B-173624(1), NOV 19, 1971

B-173624(1): Nov 19, 1971

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PROTESTANT'S BID WAS REJECTED. EVEN WHERE PRODUCT TO BE PROCURED IS A NEW ONE. REJECTION OF BID ON THIS BASIS WAS PROPER. IT IS AGREED THAT THIS SOLICITATION DID NOT DEMAND USE OF THE DESCRIPTIVE LITERATURE REQUIREMENT. THE SECRETARY OF THE ARMY IS BEING ADVISED TO TAKE CORRECTIVE MEASURES TO INSURE USE OF THIS REQUIREMENT ONLY WHEN NECESSARY AS DEFINED BY ASPR 2 202.5. INCORPORATED: THIS IS IN REPLY TO YOUR LETTER OF AUGUST 5. YOUR BID WAS FOUND TO BE LOW BUT WAS REJECTED. AWARD WAS MADE TO THE NEXT LOW RESPONSIVE BIDDER ON JUNE 30. IN YOUR LETTER YOU CONTEND THAT BECAUSE THE ITEM CALLED FOR BY THE SOLICITATION WAS NOT AN EXISTING ITEM. THAT THIS REQUIREMENT WAS ACTUALLY ONE FOR TECHNICAL PROPOSALS IN THE GUISE OF DESCRIPTIVE LITERATURE.

B-173624(1), NOV 19, 1971

BID PROTEST - DESCRIPTIVE LITERATURE REQUIREMENT DECISION DENYING PROTEST OF MICROWAVE POWER DEVICES, INC. AGAINST AWARD OF A CONTRACT TO ANOTHER FIRM UNDER AN IFB ISSUED BY THE U.S. ARMY ELECTRONICS COMMAND, FORT MONMOUTH, N.J. PROTESTANT'S BID WAS REJECTED, ALTHOUGH LOW, AS NONRESPONSIVE BECAUSE THE DESCRIPTIVE LITERATURE SUPPLIED FAILED TO DESCRIBE A PRODUCT CONFORMING TO SPECIFICATIONS. DESCRIPTIVE LITERATURE AS DEFINED BY ASPR 2-202.5 GOES TO BID RESPONSIVENESS, NOT BIDDER RESPONSIBILITY AS CONTENDED BY PROTESTANT, EVEN WHERE PRODUCT TO BE PROCURED IS A NEW ONE. REJECTION OF BID ON THIS BASIS WAS PROPER. HOWEVER, IT IS AGREED THAT THIS SOLICITATION DID NOT DEMAND USE OF THE DESCRIPTIVE LITERATURE REQUIREMENT. THE SECRETARY OF THE ARMY IS BEING ADVISED TO TAKE CORRECTIVE MEASURES TO INSURE USE OF THIS REQUIREMENT ONLY WHEN NECESSARY AS DEFINED BY ASPR 2 202.5.

TO MICROWAVE POWER DEVICES, INCORPORATED:

THIS IS IN REPLY TO YOUR LETTER OF AUGUST 5, 1971, IN WHICH YOU SUPPORT YOUR PROTEST FILED ON JULY 19, 1971, AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS NO. DAAB07-71-B A286 ISSUED BY THE UNITED STATES ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, ON JUNE 12, 1971.

THE INVITATION SOLICITED BIDS FOR THREE SOLID STATE POWER AMPLIFIERS TO BE IN ACCORDANCE WITH MINIMUM SALIENT CHARACTERISTICS LISTED IN SECTION F OF THE SOLICITATION. SUBSECTION C.33, UTILIZING THE CLAUSE IN ASPR 2- 202.5, REQUIRED THE SUBMISSION OF DESCRIPTIVE LITERATURE TO ESTABLISH "DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, MATERIALS, AND PERFORMANCE CHARACTERISTICS."

AT BID OPENING, ON JUNE 28, 1971, YOUR BID WAS FOUND TO BE LOW BUT WAS REJECTED, ALONG WITH THE SECOND LOW BID, FOR NONRESPONSIVENESS BECAUSE THE DESCRIPTIVE LITERATURE FAILED TO DESCRIBE A PRODUCT CONFORMING TO THE SPECIFICATIONS. AWARD WAS MADE TO THE NEXT LOW RESPONSIVE BIDDER ON JUNE 30.

