B-169057, JUNE 17, 1970, 49 COMP. GEN. 851

B-169057, JUNE 17, 1970, 49 COMP. GEN. 851

CONTRACTS -- SPECIFICATIONS -- DESCRIPTIVE DATA -- VOLUNTARY SUBMISSION - ACCEPTABILITY UNDER AN INVITATION FOR MECHANICAL PRESSES THAT REQUIRED THE SUBMISSION OF PRICE LISTS, AN UNSOLICITED BROCHURE ACCOMPANYING THE LOW BID THAT DESCRIBED BOTH CONFORMING AND NONCONFORMING PRESSES WHICH WAS SUBMITTED TO MAKE THE PRICE LIST MORE MEANINGFUL AND WAS NOT INTENDED FOR EVALUATION PURPOSES DID NOT QUALIFY THE BID AS BOTH DOCUMENTS, PARALLEL IN FORMAT WERE COMPLEMENTARY. THE INTENT OF A BID IS FOR DETERMINATION FROM ITS CONTENTS, INCLUDING AN UNSOLICITED BROCHURE, AND IF THE LITERATURE QUALIFIES THE BID OR CREATES AN AMBIGUITY, THE BID MUST BE REJECTED AS NONRESPONSIVE AND PURSUANT TO 10 U.S.C. 2305(C) AN AWARD MADE TO THE LOW RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION, A STATUTORY REQUIREMENT THAT IS NOT NEGATED BY PARAGRAPH 2 202.5(F) OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH PRESUMES A BID TO CONFORM OR TO BE UNQUALIFIED WHERE THE INTENT OF THE BIDDER IS AMBIGUOUS. MODIFIES B- 169057, APRIL 23, 1970.

TO THE SECRETARY OF THE NAVY, JUNE 17, 1970:

THIS CONCERNS A LETTER DATED MAY 8, 1970, SUP 0232, AND SUBSEQUENT CORRESPONDENCE, REQUESTING RECONSIDERATION OF OUR DECISION B-169057, APRIL 23, 1970, ON THE PROTEST OF WAYNE PRESS COMPANY UNDER INVITATION FOR BIDS NO. NOO600-70-B-2213, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D. C.

THE FACTS INVOLVED IN THE PROCUREMENT AND PROTEST WERE FULLY SET FORTH IN OUR PRIOR DECISION. IN BRIEF, THE CONTRACTING OFFICER REJECTED WAYNE'S LOW BID BECAUSE IT WAS ACCOMPLISHED BY AN UNSOLICITED DESCRIPTIVE BROCHURE WHICH DESCRIBED SEVERAL MECHANICAL PRESSES, SOME OF WHICH DID NOT CONFORM TO THE ADVERTISED SPECIFICATIONS. IN OUR PRIOR DECISION, WE CONCLUDED THAT THE BID SHOULD HAVE BEEN CONSIDERED RESPONSIVE.

ON RECONSIDERATION WE CONCLUDE THAT BASED ON THE FACTS OF THE CASE OUR PRIOR DECISION SHOULD BE SUSTAINED. THE INVITATION FOR BIDS REQUESTED BIDDERS TO SUBMIT THEIR PRICE LISTS COVERING THE MECHANICAL PRESSES. WAYNE HAS STATED THEIR PRICE LIST MEANINGFUL. WE BELIEVE THAT STATEMENT IS SUPPORTED BY THE PHYSICAL EVIDENCE CONTAINED IN WAYNE'S BID. THE PRICE LIST AND THE BROCHURE ARE PARALLEL IN FORMAT AND WERE OBVIOUSLY INTENDED TO BE COMPLEMENTARY. THE DESCRIPTIVE BROCHURE DESCRIBES ONLY THOSE PRESSES CONTAINED IN THE PRICE LIST. FURTHER, THESE DOCUMENTS BEAR EVIDENCE THAT AT ONE TIME THEY WERE IN FACT STAPLED TOGETHER INDEPENDENTLY OF THE OTHER RELATED BID DOCUMENTS. FOR THESE REASONS, WE BELIEVE THE PRICE LIST AND BROCHURE SHOULD HAVE BEEN CONSIDERED AS ONE DOCUMENT, AND AS FURNISHED FOR THE PURPOSES REQUESTED. SINCE THAT PRICE LIST WAS REQUESTED IN THE SOLICITATION AND SUBMITTED BY THE BIDDER TO ILLUSTRATE THE COMMERCIAL PRICE OF THE MECHANICAL PRESSES BEING PROCURED, NOT FOR THE PURPOSE OF EVALUATING THE OFFER, WE CONCLUDE THAT THE BROCHURE DESCRIBING CONFORMING AND NONCONFORMING PRESSES SHOULD NOT BE REGARDED AS QUALIFYING THE BID. CF. B-147518, JANUARY 16, 1962.

