B-166229, AUG. 12, 1970

B-166229: Aug 12, 1970

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FAILURE OF BIDDER'S DESCRIPTIVE LITERATURE TO ESTABLISH WHAT BIDDER PROPOSED TO FURNISH AND WHETHER PRODUCT WOULD MEET REQUIREMENTS WAS PROPER BASIS FOR REJECTION OF BID AS NONRESPONSIVE. INCORPORATED: THIS IS IN FURTHER REFERENCE TO OUR DECISION TO YOU DATED OCTOBER 1. THAT THERE WAS NO BASIS FOR QUESTIONING THE AWARD MADE TO ANOTHER CONCERN. THE BASIC QUESTION RAISED BY YOUR PROTEST AGAINST THE REJECTION OF YOUR BID TO DSA'S-700 SOLICITATION WAS WHY YOUR BID TO THIS SOLICITATION WAS REJECTED FOR FAILURE TO FURNISH REQUIRED DESCRIPTIVE LITERATURE WHEN YOUR BID TO INVITATION FOR BIDS NO. WHICH WAS ALSO A NASA PROCUREMENT FOR SIMILAR ITEMS AND WHICH ALSO HAD A DESCRIPTIVE LITERATURE REQUIREMENT.

B-166229, AUG. 12, 1970

BID PROTEST -- DEVIATIONS -- DESCRIPTIVE LITERATURE DENIAL OF PROTEST AGAINST REJECTION OF BIDS FOR FAILURE TO FURNISH REQUIRED DESCRIPTIVE LITERATURE AS REQUIRED UNDER TWO NEGOTIATED PROCUREMENTS BY NASA. FAILURE OF BIDDER'S DESCRIPTIVE LITERATURE TO ESTABLISH WHAT BIDDER PROPOSED TO FURNISH AND WHETHER PRODUCT WOULD MEET REQUIREMENTS WAS PROPER BASIS FOR REJECTION OF BID AS NONRESPONSIVE.

TO RAY C. CALL, INCORPORATED:

THIS IS IN FURTHER REFERENCE TO OUR DECISION TO YOU DATED OCTOBER 1, 1969, IN WHICH OUR OFFICE CONSIDERED PROTESTS BY YOUR CONCERN AGAINST TWO PROCUREMENTS INVOLVING THE KENNEDY SPACE CENTER (KSC) OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA).

ONE OF THE PROCUREMENTS CONCERNED INVITATION FOR BIDS NO. DSA-700-69 B- 1249, ISSUED ON NOVEMBER 19, 1968, BY THE DEFENSE SUPPLY AGENCY (DSA), DEFENSE CONSTRUCTION SUPPLY CENTER, HEREINAFTER REFERRED TO AS DSA'S-700 SOLICITATION, FOR CERTAIN TYPES OF POWER GENERATOR UNITS. THE OTHER PROCUREMENT CONCERNED A NEGOTIATED PROCUREMENT BY KSC. WITH RESPECT TO THE NEGOTIATED PROCUREMENT, WE CONCLUDED IN OUR DECISION OF OCTOBER 1, 1969, THAT THERE WAS NO BASIS FOR QUESTIONING THE AWARD MADE TO ANOTHER CONCERN.

WITH REGARD TO DSA'S-700 SOLICITATION WE ADVISED YOU THAT WE WOULD GIVE FURTHER CONSIDERATION TO YOUR PROTEST UPON RECEIPT OF ADDITIONAL INFORMATION THAT WE HAD REQUESTED FROM NASA. BY LETTER DATED JULY 21, 1970, WITH ENCLOSURES, NASA FURNISHED OUR OFFICE WITH SUPPLEMENTAL INFORMATION ON YOUR PROTEST AGAINST THE AWARD OF A CONTRACT UNDER THE ADVERTISED SOLICITATION.

THE BASIC QUESTION RAISED BY YOUR PROTEST AGAINST THE REJECTION OF YOUR BID TO DSA'S-700 SOLICITATION WAS WHY YOUR BID TO THIS SOLICITATION WAS REJECTED FOR FAILURE TO FURNISH REQUIRED DESCRIPTIVE LITERATURE WHEN YOUR BID TO INVITATION FOR BIDS NO. CC-304-8, WHICH WAS ALSO A NASA PROCUREMENT FOR SIMILAR ITEMS AND WHICH ALSO HAD A DESCRIPTIVE LITERATURE REQUIREMENT, WAS DETERMINED TO BE RESPONSIVE. YOU POINTED OUT THAT THE DESCRIPTIVE LITERATURE YOU SUBMITTED ON BOTH THESE PROCUREMENTS WAS BASICALLY THE SAME. IN OUR LETTER TO NASA DATED OCTOBER 1, 1969, WE REQUESTED AN ANSWER TO THIS QUESTION.

