B-182112, DEC 23, 1974

B-182112, DEC 23, 1974

1. WHERE DESCRIPTIVE LITERATURE REQUIREMENT IN IFB SOLICITING DIESEL ENGINE GENERATOR SETS WAS UNCLEAR AS TO NATURE AND EXTENT OF TECHNICAL DATA REQUIRED TO DETERMINE CONFORMANCE WITH SEPCIFICATIONS, LOW BID ACCOMPANIED BY DESCRIPTIVE LITERATURE WAS IMPROPERLY REJECTED AS NONRESPONSIVE SINCE DESCRIPTIVE LITERATURE REQUIREMENT FAILED TO ESTABLISH COMMON BASE FOR BID EVALUATION. 2. WHERE DESCRIPTIVE LITERATURE REQUIREMENT IN IFB FAILS TO CLEARLY ESTABLISH NATURE AND EXTENT OF REQUIRED INFORMATION WITH SUFFICIENT PARTICULARITY TO ESTABLISH COMMON BASIS FOR BID EVALUATION, IFB SHOULD BE CANCELED AND READVERTISED WITH AMENDED DESCRIPTIVE LITERATURE CLAUSE IF IT IS FIRST DETERMINED IN ACCORDANCE WITH ASPR 2-202.5(B) THAT SUCH LITERATURE IS NEEDED TO DETERMINE BEFORE AWARD WHETHER PRODUCTS OFFERED MEET SPECIFICATIONS AND TO ESTABLISH EXACTLY WHAT BIDDERS PROPOSE.

IN-TROL, DIVISION OF ASEECO CORPORATION:

INVITATION FOR BIDS (IFB) NO. DACW27-74-B-0114 WAS ISSUED ON MAY 31, 1974, BY THE LOUISVILLE DISTRICT, CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, TO PROCURE TWO MARINE TYPE 50 KW DIESEL ENGINE DRIVEN GENERATOR SETS. PARAGRAPH 3, PAGE C-4 AND PARAGRAPH 2, PAGE F-2 OF THE INVITATION, PURSUANT TO THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-202.5, REQUIRED THE SUBMISSION OF DESCRIPTIVE LITERATURE.

THE FOLLOWING BIDS WERE RECEIVED AND OPENED ON JUNE 25, 1974:

POWER SYSTEMS, INC. $28,508

KATOLIGHT CORPORATION $20,844

WHAYNE SUPPLY CO. $19,168

IN-TROL DIVISION,

ASEECO CORP. (IN-TROL) $18,950

ON THE SAME DAY THE BIDS WERE OPENED, IN-TROL PROTESTED AGAINST AWARD OF THE CONTRACT UNDER THE IFB TO ANY BIDDER OTHER THAN ITSELF.

SUBSEQUENT TO EVALUATION OF THE BIDS, THE CONTRACTING OFFICER DETERMINED ALL BIDS TO BE NONRESPONSIVE AND DECIDED TO READVERTISE THE SOLICITATION. ONE BID WAS REJECTED AS NONRESPONSIVE FOR REASONS NOT HERE PERTINENT. THE OTHER THREE BIDS, INCLUDING THAT OF IN-TROL, WERE REJECTED FOR FAILURE TO FURNISH DESCRIPTIVE LITERATURE IN SUFFICIENT DETAIL TO PERMIT THE DETERMINATION OF COMPLIANCE WITH SPECIFICATIONS IN THE IFB. BY LETTER TO IN-TROL DATED JULY 30, 1974, THE CONTRACTING OFFICER DETAILED THE SPECIFIC REASONS FOR THE REJECTION OF IN-TROL'S BID. BY LETTER OF AUGUST 5, 1974, IN-TROL RESPONDED TO THE CONTRACTING OFFICER'S LETTER OF JULY 30, AND AGAIN LODGED A PROTEST. ON AUGUST 19, 1974, IN-TROL PROTESTED THE AGENCY'S DETERMINATION TO OUR OFFICE.

IN-TROL CONTENDS THAT IT MET ALL REQUIREMENTS OF THE BID DOCUMENT, INCLUDING SUBMITTAL OF THE REQUISITE DESCRIPTIVE LITERATURE AND, THEREFORE, IT WAS ENTITLED TO THE AWARD AS THE LOW RESPONSIVE BIDDER. ITS LETTER OF AUGUST 5, 1974, TO THE CONTRACTING OFFICER, IN-TROL GIVES DETAILED EXPLANATIONS TO SUPPORT ITS POSITION THAT THE DESCRIPTIVE LITERATURE SUBMITTED MET THE SPECIFICATION REQUIREMENTS.

