B-174677, FEB 8, 1972

B-174677: Feb 8, 1972

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THE PROTEST IS DENIED SINCE INSERTION OF PROTESTANT'S MODEL NUMBER IN THE BID WAS DIRECTLY CONTRARY TO THE EXPRESS TERMS OF THE SOLICITATION AND WOULD HAVE REQUIRED THE GOVERNMENT TO DETERMINE WHETHER THE PRODUCT CONFORMED TO SPECIFICATION. INC.: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2. THE PROTEST IS DENIED. YOUR FIRM WAS THE LOW BIDDER UNDER THE IFB. THE LANGUAGE IN YOUR BID UPON WHICH THE CONTRACTING OFFICER BASED HIS REJECTION WAS CONTAINED IN THE DELIVERIES OR PERFORMANCE SECTION OF THE IFB AND WAS AS FOLLOWS: "QUOTING ON MODEL F-510 FULLY AUTOMATIC WRAPPER WITH SHRINK TUNNEL SPEED OF WRAPPER-35 PACKAGES PER MINUTE.". WAS MERELY TO APPRISE THE GOVERNMENT OF A PERFORMANCE CHARACTERISTIC OF YOUR PRODUCT.

B-174677, FEB 8, 1972

BID PROTEST - NONRESPONSIVENESS - CONFORMANCE TO SPECIFICATION DECISION DENYING PROTEST OF J. B. DOVE, INC., AGAINST AWARD OF A CONTRACT TO THE HOBART MANUFACTURING COMPANY UNDER AN IFB ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, FORT BENNING, GA., FOR AN ELECTRIC MEAT AND PRODUCE WRAPPING MACHINE. THE PROTEST IS DENIED SINCE INSERTION OF PROTESTANT'S MODEL NUMBER IN THE BID WAS DIRECTLY CONTRARY TO THE EXPRESS TERMS OF THE SOLICITATION AND WOULD HAVE REQUIRED THE GOVERNMENT TO DETERMINE WHETHER THE PRODUCT CONFORMED TO SPECIFICATION.

TO J. B. DOVE, INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2, 1971, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE HOBART MANUFACTURING COMPANY, UNDER INVITATION FOR BIDS (IFB) NO. DABC09-72-B-0057, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, FORT BENNING, GEORGIA.

FOR THE REASONS HEREINAFTER STATED, THE PROTEST IS DENIED.

THE IFB, AS AMENDED, SOLICITED BIDS FOR AN ELECTRIC MEAT AND PRODUCE WRAPPING MACHINE IN ACCORDANCE WITH A DESIGNATED MILITARY SPECIFICATION. YOUR FIRM WAS THE LOW BIDDER UNDER THE IFB. HOWEVER, THE CONTRACTING OFFICER REJECTED YOUR BID AS NONRESPONSIVE "SINCE YOU QUALIFIED YOUR BID BY INJECTING YOUR MODEL NUMBER IN THE BID, THUS REQUIRING THE GOVERNMENT TO DETERMINE THAT YOUR PRODUCT WOULD CONFORM TO GOVERNMENT SPECIFICATIONS." THE LANGUAGE IN YOUR BID UPON WHICH THE CONTRACTING OFFICER BASED HIS REJECTION WAS CONTAINED IN THE DELIVERIES OR PERFORMANCE SECTION OF THE IFB AND WAS AS FOLLOWS:

"QUOTING ON MODEL F-510 FULLY AUTOMATIC WRAPPER WITH SHRINK TUNNEL SPEED OF WRAPPER-35 PACKAGES PER MINUTE."

