B-159434, OCTOBER 14, 1966, 46 COMP. GEN. 315

B-159434, OCTOBER 14, 1966, 46 COMP. GEN. 315

CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - PERFORMANCE CHARACTERISTICS - STANDARDS. ALTHOUGH THE REJECTION OF A BID SUBMITTING DESCRIPTIVE DATA INSUFFICIENT TO SHOW CONFORMITY OF THE PERFORMANCE CHARACTERISTICS OF THE ITEM OFFERED WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS' PURCHASE DESCRIPTION HAS NO PROPER BASIS WHEN THE DESCRIPTIVE LITERATURE REQUIREMENTS SOLICIT PERFORMANCE CHARACTERISTICS DETAILS TO PERMIT THE GOVERNMENT TO MAKE A "DETAILED COMPARATIVE ANALYSIS" WITHOUT FURNISHING STANDARDS FOR OR IDENTIFICATION OF THE CHARACTERISTICS, A BID MAY BE PROPERLY REJECTED IF THE LITERATURE ACCOMPANYING IT TO DESCRIBE PERFORMANCE CHARACTERISTICS OF THE ITEM OFFERED SHOWS NONCONFORMITY WITH A STATED REQUIREMENT OF THE PURCHASE DESCRIPTION, EVEN THOUGH THE DESCRIPTIVE LITERATURE MAY NOT HAVE BEEN NEEDED, OR THAT THE INVITATION WAS DEFECTIVE FOR FAILING TO SPELL OUT WITH PARTICULARITY THE REQUIREMENTS FOR A DESCRIPTION OF THE DETAILS OF THE PERFORMANCE CHARACTERISTICS. CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - SUFFICIENCY OF DETAILS. WHERE THE REQUIREMENTS FOR DESCRIPTIVE LITERATURE IN AN INVITATION FOR BIDS DOES NOT PROVIDE SUFFICIENT DETAILS AS TO THE INFORMATION NEEDED BY THE CONTRACTING AGENCY FOR DETERMINING THE PERFORMANCE CHARACTERISTICS OF THE PROCUREMENT TO BE PURCHASED, BUT A BIDDER CAN MAKE ITS BID RESPONSIVE BY PARROTING BACK THE GOVERNMENT'S SPECIFICATIONS, THE LEGITIMACY OF THE DESCRIPTIVE LITERATURE REQUIREMENT IS NOT ESTABLISHED, THE "JUSTIFICATION FOR DESCRIPTIVE LITERATURE" DOING LITTLE MORE THAN STATING A CONCLUSION OF REQUIREMENT WITHOUT FURNISHING STANDARDS FOR OR IDENTIFICATION OF THE PERFORMANCE CHARACTERISTICS REQUIRED.

TO AGAC-DERRITRON INCORPORATED, OCTOBER 14, 1966:

IN YOUR LETTER OF JUNE 14, 1966, YOU PROTEST THE DEPARTMENT OF THE ARMY'S REJECTION OF YOUR LOW BID AS NONRESPONSIVE TO INVITATION FOR BIDS IFB/A/AMC/R) 29-040-66-585 FOR AN AUTOMATIC SPECTRUM EQUALIZER-- ANALYZER MANUFACTURED IN ACCORDANCE WITH REQUIREMENTS STATED IN THE IFB'S PURCHASE DESCRIPTION.

THE FOLLOWING BIDS WERE RECEIVED:

1. AGAC-DERRITRON, INC. $52,950

2. MB ELECTRONICS 56,045

3. LING ELECTRONICS 60,350

THE CONTRACT WAS AWARDED TO MB ELECTRONICS ON JUNE 9, 1966.