IN YOUR LETTER YOU CONTEND THAT BECAUSE THE ITEM CALLED FOR BY THE SOLICITATION WAS NOT AN EXISTING ITEM, THERE COULD BE NO LITERATURE AVAILABLE TO DESCRIBE IT, AND THAT THIS REQUIREMENT WAS ACTUALLY ONE FOR TECHNICAL PROPOSALS IN THE GUISE OF DESCRIPTIVE LITERATURE. YOU THEREFORE DECIDED THAT THE REQUIREMENT FOR DESCRIPTIVE LITERATURE WAS FOR EVALUATION OF BIDDER RESPONSIBILITY RATHER THAN RESPONSIVENESS OF BID, AND YOU SUBMITTED LITERATURE TO ESTABLISH YOUR TECHNICAL QUALIFICATIONS TO PRODUCE THE PRODUCT CALLED FOR BY THE SOLICITATION.

WE THINK THERE IS LITTLE MERIT TO THIS CONTENTION. WHILE WE HAVE TREATED SOME DESCRIPTIVE LITERATURE REQUIREMENTS AS GOING TO BIDDER RESPONSIBILITY RATHER THAN RESPONSIVENESS, 37 COMP. GEN. 143 (1957), THIS IS CLEARLY NOT THE SITUATION HERE. ASPR 2-202.5, REFERENCED IN THE INVITATION FOR BIDS, STATES THAT DESCRIPTIVE LITERATURE:

" *** MEANS INFORMATION, SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, AND BROCHURES, WHICH SHOW THE CHARACTERISTICS OR CONSTRUCTION OF A PRODUCT OR EXPLAIN ITS OPERATION, FURNISHED BY A BIDDER AS A PART OF HIS BID TO DESCRIBE THE PRODUCTS OFFERED IN HIS BID. THE TERM INCLUDES ONLY INFORMATION REQUIRED TO DETERMINE ACCEPTABILITY OF THE PRODUCT, AND EXCLUDES OTHER INFORMATION SUCH AS THAT FURNISHED IN CONNECTION WITH THE QUALIFICATIONS OF A BIDDER *** ."

IN LIGHT OF THIS PROVISION, WE FAIL TO SEE HOW THE DESCRIPTIVE LITERATURE CLAUSE IN THE SOLICITATION CAN BE READ TO REQUIRE INFORMATION RELATING TO TECHNICAL CAPACITY OR OTHER ASPECT OF BIDDER RESPONSIBILITY. NOR DO WE SEE WHY IT IS IMPOSSIBLE TO FURNISH REQUESTED DETAILED INFORMATION ON A NON-EXISTENT PRODUCT TO BE DEVELOPED AND DELIVERED IN ACCORDANCE WITH GIVEN SPECIFICATIONS. THAT IT CAN BE DONE IS EVIDENCED BY THE LITERATURE FURNISHED BY THE THIRD AND FOURTH LOW BIDDERS, WHICH, ACCORDING TO THE ARMY'S ADMINISTRATIVE REPORT, WERE RESPONSIVE TO THE SOLICITATION REQUIREMENTS.

YOU ALSO CONTEND THAT CLAUSE C-33 OF THE INVITATION FOR BIDS FAILED TO SPECIFY THE NATURE AND EXTENT OF DESCRIPTIVE LITERATURE REQUIRED TO PRESERVE EQUALITY OF BIDDING AND ALSO THAT THERE WAS NO JUSTIFICATION FOR REQUIRING DESCRIPTIVE LITERATURE. IN ITS LETTER OF SEPTEMBER 23, 1971, FORWARDING THE ADMINISTRATIVE REPORT ON THIS PROCUREMENT TO OUR OFFICE, THE UNITED STATES ARMY MATERIEL COMMAND AGREED WITH THIS CONTENTION, STATING THAT "THE PROCUREMENT FILE FAILED TO SET FORTH REASONS FOR REQUIRING DESCRIPTIVE LITERATURE" AND THAT THE "SOLICITATION NEITHER MADE CLEAR TO BIDDERS THE EXTENT OF DETAIL DESIRED NOR THE DATA REQUIRED TO BE INCLUDED IN THE DESCRIPTIVE LITERATURE." WE ALSO AGREE. OUR REVIEW OF THE FILE AND PRECEDENT COMPELS THE CONCLUSION THAT THE DESCRIPTIVE LITERATURE REQUIREMENT IN THE INVITATION FOR BIDS WAS DEFICIENT.

