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B-168189 (1), APR. 27, 1970

B-168189 (1) Apr 27, 1970
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SUFFICIENCY OF DETAILS REJECTION OF BID FOR FURNISHING AND INSTALLATION OF AIR-CONDITIONING SYSTEM AS NONRESPONSIVE IS SUSTAINED. THE SPECIFICATIONS WERE DIVIDED INTO TWO SECTIONS. BIDS WERE OPENED ON OCTOBER 7. FIVE BIDS WERE RECEIVED. YOUR BID AND ANOTHER WERE TIED FOR LOW. BOTH OF THESE BIDS WERE REJECTED AS NONRESPONSIVE. REJECTION OF THE OTHER BID HAS NOT BEEN PROTESTED AND WILL NOT BE CONSIDERED. ATTACHED TO YOUR BID WERE VARIOUS ITEMS OF DESCRIPTIVE LITERATURE INCLUDING A BROCHURE PUBLISHED BY AC MANUFACTURING COMPANY. THE CONSULTING ENGINEERS REVIEWED YOUR DESCRIPTIVE LITERATURE AND RECOMMENDED TO THE PROCURING ACTIVITY THAT YOUR BID BE REJECTED AS NONRESPONSIVE BECAUSE THEY WERE UNABLE TO DETERMINE FROM THE INFORMATION FURNISHED WITH YOUR BID THE EXACT CAPACITY OF THE UNITS YOU OFFERED AND WHETHER YOU PROPOSED USING A WATER-COOLED SYSTEM WITH A COOLING TOWER OR A CLOSED CIRCUIT GLYCOL SYSTEM WITH DRY COOLER.

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B-168189 (1), APR. 27, 1970

CONTRACTS--SPECIFICATIONS--DESCRIPTIVE DATA--SUFFICIENCY OF DETAILS REJECTION OF BID FOR FURNISHING AND INSTALLATION OF AIR-CONDITIONING SYSTEM AS NONRESPONSIVE IS SUSTAINED, AS RECORD SUPPORTS DETERMINATION THAT LITERATURE SUBMITTED WITH BID IMPLIED THAT CLOSED CIRCUIT GLYCOL SYSTEM WITH DRY COOLER WOULD BE FURNISHED RATHER THAN WATER-COOLED SYSTEM SPECIFIED. EVEN THOUGH INVITATION FAILED TO DEFINE EXTENT OF DETAIL DESIRED IN DESCRIPTIVE LITERATURE REQUIREMENT, AND PROTESTANT'S COMPLIANCE WITH REQUIREMENT RESULTED IN REJECTION OF HIS BID, SUCH FAILURE DOES NOT NECESSARILY REQUIRE CANCELLATION OF CONTRACT AWARDED TO BIDDER OFFERING EQUIPMENT MEETING PROCURING ACTIVITY'S NEEDS. SEE COMP. GEN. DECS. CITED.

TO GENERAL AIR CONDITIONING, INCORPORATED:

YOUR LETTER OF OCTOBER 21, 1969, WITH ENCLOSURES, PROTESTS AGAINST THE REJECTION OF YOUR BID TO ADVERTISED SOLICITATION NO. SSP-70-13, ISSUED ON SEPTEMBER 3, 1969, BY THE SOCIAL SECURITY ADMINISTRATION (SSA), BALTIMORE, MARYLAND, FOR THE FURNISHING AND INSTALLATION OF AN AIR-CONDITIONING SYSTEM AND CERTAIN OTHER WORK FOR SSA'S ELECTRONIC DATA PROCESSING (EDP) FACILITY IN BALTIMORE, MARYLAND.

THE INVITATION CONTAINED BOTH A REQUIREMENT FOR DESCRIPTIVE LITERATURE ON PAGE 8 AND A "BRAND NAME OR EQUAL" PROVISION ON PAGE 13. THE SPECIFICATIONS WERE DIVIDED INTO TWO SECTIONS, ONE COVERING THE MECHANICAL WORK AND THE OTHER COVERING THE SUPPLEMENTARY MECHANICAL AND ELECTRICAL REQUIREMENTS.

