B-182063, NOV 14, 1974

B-182063: Nov 14, 1974

Additional Materials:

Contact:

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

 

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

STATING THAT SPECIFICATIONS WERE SUBJECT TO CHANGE WITHOUT NOTICE PROVIDES BIDDER WITH AN OPTION TO DEVIATE FROM ADVERTISED REQUIREMENTS AFTER AWARD AND IS MATERIAL DEVIATION RENDERING BID NONRESPONSIVE. DESCRIPTIVE LITERATURE WAS REQUIRED FOR PURPOSE OF DETERMINING WHAT GOVERNMENT WAS PURCHASING AND LEGEND ON DESCRIPTIVE LITERATURE CREATED AMBIGUITY AS TO WHAT GOVERNMENT WAS BINDING ITSELF TO PURCHASE. STATEMENT ON BID FIRM THAT "WE ARE QUOTING IN FULL COMPLIANCE WITH SPECIFICATION" DID NOT CURE DEVIATION. THE ABOVE SOLICITATION WAS FOR THE PROCUREMENT OF TWO ITEMS. WHICH IS THE SUBJECT OF THE PROTEST. WAS FOR THE PURCHASE OF 11 NOW LIFT WALKER TYPE PALLET TRUCKS. SEVEN BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION.

B-182063, NOV 14, 1974

PRINTED LEGEND ON DESCRIPTIVE LITERATURE, SUBMITTED WITH PROTESTER'S BID, STATING THAT SPECIFICATIONS WERE SUBJECT TO CHANGE WITHOUT NOTICE PROVIDES BIDDER WITH AN OPTION TO DEVIATE FROM ADVERTISED REQUIREMENTS AFTER AWARD AND IS MATERIAL DEVIATION RENDERING BID NONRESPONSIVE. DESCRIPTIVE LITERATURE WAS REQUIRED FOR PURPOSE OF DETERMINING WHAT GOVERNMENT WAS PURCHASING AND LEGEND ON DESCRIPTIVE LITERATURE CREATED AMBIGUITY AS TO WHAT GOVERNMENT WAS BINDING ITSELF TO PURCHASE, AND STATEMENT ON BID FIRM THAT "WE ARE QUOTING IN FULL COMPLIANCE WITH SPECIFICATION" DID NOT CURE DEVIATION.

BIG JOE MANUFACTURING COMPANY:

BY LETTERS OF AUGUST 7 AND 20, 1974, BIG JOE MANUFACTURING COMPANY (BIG JOE) PROTESTED AGAINST THE REJECTION OF ITS BID UNDER SOLICITATION NO. 10884; 15489; 16976, ISSUED BY THE UNITED STATES GOVERNMENT PRINTING OFFICE (GPO).

THE ABOVE SOLICITATION WAS FOR THE PROCUREMENT OF TWO ITEMS. ITEM 2, WHICH IS THE SUBJECT OF THE PROTEST, WAS FOR THE PURCHASE OF 11 NOW LIFT WALKER TYPE PALLET TRUCKS, YALE MODEL MP-4002 MOTO TRUE MODEL PAL, OR EQUAL. SEVEN BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION. BIG JOE'S BID PRICE OF $2,215 FOR EACH TRUCK BEING THE LOWEST, WHILE E.C. CAMPBELL, INC. SUBMITTED THE SECOND LOW BID OF $2,411.50 PER TRUCK.

THE SOLICITATION CONTAINED THE STANDARD REQUIREMENT FOR DESCRIPTIVE LITERATURE FOR BIDDERS OFFERING "EQUAL PRODUCTS." THIS LITERATURE WAS REQUIRED FOR EVALUATION PURPOSES. THE DESCRIPTIVE LITERATURE SUBMITTED BY THE PROTESTER, WHO OFFERED AN "OR EQUAL" PRODUCT, CONTAINED A STATEMENT THAT "SPECIFICATIONS SUBJECT TO CHANGE WITHOUT NOTICE." HOWEVER, THE BID FORM (SECTION A, PAGE 9) CONTAINED A STATEMENT THAT "WE ARE QUOTING IN FULL COMPLIANCE WITH THE SPECIFICATIONS." THE PROTESTER CONTENDS THAT THE BLANKET OFFER TO COMPLY WITH THE SPECIFICATIONS OVERCOMES THE QUALIFICATION IN ITS DESCRIPTIVE LITERATURE. THE REASON FOR THIS, IT IS ARGUED, BEING THAT THE DESCRIPTIVE LITERATURE IS DATED JUNE 1972 WHILE ITS BID WAS SUBMITTED IN JUNE OF 1974. CONSEQUENTLY, IT IS CONCLUDED BY THE PROTESTER THAT THE OVERALL OFFER TO COMPLY SUPERSEDES THE QUALIFICATION IN THE DESCRIPTIVE LITERATURE.

