B-163007, MAR. 19, 1968

B-163007: Mar 19, 1968

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TO CLEAVER BROOKS: REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 16 AND 22. YOUR BID WAS DETERMINED TO BE NONRESPONSIVE BECAUSE YOU SUBMITTED WITH THE BID YOUR STANDARD COMMERCIAL CATALOG ON MODEL "DELTA 42" WHICH DID NOT MEET THE SPECIFICATIONS. YOUR BID SHOULD NOT HAVE BEEN REJECTED AS NONRESPONSIVE. SAMPLES: WHEN A SAMPLE IS NOT CALLED FOR BY THE INVITATION. STRICT COMPLIANCE WITH THE SPECIFICATIONS WILL BE REQUIRED UNDER THE RESULTING CONTRACT WITHOUT REGARD TO ANY SAMPLE VOLUNTARILY SUBMITTED BY THE BIDDER. THE BID EXPRESSLY STATES THE EXTENT TO WHICH THE BIDDER'S OFFER IS BASED UPON AND LIMITED TO THE SAMPLE. WHERE THE BID IS NOT QUALIFIED. SUCH SAMPLE WILL BE DISREGARDED.'. IF A BID IS SO PREPARED AS TO CREATE A REASONABLE DOUBT CONCERNING THE BIDDER'S INTENTION TO COMPLY WITH THE INVITATION REQUIREMENTS.

B-163007, MAR. 19, 1968

TO CLEAVER BROOKS:

REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 16 AND 22, 1968, REQUESTING RECONSIDERATION OF OUR DECISION OF JANUARY 10, 1968, DENYING YOUR PROTEST AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. 9-14218, ISSUED BY THE FEDERAL REFORMATORY, PETERSBURG, VIRGINIA.

YOUR BID WAS DETERMINED TO BE NONRESPONSIVE BECAUSE YOU SUBMITTED WITH THE BID YOUR STANDARD COMMERCIAL CATALOG ON MODEL "DELTA 42" WHICH DID NOT MEET THE SPECIFICATIONS.

IN YOUR LETTERS OF FEBRUARY 16 AND 22, YOU CONTEND THAT IN VIEW OF THE PROVISIONS OF PARAGRAPHS 2 AND 4 OF ACCOUNTING FORM 82 ENTITLED "SPECIAL CONDITIONS," MADE A PART OF THE INVITATION, YOUR BID SHOULD NOT HAVE BEEN REJECTED AS NONRESPONSIVE.

PARAGRAPHS 2 AND 4 OF THE CITED SPECIAL CONDITIONS PROVIDE AS FOLLOWS:

"2. NOTATION BY THE BIDDER: NOTATION OF BRAND NAMES AND/OR STOCK NUMBERS BY THE BIDDER, WITHOUT DELETION OF THE ADVERTISED SPECIFICATIONS, SHALL NOT ALTER THE REQUIREMENTS THAT THE BIDDER FURNISH MATERIALS AS SPECIFIED.

"4. SAMPLES: WHEN A SAMPLE IS NOT CALLED FOR BY THE INVITATION, STRICT COMPLIANCE WITH THE SPECIFICATIONS WILL BE REQUIRED UNDER THE RESULTING CONTRACT WITHOUT REGARD TO ANY SAMPLE VOLUNTARILY SUBMITTED BY THE BIDDER, UNLESS, THE BID EXPRESSLY STATES THE EXTENT TO WHICH THE BIDDER'S OFFER IS BASED UPON AND LIMITED TO THE SAMPLE. WHERE THE BID IS NOT QUALIFIED, SUCH SAMPLE WILL BE DISREGARDED.'

THE RESPONSIVENESS OF A BID MUST BE DETERMINED SOLELY ON THE BASIS OF THE BID AND ANY EXPLANATORY INFORMATION SUBMITTED PRIOR TO BID OPENING. IF A BID IS SO PREPARED AS TO CREATE A REASONABLE DOUBT CONCERNING THE BIDDER'S INTENTION TO COMPLY WITH THE INVITATION REQUIREMENTS, ANY NEGOTIATIONS WITH THE BIDDER AFTER BID OPENING TO CLARIFY SUCH INTENTION WOULD BE OBJECTIONABLE ON THE GROUNDS THAT NO BIDDER SHOULD BE AFFORDED A SECOND CHANCE TO BID AFTER BIDS ARE OPENED. 36 COMP. GEN. 705.

IT IS TRUE, AS CONTENDED BY YOU, THAT THE ABOVE-QUOTED PARAGRAPH 2 OF THE SPECIAL CONDITIONS DOES PROVIDE THAT A NOTATION OF A BRAND NAME WITHOUT DELETION OF THE ADVERTISED SPECIFICATIONS DOES NOT RELIEVE A BIDDER FROM FURNISHING THE MATERIAL SPECIFIED. HOWEVER, IN THE INSTANT CASE, NOT ONLY DID YOU SPECIFY THE MODEL NUMBER OF THE ITEM YOU PROPOSED TO FURNISH BUT YOU ALSO SUBMITTED WITH YOUR BID LITERATURE DESCRIBING THAT MODEL IN DETAIL. IT IS NOTED THAT THE QUOTED PARAGRAPH 2 IS SILENT AS TO WHAT THE EFFECT WOULD BE ON A BID WHERE A MODEL NUMBER IS CITED AND DESCRIPTIVE LITERATURE REGARDING THE CITED MODEL IS FURNISHED. IN OUR OPINION, WE THINK THAT IF AN AWARD HAD BEEN MADE TO YOU THE GOVERNMENT COULD ONLY REQUIRE YOU TO FURNISH YOUR MODEL SPECIFIED AND DESCRIBED IN THE CATALOG. SINCE YOU ADMIT THAT THE MODEL SPECIFIED MUST BE MODIFIED IN ORDER TO MEET THE SPECIFICATIONS WE THINK THAT THE ADMINISTRATIVE OFFICE PROPERLY REJECTED YOUR BID AS NONRESPONSIVE NOTWITHSTANDING THE LANGUAGE OF PARAGRAPH 2 OF THE SPECIAL CONDITIONS.

INSOFAR AS THE QUOTED PARAGRAPH 4 IS CONCERNED, SINCE NO SAMPLE WAS SUBMITTED IT APPEARS TO BE INAPPLICABLE TO THE QUESTION HERE INVOLVED.

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