BIDS WERE OPENED ON OCTOBER 7, 1969, AND FIVE BIDS WERE RECEIVED. YOUR BID AND ANOTHER WERE TIED FOR LOW; HOWEVER, BOTH OF THESE BIDS WERE REJECTED AS NONRESPONSIVE. REJECTION OF THE OTHER BID HAS NOT BEEN PROTESTED AND WILL NOT BE CONSIDERED.

PARAGRAPH 1 ON PAGE M-2-3 OF THE SPECIFICATIONS CALLED FOR THE USE OF WATER-COOLED CONDENSERS. ATTACHED TO YOUR BID WERE VARIOUS ITEMS OF DESCRIPTIVE LITERATURE INCLUDING A BROCHURE PUBLISHED BY AC MANUFACTURING COMPANY, ENTITLED "EDPAC ELECTRONIC DATA PROCESSING AIR CONDITIONING" AND SEVEN SHEETS OF SPECIFICATIONS PUBLISHED BY AC MANUFACTURING COMPANY.

THE CONSULTING ENGINEERS REVIEWED YOUR DESCRIPTIVE LITERATURE AND RECOMMENDED TO THE PROCURING ACTIVITY THAT YOUR BID BE REJECTED AS NONRESPONSIVE BECAUSE THEY WERE UNABLE TO DETERMINE FROM THE INFORMATION FURNISHED WITH YOUR BID THE EXACT CAPACITY OF THE UNITS YOU OFFERED AND WHETHER YOU PROPOSED USING A WATER-COOLED SYSTEM WITH A COOLING TOWER OR A CLOSED CIRCUIT GLYCOL SYSTEM WITH DRY COOLER. THE CONSULTING ENGINEERS CONCLUDED THAT THE DESCRIPTIONS IN THE SPECIFICATIONS SUBMITTED WITH YOUR BID IMPLIED THAT A CLOSED CIRCUIT SYSTEM UNIT WAS BEING OFFERED. THE PROCURING ACTIVITY CONCURRED THAT YOUR BID WAS NONRESPONSIVE AND AWARD WAS MADE TO THE THIRD LOW BIDDER, EMJAY ENGINEERING AND CONSTRUCTION COMPANY, INCORPORATED, ON OCTOBER 15, 1969. BY LETTER OF THE SAME DATE, THE PROCURING ACTIVITY ADVISED YOU OF THE REASONS FOR THE REJECTION OF YOUR BID.

ONE OF THE ENCLOSURES WITH YOUR LETTER OF PROTEST GIVES YOUR COMMENTS ON THE PROCURING ACTIVITY'S REASONS FOR REJECTING YOUR BID. BASICALLY, IT IS STATED THAT THE LITERATURE SUBMITTED WITH YOUR BID WAS CLEARLY MARKED AND THAT NO DOUBT COULD EXIST AS TO WHAT YOU PROPOSED TO FURNISH. COPIES OF THE DESCRIPTIVE LITERATURE WHICH PURPORTEDLY WERE SUBMITTED WITH YOUR BID WERE ALSO ENCLOSED WITH YOUR LETTER OF PROTEST. THE PROCURING ACTIVITY HAS ADVISED THAT THE DESCRIPTIVE MATERIAL FURNISHED TO OUR OFFICE WITH YOUR PROTEST WAS DIFFERENT FROM THE DESCRIPTIVE LITERATURE FURNISHED WITH YOUR BID. YOU HAVE BEEN SENT A COPY OF THE CONTRACTING OFFICER'S REPORT WHICH EXPLAINS THE SPECIFIC DIFFERENCES IN THE LITERATURE SUBMITTED WITH YOUR BID COMPARED TO THE LITERATURE SUBMITTED WITH YOUR PROTEST. YOU WERE INVITED TO SUBMIT YOUR COMMENTS; HOWEVER, NONE HAVE BEEN RECEIVED.