OUR OFFICE HAS HELD THAT STATEMENTS IN DESCRIPTIVE LITERATURE TO THE EFFECT THAT SPECIFICATIONS ARE SUBJECT TO CHANGE PROVIDES A BIDDER WITH AN OPTION TO DEVIATE FROM THE ADVERTISED REQUIREMENTS AFTER AWARD AND IS A MATERIAL DEVIATION RENDERING THE BID NONRESPONSIVE. B-177390, MARCH 8, 1973. ALSO, SEE B-158809, JUNE 2, 1966, AND B-159178, SEPTEMBER 6, 1966. WE DO NOT BELIEVE THAT THE BLANKET OFFER TO COMPLY WITH THE SPECIFICATIONS CURES THIS DEVIATION SINCE THE DESCRIPTIVE LITERATURE WAS REQUIRED FOR THE PURPSOE OF DETERMINING WHAT THE GOVERNMENT WAS BINDING ITSELF TO PURCHASE. SEE B-158808, MAY 12, 1966. THE LEGEND ON THE DESCRIPTIVE LITERATURE, AT THE VERY LEAST, MAKES THE PROTESTER'S BID AMBIGUOUS SINCE IT CAN BE ARGUED THAT EITHER (1) THE LEGEND GIVES THE PROTESTER AN OPTION TO DEVIATE FROM THE SPECIFICATIONS, OR (2) THAT THE PROTESTER IS BOUND BY ITS STATEMENT ON THE FORM. CONSEQUENTLY, THE GOVERNMENT CANNOT BE SURE WHAT IT IS BINDING ITSELF TO PURCHASE. CF. MATTER OF ARISTA COMPANY, 53 COMP. GEN. 499 (1974). LOOKING AT THE BID, WHICH INCLUDES THE DESCRIPTIVE LITERATURE, THERE IS NO WAY OF BEING CERTAIN THAT THE PROTESTER DIDN'T MEAN THAT IT RESERVED THE RIGHT TO CHANGE SPECIFICATIONS REGARDLESS OF ANY OTHER STATEMENTS IN THE BID AND IT CANNOT CLARIFY THIS AMBIGUITY SUBSEQUENT TO BID OPENING. THE FACT THAT THE BLANKET OFFER TO COMPLY WITH THE SPECIFICATIONS WAS MADE AT THE LATER DATE WOULD NOT APPEAR TO BE RELEVANT SINCE THE QUALIFICATION IN THE DESCRIPTIVE LITERATURE IS A CONTINUING CONDITION UNTIL REVOKED WHICH WAS NOT DONE, EITHER DIRECTLY OR BY INFERENCE.

REGARDING THE CONTRACTING OFFICER'S FAILURE TO REQUEST THE PROTESTER TO EXTEND ITS BID ACCEPTANCE PERIOD, AS FAR AS THE CONTRACTING OFFICER WAS CONCERNED THE PROTESTER'S BID WAS NONRESPONSIVE AND, THEREFORE, IT WOULD HAVE SERVED NO USEFUL PURPOSE TO REQUEST THE PROTESTER TO EXTEND ITS BID ACCEPTANCE PERIOD. MOREOVER, IT DOESN'T APPEAR THAT THE PROTESTER'S INTERESTS WERE PREJUDICED BY NOT BEING REQUESTED TO EXTEND ITS BID.

FOR THE ABOVE, REASONS, BIG JOE'S PROTEST IS DENIED.