B-174892, MAR 6, 1972

B-174892: Mar 6, 1972

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 4. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH. (B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCTS OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE. 736 WERE RECEIVED AND OPENED ON NOVEMBER 9. YOUR BID AND THE SECOND AND THIRD LOWEST BIDS WERE FOUND TO BE NONRESPONSIVE TO THE ADVERTISED SPECIFICATIONS AND WERE THEREFORE REJECTED. YOUR BID WAS REJECTED BECAUSE THE DESCRIPTIVE LITERATURE ACCOMPANYING YOUR BID FAILED TO SHOW THAT THE EQUIPMENT OFFERED BY YOUR FIRM CONFORMED TO PARAGRAPH 3.12.11.2.1.

B-174892, MAR 6, 1972

BID PROTEST - NONRESPONSIVENESS - FAILURE TO SUBMIT DATA DECISION DENYING PROTEST OF TESTEK, INC., AGAINST REJECTION OF ITS LOW BID, SUBMITTED UNDER AN IFB ISSUED BY THE NAVAL AIR STATION, PENSACOLA, FLA., FOR THE FURNISHING OF ONE SUBMERGED FUEL BOOST PUMP TEST STAND, RELATED DATA, AND FIELD CONTRACT SERVICES. THE FAILURE OF A BIDDER TO SUBMIT COMPLETE DESCRIPTIVE LITERATURE RENDERS A BID NONRESPONSIVE WHENEVER THE SOLICITATION INDICATES THAT THE PROCURING ACTIVITY CONSIDERS SUCH LITERATURE ESSENTIAL TO ITS DETERMINATION. COMP. GEN. 315, 318 (1966). FURTHER, THIS FAILURE CAN NOT BE OVERCOME BY THE BIDDER'S BLANKET OFFER TO CONFORM WITH THE SPECIFICATIONS. 41 COMP. GEN. 192, 195 (1961). ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO TESTEK, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 4, 1972, WITH ENCLOSURES, PROTESTING THE REJECTION OF YOUR LOW BID SUBMITTED IN RESPONSE TO DEPARTMENT OF THE NAVY INVITATION FOR BIDS NO. N00204-72-B-0065, ISSUED BY THE NAVAL AIR STATION, PENSACOLA, FLORIDA.

THE INVITATION REQUESTED BIDS FOR FURNISHING ONE SUBMERGED FUEL BOOST PUMP TEST STAND, RELATED DATA, AND CONTRACT FIELD SERVICES, TO BE MANUFACTURED IN ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS AS SET FORTH THEREIN. THE INVITATION INCLUDED ON PAGE 9 THEREOF THE FOLLOWING REQUIREMENT FOR DESCRIPTIVE LITERATURE:

"DESCRIPTIVE LITERATURE REQUIRED

EACH BIDDER SHALL SUBMIT, WITH HIS BID, THE FOLLOWING:

(A) HYDRAULIC PIPING SCHEMATIC

(B) ELECTRICAL/ELECTRONIC SCHEMATIC

(C) DESCRIPTION OF COMPONENTS IN THE INSTRUMENT, POWER SUPPLY, HYDRAULIC, AND CONTROL SYSTEMS. DESCRIPTION SHALL INCLUDE CAPACITIES, ACCURACIES, AND RANGES.

"REQUIREMENT FOR DESCRIPTIVE LITERATURE (1960 OCT)

(A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSE OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DESIGN .

(B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCTS OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISION FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS."