WHILE FOR THE ABOVE REASONS OUR PRIOR DECISION B-169057, APRIL 23, 1970, IS SUSTAINED, THERE ARE CERTAIN STATEMENTS IN THAT DECISION WHICH HAVE APPARENTLY LEAD TO CONSIDERABLE CONFUSION RESPECTING OUR POSITION REGARDING UNSOLICITED DESCRIPTIVE LITERATURE. IN OUR VIEW THE INTENT OF THE BID MUST BE DETERMINED FROM A REASONABLE CONSTRUCTION OF ITS ENTIRE CONTENTS INCLUDING ANY UNSOLICITED LITERATURE. IF THE CIRCUMSTANCES ARE REASONABLY SUSCEPTIBLE OF A CONCLUSION THAT THE LITERATURE WAS INTENDED TO QUALIFY THE BID OR IF INCLUSION OF THE LITERATURE CREATES AN AMBIGUITY AS TO WHAT THE BIDDER INTENDED TO OFFER, THEN THE BID MUST BE REJECTED AS NONRESPONSIVE TO THE INVITATION FOR BIDS. SEE B-166284, APRIL 14, 1969, MAY 21, 1969, AND B-167584, OCTOBER 3, 1969. AS WE STATED IN B-166284, APRIL 14, 1969:

THE CRUX OF THE MATTER IS THE INTENT OF THE OFFEROR AND ANYTHING SHORT OF A CLEAR INTENTION TO CONFORM ON THE FACE OF THE BID REQUIRES REJECTION.

* * * * * WHEN MORE THAN ONE POSSIBLE INTERPRETATION MAY REASONABLY ME REACHED FROM THE TERMS OF A BID A BIDDER MAY NOT BE PERMITTED TO EXPLAIN THE ACTUAL MEANING OR BID INTENDED SINCE THIS WOULD AFFORD THE BIDDER THE OPPORTUNITY TO ALTER THE RESPONSIVENESS OF HIS BID BY EXTRANEOUS MATERIAL.

AWARD OF A CONTRACT PURSUANT TO FORMAL ADVERTISING MAY BE MADE UNDER 10 U.S.C. 2305(C) ONLY TO THE LOW RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION. WE DO NOT BELIEVE THAT STATUTORY REQUIREMENT MAY BE NEGATED BY A REGULATORY PROVISION, SUCH AS ARMED SERVICES PROCUREMENT REGULATIONS 2-202.5(F), WHICH PRESUMES A BID TO CONFORM OR BE UNQUALIFIED WHERE THE INTENT OF THE BIDDER IS AMBIGUOUS. CF. B-166284, MAY 21, 1969. NOR DO WE BELIEVE THAT THE INVITATION FOR BIDS MAY ESTABLISH ANY ARBITRARY CONVENTIONS WHICH PROVIDE THAT THE CLEAR LANGUAGE OF THE BID WILL BE IGNORED UNLESS PRESENTED IN A PARTICULAR FORM.

ON PAGE THREE OF OUR PRIOR DECISION WE STATED:

IT IS OUR VIEW THAT THE VOLUNTARY FURNISHINGS OF LITERATURE WITH A BID, WITH NOTHING TO EVIDENCE AN INTENT TO QUALIFY THE BID OR TO DEVIATE FROM THE ADVERTISED SPECIFICATIONS, DOES NOT RENDER SUCH A BID NONRESPONSIVE.

ON PAGE FOUR WE STATED:

WE BELIEVE THEREFORE THAT THE BROCHURE SUBMITTED BY WAYNE WITH ITS BID SHOULD NOT BE CONSIDERED AS QUALIFYING ITS BID, AND SHOULD BE DISREGARDED IN ACCORDANCE WITH THE PROVISION OF ASPR 2-202.5(F). THESE STATEMENTS WERE PREMISED UPON OUR CONCLUSION, AS SET FORTH ON PAGE THREE OF THE DECISION PRECIDING THE FIRST STATEMENT, THAT WE DID NOT BELIEVE WAYNE'S BID WAS QUALIFIED OR AMBIGUOUS EVEN TAKING INTO CONSIDERATION THE UNSOLICITED BROCHURE. THE STATEMENTS SHOULD NOT BE CONSTRUED TO STAND FOR THE PROPOSITION THAT THE UNSOLICITED BROCHURE MAY SIMPLY BE DISREGARDED AND TO THE EXTENT THAT SUCH AN IMPRESSION IS CONVEYED BY STATEMENTS IN B- 169057, APRIL 23, 1970, THAT DECISION IS MODIFIED.

RETURNED HEREWITH ARE THE ENCLOSURES FORWARDED TO THIS OFFICE ON MAY 19, 1970.