B-177390, MAR 8, 1973

B-177390: Mar 8, 1973

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THE BID IS RENDERED NONRESPONSIVE SINCE THE LEGEND PROVIDES A BIDDER WITH AN OPTION TO DEVIATE FROM THE ADVERTISED REQUIREMENTS AFTER AWARD. 156102. TO DACONICS CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19. WAS NONRESPONSIVE. BIDDERS WERE REQUIRED BY THE TERMS OF THE INVITATION TO SUBMIT DESCRIPTIVE LITERATURE WITH THEIR BIDS IN ORDER THAT OFFERED PRODUCTS COULD BE EVALUATED TO ASCERTAIN WHETHER THEY WOULD MEET THE SPECIFICATIONS. THE DETERMINATION THAT YOUR BID WAS NONRESPONSIVE WAS BASED UPON A FINDING THAT THE DESCRIPTIVE LITERATURE FURNISHED WITH THE BID WAS SO INADEQUATE THAT IT WAS NOT POSSIBLE TO ASCERTAIN WHETHER THE OFFERED EQUIPMENT MET THE INVITATION REQUIREMENTS.

B-177390, MAR 8, 1973

BID PROTEST-RESPONSIVENESS - DESCRIPTIVE LITERATURE-RESTRICTIVE LEGEND DECISION DENYING THE PROTEST OF DACONICS CORPORATION AGAINST REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE WATERVLIET ARSENAL, DEPARTMENT OF THE ARMY. WHERE DESCRIPTIVE LITERATURE SUBMITTED WITH A BID CONTAINS A LEGEND THAT THE MANUFACTURER RESERVES THE RIGHT TO CHANGE SPECIFICATIONS AT ANY TIME, THE BID IS RENDERED NONRESPONSIVE SINCE THE LEGEND PROVIDES A BIDDER WITH AN OPTION TO DEVIATE FROM THE ADVERTISED REQUIREMENTS AFTER AWARD. 156102, FEBRUARY 24, 1965.

TO DACONICS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19, 1973, AND PRIOR CORRESPONDENCE, PROTESTING THE DETERMINATION BY THE WATERVLIET ARSENAL, DEPARTMENT OF THE ARMY, THAT YOUR LOW BID SUBMITTED UNDER INVITATION FOR BIDS NO. DAAF07-73-B-0005, AS AMENDED, WAS NONRESPONSIVE.

BIDDERS WERE REQUIRED BY THE TERMS OF THE INVITATION TO SUBMIT DESCRIPTIVE LITERATURE WITH THEIR BIDS IN ORDER THAT OFFERED PRODUCTS COULD BE EVALUATED TO ASCERTAIN WHETHER THEY WOULD MEET THE SPECIFICATIONS. THE DETERMINATION THAT YOUR BID WAS NONRESPONSIVE WAS BASED UPON A FINDING THAT THE DESCRIPTIVE LITERATURE FURNISHED WITH THE BID WAS SO INADEQUATE THAT IT WAS NOT POSSIBLE TO ASCERTAIN WHETHER THE OFFERED EQUIPMENT MET THE INVITATION REQUIREMENTS.

FURTHER, THE BID WAS CONSIDERED TO BE NONRESPONSIVE BECAUSE A BROCHURE OF THE PERTEC CORPORATION SUBMITTED AS PART OF THE DESCRIPTIVE LITERATURE WITH THE BID CONTAINED A STATEMENT THAT "PERTEC RESERVES THE RIGHT TO CHANGE SPECIFICATIONS AT ANY TIME. ***"

YOU HAVE ADDRESSED YOURSELF TO THE ADEQUACY OF YOUR DESCRIPTIVE LITERATURE. HOWEVER, THE LEGEND IN THE PERTEC BROCHURE WHICH WAS INCLUDED AS PART OF YOUR DESCRIPTIVE LITERATURE RAISES THE QUESTION OF THE RESPONSIVENESS OF THE BID. OUR OFFICE HAS HELD THAT SUCH A LEGEND IN DESCRIPTIVE LITERATURE PROVIDES A BIDDER WITH AN OPTION TO DEVIATE FROM THE ADVERTISED REQUIREMENTS AFTER AWARD AND IS A MATERIAL DEVIATION RENDERING THE BID NONRESPONSIVE. B-156102, FEBRUARY 24, 1965; SEE ALSO B- 158309, JUNE 2, 1966; AND B-159178, SEPTEMBER 6, 1966.

THEREFORE, SINCE THE BID IS NONRESPONSIVE REGARDLESS OF THE OUTCOME OF THE DISPUTE OVER THE ADEQUACY OF THE DATA, WE NEED NOT CONSIDER THIS ISSUE. ACCORDINGLY, THE PROTEST IS DENIED.