THE CONTRACTING OFFICER REJECTED YOUR LOW BID BECAUSE THE DESCRIPTIVE DATA ACCOMPANYING IT WAS NOT SUFFICIENT TO SHOW THAT THE PERFORMANCE CHARACTERISTICS OF THE ITEM YOU OFFERED WOULD CONFORM TO THE REQUIREMENTS OF THE IFB'S PURCHASE DESCRIPTION. WITH RESPECT TO THE ITEM YOU OFFERED, YOU SUBMITTED A LETTER TO SHOW WHAT YOU REFERRED TO AS A "DETAILED DESCRIPTION OF ITS HARACTERISTICS", AND YOU MAINTAIN THAT THIS INFORMATION, ALONG WITH OTHER MATERIAL ACCOMPANYING YOUR BID, SHOWED THAT THE ITEM YOU OFFERED WAS EQUAL TO, OR BETTER THAN,WHAT WAS REQUIRED.

THE IFB REQUIREMENTS FOR DATA PROVIDED:

REQUIREMENT FOR A WRITTEN TECHNICAL SUMMARY.

EACH BIDDER IS REQUIRED TO SUBMIT AS A PART OF HIS BID, A WRITTEN TECHNICAL SUMMARY DETAILING HIS APPROACH AND HOW HE INTENDS TO COMPLY WITH THE TECHNICAL REQUIREMENTS OF THE PURCHASE DESCRIPTION. FAILURE TO INCLUDE THIS TECHNICAL SUMMARY AS PART OF HIS BID WILL RENDER THE BID NON- RESPONSIVE.

REQUIREMENTS FOR DESCRIPTIVE LITERATURE (OCT. 1960)

(A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR DATE OF RECEIPT. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSE OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO PERFORMANCE CHARACTERISTICS. IN THE EVENT STANDARD CUTS, ILLUSTRATIONS, DRAWINGS AND BROCHURES FAIL TO COVER WITH CLARITY AND IN TERMINOLOGY COMMENSURATE WITH THAT OF THE PURCHASE DESCRIPTION EACH REQUIRED CONSTRUCTION OR PERFORMANCE CHARACTERISTIC AND EXPLAIN ITS OPERATION, SUPPLEMENTAL INFORMATION MUST BE FURNISHED BY THE OFFEROR TO INSURE THAT FULL AND COMPLETE DATA IS INCLUDED TO PROVIDE A BASIS FOR DETAILED COMPARATIVE ANALYSIS BY THE GOVERNMENT.

(B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE PURCHASE DESCRIPTION (SPECIFICATIONS) AND OTHER REQUIREMENTS OF THIS BID WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISION FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THE INVITATION FOR BIDS.

THE "JUSTIFICATION FOR DESCRIPTIVE LITERATURE", WHICH IS INCLUDED IN THE ADMINISTRATIVE FILE PURSUANT TO PARAGRAPH 2-202.5/E), ARMED SERVICES PROCUREMENT REGULATION, PROVIDES:

DESCRIPTIVE LITERATURE IS REQUIRED TO BE FURNISHED FOR THIS INVITATION FOR BIDS FOR THE FOLLOWING REASON:

THE ITEM SET FORTH IN THE BID IS COMMON WITH SEVERAL MANUFACTURERS AND THE GOVERNMENT DESIRES TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND IF SUCH BID MEETS THE REQUIREMENTS AS TO PERFORMANCE CHARACTERISTICS, TECHNICAL APPROACH, DESIGN AND OPERATION.

SINCE OUR DECISIONS AT 36 COMP. GEN. 376; ID. 415, WE HAVE CONSISTENTLY RECOGNIZED THAT IN APPROPRIATE CIRCUMSTANCES INVITATIONS MAY REQUIRE, AS A MATERIAL CONDITION OF RESPONSIVENESS, THE SUBMISSION OF DESCRIPTIVE DATA WITH THE BID IN ORDER TO FIX PRECISELY THE NATURE OF THE ITEM OFFERED. SEE 40 COMP. GEN. 132; 37 ID. 143. HOWEVER, WE HAVE ALSO HELD THAT WHERE DESCRIPTIVE DATA IS REQUIRED FOR DETERMINING THE RESPONSIVENESS OF THE BID RATHER THAN THE RESPONSIBILITY OF THE BIDDER, THE IFB MUST CLEARLY ESTABLISH THE NATURE AND EXTENT OF THE DATA REQUIRED, THE PURPOSE INTENDED TO BE SERVED BY SUCH DATA, AND PARTICULARLY WHETHER ALL DETAILS OF SUCH DATA WILL BE CONSIDERED AN INTEGRAL PART OF THE AWARDED CONTRACT. COMP. GEN. 59. THE FOREGOING IS CONSISTENT WITH THE PRINCIPLE THAT REQUIREMENTS OF AN INVITATION SHOULD BE SET FORTH CLEARLY AND ACCURATELY IN ORDER TO PERMIT BIDDERS TO COMPETE ON AN EQUAL FOOTING. 17 COMP. GEN. 789.

