B-181912, MAR 6, 1975

B-181912: Mar 6, 1975

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

SEC. 20.2(A) AND ASPR SEC. 2-407.8(A)(1) WHERE ACTIVITY WAS INFORMED. OF BIDDER'S INTENT TO FORMALLY PROTEST NONRESPONSIVENESS DETERMINATION AFTER ASCERTAINING PROPER MANNER IN WHICH TO FILE A FORMAL PROTEST AND WRITTEN PROTEST DETAILS WERE FILED THEREAFTER WITHIN REASONABLE PERIOD OF TIME. 2. USE OF CLAUSE WAS IMPROPER IN VIEW OF POLICY STATED IN ASPR SEC. 2-202.5(B). DACW03-74-B-0106 WAS ISSUED ON APRIL 10. FOUR BIDS WERE RECEIVED AND OPENED ON JUNE 18. WAS DETERMINED TO BE NONRESPONSIVE. AWARD WAS MADE TO THE NEXT LOW BIDDER. THE FIRST ISSUE IS THE TIMELINESS OF THE ARBEN PROTEST. THE CONTRACTING OFFICER'S JULY 3 LETTER ADVISING ARBEN OF THE REASONS FOR THE REJECTION OF ITS BID AND OF THE FACT THAT AWARD HAD BEEN MADE TO ROLYAN WAS RECEIVED BY ARBEN ON JULY 8.

B-181912, MAR 6, 1975

1. ORAL PROTEST MAY BE CONSIDERED AS FILED TIMELY WITH CONTRACTING ACTIVITY UNDER 4 C.F.R. SEC. 20.2(A) AND ASPR SEC. 2-407.8(A)(1) WHERE ACTIVITY WAS INFORMED, WITHIN 5 DAYS OF BIDDER'S KNOWLEDGE THEREOF, OF BIDDER'S INTENT TO FORMALLY PROTEST NONRESPONSIVENESS DETERMINATION AFTER ASCERTAINING PROPER MANNER IN WHICH TO FILE A FORMAL PROTEST AND WRITTEN PROTEST DETAILS WERE FILED THEREAFTER WITHIN REASONABLE PERIOD OF TIME. 2. MANUFACTURER'S LITERATURE CLAUSE, WHILE INTENDED TO BE IN THE NATURE OF DESCRIPTIVE LITERATURE CLAUSE, RENDERED INVITATION DEFECTIVE SINCE CLAUSE FAILED TO COMPLY WITH STANDARDS OF ASPR SEC. 2-202.5 IN THAT CLAUSE FAILED TO APPRISE BIDDERS OF DETAIL, TYPE, OR COMPOSITION OF LITERATURE REQUIRED; FURTHER, USE OF CLAUSE WAS IMPROPER IN VIEW OF POLICY STATED IN ASPR SEC. 2-202.5(B).

ARBEN ENGINEERING CORPORATION:

INVITATION FOR BIDS (IFB) NO. DACW03-74-B-0106 WAS ISSUED ON APRIL 10, 1974, BY THE CORPS OF ENGINEERS, LITTLE ROCK DISTRICT, FOR THE PROCUREMENT OF VARIOUS BUOYS AND FLOATS IN ACCORDANCE WITH ATTACHED SPECIFICATIONS AND A DIMENSIONAL, DETAILED DRAWING. FOUR BIDS WERE RECEIVED AND OPENED ON JUNE 18. THE BID OF THE APPARENT LOW BIDDER, THE ARBEN ENGINEERING CORPORATION (ARBEN), WAS DETERMINED TO BE NONRESPONSIVE, AND AWARD WAS MADE TO THE NEXT LOW BIDDER, THE ROLYAN MANUFACTURING COMPANY (ROLYAN), ON JULY 3, 1974. ARBEN PROTESTS THE FAILURE TO MAKE AWARD TO IT AS THE LOW RESPONSIBLE AND RESPONSIVE BIDDER.

