Protest of Rejection of Bid as Nonresponsive Due to Descriptive Literature

B-195959: Jan 7, 1980

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A firm protested the rejection of its bid as nonresponsive. The firm had responded with the lowest bid to a Department of Interior invitation for bids (IFB). Although the IFB contained no requirement for descriptive literature, the firm included a document describing the technical specifications of its product. On the basis of this inclusion, the contracting officer rejected the firm's bid as nonresponsive because the equipment described did not meet requirements of the IFB. The firm contended that the literature was intended to show the type, size and capabilities of the equipment it could supply and not to qualify its bid. It contended that it took no objection to any of the IFB specifications and fully intended to supply the required product. The firm argued that since it would have to supply detailed drawings of the equipment before construction, the Government would have been assured that it conformed to all of the requirements of the IFB. Procurement regulations state that unsolicited descriptive literature should not be considered as qualifying a bid unless it is clear from the bid that the bidder intended the literature to qualify the bid. GAO held that since the literature contained the same model number as the offered product, there was a sufficient perceivable relationship between the bid and the literature. Thus, it was held that the literature could not be disregarded under the regulation. When the contracting officer saw that the model did not meet the IFB requirements, he properly rejected the bid. The fact that the contractor would be required to provide detailed drawings before beginning construction was held to be irrelevant since the contractor would only be bound to the terms of the bid upon acceptance of that bid by the Government. The protest was denied.