B-174846, MAR 28, 1972

B-174846: Mar 28, 1972

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FOR THE FOREGOING REASONS THE PROTEST IS DENIED. TO BETAMITE ELECTRONIC DEVICES: REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 27. 263.30 FOR THE RELAYS WAS THE LOW BID. IT WAS REJECTED. THE CONTRACT WAS AWARDED TO THE SECOND-LOW BIDDER. THE BASIS FOR THE DETERMINATION TO REJECT YOUR BID WAS EXPRESSED BY THE CONTRACTING OFFICER AS FOLLOWS: " *** A BID SHALL BE REJECTED WHEREIN IT REQUIRES THAT THE GOVERNMENT IS TO DETERMINE THAT THE BIDDER'S PRODUCT MEETS THE SPECIFICATIONS. THE GIST OF YOUR PROTEST IS THAT SINCE NOTE 3 OF THE REFERENCED DRAWING REQUIRED THE MANUFACTURER'S PART NUMBER TO BE MARKED ON THE RELAY. YOU ALSO CONTEND THAT THE POLICY OF THE INSTALLATION TO DISREGARD UNSOLICITED REFERENCES TO PLANT PART NUMBERS IS REFLECTED IN A SUBSEQUENT IFB ON THE ITEM WHICH CONTAINS A "REFERENCE TO MODEL NUMBER" CLAUSE SPECIFYING THAT SUCH A REFERENCE WILL BE DEEMED AS OFFERING SUPPLIES WHICH CONFORM TO THE SPECIFICATIONS.

B-174846, MAR 28, 1972

BID PROTEST - NONRESPONSIVENESS - UNSOLICITED DATA DECISION DENYING THE PROTEST OF BETAMITE ELECTRONICS DEVICES AGAINST AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER AN IFB ISSUED BY THE NAVAL TORPEDO STATION, KEYPORT, WASH., FOR A QUANTITY OF VOLTAGE SENSITIVE RELAYS. TO ALLOW THE UNSOLICITED INSERTION OF A MANUFACTURER'S PART NUMBER IN A BID, ABSENT AN EXPRESS ASSURANCE OF COMPLIANCE WITH THE SPECIFICATIONS, WOULD PROVIDE A BIDDER WITH THE OPTION OF EITHER MAKING ITS PROPOSAL RESPONSIVE OR NONRESPONSIVE AFTER BID OPENING. SINCE THIS PROCEDURE WOULD VIOLATE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM, SUCH BIDS MUST BE REJECTED AS NONRESPONSIVE. B-171417, MARCH 9, 1971. FURTHER, IT SHOULD BE RECOGNIZED THAT PREVIOUS GOVERNMENT CONTRACTS CANNOT SERVE TO JUSTIFY PRESENT IMPROPER BIDDING PRACTICES. FOR THE FOREGOING REASONS THE PROTEST IS DENIED.

TO BETAMITE ELECTRONIC DEVICES:

REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 27, 1971, AND JANUARY 10, 1972, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS (IFB) N00253-72-B-1578, ISSUED BY THE U.S. NAVAL TORPEDO STATION, KEYPORT, WASHINGTON.

THE IFB FOR 54 VOLTAGE SENSITIVE RELAYS DESCRIBED THE RELAYS IN SECTION E AS "RELAY, TO CONFORM TO DRAWING 2816041, NO REV." YOUR FIRM'S TOTAL BID PRICE OF $4,263.30 FOR THE RELAYS WAS THE LOW BID. HOWEVER, IN SECTION E, UNDER THE GOVERNMENT'S DESCRIPTION, YOU INSERTED "BETAMITE P/N RT 132- 12." UPON REVIEWING YOUR BID, THE CONTRACTING OFFICER CONCLUDED THAT THE INSERTED PART NUMBER CAUSED YOUR BID TO BE NONRESPONSIVE, AND, THEREFORE, IT WAS REJECTED. ON DECEMBER 10, 1971, THE CONTRACT WAS AWARDED TO THE SECOND-LOW BIDDER, AUTRONICS CORPORATION.

THE BASIS FOR THE DETERMINATION TO REJECT YOUR BID WAS EXPRESSED BY THE CONTRACTING OFFICER AS FOLLOWS:

" *** A BID SHALL BE REJECTED WHEREIN IT REQUIRES THAT THE GOVERNMENT IS TO DETERMINE THAT THE BIDDER'S PRODUCT MEETS THE SPECIFICATIONS.

"THE INSERTION OF A BETAMITE PART NUMBER IN SECTION E OF THE SCHEDULE WITHOUT FURTHER STATING THAT THE ITEM OFFERED COMPLIES IN ALL RESPECTS WITH THE SPECIFICATIONS OF THE INVITATION PLACES THE BURDEN OF SUCH DETERMINATION ON THE GOVERNMENT."