WE BELIEVE THERE IS NO PROPER BASIS FOR REJECTING YOUR BID AS NONRESPONSIVE TO THE ,REQUIREMENTS FOR DESCRIPTIVE LITERATURE (OCT 1960)" CLAUSE, THE THIRD SENTENCE OF WHICH REQUIRES DETAILS OF PERFORMANCE CHARACTERISTICS, AND THE FOURTH AND UNDERLINED SENTENCE OF WHICH (NOT A PART OF THE "REQUIREMENTS FOR DESCRIPTIVE LITERATURE (OCT. 1960)" CLAUSE IN ASPR 2-202.5), CONDITIONALLY REQUIRES DATA FOR A "DETAILED COMPARATIVE ANALYSIS;, NEITHER THIS CLAUSE NOR ANY OTHER IN THE IFB SPECIFIES THE NATURE AND EXTENT OF THE INFORMATION DESIRED WITH SUFFICIENT PARTICULARITY TO PUT BIDDERS ON COMMON NOTICE OF WHAT DETAIL WAS ESSENTIAL TO MAKE THEIR BIDS RESPONSIVE. 42 COMP. GEN. 598; ID. 737. ONE OF THE PRIMARY DEFICIENCIES TO BE CURED BY SPELLING OUT DESCRIPTIVE LITERATURE REQUIREMENTS WITH PARTICULARITY ARISES WHERE, AS HERE, A LOW BIDDER SUBMITS DATA WHICH HE MAY REASONABLY BELIEVE SATISFIES A BROADLY STATED REQUIREMENT FOR DESCRIPTIVE LITERATURE, BUT WHICH DOES NOT IN FACT PROVIDE THE INFORMATION THE AGENCY FEELS IT NEEDS TO EVALUATE BIDS. B-158688, DATED MAY 19, 1966. THE RECITAL IN THE "DESCRIPTIVE LITERATURE" CLAUSE OF SUCH GENERAL SUBJECTS AS "PERFORMANCE CHARACTERISTICS", WHICH ARE LISTED IN THE FOOTNOTE TO ASPR 2-205.5/D) (2) AS SUBJECTS THAT MIGHT REQUIRE DESCRIPTION, DOES NOT PROVIDE SUFFICIENT DETAIL AS TO WHAT INFORMATION THE AGENCY NEEDS, AND THEREFORE DOES NOT PROVIDE FOR A COMMON EVALUATION OF BIDS. B-158740, DATED MAY 3, 1966., 46 COMP. GEN. 1.

FURTHERMORE, WHILE IT IS NOT CLEAR WHAT WAS EXPECTED OF BIDDERS WITH RESPECT TO DESCRIBING PERFORMANCE CHARACTERISTICS, THE COMMENTS OF THE AGENCY REGARDING THE DEFICIENCIES IN YOUR BID WITH RESPECT TO CERTAIN PARAGRAPHS OF THE PURCHASE DESCRIPTION INDICATE IT EXPECTED BIDDERS TO RENDER THEIR BIDS RESPONSIVE MERELY BY AFFIRMING THAT THEIR EQUIPMENT WOULD INDEED MEET THE REQUIREMENTS OF THE PURCHASE DESCRIPTION WHICH THEY WOULD HAVE BEEN REQUIRED TO HAVE MET WITHOUT SUCH A SUPERFLUOUS AFFIRMATION. IF THE REQUIREMENT FOR DESCRIPTIVE LITERATURE CAN BE MET BY PARROTING BACK THE GOVERNMENT SPECIFICATIONS, THE LEGITIMACY OF THAT REQUIREMENT IS QUESTIONABLE. B-150622, DATED JUNE 6, 1963. THE LEGITIMACY OF THE REQUIREMENT CERTAINLY IS NOT HERE ESTABLISHED, AS IT SHOULD BE, BY THE "JUSTIFICATION FOR DESCRIPTIVE LITERATURE", WHICH DOES LITTLE MORE THAN STATE A CONCLUSION THAT DESCRIPTIVE LITERATURE IS REQUIRED, AND FURNISHES NO STANDARDS FOR OR IDENTIFICATION OF PERFORMANCE CHARACTERISTICS WHICH MIGHT BE DESCRIBED, EXCEPT TO THE EXTENT SUCH ELEMENTS ARE ALREADY SPECIFICALLY PRESCRIBED BY THE PURCHASE DESCRIPTION REQUIREMENTS. 46 COMP. GEN. 1, SUPRA., B 159579, DATED JULY 20, 1966.

