B-175793, SEP 22, 1972

B-175793, SEP 22, 1972

BID PROTEST - NONRESPONSIVENESS DECISION DENYING THE PROTEST OF YORK-SHIPLEY, INC., AGAINST THE REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE PURCHASING AND CONTRACTING DIVISION, FT. RICHARDSON, AK., FOR CONVERSION BURNER UNITS. DEVIATION FROM THE ADVERTISED SPECIFICATIONS RELATIVE TO DESIGN AND PARTS MAY NOT BE WAIVED AS MERE INFORMALITIES WHEN CONSIDERING THE BID FOR ACCEPTANCE. 30 COMP. GEN. 179 (1950). A BID IS ALSO NONRESPONSIVE IF A BIDDER SUBMITS LITERATURE INDICATING DEVIATION FROM THE SPECIFICATIONS. (SEE B-168243, JANUARY 2, 1970). ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO YORK-SHIPLEY, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 21, 1972, AND YOUR LETTER OF APRIL 25, 1972, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS DAFA03-72-B-0026, ISSUED JANUARY 24, 1972, BY THE DEPARTMENT OF THE ARMY, PURCHASING AND CONTRACTING DIVISION, FORT RICHARDSON, ALASKA. THE SUBJECT IFB REQUIRED THE SUPPLY OF CONVERSION BURNER UNITS IN ACCORDANCE WITH VARIOUS SPECIFICATIONS SET FORTH THEREIN.

AMENDMENT P00001 OF THE IFB REQUIRED THE SUBMISSION OF DESCRIPTIVE LITERATURE IN THE FORM OF SHOP DRAWINGS OF THE CONVERSION BURNER UNITS AS SPECIFIED IN GENERAL NOTE 4 ON BLUEPRINT PR 205-72, FR 71-15-03. THE DESCRIPTIVE LITERATURE CLAUSE REQUIRED THAT THE REFERENCED SHOP DRAWINGS MUST BE RECEIVED PRIOR TO THE TIME SET FOR OPENING OF BIDS, AND STATED THAT THE LITERATURE WAS NECESSARY FOR THE PROCURING ACTIVITY TO ASCERTAIN THE DETAILS OF THE PRODUCT WHICH THE BIDDER PROPOSED TO FURNISH. THAT CLAUSE FURTHER ADVISED THAT FAILURE OF THE DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS WOULD REQUIRE REJECTION OF THE BID.

UPON THE OPENING OF BIDS ON FEBRUARY 25, 1972, IT WAS DETERMINED THAT YOUR BID REQUIRED REJECTION UNDER THE REFERENCED DESCRIPTIVE LITERATURE CLAUSE DUE TO THE FAILURE OF YOUR SHOP DRAWINGS TO SHOW NEW FRONT PLATES OR ADAPTERS AS SPECIFIED BY GENERAL NOTE 3 OF PR 205-72, FR 71 15-03.

IN YOUR LETTER OF APRIL 25, 1972, YOU ALLEGE THAT THE REASON GIVEN FOR THE REJECTION OF YOUR BID WAS THAT YOUR LITERATURE FAILED TO SHOW A BASE PLATE OR MOUNTING FLANGE. YOU DISAGREE, AND CONTEND THAT THE SHOP DRAWING OF YOUR BURNER STAND (BASE PLATE) DID DEPICT A DIMENSIONAL DIAGRAM OF EACH MOUNTING FLANGE.

THE PROCURING ACTIVITY CONCURS WITH YOUR ASSERTION THAT YOUR DRAWING DID INDICATE THAT YOU WOULD PROVIDE FLANGED PLATES AND A PEDESTAL MOUNT. HOWEVER, IT IS STATED THAT THE OMISSION OF THE FRONT PLATES AND ADAPTERS FROM THE DRAWING WAS THE BASIS UPON WHICH THE DECISION WAS MADE TO REJECT YOUR BID, AND THAT THE FLANGE PLATES AND PEDESTAL MOUNT ARE NOT TO BE CONFUSED WITH THE FRONT PLATES OR ADAPTERS.

HAVING PERUSED THE "LIST OF PARTS" SET FORTH IN YOUR SHOP DRAWINGS WHICH ARE INCLUDED IN THE RECORD, WE DO NOT FIND LISTED EITHER THE FRONT PLATES OR ADAPTERS CALLED FOR BY THE IFB. FURTHERMORE, BY LETTER DATED JUNE 30, 1972, YOU WERE TRANSMITTED A COPY OF THE ADMINISTRATIVE REPORT, WHICH SET OUT THE AGENCY'S CONCLUSIONS AS SET OUT ABOVE, FOR POSSIBLE REBUTTAL. SINCE YOU HAVE NOT RESPONDED WITH ANY EVIDENCE TO REFUTE SUCH CONCLUSIONS, THE RECORD CONTAINS NO BASIS UPON WHICH OUR OFFICE CAN CONCLUDE THAT THE FRONT PLATES OR ADAPTERS WERE SHOWN ON YOUR DRAWINGS.

IT HAS LONG BEEN THE POSITION OF OUR OFFICE THAT DEVIATIONS IN A BID FROM THE ADVERTISED SPECIFICATIONS RELATIVE TO DESIGN AND PARTS GO TO THE SUBSTANCE OF THE BID BY AFFECTING THE PRICE OR QUALITY OF THE ARTICLES, AND SUCH DEVIATIONS MAY NOT BE WAIVED AS MERE INFORMALITIES IN CONSIDERING THE BID FOR ACCEPTANCE. 30 COMP. GEN. 179 (1950). WE HAVE ALSO HELD THAT A BID IS NONRESPONSIVE IF A BIDDER SUBMITS LITERATURE INDICATING DEVIATIONS FROM THE SPECIFICATIONS. B-168243, JANUARY 2, 1970. INASMUCH AS THE OMISSIONS IN YOUR SHOP DRAWINGS PERTAIN TO DESIGN AND PARTS, WE MUST CONSIDER THEM TO BE MATERIAL DEVIATIONS, AND THEREFORE CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.