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B-179836, JUN 26, 1974

B-179836 Jun 26, 1974
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IS AFFIRMED UPON RECONSIDERATION. WHICH WAS FOR AN INDUSTRIAL EXHAUST FAN. THAT CONTRACT WAS CANCELED. THE BUREAU WAS OF THE OPINION THAT THE SECOND AND THIRD LOW BIDS OF CEILCOTE COMPANY AND THE PROTESTER. THOSE BIDS WERE REJECTED AS NONRESPONSIVE. SINCE ALL THREE BIDS RECEIVED WERE NONRESPONSIVE. THE CEILCOTE AND AIR PLASTICS BIDS WERE NOT RULED NONRESPONSIVE UNTIL AFTER THE AIR PLASTICS LETTER OF OCTOBER 1. NO BIDS WERE ADJUDGED TO BE NONRESPONSIVE. NO COMMENTS WERE MADE CONCERNING THE CEILCOTE OR AIR PLASTICS BIDS. NOT UNTIL THE NONRESPONSIVENESS OF THE LOW BID WAS BROUGHT TO THE BUREAU'S ATTENTION DID IT EVALUATE THE ADEQUACY OF THE DESCRIPTIVE DATA FURNISHED BY THE OTHER BIDDERS.

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B-179836, JUN 26, 1974

DECISION B-179836, FEBRUARY 25, 1974, 53 COMP. GEN. IS AFFIRMED UPON RECONSIDERATION, SINCE PROTESTER DOES NOT CONTEND THAT DECISION INVOLVED ANY MISTAKE OF FACT, NOR DOES PROTESTER ESTABLISH ANY ERROR OF LAW, BUT REITERATES ARGUMENTS CONTAINED IN THE INITIAL PROTEST.

TO AIR PLASTICS, INC.:

AIR PLASTICS, INCORPORATED, HAS REQUESTED RECONSIDERATION OF OUR DECISION B-179836, FEBRUARY 25, 1974, 53 COMP. GEN. , WHEREIN OUR OFFICE DENIED THE FIRM'S PROTEST AGAINST THE REJECTION OF ITS BID UNDER INVITATION FOR BIDS (IFB) NO. BEP-74-14, ISSUED BY THE BUREAU OF ENGRAVING AND PRINTING, DEPARTMENT OF THE TREASURY, WASHINGTON, D.C.

THE INVITATION, WHICH WAS FOR AN INDUSTRIAL EXHAUST FAN, REQUIRED BIDDERS TO SUBMIT DESCRIPTIVE LITERATURE TO ESTABLISH "DETAILS OF THE PRODUCT THE BIDDER PROPOSES TO FURNISH AS TO DESIGN, MATERIALS, COMPONENTS, PERFORMANCE CHARACTERISTICS, CONSTRUCTION AND OPERATION." THE BUREAU ACCEPTED THE LOW BID OF BUFFALO FORGE COMPANY. THAT CONTRACT WAS CANCELED, HOWEVER, UPON THE BUREAU'S RECEIPT OF AIR PLASTICS' LETTER OF OCTOBER 1, 1973, WHICH POINTED OUT THAT BUFFALO FORGE'S BID CONTAINED A DELIVERY SCHEDULE EXCEEDING THAT PERMITTED BY THE INVITATION. THE BUREAU WAS OF THE OPINION THAT THE SECOND AND THIRD LOW BIDS OF CEILCOTE COMPANY AND THE PROTESTER, RESPECTIVELY, CONTAINED INSUFFICIENT DESCRIPTIVE LITERATURE TO ESTABLISH WHETHER THE PRODUCTS OFFERED WOULD COMPLY WITH THE SPECIFICATIONS, AND THOSE BIDS WERE REJECTED AS NONRESPONSIVE. SINCE ALL THREE BIDS RECEIVED WERE NONRESPONSIVE, THE BUREAU DECIDED TO CANCEL THE SOLICITATION AND READVERTISE THE PROCUREMENT.

IN OUR DECISION OF FEBRUARY 25, 1974, WE EXPRESSED THE BELIEF THAT THE PROTESTER HAD NOT SATISFIED THE BUREAU'S NEED FOR DESCRIPTIVE LITERATURE. MOREOVER, WE REGARDED THE IFB AS DEFECTIVE BECAUSE IT FAILED TO SET OUT IN A MANNER AS DETAILED AS PRACTICAL THE NATURE AND EXTENT OF THE DESCRIPTIVE LITERATURE REQUIREMENT.