THE FIRST ISSUE IS THE TIMELINESS OF THE ARBEN PROTEST. THE CONTRACTING OFFICER'S JULY 3 LETTER ADVISING ARBEN OF THE REASONS FOR THE REJECTION OF ITS BID AND OF THE FACT THAT AWARD HAD BEEN MADE TO ROLYAN WAS RECEIVED BY ARBEN ON JULY 8. THEREAFTER, THE PRESIDENT OF ARBEN CALLED THE CONTRACTING ACTIVITY, BUT WAS UNABLE TO REACH THE PARTIES WITH WHOM HE WISHED TO SPEAK. ON JULY 9 THE ARBEN REPRESENTATIVE IN ST. LOUIS WAS ABLE TO REACH TWO PERSONNEL WHO WERE FAMILIAR WITH THE PROCUREMENT, BUT FAILED TO ASCERTAIN THE PROCEDURE FOR FORMALLY LODGING A PROTEST. ONE OF THE PARTIES CONTACTED, IT SHOULD BE NOTED, WAS THE ASSISTANT CHIEF OF THE PROCUREMENT AND SUPPLY DIVISION OF THE ACTIVITY, THE PERSON WHO HAD PERSONALLY OPENED THE BIDS. ON JULY 10 THE PRESIDENT OF ARBEN AGAIN CALLED THE ACTIVITY, SPEAKING APPARENTLY WITH THE HEAD OF ONE OF THE DEPARTMENTS INVOLVED IN THE PROCUREMENT. DURING THIS CONVERSATION HE WAS ADVISED TO INQUIRE AS TO PROTEST PROCEDURES WITH SOMEONE IN THE SOUTHWESTERN DIVISION. THIS HE DID AND, CONSEQUENTLY, FORMALLY SUBMITTED THE PROTEST BY LETTER OF JULY 16 TO THE CONTRACTING ACTIVITY, WHICH WAS DENIED BY A LETTER DATED AUGUST 1, 1974. BY LETTER OF JULY 18, RECEIVED JULY 25, ARBEN PROTESTED TO OUR OFFICE.

IT IS THE POSITION OF THE CONTRACTING ACTIVITY THAT UNDER THE PROVISIONS OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 C.F.R. SEC. 20.2(A)) (1974) THE PROTEST WAS UNTIMELY FILED AND SHOULD, THEREFORE, NOT BE FOR CONSIDERATION. SECTION 20.2 READS, IN PERTINENT PART, AS FOLLOWS:

"(A) PROTESTORS ARE URGED TO SEEK RESOLUTION OF THEIR COMPLAINTS INITIALLY WITH THE CONTRACTING AGENCY. *** IN OTHER CASES, BID PROTESTS SHALL BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY. THE TERM 'FILED' AS USED IN THIS SECTION MEANS RECEIPT IN THE CONTRACTING AGENCY OR IN THE GENERAL ACCOUNTING OFFICE AS THE CASE MAY BE AND PROTESTORS ARE, THEREFORE, CAUTIONED THAT PROTESTS SHOULD BE TRANSMITTED OR DELIVERED IN THAT MANNER WHICH WILL ASSURE EARLIEST RECEIPT."

WE CANNOT AGREE WITH THE CONCLUSION OF THE CONTRACTING ACTIVITY.

ON BOTH JULY 9 AND 10, PERSONNEL OF THE CONTRACTING ACTIVITY WERE CONTACTED BY THE PROTESTER OR ITS REPRESENTATIVE IN ATTEMPTS TO DETERMINE THE CORRECT PROCEDURE FOR LODGING A FORMAL WRITTEN PROTEST AGAINST THE REJECTION OF THE ARBEN BID. ONE OF THE PERSONS CONTACTED HAD BEEN RESPONSIBLE FOR OPENING THE BIDS AND WAS FAMILIAR ENOUGH, WE THINK, WITH THE PROCUREMENT, AND IN A POSITION OF SUFFICIENT RESPONSIBILITY, TO HAVE REALIZED THE IMPORT OF THIS ORAL PROTEST AND HE SHOULD HAVE BEEN AWARE OF THE IMPORT OF ARBEN'S INQUIRIES. THE ONLY DETAIL LACKING WAS THE FORMAL SUBMISSION OF A LETTER PROTESTING THE FINDING OF NONRESPONSIVENESS. CONSEQUENTLY, WE BELIEVE THE ORAL PROTEST AND THE NOTICE OF ARBEN'S INTENT TO FILE A WRITTEN PROTEST, ONCE IT WAS INFORMED AS TO THE PROPER PROCEDURE FOR SO DOING, WAS SUFFICIENT TO SATISFY THE REQUIREMENTS SET FORTH IN THE ABOVE-CITED PROVISION AND PARAGRAPH 2-407.8(A)(1) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) (1974 ED.). 53 COMP. GEN. 780 (1974); MATTER OF CESSNA AIRCRAFT COMPANY; BEACH AIRCRAFT CORPORATION, B-180913, AUGUST 12, 1974, 54 COMP. GEN. ; MATTER OF SOUTHERN PACKAGING AND STORAGE CO., INC., B-181249, JUNE 7, JULY 15, 1974. THE FORMAL PROTEST FOLLOWED WITHIN A REASONABLE TIME AFTER THESE INQUIRIES AND BEFORE ARBEN'S ORAL PROTEST HAD BEEN RESOLVED. FURTHER, SINCE NO ADVERSE ADMINISTRATIVE ACTION WAS TAKEN MORE THAN 5 DAYS BEFORE THE RECEIPT OF THE ARBEN PROTEST BY OUR OFFICE ON JULY 25, WE MUST CONSIDER THE PROTEST AS TIMELY FILED WITH OUR OFFICE AND PROPERLY FOR CONSIDERATION.

