B-174252(1), DEC 7, 1971

B-174252(1): Dec 7, 1971

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THE DESCRIPTIVE LITERATURE SUBMITTED WITH THE BID WAS SUFFICIENT TO CREATE AN AMBIGUITY AS TO EXACTLY WHAT THE BIDDER INTENDED TO SUPPLY AND. WEBB COMPANY OF CALIFORNIA: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20. THE CONTRACTING OFFICER DETERMINED THAT THE LOW BIDDER WAS NONRESPONSIVE AND PROPOSED TO MAKE AN AWARD TO YOU AS NEXT LOW BIDDER. CLAIMING THAT YOUR BID WAS ALSO NONRESPONSIVE. THE CONTRACTING OFFICER REVIEWED THE BIDS AND DETERMINED THAT THEY WERE ALL NONRESPONSIVE. WE WERE NOTIFIED BY LETTER DATED NOVEMBER 16. IT IS NEVERTHELESS CLEARLY GERMANE TO A CONSIDERATION OF BID RESPONSIVENESS. IF THE CIRCUMSTANCES ARE REASONABLY SUSCEPTIBLE OF A CONCLUSION THAT THE LITERATURE WAS INTENDED TO QUALIFY THE BID OR IF INCLUSION OF THE LITERATURE CREATES AN AMBIGUITY AS TO WHAT THE BIDDER INTENDED TO OFFER.

B-174252(1), DEC 7, 1971

BID PROTEST - NONRESPONSIVE BIDS - USE OF DESCRIPTIVE LITERATURE DECISION SUSTAINING THE ACTION OF THE CONTRACTING OFFICER IN REJECTING AS NONRESPONSIVE ALL BIDS RECEIVED UNDER AN IFB ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, SEATTLE, WASH., FOR A MATERIALS HANDLING SYSTEM. IN THE INSTANT CASE, THE DESCRIPTIVE LITERATURE SUBMITTED WITH THE BID WAS SUFFICIENT TO CREATE AN AMBIGUITY AS TO EXACTLY WHAT THE BIDDER INTENDED TO SUPPLY AND, THEREFORE, THE BID MUST BE CONSIDERED NONRESPONSIVE TO THE IFB.

TO JERVIS B. WEBB COMPANY OF CALIFORNIA:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20, 1971, REGARDING THE PROTEST SUBMITTED BY RAPISTAN, INCORPORATED, AGAINST AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. DACA67-71-B-0013, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, SEATTLE, WASHINGTON, FOR A MATERIALS HANDLING SYSTEM.

THE IFB REQUIRED SUBMISSION OF DESCRIPTIVE LITERATURE TO SHOW THE CHARACTERISTICS OF THE DESIRED SYSTEM. BASED ON THE DESCRIPTIVE DATA FURNISHED, THE CONTRACTING OFFICER DETERMINED THAT THE LOW BIDDER WAS NONRESPONSIVE AND PROPOSED TO MAKE AN AWARD TO YOU AS NEXT LOW BIDDER. HOWEVER, RAPISTAN, INCORPORATED, THE THIRD LOW BIDDER, FILED A PROTEST, CLAIMING THAT YOUR BID WAS ALSO NONRESPONSIVE. SUBSEQUENTLY, THE CONTRACTING OFFICER REVIEWED THE BIDS AND DETERMINED THAT THEY WERE ALL NONRESPONSIVE. WE WERE NOTIFIED BY LETTER DATED NOVEMBER 16, 1971, FROM THE CORPS THAT THE IFB ACCORDINGLY HAD BEEN CANCELLED.

IN SUPPORT OF THE CONTRACTING OFFICER'S ACTION, WE NOTE THAT THE DESCRIPTIVE DATA FURNISHED REVEALS CERTAIN DEVIATIONS FROM THE SPECIFICATIONS OF A MATERIAL NATURE. IN YOUR CASE, THE DATA INDICATES THE USE OF A CLUTCH OF THE TORQUE ARM TYPE, RATHER THAN "AN OVERLOAD CLUTCH OF THE SELF-READJUSTING, FRICTION TYPE" AS CALLED FOR BY THE SPECIFICATIONS. ALTHOUGH YOU SUGGEST THAT YOUR DATA ON THIS POINT SHOULD BE CONSIDERED UNSOLICITED DESCRIPTIVE LITERATURE, IT IS NEVERTHELESS CLEARLY GERMANE TO A CONSIDERATION OF BID RESPONSIVENESS. WE STATED IN 49 COMP. GEN. 851, 852 (1970):

"IN OUR VIEW THE INTENT OF THE BID MUST BE DETERMINED FROM A REASONABLE CONSTRUCTION OF ITS ENTIRE CONTENTS INCLUDING ANY UNSOLICITED LITERATURE. IF THE CIRCUMSTANCES ARE REASONABLY SUSCEPTIBLE OF A CONCLUSION THAT THE LITERATURE WAS INTENDED TO QUALIFY THE BID OR IF 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 INVITATION FOR BIDS."

AT THE VERY LEAST, YOUR DATA DESCRIBING THE CLUTCH FOR THE CONVEYOR SYSTEM CREATED AN AMBIGUITY AS TO EXACTLY WHAT YOU INTENDED TO FURNISH AND, THEREFORE, YOUR BID COULD NOT BE CONSIDERED RESPONSIVE TO THE IFB.

ACCORDINGLY, WE BELIEVE THE CONTRACTING OFFICER'S DECISION TO REJECT ALL BIDS WAS AN APPROPRIATE EXERCISE OF ADMINISTRATIVE DISCRETION.