B-171844, MAY 4, 1971

B-171844: May 4, 1971

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AGAINST THE DETERMINATION BY THE CONTRACTING OFFICER THAT ITS LOW BID WAS NONRESPONSIVE TO THE IFB ISSUED BY THE NAVAL AIR STATION. TO MARSHALL RESEARCH AND DEVELOPMENT CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAM DATED FEBRUARY 4. IN WHICH YOU PROTEST THE DETERMINATION BY THE CONTRACTING OFFICER THAT YOUR FIRM'S BID WAS NONRESPONSIVE TO INVITATION FOR BIDS NO. IT WAS FOUND THAT THE LOW BID. IT WAS STATED THAT YOU WERE PROPOSING TO FURNISH THE ITEM FROM STOCK. THE CONTRACTING OFFICER CONCLUDED THAT YOUR BID WAS NONRESPONSIVE. THAT THE MATERIAL SUBMITTED WITH THE BID WAS INTENDED TO SHOW TECHNICAL CAPABILITY ONLY AND NOT TO QUALIFY THE BID. YOU CONTEND THAT NO EVIDENCE EXISTS TO INDICATE THAT THE UNSOLICITED DESCRIPTIVE LITERATURE WAS IN ANY WAY INTENDED TO QUALIFY THE BID.

B-171844, MAY 4, 1971

BID PROTEST - BID RESPONSIVENESS - UNSOLICITED DESCRIPTIVE DATA DENIAL OF PROTEST OF MARSHALL RESEARCH & DEVELOPMENT CORP., AGAINST THE DETERMINATION BY THE CONTRACTING OFFICER THAT ITS LOW BID WAS NONRESPONSIVE TO THE IFB ISSUED BY THE NAVAL AIR STATION, PATUXENT RIVER, MD., FOR VIBRATION TEST MACHINE. LITERATURE FURNISHED WITH A BID DESCRIBING ITEMS NOT CONFORMING TO THE SPECIFICATIONS, WITHOUT ANY INDICATION OF INTENT THAT THE LITERATURE DID NOT QUALIFY THE BID, CAST SUCH DOUBT ON THE BIDDER'S INTENTION THAT THE BID MUST BE REJECTED AS NONRESPONSIVE.

TO MARSHALL RESEARCH AND DEVELOPMENT CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM DATED FEBRUARY 4, 1971, AND YOUR LETTERS DATED FEBRUARY 6 AND FEBRUARY 12, 1971, IN WHICH YOU PROTEST THE DETERMINATION BY THE CONTRACTING OFFICER THAT YOUR FIRM'S BID WAS NONRESPONSIVE TO INVITATION FOR BIDS NO. N00421-71-B-0030, ISSUED BY THE NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, ON DECEMBER 3, 1970, FOR A VIBRATION TEST MACHINE IN ACCORDANCE WITH DESIGNATED SPECIFICATIONS.

AT BID OPENING ON JANUARY 6, 1971, IT WAS FOUND THAT THE LOW BID, SUBMITTED BY YOUR FIRM, INCLUDED AN UNSOLICITED BROCHURE CONSISTING OF PICTURES, DETAILED SCHEMATICS, DEFINITIVE SPECIFICATIONS AND A DETAILED EXPLANATION OF THE OPERATION OF YOUR MRAD LINE OF AGREE SHAKERS. HOWEVER, NO EXPLANATORY LETTER ACCOMPANIED THE BID. ON PAGE 7 OF THE BID, IT WAS STATED THAT YOU WERE PROPOSING TO FURNISH THE ITEM FROM STOCK. THE CONTRACTING OFFICER THEREFORE EVALUATED YOUR BID BASED ON THE LITERATURE FURNISHED AND HE DETERMINED THAT THE MODELS DESCRIBED IN YOUR LITERATURE COULD NOT COMPLY WITH THE ADVERTISED SPECIFICATIONS WITHOUT MODIFICATION. FOR EXAMPLE, THE MODELS DESCRIBED IN THE LITERATURE SHOW A MAXIMUM ACCELERATION OF 3.2G AS OPPOSED TO A SPECIFICATION REQUIREMENT OF 10G. CONSEQUENTLY, THE CONTRACTING OFFICER CONCLUDED THAT YOUR BID WAS NONRESPONSIVE.

