B-176723, NOV 6, 1972

B-176723, NOV 6, 1972

BID PROTEST - UNSOLICITED DESCRIPTIVE LITERATURE - NONRESPONSIVE BID DECISION DENYING THE PROTEST OF TELEDYNE GEOTECH AGAINST THE PROPOSED AWARD OF A CONTRACT FOR ACCELOGRAPHS AND RELATED EQUIPMENT TO KINEMETRICS, INC., UNDER AN IFB ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, MEMPHIS, TENN. THE INTENT OF A BID MUST BE DETERMINED FROM A REASONABLE CONSTRUCTION OF ITS ENTIRE CONTENTS, INCLUDING ANY UNSOLICITED LITERATURE. 49 COMP. GEN. 851 (1970). HOWEVER, IF THE SUBMITTED LITERATURE CREATES AN AMBIGUITY AS TO THE INTENTION OF THE BID, THE BID MUST BE REJECTED AS NONRESPONSIVE. SINCE THE LITERATURE SUBMITTED BY TELEDYNE DID NOT REFER TO THE MODEL REFERENCED IN THE IFB, ITS BID WAS PROPERLY REJECTED.

TO TELEDYNE GEOTECH:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 2, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE PROPOSED AWARD OF A CONTRACT FOR ACCELEROGRAPHS AND RELATED EQUIPMENT TO KINEMETRICS, INC., UNDER INVITATION FOR BIDS (IFB) NO. DACW66-72-B-0143, AS AMENDED, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, MEMPHIS, TENNESSEE.

THE CONTRACTING AGENCY REJECTED THE LOW BID SUBMITTED BY YOUR COMPANY ON THE GROUNDS THAT IT WAS NONRESPONSIVE. THAT CONCLUSION WAS BASED ON THE FACT THAT YOU SUBMITTED WITH YOUR BID AN UNSOLICITED DATA SHEET ON YOUR MODEL RFT-250M ACCELEROGRAPH WHICH INDICATED THAT THE OPERATING TEMPERATURE FOR THE EQUIPMENT WAS 35 DEGS F TO 120 DEGS F. PARAGRAPH F 2.9 OF THE INVITATION SPECIFICATIONS REQUIRED THAT THE EQUIPMENT BE CAPABLE OF OPERATING AT A MINIMUM TEMPERATURE OF 0 DEG F. THAT REQUIREMENT WAS BASED UPON THE FACT THAT SOME UNITS WILL BE OPERATED IN AN AREA HAVING SUCH LOW TEMPERATURE.

YOU STATE THAT NEITHER THE BID NOR THE COVER LETTER ACCOMPANYING THE BID REFERS TO THE DATA SHEET AND THAT YOU CAN NEITHER PROVE NOR DISPROVE THAT THE DATA SHEET ACCOMPANIED THE BID, ALTHOUGH THE SECRETARY WHO MAILED THE BID HAS INDICATED THAT SHE MAY HAVE INCLUDED IT. FURTHER, YOU POINT OUT THAT IN THE COVER LETTER IT WAS STATED THAT "THE PROPOSED ACCELEROGRAPHS AND ACCESSORIES COMPLY IN ALL WAYS WITH THE SPECIFICATIONS OF THE IFB." ADDITIONALLY, YOU STATE THAT THE UNIT HAS BEEN SUBJECTED TO LOW TEMPERATURE OPERATION TESTS AND HAS PERFORMED AT -23 DEGS F FOR AN EXTENDED PERIOD OF TIME WITHOUT LOSS OF ACCURACY OR RELIABILITY. IN VIEW OF THE ABSENCE OF A REFERENCE TO THE DATA SHEET IN THE BID OR THE COVER LETTER, THE PRESENCE OF A STATEMENT OF COMPLIANCE IN THE COVER LETTER AND THE FACT THAT THE MODEL RFT-250 HAS PERFORMED SATISFACTORILY AT 0 DEG F, YOU CONTEND THAT THE DATA SHEET SHOULD HAVE BEEN DISREGARDED IN THE BID EVALUATION AND YOUR BID SHOULD NOT HAVE BEEN REJECTED. IN SUPPORT OF THAT CONTENTION, YOU RELY UPON B 169057, APRIL 23, 1970, AND ARMED SERVICES PROCUREMENT REGULATION 2 202.5(F).