BY LETTER TO THIS OFFICE DATED OCTOBER 9, 1974, THE GENERAL COUNSEL FOR THE CORPS OF ENGINEERS EXPRESSED THE OPINION THAT THE DESCRIPTIVE LITERATURE REQUIREMENT IN THE SUBJECT IFB WAS DEFECTIVE IN THAT IT FAILED TO CLEARLY ESTABLISH THE NATURE AND EXTENT OF THE DATA REQUIRED. CONCURRED WITH THE CONTRACTING OFFICER'S DETERMINATION THAT THE IFB BE CANCELED AND READVERTISED WITH AN AMENDED DESCRIPTIVE LITERATURE REQUIREMENT.

IN THE PROCUREMENT OF HIGHLY SPECIALIZED EQUIPMENT, AN ADMINISTRATIVE AGENCY PROPERLY MAY REQUIRE BIDDERS TO SUPPLY DESCRIPTIVE DATA IN ORDER TO ENABLE IT TO CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY THE MAKING OF AN AWARD. 36 COMP. GEN. 415 (1956). IF A BID FAILS TO COMPLY WITH A PROPER DESCRIPTIVE LITERATURE REQUIREMENT, THE BID ORDINARILY WILL BE REJECTED AS NONRESPONSIVE. B-174892, MARCH 6, 1972. HOWEVER, AN INVITATION FOR BIDS MUST STATE DEFINITELY THE COMPONENTS CONCERNING WHICH DESCRIPTIVE DATA IS REQUIRED. EVEN IF THE DATA REQUIREMENT IS JUSTIFIED AND DESCRIPTIVE LITERATURE IS REQUIRED TO DETERMINE BID RESPONSIVENESS, AN INVITATION IS DEFECTIVE IF IT DOES NOT CLEARLY ESTABLISH IN THE GREATEST DETAIL PRACTICABLE THE NATURE AND EXTENT OF THE DESCRIPTIVE DATA NEED. COMP. GEN. 398 (1969), 46 COMP. GEN. 1 (1966); 42 COMP. GEN. 598 (1963).

THE SOLICITATION, AT PARAGRAPH 3, PAGE C-4, CONTAINED THE FOLLOWING REQUIREMENT FOR DESCRIPTIVE LITERATURE:

"3. REQUIREMENT FOR DESCRIPTIVE LITERATURE, (OCT. 1960). A. DESCRIPTIVE LITERATURE MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSE OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO DRAWINGS, SKETCHES AND TECHNICAL DATA SHOWING THE GENERAL CONSTRUCTION OF THE EQUIPMENT PROPOSED. DATA SUBMITTED WILL BECOME PART OF THE CONTRACT."

IN ADDITION, PARAGRAPH 2, PAGE F-2 CONTAINED THE FOLLOWING CLAUSE:

"2. DESCRIPTIVE LITERATURE. EACH BIDDER SHALL FURNISH WITH HIS BID TWO SETS OF DRAWINGS, CATALOG CUTS OR BROCHURES OF THE EQUIPMENT PROPOSED TO BE FURNISHED. THE INFORMATION SUBMITTED SHALL BE IN SUFFICIENT DETAIL TO PERMIT THE GOVERNMENT TO DETERMINE COMPLIANCE WITH THESE SPECIFICATIONS."

ALTHOUGH THE ABOVE-QUOTED PARAGRAPHS ARE THE ONLY PROVISIONS IN THE IFB PERTAINING TO DESCRIPTIVE LITERATURE REQUIREMENTS, THE CONTRACTING OFFICER'S REPORT AND LETTER TO THE PROTESTER DATED JULY 30, 1974, LISTED THE FOLLOWING REASONS FOR REJECTION OF THE PROTESTER'S BID:

"1. PARAGRAPH 4, ENGINE - DESCRIPTIVE LITERATURE DID NOT VERIFY THAT ONLY 90 PERCENT OF THE MAXIMUM HORSEPOWER IS NEEDED TO DEVELOP RATED GENERATOR OUTPUT.

"2. PARAGRAPH 4.1.1 - WATER CIRCULATING PUMP WAS NOT DESCRIBED.

"3. PARAGRAPHS 5.1.1, 5.1.2 AND 5.1.4 - GENERATORS WERE NOT LISTED AS MEETING TEMPERATURE RISE REQUIREMENT FOR 50 DEGREES C AMBIENT TEMPERATURE OPERATION; CLASS OF INSULATION WAS NOT LISTED; NOR WHETHER PARALLELING PROVISIONS WERE PROVIDED.

"4. PARAGRAPH 5.2 - TRANSIENT CONDITIONS OF EXCITATION SYSTEM WERE NOT VERIFIED.

"5. PARAGRAPH 7.1 - THE FOLLOWING ITEMS WERE NOT SPECIFICALLY LISTED AS BEING FURNISHED: PRESSURE GAGE FOR FUEL; TEMPERATURE GAGE FOR LUBRICATING OIL; AMMETER; WATT METER; SYNCROSCOPE; SYNCRONIZING LAMPS.

"6. PARAGRAPH 7.2 - NO INDICATION WAS GIVEN THAT AN AUDIBLE ALARM WOULD SOUND ON THE CONDITIONS OF OVERSPEED, EXCESSIVE COOLANT TEMPERATURE OR LOW LUBRICATING OIL."

