B-151135, MAY 29, 1963

B-151135, MAY 29, 1963

TO AMERICAN-LINCOLN CORPORATION:

THIS REFERS TO YOUR LETTER OF MARCH 21, 1963, PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER POST OFFICE DEPARTMENT INVITATION FOR BIDS NO. 1388.

THE INVITATION WAS ISSUED ON DECEMBER 31, 1962, AND CALLED FOR BIDS ON A QUANTITY OF 35 EACH SCRUBBER-VACUUM MACHINES, FLOOR, BATTERY POWERED, SELF -PROPELLED. AWARD WAS TOTALLY SET-ASIDE FOR SMALL BUSINESS. PAGE NO. 4 OF THE INVITATION CONTAINED THE FOLLOWING:

"BID DATA: EACH BIDDER IS REQUIRED TO SUBMIT WITH THIS BID A POSITIVE STATEMENT AS TO WHETHER OR NOT THE ITEM OFFERED FULLY CONFORMS TO THE TERMS OF THIS SPECIFICATION. WHERE THE BIDDER'S PRODUCT DIFFERS FROM THE SPECIFIC REQUIREMENTS, EACH POINT OF DIFFERENCE SHOULD BE CLEARLY DESCRIBED. IN ADDITION, EACH BIDDER SHALL FURNISH COMPLETE DESCRIPTIVE LITERATURE, OUTLINE DRAWINGS OR PHOTOGRAPHS, AND TECHNICAL DATA COVERING THE EQUIPMENT HE PROPOSES TO FURNISH, IDENTIFYING THE EQUIPMENT BY NAME OF THE MANUFACTURER AND MODEL NUMBER. LACK OF SPECIFIC AND COMPLETE INFORMATION WILL BE SUFFICIENT CAUSE FOR REJECTION OF BIDS. THIS REQUIREMENT IS SET FORTH TO FACILITATE THE REVIEW OF BIDS AND IS NOT TO BE CONSTRUED BY THE BIDDER AS WAIVING ANY OF THE REQUIREMENTS OF THE SPECIFICATION.

"REQUIREMENTS FOR DESCRIPTIVE LITERATURE: 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 OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID 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 DESIGN, MATERIALS AND COMPONENTS.

"FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS 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 RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.'

BID OPENING WAS HELD, AS SCHEDULED, ON JANUARY 22, 1963, AND BIDS WERE RECEIVED FROM HILD FLOOR MACHINE COMPANY, FINNELL SYSTEMS, INC., AND YOUR FIRM. IT WAS DETERMINED THAT HILD HAD FAILED TO MEET THE SPECIFICATIONS. YOU SUBMITTED A BID OF $1,077.12 PER UNIT AND FINNELL BID $1,248, BUT THE DEPARTMENT PROPOSES TO MAKE THE AWARD TO FINNELL BECAUSE OF A FAILURE ON YOUR PART TO SUBMIT BID DATA AND DESCRIPTIVE LITERATURE.

YOU CONTEND THAT LITERATURE WAS INCLUDED WITH YOUR BID, AND YOU HAVE ENCLOSED A COPY OF THIS MATERIAL FOR OUR INSPECTION. HOWEVER, THE POST OFFICE DEPARTMENT HAS FORWARDED TO US YOUR ORIGINAL BID, WITH THE POSITIVE STATEMENT THAT IT IS IN THE SAME CONDITION AS WHEN OPENED. NO DATA OR LITERATURE OF ANY KIND IS ATTACHED, NOR DOES THE BID CONTAIN ANY REFERENCE TO ANY, OR ANY IDENTIFICATION BY MODEL NUMBER OR OTHERWISE OF THE MACHINE OFFERED BY YOU. IN ADDITION, WE ARE IN RECEIPT OF A LETTER FROM ANOTHER BIDDER STATING THAT ITS DISTRICT MANAGER WAS PRESENT AT THE BID OPENING AND EXAMINED THE BIDS AND STATES THAT NO LITERATURE ACCOMPANIED YOUR BID. IN THE CIRCUMSTANCES, WE MUST REGARD YOUR BID AS NOT CONFORMING TO THE DESCRIPTIVE LITERATURE REQUIREMENT.

YOU ADVISE THAT YOUR FIRM RECEIVED A GOVERNMENT CONTRACT (CONTRACT NO. 2- 1-8544) FOR 40 OF THESE UNITS IN JULY, 1962, WHICH MET THE EXACT SAME QUALIFICATIONS REQUIRED ON THIS PROCUREMENT. YOU CONTEND THAT ON THIS BASIS ALONE YOUR BID SHOULD BE CONSIDERED RESPONSIVE. WE DO NOT AGREE, SINCE YOUR BID IN NO WAY INDICATES THAT YOU INTEND TO FURNISH THE SAME MACHINE AS FURNISHED UNDER A PRIOR PROCUREMENT, NOR DOES IT CONTAIN ANY REFERENCE TO ANY PRIOR CONTRACT.

IN THE LIGHT OF THE POST OFFICE SPECIFICATIONS FOR THE ARTICLE INVOLVED, WHICH ARE PRIMARILY IN THE NATURE OF PERFORMANCE SPECIFICATIONS, THE REQUIREMENT OF DESCRIPTIVE LITERATURE APPEARS TO BE JUSTIFIED UNDER THE PROVISIONS OF FPR 1-2.202.5. SINCE YOU FAILED TO MEET THE REQUIREMENT, WE AGREE WITH THE DEPARTMENT THAT YOUR BID MUST BE CONSIDERED NONRESPONSIVE. SEE 36 COMP. GEN. 415.