THE UNSOLICITED LITERATURE IN THE CITED CASE WAS ATTACHED TO THE BID WITHOUT ANY STATEMENT MADE IN THE ACCOMPANYING BID DOCUMENTS. IN THIS CASE, THE UNSOLICITED DATA IS ACCOMPANIED BY THE STATEMENT NOTED ABOVE IN THE COVER LETTER. ALTHOUGH THE STATEMENT ADDRESSES ITSELF TO COMPLIANCE WITH THE IFB SPECIFICATIONS, IT SPEAKS OF THE "PROPOSED" ACCELEROGRAPHS AND ACCESSORIES AS COMPLYING. NOWHERE IN THE BID OR COVER LETTER IS THERE ANY INDICATION OF WHAT IS THE "PROPOSED" EQUIPMENT. SINCE A DATA SHEET WAS SUBMITTED, IT IS REASONABLE TO SUPPOSE THAT THE EQUIPMENT DESCRIBED THEREIN IS THE "PROPOSED" EQUIPMENT REFERENCED IN THE COVER LETTER. AGAINST THE BACKGROUND OF THE DATA SHEET, THE STATEMENT IN THE COVER LETTER THAT THE "PROPOSED" EQUIPMENT COMPLIED WITH THE SPECIFICATIONS IN THE IFB APPEARS AS AN OPINION WHICH CAN BE VERIFIED BY A COMPARISON BETWEEN THE SPECIFICATIONS IN THE IFB AND THE DATA SHEET ACCOMPANYING THE BID. AS INDICATED ABOVE, A COMPARISON BETWEEN THE TWO SHOWS THE EQUIPMENT IN THE DATA SHEET TO BE DEFICIENT AT LEAST IN THE MATERIAL TEMPERATURE CATEGORY. HOWEVER, WE CAN RECOGNIZE TOO THAT SINCE THE DATA SHEET IS NOT SPECIFICALLY REFERENCED IN THE BID, IT IS EQUALLY REASONABLE TO ASSUME THAT EQUIPMENT COMPLYING WITH THE SPECIFICATIONS WAS INTENDED. FOR THE REASONS STATED, THE IMMEDIATE SITUATION IS DISTINGUISHABLE FROM THE SITUATION DESCRIBED IN THE CITED CASE WHERE NONCONFORMING UNSOLICITED LITERATURE WAS CONSIDERED NOT TO AFFECT THE RESPONSIVENESS OF THE BID.

WE BELIEVE THAT IN THE CIRCUMSTANCES THE INTENTION OF THE BIDDER WAS AT LEAST AMBIGUOUS. THE DECISION YOU RELY UPON WAS RECONSIDERED IN 49 COMP. GEN. 851 (1970), WHEREIN AT PAGE 852, IT WAS STATED:

"WHILE FOR THE ABOVE REASONS OUR PRIOR DECISION B-169057, APRIL 23, 1970, IS SUSTAINED, THERE ARE CERTAIN STATEMENTS IN THAT DECISION WHICH HAVE APPARENTLY LED TO CONSIDERABLE CONFUSION RESPECTING OUR POSITION REGARDING UNSOLICITED DESCRIPTIVE LITERATURE. 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. SEE B-166284, APRIL 14, 1969, MAY 21, 1969, AND B-167584, OCTOBER 3, 1969. AS WE STATED IN B-166284, APRIL 14, 1969:

"'THE CRUX OF THE MATTER IS THE INTENT OF THE OFFEROR AND ANYTHING SHORT OF A CLEAR INTENTION TO CONFORM ON THE FACE OF THE BID REQUIRES REJECTION.

"'WHEN MORE THAN ONE POSSIBLE INTERPRETATION MAY REASONABLY BE REACHED FROM THE TERMS OF A BID A BIDDER MAY NOT BE PERMITTED TO EXPLAIN THE ACTUAL MEANING OR BID INTENDED SINCE THIS WOULD AFFORD THE BIDDER THE OPPORTUNITY TO ALTER THE RESPONSIVENESS OF HIS BID BY EXTRANEOUS MATERIAL.'

"AWARD OF A CONTRACT PURSUANT TO FORMAL ADVERTISING MAY BE MADE UNDER 10 U.S.C. 2305(C) ONLY TO THE LOW RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION. WE DO NOT BELIEVE THAT STATUTORY REQUIREMENT MAY BE NEGATED BY A REGULATORY PROVISION, SUCH AS ASPR 2-202.5(F), WHICH PRESUMES A BID TO CONFORM OR BE UNQUALIFIED WHERE THE INTENT OF THE BIDDER IS AMBIGUOUS. CF. B-166284, MAY 21, 1969. NOR DO WE BELIEVE THAT THE INVITATION FOR BIDS MAY ESTABLISH ANY ARBITRARY CONVENTIONS WHICH PROVIDE THAT THE CLEAR LANGUAGE OF THE BID WILL BE IGNORED UNLESS PRESENTED IN A PARTICULAR FORM."