WHILE THE ABOVE REASONS OFFERED FOR REJECTION BY THE CONTRACTING OFFICER PERTAIN TO THE SPECIFICATIONS LISTED ON PAGES F-2--F-8 OF THE SUBJECT IFB, NEITHER OF THE ABOVE-QUOTED PARAGRAPHS RELATIVE TO DESCRIPTIVE LITERATURE SPECIFICALLY REQUIRES THE SUBMISSION OF DATA DETAILING THOSE SPECIFICATIONS. IF THE AGENCY'S INTENTION WAS TO REQUIRE THE SUBMISSION OF SUCH DATA, SUCH INTENTION IS NOT EVIDENCED FROM THE GENERAL LANGUAGE OR CONSTRUCTION OF THE ABOVE-QUOTED PROVISIONS SINCE NEITHER PROVISION SPECIFIES THE NATURE AND EXTENT OF THE REQUIRED INFORMATION WITH SUFFICIENT PARTICULARITY TO PUT BIDDERS ON COMMON NOTICE OF WHAT DETAIL WAS ESSENTIAL TO MAKE THEIR BIDS RESPONSIVE. SEE 42 COMP. GEN. 598 SUPRA, AND ID. 737 (1963). SINCE THE DESCRIPTIVE LITERATURE DOES NOT ESTABLISH A COMMON BASE FOR BID EVALUATION, IT WOULD BE PREJUDICIAL TO BIDDERS FOR THEIR BIDS TO BE REJECTED FOR FAILURE TO SUPPLY SUFFICIENT INFORMATION TO PROVE COMPLIANCE. 46 COMP. GEN. 1 (1966). THEREFORE, THE PROTESTER'S BID WAS IMPROPERLY REJECTED AS NONRESPONSIVE.

HOWEVER, THE INVITATION WAS DEFECTIVE FOR FAILURE TO CLEARLY ESTABLISH THE NATURE AND EXTENT OF THE DATA REQUIRED. 46 COMP. GEN. 315 (1966); ASPR 2-202.5(D)(1)(1974 EDITION). THEREFORE, THIS OFFICE AGREES WITH THE CORPS OF ENGINEERS' DETERMINATION THAT NO AWARD MAY BE MADE AND THE IFB SHOULD BE CANCELED.

FINALLY, WE BELIEVE THAT THE EXPRESSED INTENTION TO INCLUDE AN AMENDED DESCRIPTIVE LITERATURE REQUIREMENT IN A READVERTISEMENT OF THE PROCUREMENT IS OF QUESTIONABLE PROPRIETY. ASPR 2-202.5(B) (1974 EDITION) PROVIDES THAT BIDDERS SHALL NOT BE REQUIRED TO FURNISH SUCH DATA EXCEPT WHERE IT IS NEEDED TO DETERMINE BEFORE AWARD WHETHER THE OFFERED PRODUCT MEETS THE SPECIFICATIONS. WHERE SUCH DATA IS REQUIRED, THE CONTRACT FILE MUST CONTAIN DOCUMENTATION SETTING FORTH THE REASONS WHY AN ACCEPTABLE PRODUCT CANNOT BE PROCURED WITHOUT DESCRIPTIVE LITERATURE. ASPR 2-202.5 (C) (1974 EDITION). THE FILE FURNISHED OUR OFFICE IN CONNECTION WITH THIS PROTEST INCLUDES NO SUCH JUSTIFICATION. MOREOVER, FROM OUR EXAMINATION OF THE SPECIFICATIONS APPLICABLE TO THIS PROCUREMENT, IT IS DIFFICULT TO UNDERSTAND THE NEED FOR DESCRIPTIVE LITERATURE SINCE THE SPECIFICATIONS ARE SO DETAILED THAT THEY LEAVE NOTHING FOR THE BIDDER TO DESCRIBE IN THE WAY OF PERFORMANCE CHARACTERISTICS, AND FURNISH NO STANDARDS FOR EVALUATION OF DESIGN, MATERIAL OR COMPONENTS EXCEPT TO THE EXTENT THAT SUCH ELEMENTS ARE SPECIFICALLY PRESCRIBED IN THE SPECIFICATIONS. AS WAS NOTES IN 46 COMP. GEN. 315, SUPRA, "IF THE REQUIREMENT FOR DESCRIPTIVE LITERATURE CAN BE MET BY PARROTING BACK THE GOVERNMENT SPECIFICATIONS, THE LEGITIMACY OF THAT REQUIREMENT IS QUESTIONABLE ***." THEREFORE, BEFORE A NEW SOLICITATION IS ISSUED, CONSIDERATION SHOULD BE GIVEN TO THE NECESSITY FOR SUCH REQUIREMENT AND THE FILE DOCUMENTED ACCORDINGLY AS REQUIRED BY REGULATION.