B-174403, FEB 9, 1972

B-174403, FEB 9, 1972

BID PROTEST - NONRESPONSIVENESS DECISION DENYING PROTEST OF BEAIRD POULAN, INC., AGAINST AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER AN IFB ISSUED BY THE DEFENSE SUPPLY AGENCY, DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VA., FOR A PROCUREMENT OF PORTABLE POWER CHAIN SAWS. THE INSERTION OF MAKE AND MODEL NUMBERS DID NOT QUALIFY THE BIDS, SINCE THE NUMBERS WERE ONLY REQUIRED FOR THE ASSIGNMENT OF A FEDERAL STOCK NUMBER AND NOT FOR PURPOSES OF BID EVALUATION. CONSEQUENTLY, THEY HAD NO EFFECT ON BID RESPONSIVENESS, AND THE PROTEST MUST BE DENIED.

TO W. S. SPOTSWOOD AND SONS, INC.:

WE REFER TO YOUR LETTER OF DECEMBER 17, 1971, AND PRIOR CORRESPONDENCE, PROTESTING ON BEHALF OF BEAIRD POULAN INC., AGAINST AWARD TO ANY OTHER FIRM OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. DSA-400-72-B-1539, ISSUED BY THE DEFENSE SUPPLY AGENCY, DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA.

THE IFB, ISSUED AUGUST 30, 1971, SOLICITED BIDS F.O.B. DESTINATION ON THE GOVERNMENT'S ESTIMATED ANNUAL REQUIREMENTS FOR PORTABLE POWER CHAIN SAWS, FSN 3695-679-6914, TYPE II, STYLE 1, CLASS "A". THE SAWS WERE TO COMPLY WITH FEDERAL SPECIFICATION GGG-S-62A, AS MODIFIED BY PROVISIONS IN THE IFB AND ITS AMENDMENTS. THREE BIDS WERE RECEIVED ON THE OCTOBER 26, 1971, BID OPENING DATE. THESE WERE:

BIDDER ITEM 1 ITEM 2

(F.O.B. TRACY, CAL.) (F.O.B. RICHMOND, VA.)

BEAIRD POULAN INC. $155.90 EACH $155.90 EACH

HOMELITE 138.17 EACH 135.99 EACH

DESA INDUSTRIES, INC. 123.50 EACH 123.50 EACH

YOU PROTEST ANY AWARD TO DESA INDUSTRIES, INC., AS LOW BIDDER, OR TO HOMELITE AS NEXT LOW BIDDER, BECAUSE YOU MAINTAIN THAT THEIR BIDS ARE NONRESPONSIVE. THIS IS SO, YOU CONTEND, BECAUSE THE MAKE AND THE MODEL NUMBER OF THE ITEMS TO BE FURNISHED BY EACH OF THESE BIDDERS, WHICH WERE INSERTED IN THEIR BIDS AS REQUIRED BY THE IFB, DENOTE ITEMS WHICH DO NOT MEET THE IFB SPECIFICATIONS. YOU FURTHER CONTEND THAT WHEN A SOLICITATION REQUIRES THE MODEL NUMBER TO BE INSERTED IN THE BID, FOR WHATEVER PURPOSE, THE SUCCESSFUL BIDDER CANNOT BE REQUIRED TO FURNISH ANY MODEL OTHER THAN THE ONE LISTED IN HIS BID. CONSEQUENTLY, YOU BELIEVE THAT BECAUSE BEAIRD POULAN ALONE INSERTED IN ITS BID A MODEL NUMBER REPRESENTING AN ITEM WHICH IS PURPORTEDLY FULLY RESPONSIVE TO THE IFB SPECIFICATIONS, AWARD OF THE CONTRACT SHOULD BE MADE TO THAT FIRM.

THE MAKE AND THE MODEL NUMBER TO WHICH YOU OBJECT WERE SUBMITTED BY THE LOW BIDDER AS REQUIRED BY THE FOLLOWING IFB PROVISIONS:

"FURNISHING INFORMATION AS TO MANUFACTURER'S NAME, MAKE AND MODEL NO. DOES NOT RELIEVE THE BIDDER FROM SUPPLYING AN ITEM THAT CONFORMS TO THE DESCRIPTION FURNISHED IN THIS SECTION OF THE SOLICITATION. THIS INFORMATION IS REQUIRED TO ASSIGN A PERMANENT FEDERAL STOCK NUMBER TO THE SPECIFIC ITEM BEING PURCHASED."

"MANUFACTURER'S MAKE/MODEL NUMBER

EACH BIDDER MUST INSERT IN THE FOLLOWING SPACES, THE MANUFACTURER'S MAKE AND/OR MODEL NUMBER OF ITEMS TO BE FURNISHED.