HAVING REGARD FOR THE FACTS IN THIS CASE AND THE APPLICATION OF THE PRINCIPLES QUOTED ABOVE TO THE IMMEDIATE SITUATION, WE CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED.

YOU ALSO CONTEND THAT AN AWARD SHOULD NOT BE MADE TO THE ONLY OTHER BIDDER, KINEMETRICS, BECAUSE ITS BID IS NONRESPONSIVE IN THAT IT FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT 0002 TO THE IFB AND IT QUALIFIED THE BID WITH A STATEMENT AS FOLLOWS:

"NOTE: THE ACCELEROGRAPHS QUOTED ARE THE STANDARD KINEMETRICS SMA-1 STRONG MOTION ACCELEROGRAPHS WITH AN ADDITIONAL INTERNAL HORIZONTAL TRIGGER SUPPLEMENTING THE STANDARD VERTICAL TRIGGER."

YOU CONTEND THAT THE WORD "STANDARD" IN THE FOREGOING STATEMENT PROVIDES NO ASSURANCES THAT KINEMETRICS WILL MEET THE IFB SPECIFICATIONS BECAUSE IT IS NOT UNCOMMON FOR MANUFACTURERS TO CHANGE THEIR STANDARD MODELS WITHOUT CHANGING THE MODEL DESIGNATIONS AND THERE IS NOTHING IN THE STATEMENT RESTRICTING KINEMETRICS TO THE SPECIFICATIONS IN THE IFB.

CONTRARY TO YOUR CONTENTION, THREE EXECUTED COPIES OF AMENDMENT 0002 WERE RECEIVED FROM KINEMETRICS PRIOR TO THE OPENING OF BIDS.

THE KINEMETRICS' BID, AS YOUR BID, WAS ACCOMPANIED BY UNSOLICITED LITERATURE. IN THE CASE OF KINEMETRICS, THE BID STIPULATED THE MODEL ON WHICH KINEMETRICS WAS BIDDING AND THE UNSOLICITED LITERATURE COVERED THE MODEL REFERENCED IN THE BID. THE LITERATURE SET FORTH THE SPECIFICATIONS OF THE MODEL. THE SPECIFICATIONS INDICATE THE REGULAR FEATURES OF THE MODEL AS WELL AS CERTAIN OPTIONAL FEATURES. THE REGULAR FEATURES INCLUDE A VERTICAL TRIGGER AND DO NOT INCLUDE A HORIZONTAL TRIGGER. THE LATTER IS LISTED UNDER OPTIONAL FEATURES. SINCE THE LITERATURE WAS SUBMITTED WITH THE BID AND INDICATED THE REGULAR FEATURES OF THE EQUIPMENT, THE REFERENCE TO THE STANDARD SMA-1 AND THE STANDARD VERTICAL TRIGGER OBVIOUSLY HAD REFERENCE TO THE REGULAR FEATURES OF THE EQUIPMENT AS OPPOSED TO THE OPTIONAL ACCESSORIES. IN THE CIRCUMSTANCES, THE USE OF THE WORD "STANDARD" IS NOT CONSIDERED TO HAVE PROVIDED THE BIDDER WITH AN OPTION TO FURNISH SOMETHING DIFFERENT IN THE FUTURE. RATHER IT APPEARS ONLY TO HAVE BEEN USED TO DIFFERENTIATE BETWEEN THE REGULAR AND OPTIONAL FEATURES OF THE EQUIPMENT AS DELINEATED IN THE LITERATURE ATTACHED TO THE BID.

TECHNICAL PERSONNEL IN THE CONTRACTING AGENCY HAVE REVIEWED THE BID SUBMITTED BY KINEMETRICS AND HAVE FOUND IT TO BE RESPONSIVE TO THE IFB. THEREFORE, IF AN AWARD IS MADE TO KINEMETRICS, IT WILL CLEARLY BE BOUND TO FURNISH EQUIPMENT THAT COMPLIES WITH THE IFB SPECIFICATIONS.

ACCORDINGLY, FOR THE REASONS STATED, THE PROTEST IS DENIED.