YOU CONTEND THAT THE PURPOSE OF THE LANGUAGE INSERTION IN THE DELIVERIES OR PERFORMANCE SECTION, AS OPPOSED TO THE SUPPLIES/SERVICES AND PRICES SECTION OF THE IFB, WAS MERELY TO APPRISE THE GOVERNMENT OF A PERFORMANCE CHARACTERISTIC OF YOUR PRODUCT. THEREFORE, YOU ASSERT THAT THE SPECIFYING OF A PRICE IN THE SUPPLIES/SERVICES AND PRICES SECTION, WITH NOTHING MORE, CONSTITUTED A STATEMENT THAT YOUR PRODUCT WOULD CONFORM TO THE SPECIFICATIONS. WE DO NOT AGREE. IN OUR OPINION, THE ABOVE-QUOTED LANGUAGE DID MORE THAN MERELY APPRISE THE GOVERNMENT OF A PERFORMANCE CHARACTERISTIC OF YOUR PRODUCT. RATHER, WE CONCLUDE THAT IT UNEQUIVOCALLY AND AFFIRMATIVELY IDENTIFIED A MODEL NUMBER UPON WHICH YOUR BID WAS BASED. A CONTRACTING OFFICER MUST CONSIDER A BID IN ITS ENTIRETY AND NOT WITH REFERENCE TO ANY ISOLATED SECTIONS THEREOF.

IN THIS REGARD, THE IFB WARNED BIDDERS THAT:

"IT IS THE OFFEROR'S RESPONSIBILITY TO INSURE THAT THE ITEM OR PRODUCT UPON WHICH HIS OFFER IS BASED WILL CONFORM TO THE GOVERNMENT'S MINIMUM ESSENTIAL SPECIFICATIONS AS STIPULATED HEREIN. OFFERORS WHO QUALIFY, LIMIT, OR OTHERWISE RESTRICT THEIR OFFER TO A PARTICULAR PRODUCT BY ENTRY OF THE MANUFACTURER'S NAME, MODEL NUMBER, CATALOG NUMBER, ETC., ON THE SCHEDULE OR ANY OTHER DOCUMENT, IN EFFECT, REQUIRES THAT THE GOVERNMENT DETERMINE THAT HIS PRODUCT WILL CONFORM TO THE GOVERNMENT'S SPECIFICATIONS; THEREFORE, SUCH OFFER WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED: UNLESS, (I) THE OFFEROR INCLUDES IN HIS OFFER A STATEMENT TO THE EFFECT THAT THE PRODUCTS OFFERED WILL CONFORM TO ALL MINIMUM ESSENTIAL SPECIFICATIONS AS STIPULATED IN THE SOLICITATION, OR (II) THE SOLICITATION SPECIFICALLY REQUIRES OR PERMITS THE ENTRY OF SUCH DATA AND PROVIDES A SPACE THEREFOR."

YOUR FIRM NEITHER SUBMITTED THE REQUIRED STATEMENT OF CONFORMITY NOR DID THE IFB REQUIRE OR PERMIT THE ENTRY OF A MODEL NUMBER IN THE BIDS. THUS, YOUR BID, AS SUBMITTED WITH THE INSERTION OF YOUR MODEL NUMBER, GAVE RISE TO A QUESTION WHETHER YOU WOULD OFFER A PRODUCT IN COMPLIANCE WITH THE STATED SPECIFICATIONS. SEE 50 COMP. GEN. 8, 10, 11 (1970); B 170908, MARCH 5, 1971; AND B-171417, MARCH 9, 1971. IN THE 50 COMP. GEN. DECISION, SUPRA, WE QUOTED WITH APPROVAL THE FOLLOWING COMMENTS SUBMITTED BY A CONTRACTING OFFICER IN CONNECTION WITH A PRIOR DECISION WHICH EXPRESS THE RATIONALE FOR THE REJECTION OF BIDS IN CASES OF THIS TYPE:

"' *** SOME BIDDERS, WHEN INTENDING TO SUPPLY MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS, HAVE INCLUDED THEIR PART NUMBERS FOR THEIR READY REFERENCE IN THE EVENT OF AN AWARD, WHILE OTHERS HAVE INCLUDED THEIR PART NUMBERS FOR THE PURPOSE OF OFFERING A SIMILAR BUT MATERIALLY DIFFERENT ITEM, WHICH MIGHT OR MIGHT NOT MEET THE APPLICABLE SPECIFICATIONS AND THE NEEDS OF THE GOVERNMENT. WHEN PART NUMBERS ARE INSERTED IN BIDS, THE CONTRACTING OFFICER HAS NO WAY TO DETERMINE WHETHER THE BIDDER IS OFFERING MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS. *** '"

IN THE CIRCUMSTANCES, WE CONCUR WITH THE DECISION OF THE CONTRACTING OFFICER TO REJECT YOUR BID.