B-175291, MAY 23, 1972

B-175291, MAY 23, 1972

BID PROTEST - SMALL BUSINESS SET-ASIDE - NONRESPONSIVENESS DECISION DENYING THE PROTEST OF SMITH'S REFRIGERATION, INC., AGAINST AWARD OF A TOTAL SMALL BUSINESS SET-ASIDE TO THE BALTIMORE-HUSSMAN DISTRIBUTING CORPORATION UNDER AN IFB ISSUED BY THE ABERDEEN PROVING GROUND, MD., FOR REFRIGERATED DISPLAY CASES. THE COMP. GEN. MUST CONCLUDE THAT SMITH'S FAILURE TO AGREE TO FURNISH A PRODUCT MANUFACTURED BY A SMALL BUSINESS CONCERN CLEARLY REQUIRED THAT ITS BID BE HELD NONRESPONSIVE. B-164390, OCTOBER 22, 1968. CONTRARY TO PROTESTANT'S CONTENTIONS, THERE ARE AT LEAST TWO SMALL BUSINESS MANUFACTURERS OF THE CASES AND, IN ANY EVENT, THE ISSUE WOULD MORE PROPERLY HAVE BEEN RAISED PRIOR TO BID OPENING. ACCORDINGLY, THE PROTEST IS DENIED.

TO SMITH'S REFRIGERATION, INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 22, 1972, WITH ENCLOSURE, PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER IFB DAAD05-72-B-0054, ISSUED BY THE ABERDEEN PROVING GROUND, MARYLAND.

THE ABOVE INVITATION, ISSUED ON DECEMBER 14, 1971, CALLED FOR THE FURNISHING OF ONE MECHANICALLY REFRIGERATED, SELF-SERVICE DISPLAY CASE, 8 FEET IN LENGTH, TO BE USED FOR DAIRY PRODUCTS AND FOUR MECHANICALLY REFRIGERATED, SELF-SERVICE DISPLAY CASES, 12 FEET IN LENGTH, TO BE USED FOR FROZEN FOODS. THE PROCUREMENT WAS A 100 PERCENT SMALL BUSINESS SET ASIDE. BIDS WERE OPENED ON JANUARY 10, 1972. FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. YOUR FIRM SUBMITTED THE LOW BID OF $16,689, WHILE THE BALTIMORE-HUSSMAN DISTRIBUTING CORPORATION (BALTIMORE-HUSSMAN) SUBMITTED THE SECOND LOW BID OF $18,035.

THE INVITATION DID NOT REQUEST DESCRIPTIVE LITERATURE BUT DID, HOWEVER, EXPRESSLY WARN BIDDERS, BY PARAGRAPH 32, SECTION C, OF THE INVITATION, THAT ANY OFFER CONTAINING DESCRIPTIVE LITERATURE WHICH RESERVED TO THE BIDDER THE RIGHT TO CHANGE DATA, PRICE OR SPECIFICATIONS WOULD RENDER THE BID NONRESPONSIVE. PARAGRAPH 32, SECTION C, STATES THE FOLLOWING:

"A. AN OFFER CONTAINING LITERATURE, DESCRIPTIVE OR OTHERWISE, WHICH RESERVES TO THE OFFEROR THE RIGHT TO CHANGE DATA, PRICE OR SPECIFICATIONS, OR OTHER SIMILAR RESERVATIONS OR CONDITIONS WHICH AFFECT THE SUBSTANCE OF THE OFFER, WILL RENDER THE OFFER NONRESPONSIVE.

"B. LANGUAGE INCLUDED IN SUBMITTED LITERATURE SUCH AS, 'SPECIFICATION SUBJECT TO CHANGE WITHOUT NOTICE', 'PRICES SUBJECT TO CHANGE WITHOUT NOTICE', OR 'DATA SUBJECT TO CHANGE WITHOUT NOTICE' ARE SOME, BUT NOT ALL EXAMPLES OF THE TYPE OF RESERVATION WHICH WILL RENDER AN OTHERWISE RESPONSIVE OFFER, NONRESPONSIVE."

THE INVITATION ALSO CONTAINED A PROVISION ENTITLED, "NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE (1970 JUN)," WHICH STATES, IN PERTINENT PART, AS FOLLOWS:

" *** IN ADDITION TO MEETING THESE CRITERIA, A MANUFACTURER OR A REGULAR DEALER SUBMITTING BIDS OR PROPOSALS IN HIS OWN NAME MUST AGREE TO FURNISH IN THE PERFORMANCE OF THE CONTRACT END ITEMS MANUFACTURED OR PRODUCED BY SMALL BUSINESS CONCERNS: PROVIDED THAT THIS ADDITIONAL REQUIREMENT DOES NOT APPLY IN CONNECTION WITH CONSTRUCTION OR SERVICE CONTRACTS."

