION TO OFFERORS," PROVIDES THAT ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING. THEREFORE, YOUR BID WHICH INCLUDED YOUR PROPOSED VARIATIONS WAS NONRESPONSIVE AND WAS PROPERLY REJECTED BY THE CONTRACTING OFFICER PURSUANT TO ASPR 2-404.2(B).

IN REGARD TO YOUR CONTENTIONS THAT THE SPECIFICATIONS CONTAINED IN THE SOLICITATION ARE AT VARIANCE WITH TRADE PRACTICES AND THAT YOU SHOULD HAVE BEEN CONSULTED IN REGARD TO THE VARIATIONS CONTAINED IN YOUR BID, IT IS NOTED THAT AT NO TIME BEFORE THE BID OPENING DID YOU CALL THIS MATTER TO THE ATTENTION OF THE CONTRACTING OFFICER. IF YOU HAD DONE SO, AND IF YOUR ALLEGATIONS WERE FOUND TO HAVE A BASIS IN FACT, AMENDMENTS COULD HAVE BEEN MADE IN THE INVITATION PRIOR TO OPENING PURSUANT TO ASPR 2-208. THE RESPONSIVENESS OF A BID MUST BE DETERMINED SOLELY ON THE BASIS OF THE BID AS SUBMITTED. IF A BID IS PREPARED, AS HERE, SO AS TO CREATE A REASONABLE DOUBT CONCERNING THE BIDDER'S INTENTION TO COMPLY WITH THE INVITATION REQUIREMENTS, THAT BID MUST BE REJECTED. ANY NEGOTIATIONS WITH THE BIDDER TO CLARIFY SUCH INTENTION WOULD BE OBJECTIONABLE ON THE GROUNDS THAT NO BIDDER SHOULD BE AFFORDED A SECOND CHANCE TO BID AFTER BIDS ARE OPENED. 36 COMP. GEN. SUPRA.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT IS THE RESPONSIBILITY OF THE PROCUREMENT ACTIVITY. 40 COMP. GEN. 35 (1960). THE GOVERNMENT IS NOT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT THE ACCEPTANCE OF ITEMS WHICH DO NOT, IN THE JUDGMENT OF THE PROCUREMENT ACTIVITY, MEET THAT ACTIVITY'S NEED. B-161377, JUNE 19, 1967.

YOUR FINAL CONTENTION CONCERNS THE USE OF THE TERM "CELLOTEX" IN THE SPECIFICATIONS FOR THE CORE MATERIAL. YOU MAINTAIN THAT "CELLOTEX" IS A BRAND NAME AND THAT ITS USE IN THE SPECIFICATIONS IS IMPROPER WITHOUT THE QUALIFYING "OR EQUAL" PHRASE. THE SURGEON GENERAL INFORMS US THAT ALTHOUGH "CELLOTEX" IS THE NAME OF A COMPANY WHICH MANUFACTURES A LINE OF BUILDING PRODUCTS AND TECHNICALLY A TRADEMARK, THE TERM "CELLOTEX," UNCAPITALIZED, HAS BEEN, FOR MANY YEARS, USED LOOSELY AS A GENERIC TERM FOR INSULATING WALLBOARD MADE OF BAGASSE (CRUSHED SUGAR CANE) AND PRODUCTS OF A SIMILAR NATURE.

WHILE ASPR 1-1206 REQUIRES GENERALLY THAT "OR EQUAL" SHOULD BE USED IN THOSE CASES WHERE A BRAND NAME IS USED RATHER THAN A DETAILED SPECIFICATION, THERE IS NO EVIDENCE THAT THE EXCLUSION OF "OR EQUAL" IN THIS CASE IN ANY MANNER RESTRICTED THE COMPETITIVE NATURE OF THE INSTANT PROCUREMENT. ITS USE FOSTERED NO PROTEST FROM THE OTHER BIDDERS AND ONLY A BELATED PROTEST FROM YOU IN YOUR SECOND LETTER TO OUR OFFICE DATED AUGUST 25, 1970. IT IS EVIDENT THAT THE CONTRACTING OFFICER INTENDED TO USE "CELLOTEX" AS A GENERIC DESCRIPTIVE TERM RATHER THAN AS A RESTRICTIVE TERM LIMITING THE FILLER MATERIAL TO A PARTICULAR BRAND.

WE THEREFORE CONCLUDE THAT YOUR BID FAILED TO CONFORM WITH THE SPECIFICATIONS OF THE INVITATION FOR BIDS AND WAS PROPERLY REJECTED BY THE CONTRACTING OFFICER PURSUANT TO THE PROVISIONS OF ASPR 2-404.2(B).

ACCORDINGLY, YOUR PROTEST IS DENIED.