THE ARBEN BID WAS DETERMINED TO BE NONRESPONSIVE FOR FAILURE TO COMPLY WITH AN INVITATION PROVISION READING AS FOLLOWS:

"MANUFACTURER'S LITERATURE: EACH OFFEROR SHALL SUBMIT WITH HIS OFFER THE MANUFACTURER'S PUBLISHED LITERATURE SHOWING MATERIALS AND METHODS OF FABRICATION, OR A LIST SHOWING MATERIALS, MATERIAL MANUFACTURERS, AND FABRICATION EMPLOYED IN THE MANUFACTURE, OF THE BUOYS AND FLOATS."

THE PURPOSE OF THIS PROVISION WAS, AS STATED BY THE CONTRACTING OFFICER, FOR THE PURPOSE OF "EVALUATION OF BIDS TO DETERMINE WHETHER THE PROPOSED BUOYS AND FLOATS WOULD MEET THE REQUIREMENTS OF THE SPECIFICATIONS AND DRAWING OF THE SOLICITATION." SINCE ARBEN SUBMITTED A DRAWING FOR THE CAN -TYPE MARKING BUOYS WHICH FAILED TO SHOW THAT THE BUOYS WOULD BE EQUIPPED WITH A LIFTING EYE NUT, AS REQUIRED BY THE SPECIFICATIONS AND SHOWN ON THE DETAILED DRAWING, ITS BID WAS REJECTED AS NONRESPONSIVE.

THE PROCUREMENT AGENCY RECOGNIZES THAT THE "MANUFACTURE'S LITERATURE" CLAUSE MAY BE DEFECTIVE SINCE IT WAS NOT IN COMPLETE ACCORD WITH ASPR SEC. 2-202.5 (1973 ED.). HOWEVER, IT STATES THAT NOTWITHSTANDING THE POSSIBILITY THAT THE CLAUSE MAY BE DEFECTIVE, AWARD PROPERLY WAS MADE SINCE COMPETITION WAS NOT AFFECTED AND "NO BIDDER OBTAINED AN OPTION OR OTHER UNDUE ADVANTAGE BECAUSE OF THE DEFECT ***," CITING 49 COMP. GEN. 398, 401 (1969). IT IS FURTHER POINTED OUT THAT ARBEN'S BID WAS PROPERLY REJECTED SINCE ITS BID MANIFESTED A CLEAR INTENT NOT TO CONFORM TO THE REQUIREMENTS (46 COMP. GEN. 315, 318 (1966)).

IN COMPLIANCE WITH THE LITERATURE CLAUSE, ARBEN SUBMITTED ITS SPECIFICATION FOR ARBEN MODEL CM-1236 DG AND A SHOP DRAWING OF THAT MODEL. ON THE SPECIFICATION SHEET, ARBEN WROTE IN INK "SPECIFICATION TO BE MODIFIED TO MEET REQUIREMENTS." THE SHOP DRAWING BORE THE INKED LEGEND "MODIFIED ROD TO MEET SIZE SPECIFICATION."

WHILE WE DO NOT QUESTION AT THIS DATE THE ADMINISTRATION DETERMINATION THAT ARBEN'S BID WAS QUALIFIED AT LEAST AS TO THE ABSENCE OF THE LIFTING EYE NUT ON THE ARBEN DRAWING, WHICH WAS, IN THE WORDS OF THE CONTRACTING OFFICER, "A MATERIAL DEVIATION THAT MAY NOT BE WAIVED ***," WE CONCLUDE THAT THE INVITATION WAS DEFECTIVE AND THAT NO AWARD SHOULD HAVE BEEN MADE THEREUNDER. HOWEVER, CONSIDERING THAT DELIVERY WAS TO BE MADE WITHIN 180 DAYS AFTER RECEIPT OF NOTICE OF AWARD (SHORTLY AFTER JULY 8, 1974), NO CORRECTIVE ACTION IS POSSIBLE AT THIS TIME. IT IS RECOMMENDED THAT OUR COMMENTS BELOW BE BROUGHT TO THE ATTENTION OF PROCUREMENT PERSONNEL TO AVOID THE ISSUANCE OF A SIMILAR SOLICITATION IN THE FUTURE.