"MANUFACTURER'S NAME MAKE MODEL NO. "

INCLUDED WITH THESE PROVISIONS IS A REFERENCE TO THE FEDERAL SPECIFICATION, AND AMENDMENTS THERETO, GOVERNING THE PROCUREMENT.

WE CAN UNDERSTAND HOW ONE MIGHT INTERPRET THESE PROVISIONS AS YOU DO AND HOPE THE PROCURING ACTIVITY WILL MORE CLEARLY EXPRESS ITS INTENTION AS REGARDS THIS MATTER IN FUTURE SOLICITATIONS. HOWEVER, WE UNDERSTAND THE INTENT OF THESE PROVISIONS WAS TO REQUIRE THE SUBMISSION OF THIS INFORMATION NOT FOR THE PURPOSE OF BID EVALUATION BUT RATHER MERELY SO THAT A FEDERAL STOCK NUMBER MAY BE ASSIGNED TO THE SPECIFIC ITEM BEING PURCHASED. IT IS ADMITTED THAT THE STANDARD COMMERCIAL DESA AND HOMELITE ITEMS ORDINARILY DESIGNATED BY THE MAKE AND THE MODEL NUMBER INSERTED BY THOSE BIDDERS IN THEIR BIDS REQUIRE MODIFICATION IN ORDER TO MEET THE SPECIFICATION REQUIREMENTS OF THE INVITATION. HOWEVER, THE INSERTION BY DESA AND HOMELITE OF THE MAKE AND THE MODEL NUMBERS IN THEIR BIDS DID NOT QUALIFY THE BIDS. RATHER, THE IMPORT OF THE BIDS, IN OUR OPINION, IS THAT DESA AND HOMELITE OFFERED TO FURNISH ITEMS IN CONFORMANCE WITH THE GOVERNMENT'S SPECIFICATIONS, WHICH ITEMS COULD BE DESIGNATED FOR FEDERAL STOCK NUMBER PURPOSES BY THE MAKE AND THE MODEL NUMBER INSERTED IN ACCORDANCE WITH THE INSTRUCTIONS QUOTED ABOVE. NOR CAN WE FORESEE THE PROBLEMS IN THE AREA OF SUPPORT AND MAINTENANCE WHICH YOU ALLEGE WILL OCCUR. WE HAVE BEEN ADVISED BY THE PROCURING ACTIVITY THAT EACH COMPONENT OF THE END ITEM, AS MODIFIED, WILL RECEIVE A STOCK NUMBER. THESE WILL THEN BE GROUPED UNDER THE MAKE AND THE MODEL NUMBER SUGGESTED BY THE SUCCESSFUL BIDDER, WHICH ARE TO BE USED MERELY AS A MEANS OF INTERNAL CONTROL BY THE PROCURING ACTIVITY. CONSEQUENTLY, SUPPORT AND MAINTENANCE OF THE PURCHASED ITEM WILL PRESENT NO DIFFICULTIES. WHILE THE FEDERAL STOCK NUMBER IS TO BE ASSIGNED PERMANENTLY TO THIS PROCUREMENT, ALL FUTURE PROCUREMENTS OF THE ITEM WILL BE ADVERTISED UNDER THE SPECIFICATIONS.

THE INSERTION OF THE MAKE AND THE MODEL NUMBER OF AN ITEM, AS REQUIRED BY THE IFB, FOR THE PURPOSE OF ASSIGNING A FEDERAL STOCK NUMBER TO THE "SPECIFIC ITEM BEING PURCHASED" HAS NO EFFECT ON THE RESPONSIVENESS OF THE BID. SEE B-147518, JANUARY 16, 1962; B-169057, JULY 16, JUNE 17, AND APRIL 23, 1970. IN ARRIVING AT THIS CONCLUSION, WE CONSIDERED OUR DECISION B-171417, MARCH 9, 1971, WHEREIN WE HELD THAT THE BIDDER'S INSERTION OF AN UNIDENTIFIED NUMBER IN THE PURCHASE DESCRIPTION CREATED AN AMBIGUITY AS TO WHAT THE BIDDER ACTUALLY INTENDED TO FURNISH AND THEREBY EVIDENCED AN INTENT TO QUALIFY ITS BID. THAT DECISION IS NOT APPLICABLE BECAUSE THE INFORMATION INSERTED IN THE PRESENT LOW BID WAS REQUIRED BY THE SOLICITATION FOR A LIMITED PURPOSE SEPARATE AND APART FROM BID EVALUATION OR THE CHARACTERISTICS OF THE PRODUCT OFFERED.

ACCORDINGLY, THE PROTEST IS DENIED.