SIX BIDS RANGING FROM $34,817 TO $45,736 WERE RECEIVED AND OPENED ON NOVEMBER 9, 1971. YOUR BID AND THE SECOND AND THIRD LOWEST BIDS WERE FOUND TO BE NONRESPONSIVE TO THE ADVERTISED SPECIFICATIONS AND WERE THEREFORE REJECTED. SPECIFICALLY, YOUR BID WAS REJECTED BECAUSE THE DESCRIPTIVE LITERATURE ACCOMPANYING YOUR BID FAILED TO SHOW THAT THE EQUIPMENT OFFERED BY YOUR FIRM CONFORMED TO PARAGRAPH 3.12.11.2.1, SECTION F OF THE SPECIFICATIONS, REQUIRING THAT EACH OF THE TWO 400 CYCLE POWER CIRCUITS INCLUDES A PANEL MOUNTED ADJUSTABLE CURRENT LIMITING DEVICE TO PROTECT PUMP MOTORS FROM 0.25 HP TO 2 HP. IT IS REPORTED THAT THE ELECTRICAL SCHEMATIC, DRAWING NO. 10214 D-2, SUBMITTED BY YOUR FIRM WITH YOUR BID, DID NOT SHOW THAT THE TEST STAND WAS DESIGNED TO INCLUDE CURRENT LIMITING DEVICE FOR EACH CIRCUIT. THE ABSTRACT OF BIDS SHOWS THAT ON DECEMBER 22, 1971, A CONTRACT FOR FURNISHING THE SUBMERGED FUEL BOOST PUMP TEST STAND WAS AWARDED TO THE UNITED FILCO CORPORATION AS THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDER.

ESSENTIALLY, IT IS YOUR POSITION THAT AWARD SHOULD HAVE BEEN MADE TO TESTEK AS THE LOWEST RESPONSIVE BIDDER, ESPECIALLY SINCE TESTEK DID NOT TAKE AN EXCEPTION TO THE FURNISHING OF THE PANEL MOUNTED ADJUSTABLE CURRENT LIMITING DEVICES. HOWEVER, THE FACT REMAINS THAT YOUR BID AS SUPPLEMENTED BY DESCRIPTIVE DATA DEVIATED FROM THE ADVERTISED SPECIFICATIONS. YOU ALSO POINT OUT THAT IN THE COVER LETTER SUBMITTED WITH YOUR BID YOU STATED "OUR OFFER WILL PROVIDE A TEST STAND WHICH WILL MEET YOUR SPECIFICATIONS BOTH IN CONSTRUCTION AND FUNCTION."

THE DESCRIPTIVE LITERATURE CLAUSE INCLUDED IN THE INVITATION FOR BIDS PROVIDES THAT DESCRIPTIVE LITERATURE, "AS SPECIFIED IN THIS INVITATION FOR BIDS," IS REQUIRED TO ESTABLISH DETAILS OF THE PRODUCT OFFERED AS TO "DESIGN." IT ALSO PROVIDES THAT FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE, OR FAILURE OF THE DESCRIPTIVE LITERATURE TO SHOW CONFORMANCE TO THE SPECIFICATIONS, WILL REQUIRE REJECTION OF THE BID.

WE HAVE TAKEN THE POSITION THAT A BID IS NONRESPONSIVE IF THE BIDDER EITHER FAILS TO SUBMIT DESCRIPTIVE LITERATURE WHICH ADEQUATELY CONFORMS TO A LEGITIMATE MANDATORY REQUIREMENT THEREFOR IN THE SOLICITATION, OR SUBMITS LITERATURE INDICATING DEVIATIONS FROM THE SPECIFICATIONS. COMP. GEN. 366, 368 (1961) AND 46 ID. 315, 318 (1966). MOREOVER, WE HAVE HELD THAT A BIDDER'S FAILURE TO FURNISH COMPLETE DESCRIPTIVE LITERATURE, OR FAILURE OF HIS DESCRIPTIVE LITERATURE TO INDICATE FULL COMPLIANCE WITH THE SPECIFICATIONS, IS NOT OVERCOME BY THE BIDDER'S BLANKET OFFER TO COMPLY WITH THE SPECIFICATION REQUIREMENTS. 36 COMP. GEN. 415 (1956). ID. 132 (1960); 41 COMP. GEN. 192, 195 (1961). THERE RULES ARE FOR APPLICATION WHERE, AS HERE, THE INVITATION INDICATES THAT THE PROCURING ACTIVITY CONSIDERS COMPLETE DESCRIPTIVE LITERATURE ESSENTIAL TO ITS DETERMINATION WHETHER THE EQUIPMENT OFFERED BY THE BIDDER MEETS THE REQUIREMENTS OF THE GOVERNMENT AS SET OUT IN THE ADVERTISED SPECIFICATIONS.

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THE REJECTION OF YOUR BID WAS PROPER.