B-172179, JUL 26, 1971

B-172179, JUL 26, 1971

BID PROTEST - NONRESPONSIVE BID - AMBIGUITY IN BID DENIAL OF PROTEST BY YORK-SHIPLEY, INC. AGAINST REJECTION OF BID AS NONRESPONSIVE UNDER AN IFB ISSUED BY ALBROOK AFB, CANAL ZONE, FOR A "PACKAGE TYPE BOILER UNIT." THE BID WAS RULED NONRESPONSIVE BECAUSE THE ENCLOSED DESCRIPTIVE LITERATURE INDICATED THAT THE ITEM COULD NOT MEET THE IFB SPECIFICATIONS. WHERE THE CIRCUMSTANCES ARE SUCH AS TO CREATE AN AMBIGUITY AS TO WHAT THE BIDDER INTENDED TO OFFER, THE BID MUST BE REJECTED AS NONRESPONSIVE. THE DESCRIPTIVE MATERIAL SUBMITTED BY YORK RAISED A QUESTION AS TO WHETHER THE BIDDER INTENDED TO COMPLY WITH THE SPECIFICATIONS AND THUS MADE THE BID NONRESPONSIVE.

TO YORK-SHIPLEY, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 15, 1971, AND YOUR LETTERS OF MARCH 22 AND APRIL 28, 1971, PROTESTING THE REJECTION OF YOUR BID AS NONRESPONSIVE UNDER INVITATION FOR BIDS (IFB) F66501-71-B 0732, ISSUED FEBRUARY 5, 1971, BY THE ALBROOK AFB, CANAL ZONE.

THE REFERENCED IFB SOUGHT THE PROCUREMENT OF A "PACKAGE-TYPE BOILER UNIT" FOR THE AIRMEN'S BARRACKS AT THAT BASE.

UPON OPENING OF BIDS AT 10:00 A.M., FEBRUARY 26, 1971, IT WAS ASCERTAINED THAT THREE FIRMS HAD SUBMITTED BIDS, AND THAT YOURS CONSTITUTED THE LOWEST AT A TOTAL PRICE OF $8,350.00, INCLUDING $400.00 FOR INSTALLATION.

ALTHOUGH NEITHER SOLICITED NOR REQUIRED BY THE IFB, EACH BID WAS ACCOMPANIED BY DESCRIPTIVE LITERATURE.

ALL OF THE BIDS, REPLETE WITH DESCRIPTIVE LITERATURE, WERE SUBSEQUENTLY FORWARDED TO THE CHIEF OF THE ENGINEERING AND CONSTRUCTION BRANCH, 24TH COMBAT SUPPORT GROUP, WHO, AFTER EXAMINATION OF THE SAME, RECOMMENDED THAT THE ITEM SET FORTH IN YOUR DESCRIPTIVE LITERATURE FAILED TO MEET THE FEDERAL TECHNICAL SPECIFICATIONS OF THE IFB IN SEVERAL MATERIAL RESPECTS, AND THAT YOUR BID SHOULD CONSEQUENTLY BE REJECTED.

UPON RECEIPT OF THE AFOREMENTIONED EVALUATION, THE CONTRACTING OFFICER REVIEWED THE STATEMENTS THEREIN CONTAINED AND, UPON EXAMINATION OF YOUR BID PACKAGE IN THE LIGHT OF THE CONCLUSIONS OF THE ENGINEERING PERSONNEL, CONCURRED IN THE RECOMMENDATION THAT YOUR BID BE CONSIDERED NONRESPONSIVE.

AFTER YOU WERE NOTIFIED BY LETTER OF MARCH 4, 1971, THAT YOUR BID HAD BEEN REJECTED, THE AWARD WAS MADE TO THE SECOND LOW BIDDER, INDUSTRIAL COMBUSTION, INC., ON MARCH 10, 1971, AT A PRICE OF $9,525.00.

HAVING BEEN PROMPTLY NOTIFIED OF THE CONSUMMATION OF THE AWARD, YOU REGISTERED A PROTEST WITH OUR OFFICE BY A TELEGRAM DATED MARCH 15, 1971, IN WHICH YOU CONTENDED THAT NO EXCEPTIONS TO THE SPECIFICATIONS HAD BEEN TAKEN, AND YOU ALSO REQUESTED CANCELLATION OF THE AWARD.

