Matter of: Yale Materials Handling Corporation File: B-250208 Date: November 20, 1992

B-250208: Nov 20, 1992

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Was properly rejected as nonresponsive. The solicitation was issued on March 12. Five bids were received on the May 11 extended bid opening date. Yale was the apparent fourth low bidder with a bid of $27. Bidders were requested to extend their acceptance periods through August 31 to permit evaluation. Were all nonresponsive. Award was made in the amount of $32. Yale essentially argues that its descriptive literature is not ambiguous. Asserts that the agency's finding of an ambiguity is an excuse to justify wasting taxpayer money and continuing to buy the brand SSA has used for years. Descriptive literature is required to establish conformance with the specifications and bidders are cautioned that nonconformance will cause the bid's rejec tion.

Matter of: Yale Materials Handling Corporation File: B-250208 Date: November 20, 1992

PROCUREMENT Sealed Bidding Bids Responsiveness Descriptive literature Ambiguous bids Where an invitation for bids requires the submission of descriptive literature to establish conformance of the product offered with the material specifications of the solicitation, bid which included literature susceptible of two interpretations, one of which clearly did not conform to a material specification, was properly rejected as nonresponsive.

Attorneys

DECISION Yale Materials Handling Corporation protests the rejection of its bid under invitation for bids (IFB) No. SSA-IFB-92 1137, issued by the Department of Health and Human Services, Social Security Administration (SSA), for one narrow aisle electric forklift truck. Yale complains that the agency improperly found the descriptive literature submitted with Yale's bid ambiguous and rejected its bid. We deny the protest.

The solicitation was issued on March 12, 1992, as an unrestricted procurement. Section L-6 of the IFB required bidders to provide descriptive literature with their bids to enable the agency to determine if the bids complied with the IFB's requirements. Section L-6 also stated that the descriptive literature would be the technical basis for evaluation of bids, and cautioned that a bid would be considered nonresponsive if the descriptive literature accompanying it failed to conform to the specifications of the solicitation. Section C of the IFB contained a number of technical specifications, including a specific requirement for the minimum a outriggers on the forklift.

Five bids were received on the May 11 extended bid opening date; Yale was the apparent fourth low bidder with a bid of $27,081. Bidders were requested to extend their acceptance periods through August 31 to permit evaluation; all bidders did so. According to the agency, the technical review demonstrated that the four lowest bidders, including Yale, were all nonresponsive. With regard to Yale, the agency determined that handwritten notations on the descriptive literature submitted with Yale's bid created an ambiguity which caused its bid to be rejected as nonresponsive. Award was made in the amount of $32,211 to the only responsive bidder, the Raymond Corporation, on August 29; this protest followed.

Yale essentially argues that its descriptive literature is not ambiguous, and asserts that the agency's finding of an ambiguity is an excuse to justify wasting taxpayer money and continuing to buy the brand SSA has used for years.

Where, as here, descriptive literature is required to establish conformance with the specifications and bidders are cautioned that nonconformance will cause the bid's rejec tion, a bid must be rejected as nonresponsive if the submitted literature fails to show clearly that the offered product complies with the specifications. Alternate Power and Energy Corp., B-228746, Nov. 3, 1987, 87-2 CPD Para. 440. Thus, even if the offered product, in fact, possesses the required features, the rejection of the bid is required when the literature submitted with the bid does not clearly show conformance with the requirements. Id.

Paragraph 3.3.4.1 of the solicitation's specifications, incorporated by amendment No. 1, required that the inside dimension of the forklift's outriggers be not less than 41.5 inches and the outside dimension not more than 52 inches. On the third page of Yale's descriptive litera ture, dimensions are given for five possible configurations of outriggers. In each case, the dimensions are printed in pairs, listing the measurements in both inches and millimeters. At the place on the chart where the standard measurements of 41 inches (1,041 millimeters) and 52.4 inches (1,331 millimeters) are given for the inside and outside dimensions, respectively, Yale's descriptive literature has a line drawn through the inch measurements and the dimensions "4 those lined out measurements; however, the corresponding millimeter measurements are not corrected or lined out. All other measurements on the chart are lined out.

We agree with the agency that Yale's descriptive literature presented the contracting officer with two sets of dimensions for the outrigger. One set of dimensions, in inches, was handwritten and conformed to the specifications. The other set, in millimeters, was pre-printed and did not conform to the specifications. When the millimeter measure ments are converted to inches, the outrigger has an inside dimension of 41 inches and an outside dimension of 52.4 inches; these dimensions exceed the specification by about one-half inch. Since Yale's descriptive literature was subject to more than one interpretation, one of which did not clearly conform to the specifications, the agency properly found Yale's bid ambiguous.

Where the defect in a bid is merely a matter of form and not of substance or pertains to some immaterial or inconsequential variation of a bid from the exact requirements of the solicitation, the defect must be waived or the bidder must be given an opportunity to cure it. In this regard, a defect or variation is immaterial when its significance as to quality, quantity, delivery or price is trivial or negligible when compared with the total cost or scope of supplies or work to be furnished. Federal Acquisition Regulation Sec. 14.405; Astrophysics Research Corp., 66 Comp. Gen. 211 (1987), 87-1 CPD Para. 65; Champion Road Mach. Int'l Corp., B-200678, July 13, 1981, 81-2 CPD Para. 27.

The agency contends that the variation here is material. The project officer who prepared the specifications reports that the standard pallets used at the agency are approximately 40 inches wide, with some minor variation. He states that the agency's experience indicates that the specified minimum of 41.5 inches allows the forklift's outriggers to straddle the typical forklift blades are in a fully retracted position.

This permits more efficient loading than a forklift with a narrower outrigger because unnecessary motion of the blades prior to loading is reduced; a forklift with an outrigger narrower than 41.5 inches is less efficient because it will be unable to straddle the loaded pallet or less flexible than a conforming forklift.

Yale's pre-printed inside dimension was 1,041 millimeters, or 41 inches.

The agency's project officer states that if the outrigger's inside dimension is between 40 and 41.4 inches, as here, under ideal conditions the forklift will be able to straddle the standard pallet during loading; however, even this variance will still impair the forklift's overall efficiency and flexibility. He contends that the minimum specification of 41.5 inches is necessary because, for example, the width of the pallets occasionally exceeds the standard 40 inches. This condition would result in extra blade manipulation whenever smaller-than-specified outriggers cannot straddle these pallets. Moreover, in those instances where it is physically possible to straddle the pallets, the reduced leeway will increase the number of approaches that an operator must make to properly position the forklift's blades under the pallet for loading.

As a result, the agency believes that deviation from this speci fication would affect the ability of the forklift to lift certain out-of-tolerance pallets, and would create wasted time and cause excessive maneuvering even for those pallets that are completely within tolerance.

In view of the above, and in light of the fact that the protester does not disagree with the agency's operational requirement, we find that the specification is material as to quality and that Yale's deviation from it rendered its bid nonresponsive.

The protest is denied.