THE GIST OF YOUR PROTEST IS THAT SINCE NOTE 3 OF THE REFERENCED DRAWING REQUIRED THE MANUFACTURER'S PART NUMBER TO BE MARKED ON THE RELAY, YOU INSERTED YOUR PART NUMBER IN SECTION E OF THE IFB FOR THE SOLE PURPOSE OF INDICATING COMPLIANCE WITH THE REQUIREMENTS OF THE DRAWING. YOU ALSO CONTEND THAT THE POLICY OF THE INSTALLATION TO DISREGARD UNSOLICITED REFERENCES TO PLANT PART NUMBERS IS REFLECTED IN A SUBSEQUENT IFB ON THE ITEM WHICH CONTAINS A "REFERENCE TO MODEL NUMBER" CLAUSE SPECIFYING THAT SUCH A REFERENCE WILL BE DEEMED AS OFFERING SUPPLIES WHICH CONFORM TO THE SPECIFICATIONS.

THE ISSUE OF WHETHER THE UNSOLICITED INSERTION OF A PLANT PART NUMBER BY A BIDDER INTO ITS BID QUALIFIES THE BID AND RENDERS IT NONRESPONSIVE HAS BEEN CONSIDERED BY THIS OFFICE ON SEVERAL OCCASIONS. SEE B-174677, FEBRUARY 8, 1972; B-171417, MARCH 9, 1971; B-170908, MARCH 5, 1971; AND 50 COMP. GEN. 8 (1970). WE HAVE CONSISTENTLY HELD THAT THE UNSOLICITED INSERTION OF A MANUFACTURER'S PART NUMBER IN A BID, WITHOUT AN EXPRESS STATEMENT THAT THE PART WILL COMPLY WITH THE SPECIFICATIONS, CREATES AN AMBIGUITY AS TO WHETHER THE BIDDER IS OFFERING A CONFORMING ARTICLE OR WHETHER THE INTERNAL PART NUMBER WAS INCLUDED FOR INFORMATION ONLY. ARE OF THE VIEW THAT SUCH BIDS ARE TO BE TREATED AS QUALIFIED BIDS AND REJECTED AS BEING NONRESPONSIVE. THE RATIONALE FOR THIS POSITION WAS EXPRESSED IN B-171417, SUPRA, AS FOLLOWS:

" *** THE POSSIBILITY EXISTS THAT THERE MAY BE SOME INTERNAL DATA RELATING TO THESE NUMBERS WHICH MIGHT OR MIGHT NOT CONFORM TO THE SPECIFICATIONS. ANY INTERNAL DATA WOULD BE IN THE BIDDER'S CONTROL AND SINCE SUCH DATA WAS NOT FURNISHED PRIOR TO BID OPENING THE BIDDER WOULD HAVE IT WITHIN ITS POWER TO DECIDE AFTER OPENING TO EITHER MAKE ITS BID RESPONSIVE OR NONRESPONSIVE. TO PERMIT SUCH A PROCEDURE WOULD VIOLATE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. *** "

IN THE INSTANT CASE, THE REQUIREMENT OF NOTE 3 TO THE REFERENCED DRAWING PERTAINS ONLY TO THE MARKING OF PARTS, AND NEITHER THE DRAWING NOR THE IFB REQUIRED THAT A BIDDER'S PART NUMBER BE FURNISHED IN THE BID. FURTHER, THE CONTRACTING OFFICER REPORTS THAT ALTHOUGH A "REFERENCE TO MODEL NUMBER" CLAUSE IS INCLUDED IN SOME SOLICITATIONS, IT WAS NOT INCLUDED IN THE SUBJECT IFB, AND WE ARE NOT AWARE OF ANY REGULATION WHICH MADE IT MANDATORY THAT THE CLAUSE BE INCLUDED IN THE SUBJECT IFB.

IN LIGHT OF THE FOREGOING, WE ARE OF THE OPINION THAT THE INSERTION OF YOUR PART NUMBER, FOR WHATEVER PURPOSE, CREATED A FATAL AMBIGUITY IN YOUR BID WHICH CANNOT BE RESOLVED AFTER BID OPENING. THEREFORE, REJECTION OF YOUR BID AS NONRESPONSIVE WAS PROPER.

WITH RESPECT TO YOUR COMMENT THAT IN HUNDREDS OF PREVIOUS GOVERNMENT CONTRACTS BETAMITE ALWAYS INDICATED ITS PART NUMBER IN ITS BID, WE ARE OF THE VIEW, ASSUMING THE FACTUAL SITUATIONS ARE THE SAME, THAT IMPROPER BIDDING PRACTICES DO NOT JUSTIFY A REPETITION OF THE SAME ERROR. 171417, SUPRA. IN RESPONSE TO THIS COMMENT, HOWEVER, THE CONTRACTING OFFICER HAS STATED THAT YOUR BID ON THE PRIOR IFB ON THE ITEM (N00253-71-B -1593) DID NOT SHOW A PART NUMBER ALTHOUGH THE IDENTICAL DRAWING WAS INVOLVED.

ACCORDINGLY, YOUR PROTEST IS DENIED.