YOUR LETTER OF MARCH 22, 1971, AGAIN STATED THAT YOU HAD TAKEN NO EXCEPTIONS TO THE SPECIFICATIONS BUT HAD MERELY INCLUDED A SALES BROCHURE TO DEMONSTRATE THE CONFIGURATION OF YOUR PARTICULAR BOILER DESIGN. YOUR LETTER OF APRIL 28, 1971, YOU STATE THAT THE REASON YOU SUBMITTED THE BROCHURE WAS THAT THE DIMENSIONAL REQUIREMENTS WERE INCLUDED IN NEITHER THE SPECIFICATIONS OF THE IFB NOR THE ENCLOSED FLOOR PLAN OF THE BUILDING INTO WHICH THE EQUIPMENT WAS TO BE INSTALLED. YOU MAINTAIN THAT THE SUBMISSION OF UNSOLICITED DESCRIPTIVE LITERATURE BY THE THREE BIDDERS WAS NOT EVIDENCE OF ANY INTENT TO QUALIFY THEIR BIDS. IN SUPPORT OF THIS CONTENTION, YOU CITE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2- 202.5(F) WHICH PROVIDES:

"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."

IT WAS DETERMINED THAT THE BROCHURE SUBMITTED WITH YOUR BID QUALIFIED YOUR BID WITH REGARD TO THE FOLLOWING SPECIFICATIONS APPEARING UNDER SECTION E OF THE REFERENCED SOLICITATION:

1) PARAGRAPH 3: " *** THE BOILER WILL BE PROVIDED WITH HINGED ACCESS DOORS *** "

2) PARAGRAPH 5 (B): " *** FUEL-AIR CONTROL SHALL PROVIDE MODULATED REGULATION OF AIR DAMPER AND THE OIL METERING VALVE BY MEANS OF FULL MODULATION PRINCIPLE *** "

3) PARAGRAPH 5 (D): "AIR DAMPER SHALL BE PROVIDED AND OPERATED BY A CONTROL MOTOR WHICH REGULATES THE FIRE ACCORDING TO LOAD DEMAND."

THE EVALUATION OF YOUR BROCHURE REVEALED THAT YOUR ITEM FAILED TO COMPLY WITH THE CITED SPECIFICATIONS FOR THESE REASONS:

1) THE STANDARD EQUIPMENT INCLUDED CLEAN-OUT OPENINGS ONLY; HINGED DOORS ARE MENTIONED ONLY AS ONE OF 26 OPTIONS AND NOT AS PART OF THE STANDARD EQUIPMENT;

2) WHILE THE REQUIRED MODULATED FIRING WAS PART OF THE OPTIONAL EQUIPMENT FOR HEAVY OIL BURNERS, THE SPECIFICATIONS REQUIRED THE BOILER TO OPERATE ON JP-5 FUEL OIL AND, AS SUCH, REQUIRE A LIGHT OIL BURNER. HOWEVER, THE DESCRIPTIVE BROCHURE PROVIDED FOR NO MODULATED REGULATION WHATSOEVER FOR THE LIGHT OIL BURNER; NOT EVEN AS PART OF THE OPTIONAL EQUIPMENT;

3) THE DESCRIPTIVE LITERATURE FAILED TO MENTION A MOTOR-REGULATED AIR DAMPER, WITH THE ONLY REFERENCE TO THE SUBJECT BEING A SENTENCE STATING: "A SIMPLE FLUE VENT WITHOUT DAMPERS OR DRAFT REGULATORS TO CARRY EXISTING GASES OUTSIDE IS SUFFICIENT, HOWEVER, LOCAL REGULATIONS MUST BE OBSERVED."

IN VIEW THEREOF, IT WAS CONCLUDED THAT THE BOILER DESCRIBED BY YOUR LITERATURE DID NOT CLEARLY CONFORM TO THE SPECIFICATIONS OF THE IFB, AND SINCE THE DEVIATIONS AFFECTED THE QUALITY OF THE ITEM, THEY COULD NOT BE WAIVED AS MINOR INFORMALITIES PURSUANT TO ASPR 2-405.