ASPR 2-202.5 PROVIDES THAT BIDDERS SHALL NOT BE REQUIRED TO FURNISH DESCRIPTIVE LITERATURE UNLESS THE PURCHASING ACTIVITY DEEMS SUCH LITERATURE NECESSARY TO ENABLE IT TO DETERMINE BEFORE AWARD IF THE PRODUCTS OFFERED MEET THE REQUIREMENTS OF THE SPECIFICATIONS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH. THE REGULATION FURTHER STATES THAT WHEN DESCRIPTIVE LITERATURE IS REQUIRED, THE INVITATION FOR BIDS SHALL STATE WHAT LITERATURE IS TO BE FURNISHED, THE PURPOSE FOR WHICH IT IS REQUIRED, THE EXTENT TO WHICH IT WILL BE CONSIDERED IN BID EVALUATION, AND THE RULES WHICH WILL APPLY IF IT IS NOT FURNISHED PRIOR TO BID OPENING.

WE HAVE HELD THAT IN ORDER FOR ALL BIDDERS TO BE ON AN EQUAL FOOTING, THE SPECIFIC ASPECTS TO BE COVERED BY THE LITERATURE SHOULD BE SET FORTH IN THE INVITATION IN THE GREATEST DETAIL PRACTICAL. THE MERE RECITAL IN THE DESCRIPTIVE LITERATURE CLAUSE OF THE CATEGORIES OF GENERAL SUBJECTS, WHICH ARE LISTED IN THE FOOTNOTE TO ASPR 2 205.5(D)(2) AS SUBJECTS WHICH MIGHT REQUIRE DESCRIPTION, IS NOT SUFFICIENT TO ESTABLISH A COMMON BASIS FOR EVALUATION OF BIDS. 46 COMP. GEN. 1, 5. THE INSTANT INVITATION FOR BIDS MERELY LISTED "DESIGN, MATERIALS, AND PERFORMANCE CHARACTERISTICS," THREE CATEGORIES CONTAINED IN THAT FOOTNOTE. WE AGREE, AS DOES THE ARMY MATERIEL COMMAND, THAT THE REQUIRED STANDARDS FOR SPECIFICITY AS TO THE DESCRIPTIVE LITERATURE TO BE FURNISHED WERE NOT MET.

WE THINK IT IS CLEAR FROM THE RECORD BEFORE US THAT THE SOLICITATION WAS DEFECTIVE BECAUSE OF THE DEFICIENCIES NOTED WITH RESPECT TO THE USE OF THE DESCRIPTIVE LITERATURE CLAUSE. HOWEVER, WE ARE INFORMED THAT 52 PERCENT OF THE TOTAL CONTRACT PRICE HAS BEEN EXPENDED, THAT MOST NEEDED MATERIALS HAVE BEEN ORDERED AND RECEIVED, AND THAT DELIVERY IS NOW EXPECTED TO COMMENCE ON DECEMBER 10, 1971, AND TO BE COMPLETED BY THE END OF JANUARY 1972. ACCORDINGLY, IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO CANCEL THE AWARD AT THIS TIME. A COPY OF THIS LETTER IS BEING SENT TO THE SECRETARY OF THE ARMY ALONG WITH A RECOMMENDATION THAT ACTION BE TAKEN TO PREVENT SIMILAR DEFICIENCIES IN THE PROCUREMENT PROCESS IN THE FUTURE.