NASA'S LETTER OF JULY 21, 1970, STATES THAT A THOROUGH REVIEW OF THE TECHNICAL MATERIALS INCLUDED WITH RAY C. CALL'S BIDS TO THE ABOVE INVITATIONS INDICATES THAT THE DESCRIPTIVE LITERATURE SUBMITTED WITH THE BIDS DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS OF EITHER OF THE INVITATIONS. SPECIFICALLY NASA'S REPORT OF JULY 21, 1970, STATES AS FOLLOWS:

"THE ONLY PORTION OF THE BID DATA, SUBMITTED BY RAY C. CALL IN RESPONSE TO IFB NO. CC-304-8, THAT MAY BE IDENTIFIED WITH A SPECIFIC PARAGRAPH IN THE SPECIFICATION, RELATED TO THE SWITCH GEAR EQUIPMENT FOR ELECTRICAL GENERATOR SYSTEM (ATTACHMENT 1 TO BID ON CC-304-8). THE REMAINDER OF THE BID DATA CONTAINED MANUFACTURER'S BROCHURES FOR THE DIESEL ENGINE, THE ENGINE GOVERNOR, THE GENERATOR, VOLTAGE REGULATOR AND BATTERY CHARGER.

"EXAMPLES OF THE PROBLEM OF IDENTIFYING EQUIPMENT TYPE OR PERFORMANCE FOR APPLICABLE PARAGRAPHS IN THE SPECIFICATIONS FOLLOW:

"(A) THE MANUFACTURER'S BROCHURE DATA FOR THE DIESEL ENGINE LISTS THE PERTINENT ITEMS OF HORSEPOWER, RPM AND STARTING SYSTEM. HOWEVER, THE REQUIREMENT FOR REPLACEMENT OF FUEL FILTERS, EXHAUST SYSTEM DESIGN, LUBRICATING SYSTEM OPERATION, ETC. LISTED IN PARAGRAPH 2.1 THROUGH 2.1.8 OF THE SPECIFICATION ARE NOT IDENTIFIED. OBVIOUSLY, SOMEONE FAMILIAR WITH THE DETROIT DIESEL ENGINE COULD OBTAIN THE NECESSARY INFORMATION FROM CATALOGS OR FROM THE MANUFACTURER, BUT THIS NEGATES THE REASON FOR THE DESCRIPTIVE LITERATURE REQUIREMENTS.

"(B) GENERATOR TYPE IS NOT IDENTIFIED NOR ITS PERFORMANCE CHARACTERISTICS.

"(C) PARAGRAPH 2.1.9 REQUIRES A STATEMENT REGARDING PROVEN ENGINE EXPERIENCE. THERE IS NO STATEMENT BY RAY C. CALL EXCEPT THE GENERAL WORDS THAT ARE INCLUDED IN THE ENGINE BROCHURE."

IN OUR DECISION OF OCTOBER 1, 1969, YOU WERE ADVISED OF THE SPECIFIC DEFICIENCIES AND DEVIATIONS IN THE DESCRIPTIVE LITERATURE SUBMITTED WITH YOUR BID TO DSA'S-700 SOLICITATION WHICH NASA DETERMINED RENDERED YOUR BID NONRESPONSIVE. THESE DEFICIENCIES AND DEVIATIONS, WHICH APPEAR TO BE MATERIAL, WILL NOT BE REPEATED HERE.

THE DESCRIPTIVE LITERATURE CLAUSE IN BOTH INVITATIONS CLEARLY WARNED BIDDERS THAT THE FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCTS OFFERED CONFORMED TO THE SPECIFICATIONS WOULD REQUIRE REJECTION OF THE BID. THE PURPOSE OF THIS REQUIREMENT WAS TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH AND WHETHER THE PRODUCT DESCRIBED IN THE LITERATURE WOULD MEET THE DESIGN AND PERFORMANCE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS. SINCE THIS REQUIREMENT WAS NOT MET IN THE BID SUBMITTED BY YOUR CONCERN TO DSA'S-700 SOLICITATION, WE HAVE NO OBJECTION TO THE DETERMINATION THAT YOUR BID TO THIS SOLICITATION WAS NONRESPONSIVE. CF. B-160395, DECEMBER 22, 1966. MOREOVER, SINCE YOUR BID TO INVITATION FOR BIDS NO. CC-304-8 WAS NOT THE LOW BID, ANY COMMENTS INITIALLY MADE BY NASA ON THE RESPONSIVENESS OF YOUR BID TO THAT PROCUREMENT MUST BE CONSIDERED IN LIGHT OF THE FACT THAT YOU WERE NOT IN LINE FOR AN AWARD. WHEN THE ISSUE OF THE RESPONSIVENESS OF YOUR BID TO CC -304-8 WAS SQUARELY PUT BEFORE NASA, IT WAS DETERMINED THAT YOUR BID WAS NONRESPONSIVE. IN VIEW OF NASA'S SUPPLEMENTAL REPORT WE SEE NO INCONSISTENCY IN NASA'S DETERMINATIONS REGARDING THE RESPONSIVENESS OF YOUR BIDS TO THE AFOREMENTIONED SOLICITATIONS.

FOR THESE REASONS YOUR PROTEST AGAINST THE REJECTION OF YOUR BID TO DSA'S -700 SOLICITATION IS DENIED.

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