YOU STATE IN A LETTER AND TELEGRAM OF JANUARY 22, 1971, SENT AFTER OPENING, THAT THE MATERIAL SUBMITTED WITH THE BID WAS INTENDED TO SHOW TECHNICAL CAPABILITY ONLY AND NOT TO QUALIFY THE BID. THE COMMUNICATIONS FURTHER STATE THAT YOU TOOK NO EXCEPTION TO THE SPECIFICATIONS. YOU APPARENTLY CONCEDE THAT THE SHAKERS DESCRIBED IN THE LITERATURE ACCOMPANYING YOUR BID DO NOT IN FACT MEET THE SPECIFICATIONS.

YOU CONTEND THAT NO EVIDENCE EXISTS TO INDICATE THAT THE UNSOLICITED DESCRIPTIVE LITERATURE WAS IN ANY WAY INTENDED TO QUALIFY THE BID. SUPPORT YOUR POSITION, YOU CITE ASPR 2-202.5(F) WHICH STATES AS FOLLOWS:

"UNSOLICITED DESCRIPTIVE LITERATURE. 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 BIDDER'S INTENTION SO TO QUALIFY THE BID."

THE ISSUE HERE, IS WHETHER IT REASONABLY APPEARS THAT THE ENCLOSURES TO YOUR BID WERE INTENDED TO QUALIFY IT. OBVIOUSLY, YOUR STATEMENTS AFTER BID OPENING CANNOT HAVE ANY EFFECT ON THE RESPONSIVENESS OF YOUR BID. IN B- 169480, MAY 26, 1970, WE STATED:

"IN SITUATIONS WHERE A BIDDER ACCOMPANIES HIS BID WITH UNSOLICITED MATERIAL WHICH ON ITS FACE QUALIFIES THE BID, THE BID MAY BE ACCEPTED ONLY WHERE THE EVIDENCE CLEARLY ESTABLISHES THAT THE BIDDER INTENDED TO CONFORM TO THE SPECIFICATIONS. OUR OFFICE HAS IN THE PAST REJECTED THE ARGUMENT THAT AN OVERALL OFFER TO CONFORM, PER SE, CURES SPECIFIC DEVIATIONS. SEE 36 COMP. GEN. 415 (1956); 40 ID. 132 (1960); AND 46 ID. 1 (1966). THE OVERALL OFFER TO CONFORM TO THE SPECIFICATIONS, IN WHATEVER FORM, CAN CURE A SPECIFIC DEVIATION ONLY IN SITUATIONS WHERE THAT PROMISE OR OFFER MAKES IT PATENTLY CLEAR THAT THE OFFEROR DID IN FACT INTEND TO SO CONFORM. THE CRUX OF THE MATTER IS THE INTENT OF THE OFFEROR AND ANYTHING SHORT OF A CLEAR INTENTION TO CONFORM ON THE FACE OF THE BID REQUIRES REJECTION. ANY CLARIFICATION OR EXPLANATION OF THE BIDDER'S INTENTION BY EXTRANEOUS INFORMATION AFTER BID OPENING WOULD VIOLATE THE RULE THAT RESPONSIVENESS MUST BE ASCERTAINED FROM THE BID ITSELF. SEE 38 COMP. GEN. 819 (1959); B- 166284, APRIL 14, 1969; B 167584, OCTOBER 3, 1969; CF. B-169057, APRIL 23, 1970."

FROM THE EVIDENCE DISCUSSED ABOVE, WE CONCLUDE THAT THE LITERATURE FURNISHED WITH YOUR BID DESCRIBING ITEMS NOT CONFORMING TO THE SPECIFICATIONS, WITHOUT ANY INDICATION THAT YOU DID NOT INTEND THE LITERATURE TO QUALIFY THE BID, CAST SUFFICIENT DOUBT ON YOUR INTENTION IN ACCORDANCE WITH THE RULE SET OUT ABOVE TO JUSTIFY THE CONTRACTING OFFICER'S ACTION. B-167584, OCTOBER 3, 1969.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.