DURING THE EVALUATION OF BIDS IT WAS NOTICED THAT ON THE BOTTOM OF SEVERAL PAGES OF THE UNSOLICITED DESCRIPTIVE LITERATURE ACCOMPANYING YOUR BID, THE STATEMENT WAS PRINTED "SPECIFICATIONS SUBJECT TO CHANGE WITHOUT NOTICE." THIS STATEMENT WAS ONE OF THE EXAMPLES SET OUT IN PARAGRAPH 32 AS RENDERING A BID NONRESPONSIVE. IN ADDITION, IT WAS NOTICED THAT WHILE YOU REPRESENTED YOUR FIRM TO BE A SMALL BUSINESS CONCERN, YOU STATED THAT THE SUPPLIES TO BE FURNISHED WOULD NOT BE MANUFACTURED OR PRODUCED BY A SMALL BUSINESS FIRM, WHICH WAS NOT IN COMPLIANCE WITH THE ABOVE-CITED SET- ASIDE PROVISION OF THE INVITATION. IN VIEW OF THE ABOVE FACTORS, THE CONTRACTING OFFICER REJECTED YOUR BID AS BEING NONRESPONSIVE, AND MADE AWARD TO BALTIMORE-HUSSMAN, THE NEXT LOW BIDDER IN THE AMOUNT OF $18,035.

IT IS YOUR CONTENTION REGARDING THE LEGEND "SPECIFICATIONS SUBJECT TO CHANGE WITHOUT NOTICE" PRINTED ON THE DESCRIPTIVE LITERATURE THAT THIS LITERATURE WAS SUPPLIED TO YOU BY HILL REFRIGERATION OF TRENTON, NEW JERSEY, FOR WHICH YOU ARE A DISTRIBUTOR, AND THAT THE GOVERNMENT FURNISHES SPECIFICATIONS WITH WHICH YOU MUST COMPLY OR YOU WILL NOT BE ABLE TO BID. YOU STATE THAT THE SPECIFICATIONS IN THIS CASE WERE FROM DISPLAY CASES ALREADY INSTALLED IN THE COMMISSARY. CONCERNING YOUR FAILURE TO AGREE TO FURNISH DISPLAY CASES MANUFACTURED BY A SMALL BUSINESS FIRM, YOU ALLEGE THAT THERE ARE NO SMALL BUSINESS FIRMS THAT MANUFACTURE COMMERCIAL REFRIGERATION CASES OF THE TYPE BEING PROCURED. FOR THE ABOVE REASONS YOU DO NOT FEEL THAT YOUR BID SHOULD HAVE BEEN DETERMINED TO BE NONRESPONSIVE.

IN REGARD TO YOUR FAILURE TO CERTIFY THAT YOUR SUPPLIER OF THE DISPLAY CASES WAS A SMALL BUSINESS CONCERN, WE HAVE HELD THAT ONE OF THE ESSENTIAL CRITERIA OF RESPONSIVENESS UNDER A TOTAL SMALL BUSINESS SET-ASIDE INVITATION IS THE BIDDER'S AGREEMENT TO FURNISH A PRODUCT MANUFACTURED BY A SMALL BUSINESS CONCERN IF THE BIDDER, LIKE YOUR FIRM, IS NOT A MANUFACTURER OF THE PRODUCT. B-164390, OCTOBER 22, 1968. SINCE YOU DID NOT AGREE TO FURNISH DISPLAY CASES MANUFACTURED BY A SMALL BUSINESS CONCERN BUT, INSTEAD, SPECIFICALLY REPRESENTED THAT THE CASES WOULD NOT BE MANUFACTURED OR PRODUCED BY A SMALL BUSINESS CONCERN, WE MUST CONCLUDE THAT YOUR BID WAS PROPERLY HELD TO BE NONRESPONSIVE.

REGARDING YOUR CONTENTION THAT THERE ARE NO SMALL BUSINESS CONCERNS WHO MANUFACTURE THE DISPLAY CASES BEING PROCURED, WE HAVE BEEN INFORMALLY ADVISED BY THE ARMY MATERIEL COMMAND THAT THERE ARE AT LEAST TWO SMALL BUSINESS MANUFACTURERS OF THE CASES - R. G. PRODUCTS, GERMANTOWN, MARYLAND, AND PFEIFFER AND SON, WOODLAWN, MARYLAND. FOR YOUR INFORMATION AND GUIDANCE IN FUTURE PROCUREMENTS, CONTENTIONS OF THIS NATURE, ALLEGING AN IMPROPRIETY IN THE SOLICITATION, SHOULD BE RAISED PRIOR TO BID OPENING IF THEY ARE TO BE CONSIDERED ON THEIR MERITS BY THIS OFFICE. 50 COMP. GEN. 193, 200 (1970).

SINCE WE HAVE FOUND THAT YOUR BID WAS NONRESPONSIVE, ON THE BASIS OF YOUR REPRESENTATION THAT THE DISPLAY CASES OFFERED WOULD NOT BE MANUFACTURED BY A SMALL BUSINESS CONCERN, THE ADDITIONAL QUESTION OF WHETHER YOUR BID WAS NONRESPONSIVE BECAUSE OF THE ABOVE STATEMENT PRINTED ON THE DESCRIPTIVE LITERATURE, IS CONSIDERED TO BE ACADEMIC.

FOR THE ABOVE REASONS, YOUR PROTEST IS DENIED.