WITH REGARD TO THE RECURRING PROBLEM OF UNSOLICITED DESCRIPTIVE LITERATURE WHICH QUALIFIES A BID, AND NOTWITHSTANDING THE PROVISIONS OF ASPR 2-202.5(F), WE HAVE RULED:

"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." B-166284, APRIL 14, 1969; SEE ALSO B 167584, OCTOBER 3, 1969.

IF THE CIRCUMSTANCES ARE REASONABLY SUSCEPTIBLE OF A CONCLUSION THAT THE LITERATURE WAS INTENDED TO QUALIFY THE BID OR IF THE INCLUSION OF THE LITERATURE CREATES AN AMBIGUITY AS TO WHAT THE BIDDER INTENDED TO OFFER, THEN THE BID MUST BE REJECTED AS NONRESPONSIVE TO THE IFB. B 169057, JUNE 17, 1970, 49 COMP. GEN. .AND THE FACT THAT AFTER BID OPENING A BIDDER STATES, AS IN THE INSTANT CASE, THAT HE DID NOT TAKE, OR INTEND TO TAKE, ANY EXCEPTION TO THE SPECIFICATIONS IS INSUFFICIENT TO NULLIFY THE APPLICATION AND EFFECT OF THE CITED RULES. B-171844, MAY 4, 1971.

WE DO NOT NECESSARILY AGREE WITH THE ENGINEERING PERSONNEL THAT YOUR BID WAS QUALIFIED WITH REGARD TO THE ABSENCE OF HINGED ACCESS DOORS ON THE STANDARD MODEL SET OUT IN THE BROCHURE SINCE THEY WERE AVAILABLE AS ONE OF THE 26 OPTIONS AND, AS SUCH, COULD QUITE CONCEIVABLY BE CONTEMPLATED AS BEING INCLUDED ON THE ITEM SUPPLIED SO AS TO COMPLY WITH THE SPECIFICATIONS IN THIS REGARD.

HOWEVER, IT IS QUITE APPARENT FROM THE BROCHURE THAT, SINCE MODULATED FIRING WAS NOT LISTED ANYWHERE UNDER THE LIGHT OIL BURNER, AND AS AN OPTION ONLY UNDER THE HEAVY OIL BURNER, THE LIGHT OIL BURNER REPRESENTED BY THE BROCHURE FAILED TO INCLUDE THIS MATERIAL REQUIREMENT OF THE SPECIFICATIONS; NOR WAS THERE ANY PROVISION BY WHICH IT COULD BE INCORPORATED AS AN OPTION.

IT IS FURTHER APPARENT THAT THE MODELS DESCRIBED BY THE BROCHURE CONTAINED SIMPLE FLUE VENTS, DEVOID OF THE MOTOR-REGULATED AIR DAMPER REQUIRED BY THE SPECIFICATIONS. THE STATEMENT: " *** HOWEVER, LOCAL REGULATIONS MUST BE OBSERVED" IS AMBIGUOUS AT BEST ON THE QUESTION OF WHETHER THE ITEM OFFERED WAS SUSCEPTIBLE TO MODIFICATION SO AS TO COMPLY WITH THIS SPECIFICATION.

UNDER THE CIRCUMSTANCES, IT IS OUR CONCLUSION THAT THE BROCHURE SUBMITTED WITH YOUR BID CREATED, AT THE VERY LEAST, A SERIOUS AMBIGUITY AS TO WHETHER THE ITEM YOU INTENDED TO OFFER WOULD BE EQUIPPED WITH A MOTOR- REGULATED AIR DAMPER AS REQUIRED BY THE SPECIFICATIONS. IN VIEW THEREOF, OF YOUR FAILURE TO CLEARLY INDICATE IN YOUR BID THAT THE BROCHURE WAS NOT INTENDED TO QUALIFY YOUR BID, WE MUST CONCUR WITH THE AIR FORCE PERSONNEL THAT YOUR BID WAS NONRESPONSIVE.

ACCORDINGLY, YOUR PROTEST IS DENIED.