WE HAVE REVIEWED THE BROCHURE ON THE "EDPAC" EQUIPMENT AND ON THE NEXT TO LAST PAGE OF THE BROCHURE UNDER A SECTION ENTITLED "SPECIFICATIONS FOR CLOSED CIRCUIT" WE FIND THE FOLLOWING STATEMENT:

"FURNISH A COMPUTER ROOM AIR CONDITIONING SYSTEM COMPLETELY SELF CONTAINED, WITH AUTOMATIC TEMPERATURE AND HUMIDITY CONTROL PANEL AND A REMOTE CLOSED CIRCUIT DRY COOLER AS MANUFACTURED BY A.C. MANUFACTURING COMPANY."

IN VIEW OF THE REQUIREMENT FOR DESCRIPTIVE DATA IN BOTH THE "BRAND NAME OR EQUAL" CLAUSE AND THE "REQUIREMENTS FOR DESCRIPTIVE LITERATURE" CLAUSE, THE LITERATURE SUBMITTED WITH YOUR BID COULD NOT BE CLASSIFIED AS UNSOLICITED DESCRIPTIVE DATA. THE RECORD SUPPORTS THE DETERMINATION BY THE CONSULTING ENGINEERS THAT THE LITERATURE SUBMITTED WITH YOUR BID IMPLIED THAT YOU WOULD BE FURNISHING A CLOSED CIRCUIT GLYCOL SYSTEM WITH A DRY COOLER RATHER THAN THE WATER-COOLED SYSTEM SPECIFIED. IN THE CIRCUMSTANCES, THERE WAS A BASIS FOR THE PROCURING ACTIVITY'S DETERMINATION THAT YOUR BID SHOULD BE REJECTED.

THERE ARE SOME QUESTIONS REGARDING THE PROPRIETY OF INCLUDING A REQUIREMENT FOR DESCRIPTIVE DATA AS SET FORTH IN THE CLAUSE D ON PAGE 8 OF THE SOLICITATION AND THIS MATTER HAS BEEN CONSIDERED IN OUR LETTER OF TODAY (COPY ENCLOSED) TO HEW. ALSO, THERE ARE QUESTIONS REGARDING THE PROPRIETY OF THE MANNER IN WHICH "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS WERE INCLUDED IN THE INVITATION AND THESE HAVE ALSO BEEN CONSIDERED IN GREATER DETAIL IN THE ENCLOSED LETTER TO THE SECRETARY OF HEW.

IT IS UNFORTUNATE THAT YOU WERE REQUESTED TO FURNISH DESCRIPTIVE DATA, PURSUANT TO AN INVITATION WHICH FAILED TO DEFINE WITH PARTICULARITY THE EXTENT OF DETAIL WHICH BIDDERS WERE REQUIRED TO FURNISH AND THAT YOUR COMPLIANCE WITH THE DESCRIPTIVE LITERATURE REQUIREMENT RESULTED IN THE REJECTION OF YOUR BID. HOWEVER, WE HAVE HELD THAT EVEN IF AN INVITATION DOES NOT DEFINE THE EXTENT OF DETAIL DESIRED IN THE DESCRIPTIVE LITERATURE REQUIREMENT, SUCH A DEFECT DOES NOT NECESSARILY REQUIRE CANCELLATION OF A CONTRACT AWARDED TO A BIDDER OFFERING EQUIPMENT WHICH MEETS THE NEEDS OF THE PROCURING ACTIVITY. 42 COMP. GEN. 737 (1963). THE SAME RATIONALE APPLIES TO THE DEFECTIVE "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION IN THE INVITATION. 43 COMP. GEN. 761 (1964).

IN THE INSTANT CASE, WE HAVE BEEN FURNISHED WITH INFORMATION WHICH WOULD ESTABLISH THAT THE CONTRACT WAS AWARDED TO A BIDDER OFFERING EQUIPMENT WHICH MET THE NEEDS OF THE GOVERNMENT. ALSO, WE HAVE BEEN ADVISED THAT THE AIR CONDITIONING UNITS HAVE BEEN INSTALLED IN ALL FOUR OF THE ROOMS AND ONLY SOME MINOR WORK REMAINS TO BE DONE. IN THE CIRCUMSTANCES IT IS OUR VIEW THAT THE AWARD SHOULD NOT BE DISTURBED.

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