THE DEFICIENCY IN THE INVITATION RELATES TO THE "MANUFACTURER'S LITERATURE" CLAUSE. WHEN THE CLAUSE IS EXAMINED UNDER THE DESCRIPTIVE LITERATURE STANDARDS OF ASPR SEC. 2-202.5(A) - (D) IT IS EVIDENT THAT THE CLAUSE PROVIDED LITTLE, IF ANY, GUIDANCE TO BIDDERS AS TO DETAIL, TYPE OR COMPOSITION OF THE DATA CALLED FOR. ALTHOUGH THE ADMINISTRATIVE REPORT STATES THAT DESCRIPTIVE LITERATURE WAS FOR THE PURPOSE OF BID EVALUATION TO DETERMINE WHETHER THE PROPOSED FLOATS AND BUOYS WOULD MEET THE REQUIREMENTS OF THE SPECIFICATIONS, THIS ALONE DOES NOT JUSTIFY THE REQUIREMENT FOR DESCRIPTIVE LITERATURE. 49 COMP. GEN. 398, 400 (1969); MATTER OF AIR PLASTICS, INCORPORATED, 53 COMP. GEN. 622 (1974). AS STATED IN THE LATTER DECISION AT PAGES 624, 625:

"*** EVEN IF AN ACCEPTABLE PRODUCT COULD NOT HAVE BEEN PROCURED WITHOUT DESCRIPTIVE LITERATURE, THE INVITATION IS DEFECTIVE BECAUSE IT FAILS TO IDENTIFY THOSE ITEMS, SPECIFICATION FEATURES OR COMPONENTS AS TO WHICH DESCRIPTIVE LITERATURE WAS REQUIRED."

THE CLAUSE DID NOT COMPLY WITH THE POLICY STATED IN ASPR SEC. 2 202.5(B):

"*** BIDDERS SHALL NOT BE REQUIRED TO FURNISH DESCRIPTIVE LITERATURE AS A PART OF THEIR BIDS UNLESS THE PURCHASING ACTIVITY DEEMS THAT SUCH LITERATURE IS NEEDED TO ENABLE IT TO DETERMINE BEFORE AWARD WHETHER THE PRODUCTS OFFERED MEET THE SPECIFICATION REQUIREMENT OF THE INVITATION FOR BIDS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH. ***"

IN THIS CASE, LIKE 49 COMP. GEN. 398, CITED IN THE ADMINISTRATIVE REPORT IN SUPPORT OF THE AWARD, THE CLAUSE OPERATED TO THE DETRIMENT OF THE COMPETITIVE SYSTEM. OUT OF THE FOUR BIDS RECEIVED, TWO BIDS WERE REJECTED AS NONRESPONSIVE TO THE CLAUSE BECAUSE NONCONFORMING DATA WAS SUBMITTED WITH THE BIDS. SINCE NOWHERE IN THE INVITATION WAS THERE A STATEMENT AS TO WHAT DESCRIPTIVE DATA WAS REQUIRED FOR COMPLETE TECHNICAL EVALUATION, IT WAS PREJUDICIAL TO THE BIDDERS TO REJECT THEIR BIDS FOR FAILURE TO SUPPLY DESCRIPTIVE INFORMATION TO SHOW COMPLIANCE TO THE DETAILED SPECIFICATIONS AND DRAWING.

IN REACHING OUR CONCLUSIONS ABOVE, WE NEED NOT CONSIDER THE EFFECT OF ARBEN'S STATEMENT ON ITS DATA THAT IT WOULD FULLY COMPLY WITH THE SPECIFICATIONS OTHER THAN TO OBSERVE THAT IN THE CASE CITED IN THE ADMINISTRATIVE REPORT, (MATTER OF ELECTRON RESEARCH, INC., B-179076, JANUARY 28, 1974), IN SUPPORT OF THE PROPOSITION THAT SUCH AN OFFER CANNOT ALTER THE NONRESPONSIVENESS OF A BID CAUSED BY QUALIFYING DESCRIPTIVE LITERATURE, THERE WAS INCLUDED IN THE INVITATION A PROPER DESCRIPTIVE LITERATURE CLAUSE.

NOTWITHSTANDING OUR CONCLUSION THAT NO AWARD SHOULD HAVE BEEN MADE UNDER THE INVITATION, SINCE DELIVERY OF THE ITEMS WAS TO BE CONSUMMATED 180 CALENDAR DAYS AFTER RECEIPT OF THE NOTICE OF AWARD BY THE CONTRACTOR, A DATE NOW LONG ELAPSED, AND SINCE IT APPEARS THAT THE ACTUAL NEEDS OF THE GOVERNMENT HAVE BEEN MET, THERE IS NO CORRECTIVE ACTION THAT MAY BE TAKEN IN THE IMMEDIATE CASE. HOWEVER, BY LETTER OF TODAY WE ARE REQUESTING THE SECRETARY OF THE ARMY TO ENSURE IN THE FUTURE THAT THE REQUIREMENTS OF ASPR SEC. 2-202.5 WILL BE FOLLOWED.