B-176244, OCT 16, 1972

B-176244, OCT 16, 1972

BID PROTEST - NONRESPONSIVENESS - QUALIFYING DATA DENIAL OF PROTEST BY DYNARAD, INC. AGAINST THE REJECTION OF THEIR BID UNDER AN IFB ISSUED AT HOLLOMAN AFB, N.M., FOR AN "INFRARED THERMAL IMAGING DEVICE." WHILE ASPR 2-202.5(F) PROVIDES THAT DESCRIPTIVE DATA ENCLOSED WITH A BID WILL BE DISREGARDED UNLESS IT APPEARS THAT IT WAS THE BIDDER'S INTENTION TO QUALIFY THE BID, THE COMP. GEN. BELIEVES THAT THE BID WAS REASONABLY SUSCEPTIBLE TO THE CONCLUSION THAT THE ACCOMPANYING DATA WAS INTENDED TO QUALIFY THE BID. SINCE THE VARIANCE WAS DEEMED TO BE MATERIAL, THERE IS NO REASON TO OBJECT TO THE CONTRACTING OFFICER'S DETERMINATION.

TO DYNARAD, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 12, 1972, AND PRIOR CORRESPONDENCE PROTESTING THE AWARD OF A CONTRACT TO THE AGA CORPORATION UNDER INVITATION FOR BIDS (IFB) F29651-72-B-0274, ISSUED AT HOLLOMAN AIR FORCE BASE, NEW MEXICO, FOR AN "INFRARED THERMAL IMAGING DEVICE."

THREE BIDS WERE RECEIVED AND THE APPARENT LOW BIDDER WAS DECLARED NONRESPONSIVE DUE TO NONCOMPLIANCE WITH TECHNICAL SPECIFICATIONS. YOUR BID WAS NEXT IN LINE FOR AWARD. IN A LETTER ACCOMPANYING YOUR BID YOU STATED THAT YOU WERE OFFERING YOUR STANDARD MODEL 209 SYSTEM. YOU ALSO SUBMITTED DESCRIPTIVE DATA ON YOUR MODEL (ALTHOUGH SUCH DATA WAS NOT REQUIRED BY THE INVITATION) WHICH SET FORTH VARIOUS TECHNICAL ATTRIBUTES INCLUDING A MINIMUM DETECTABLE TEMPERATURE DIFFERENCE OF LESS THAN 0.3 DEGS C AT 30 DEGS C TARGET. THE INVITATION SPECIFICATION REQUIRED A MINIMUM DETECTABLE TEMPERATURE DIFFERENCE OF LESS THAN 0.2 DEGS C AT 30 DEGS C TARGET. BY LETTER DATED JUNE 30, 1972, THE CONTRACTING OFFICER NOTIFIED YOU THAT YOUR BID WAS REJECTED BECAUSE THE MINIMUM DETECTABLE TEMPERATURE REQUIREMENT HAD NOT BEEN MET. AWARD OF CONTRACT WAS MADE TO ANOTHER FIRM ON JUNE 30, 1972. YOU CONTEND THAT YOUR BID SHOULD NOT HAVE BEEN REJECTED SINCE THE BID SPECIFICALLY STATED THAT THE INSTRUMENT OFFERED WOULD BE IN ACCORDANCE WITH ALL OF THE GOVERNMENT'S SPECIFICATIONS. ALSO, YOU STATE THAT YOU WERE NOT AWARE OF ANY REGULATION WHICH REQUIRES THAT "LITERATURE ACCOMPANYING A BID IS PART OF THE BID AND ANY DEVIATIONS FROM THE IFB SPECIFICATIONS CAUSED BY SUCH LITERATURE RENDERS THE BID NONRESPONSIVE IF THE DEVIATION AFFECTS QUALITY OR PRICE."

WHEN A BID INCLUDES UNSOLICITED DESCRIPTIVE LITERATURE, ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-202.5(F) PROVIDES:

"IF THE FURNISHING OF DESCRIPTIVE LITERATURE IS NOT REQUIRED BY THE INVITATION FOR BIDS, BUT SUCH LITERATURE IS FURNISHED WITH A BID, IT WILL NOT BE CONSIDERED AS QUALIFYING THE BID, AND WILL BE DISREGARDED, UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE BIDDER'S INTENTION SO TO QUALIFY THE BID."

ALSO, THIS OFFICE HAS STATED IN 49 COMP. GEN. 851, 852 (1970) AS FOLLOWS:

"IN OUR VIEW THE INTENT OF THE BID MUST BE DETERMINED FROM A REASONABLE CONSTRUCTION OF ITS ENTIRE CONTENTS INCLUDING ANY UNSOLICITED LITERATURE. IF THE CIRCUMSTANCES ARE REASONABLY SUSCEPTIBLE OF A CONCLUSION THAT THE LITERATURE WAS INTENDED TO QUALIFY THE BID OR IF INCLUSION OF THE LITERATURE CREATES AN AMBIGUITY AS TO WHAT THE BIDDER INTENDED TO OFFER, THEN THE BID MUST BE REJECTED AS NONRESPONSIVE TO THE INVITATION FOR BIDS."

WE BELIEVE THAT YOUR BID WAS REASONABLY SUSCEPTIBLE TO THE CONCLUSION THAT THE ACCOMPANYING DATA WAS INTENDED TO QUALIFY THE BID. WHILE THE BID INCLUDED YOUR STATEMENT OF INTENTION TO COMPLY WITH ALL OF THE REQUIRED SPECIFICATIONS, WE HAVE CONSISTENTLY HELD THAT SUCH A STATEMENT CAN NOT BE CONSIDERED AS OVERCOMING VARIANCES IN THE BID DATA. 40 COMP. GEN. 132, 135 (1960); 46 COMP. GEN. 1, 4 (1966). SINCE THE RECORD SHOWS THAT THE VARIANCE IN QUESTION WAS DEEMED TO BE MATERIAL, WE FIND NO REASON TO OBJECT TO THE CONTRACTING OFFICER'S DETERMINATION TO REJECT YOUR BID.

ACCORDINGLY, YOUR PROTEST AGAINST THE AWARD MUST BE DENIED.