HOWEVER, EVEN THOUGH DESCRIPTIVE LITERATURE MAY NOT HAVE BEEN NEEDED TO DETERMINE THE RESPONSIVENESS OF YOUR BID, AND EVEN THOUGH IF THERE WAS SUCH A NEED, HIS IFB WAS DEFECTIVE FOR FAILURE TO SPELL OUT WITH PARTICULARITY, THE REQUIREMENT FOR A DESCRIPTION OF THE DETAILS OF PERFORMANCE CHARACTERISTICS, YOUR BID MAY STILL PROPERLY BE REJECTED IF THE LITERATURE ACCOMPANYING IT TO DESCRIBE THE CHARACTERISTICS OF THE ITEM OFFERED SHOWS THAT SUCH ITEM WILL NOT CONFORM TO A STATED REQUIREMENT OF THE PURCHASE DESCRIPTION. 46 COMP. GEN. 1, SUPRA.

THE DESCRIPTIVE DATA YOU SUBMITTED AS A PART OF YOUR BID INDICATES YOU PROPOSED TO SUPPLY AN ITEM WHICH DOES NOT CONFORM TO PARAGRAPH 2E OF THE PURCHASE DESCRIPTION, WHICH PROVIDES:

E. CORRECTION---50 DB SHALL BE COMPRESSED TO PLUS AND MINUS ONE DB. 20 DB STEP CHANGE SHALL BE CORRECTED IN LESS THAN ONE SECOND.

IN THE LETTER ACCOMPANYING YOUR BID YOU STATED:

THIS FULLY AUTOMATIC SYSTEM WILL EQUALIZE THE SPECTRUM WITHIN ONE SECOND, TO WITHIN THREE DB (PLUS AND MINUS 1.5 DB) OF THE PROGRAMMED SPECTRUM (EXCEPT FOR PLUS AND MINUS 2 DB AT THE TWO CROSSOVER POINTS * * *).

THE ADMINISTRATIVE AGENCY REGARDS THIS AS AN ATTEMPT TO TAKE EXCEPTION TO THE REQUIREMENT IN PARAGRAPH 2E FOR COMPRESSION TO PLUS AND MINUS ONE DB. SINCE THE IFB INDICATES THIS REQUIREMENT IS A MATERIAL ONE, AND SINCE WE HAVE NO BASIS TO DISAGREE WITH THE PROCURING AGENCY'S TECHNICAL JUDGMENT THAT YOUR SUMMARY TOOK EXCEPTION TO THE REQUIREMENT STATED IN PARAGRAPH 2E, WE ARE CONSTRAINED FROM CONCLUDING THAT YOUR BID WAS IMPROPERLY REJECTED AS NOT RESPONSIVE TO THE INVITATION, OR THAT THE AWARDED CONTRACT IS ILLEGAL.

ACCORDINGLY, WHILE YOUR PROTEST MUST BE DENIED, THE DEPARTMENT OF THE ARMY IS BEING ADVISED OF THE DEFICIENCIES IN THIS PROCUREMENT SO THAT THEY MAY BE AVOIDED IN THE FUTURE.