IN ITS REQUEST FOR RECONSIDERATION, THE PROTESTER FIRST MAINTAINS THAT WE FAILED TO MENTION:

"*** A VERY IMPORTANT POINT *** THE TIME ELEMENT. THE CEILCOTE AND AIR PLASTICS BIDS WERE NOT RULED NONRESPONSIVE UNTIL AFTER THE AIR PLASTICS LETTER OF OCTOBER 1, 1973. IN THE ORIGINAL EVALUATION OF THE BIDS, NO BIDS WERE ADJUDGED TO BE NONRESPONSIVE. HOW CAN THIS EVALUATION BE CHANGED OVER A MONTH LATER?"

OUR EXAMINATION OF THE RECORD DOES NOT DISCLOSE THAT THE PROCURING AGENCY INITIALLY DETERMINED THE PROTESTER'S BID TO BE RESPONSIVE ONLY TO "CHANGE" THAT DETERMINATION A MONTH LATER.

THE INITIAL EVALUATION OF BIDS STATED ONLY THAT THE EQUIPMENT OFFERED BY THE LOW BIDDER, BUFFALO FORGE, MET THE AGENCY'S REQUIREMENTS. NO COMMENTS WERE MADE CONCERNING THE CEILCOTE OR AIR PLASTICS BIDS, WHICH WE CONSIDER CONSISTENT WITH THE BUREAU'S INTENTION TO MAKE AWARD TO THE LOW BIDDER. NOT UNTIL THE NONRESPONSIVENESS OF THE LOW BID WAS BROUGHT TO THE BUREAU'S ATTENTION DID IT EVALUATE THE ADEQUACY OF THE DESCRIPTIVE DATA FURNISHED BY THE OTHER BIDDERS. APPARENTLY WHEN THE DATA OFFERED BY THE SECOND LOW BIDDER, CEILCOTE, WAS DETERMINED TO BE INSUFFICIENT, CONSIDERATION WAS THEN GIVEN TO THE ADEQUACY OF THE DATA OFFERED BY THE THIRD LOW BIDDER, THE PROTESTER. WE THINK THE RECORD SHOWS A LOGICAL PROGRESSION, NOT VACILLATION, IN THE EVALUATION OF THE RESPONSIVENESS OF THE BIDS.

THE PROTESTER ALSO CHARACTERIZES OUR DECISION AS "GOING BEYOND THE BOUNDARIES OF THE PROTEST" TO THE EXTENT WE DISCUSSED THE ADEQUACY OF THE IFB'S DESCRIPTIVE LITERATURE CLAUSE. WE DO NOT AGREE. AIR PLASTICS HAD CONTENDED THAT ITS BID WAS IMPROPERLY REJECTED AS NONRESPONSIVE BECAUSE DATA SUBMITTED WITH THE BID SATISFIED THE DESCRIPTIVE LITERATURE REQUIREMENT. WE COULD NOT RESPOND TO THIS CONTENTION WITHOUT FIRST DETERMINING WHAT INFORMATION THE DESCRIPTIVE LITERATURE CLAUSE REQUIRED OF BIDDERS. UPON EXAMINATION OF THE CLAUSE, WE FOUND IT DEFICIENT FOR THE REASONS SET FORTH IN OUR DECISION. THEREFORE, THE RESOLUTION OF WHETHER THE PROTESTER HAD SATISFIED THE REQUIREMENTS OF THE DESCRIPTIVE LITERATURE CLAUSE NECESSARILY ENTAILED CONSIDERATION OF THE ADEQUACY OF THE EXPRESSION OF THOSE REQUIREMENTS WITHIN THE CLAUSE.

THE BULK OF AIR PLASTICS' REQUEST FOR RECONSIDERATION IS DEVOTED TO ASSERTIONS THAT THE SOLICITATION WAS NOT DEFECTIVE AND THAT ITS BID WAS RESPONSIVE. ALTHOUGH WE WILL RECONSIDER OUR DECISIONS IF A MATERIAL MISTAKE OF LAW OR FACT IS ALLEGED OR PROVEN, THERE IS NO SHOWING IN AIR PLASTICS' LETTER OF MARCH 18, THAT OUR PRIOR DECISION INVOLVED ANY MISTAKE OF FACT, NOR ARE THERE ANY LEGAL AUTHORITIES OR PRECEDENTS CITED TO ESTABLISH ANY ERROR OF LAW THEREIN.

FINALLY, AIR PLASTICS REQUESTS TO BE PROVIDED WITH COPIES OF THE BUFFALO FORGE AND CEILCOTE BIDS. WE ARE UNABLE TO COMPLY WITH THIS REQUEST SINCE THOSE DOCUMENTS ARE IN THE POSSESSION OF THE BUREAU OF ENGRAVING AND PRINTING.

IN VIEW OF THE FOREGOING, OUR DECISION OF FEBRUARY 25, 1974, IS AFFIRMED.

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