B-169057, APR. 23, 1970

B-169057, APR. 23, 1970

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER DATED MARCH 17, 1970, WITH ENCLOSURE, FROM THE DEPUTY COMMANDER, PURCHASING, NAVAL SUPPLY SYSTEMS COMMAND, FURNISHING A REPORT ON THE PROTEST OF THE WAYNE PRESS COMPANY AGAINST THE MAKING OF ANY AWARD OTHER THAN TO THAT COMPANY UNDER SOLICITATION NO. N00600-70-B- 0213, ISSUED BY THE U. S. NAVY PURCHASING OFFICE, WASHINGTON, D. C.

THE CITED SOLICITATION WAS ISSUED ON DECEMBER 1, 1969, REQUESTING BIDS FOR FURNISHING TWO ITEMS OF OPEN-BACK-INCLINABLE MECHANICAL PRESSES. THE ITEMIZED EQUIPMENT WAS REQUIRED TO BE FURNISHED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-P-80041A, EXCEPT AS MODIFIED IN THE SOLICITATION ON PAGES 8 THROUGH 10. THE INVITATION DID NOT REQUEST PROSPECTIVE BIDDERS TO FURNISH DESCRIPTIVE LITERATURE WITH THEIR BIDS; HOWEVER, ON PAGE 25 THEREOF BIDDERS WERE ADVISED THAT IF THE EQUIPMENT THEY PROPOSED TO FURNISH WAS INCLUDED IN A PUBLISHED PRICE LIST, A COPY OF THE PRICE LIST SHOULD BE FURNISHED WITH THE BID.

SIX BIDS WERE RECEIVED AND OPENED ON JANUARY 23, 1970. THE LOWEST AGGREGATE BID IN THE AMOUNT OF $51,145 WAS SUBMITTED BY THE WAYNE PRESS COMPANY. WITH ITS BID WAYNE SUBMITTED ITS PRINTED PRICE LIST AND AN UNSOLICITED BROCHURE ON "WAYNE OBI PRESSES." THE SECOND LOWEST AGGREGATE BID IN THE AMOUNT OF $53,021 WAS SUBMITTED BY NIAGARA MACHINE TOOL WORKS.

IT IS REPORTED THAT TWO OF THE SIX BIDS RECEIVED WERE ACCOMPANIED BY UNSOLICITED LITERATURE AND THAT THE SIX BIDS WERE FORWARDED TO THE NAVAL REWORK FACILITY, NORFOLK, VIRGINIA, WITH A REQUEST THAT SUCH BIDS BE EVALUATED, INCLUDING ANY UNSOLICITED LITERATURE, TO DETERMINE CONFORMANCE WITH THE ADVERTISED SPECIFICATIONS. IN REGARD TO THE EVALUATION OF THE BID SUBMITTED BY THE WAYNE PRESS COMPANY, THE NAVAL AIR REWORK FACILITY ADVISED THE CONTRACTING OFFICE IN A MEMORANDUM DATED FEBRUARY 11, 1970, AS FOLLOWS:

"3. THE LOW BID (WAYNE) SUBMITTED BROCHURE LITERATURE COVERING A NUMBER OF PRESS MODELS, WITHOUT INDICATING WHICH MODELS THEY PROPOSE TO PROVIDE. THE LITERATURE PROVIDED DOES NOT INDICATE THAT MOTORIZED SLIDE ADJUSTMENT IS AVAILABLE FOR ITEM 1 AS INDICATED IN PARA. 3.7.2(A) OF SOLICITATION. THEIR 60 TON PRESS INDICATES THAT IT HAS 7 INCHES MAXIMUM STROKE IN LIEU OF 8 INCHES AS SPECIFIED IN PARA. 3.8(B) FOR ITEM 2 SIZE 5 OF SUBJECT SOLICITATION. ACCORDINGLY, THE LOW BID OF $51,145.00 SUBMITTED BY WAYNE PRESS CO. IS REJECTED."

IT IS REPORTED THAT AWARD UNDER THE SUBJECT INVITATION IS BEING WITHHELD PENDING THE DECISION OF OUR OFFICE ON THE PROTEST OF THE WAYNE PRESS COMPANY. THE CONTRACTING OFFICER PROPOSES THAT THE BID OF WAYNE BE REJECTED AS BEING NONRESPONSIVE TO THE INVITATION AND, IN REGARD TO THE BASES FOR SUCH ACTION, THE CONTRACTING OFFICER STATES AS FOLLOWS:

"5. SPECIFICATION PARAGRAPH 3.8 REQUIRES A MINIMUM EIGHT INCH STROKE FOR BOTH ITEMS 1 AND 2. THE BROCHURE SUBMITTED WITH THE SUBJECT BID DESCRIBES EQUIPMENTS OF EIGHT SEPARATE CAPACITIES. AN EIGHT INCH STROKE IS STANDARD ON ONLY ONE OF THE DESCRIBED EQUIPMENTS (WGI-200). AN EIGHT INCH STROKE IS OFFERED AS MAXIMUM (I.E. OPTIONAL) ON FOUR OF THE EQUIPMENTS. INDICATION IS MADE IN THE BID AS TO WHAT MODEL THE BIDDER IS FURNISHING.

"6. THE PROTESTANT ALLEGES THAT THE LITERATURE SUBMITTED WITH HIS BID WAS FURNISHED MERELY IN RESPONSE TO THE CLAUSE CONTAINED ON PAGE 25 OF THE SOLICITATION ENTITLED 'INFORMATION TO BE FURNISHED BY BIDDER/OFFEROR' AND WAS NOT INTENDED TO QUALIFY THE BID IN ANY WAY. HOWEVER, THE BID WAS ACCOMPANIED NOT ONLY BY THE PRICE LIST REQUESTED BY THIS CLAUSE, BUT ALSO BY TECHNICAL LITERATURE WHICH DESCRIBES A NUMBER OF PRESSES. SEVERAL OF THE EQUIPMENTS DESCRIBED IN THE LITERATURE DO NOT CONFORM TO THE SPECIFICATIONS SET FORTH IN THE INVITATION. THEREFORE, THE CONTRACTING OFFICER DETERMINED THAT THE BID OF WAYNE PRESS COMPANY IS NON-RESPONSIVE. SEE B-167584, 3 OCTOBER 1969."

WAYNE PROTESTED THE PROPOSED REJECTION OF ITS BID. THE COMPANY CONTENDS THAT THE UNSOLICITED GENERAL BROCHURE ON THE WAYNE OBI PRESS LINE WAS SUBMITTED ONLY TO CLARIFY THE SOLICITED PRICE LIST IN ORDER TO MAKE IT MEANINGFUL. IT IS ARGUED THAT THE SUBMISSION OF THE GENERAL BROCHURE IN THIS CASE SHOULD BE REGARDED AS COMING WITHIN THE CATEGORY OF UNSOLICITED LITERATURE WHICH MAY BE DISREGARDED UNDER THE PROVISIONS OF PARAGRAPH 2- 202.5(F) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THAT PARAGRAPH PROVIDES THAT SUCH LITERATURE WILL NOT BE CONSIDERED AS QUALIFYING A BID AND WILL BE DISREGARDED, UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE BIDDER'S INTENTION TO SO QUALIFY THE BID. WAYNE CONTENDS THAT SINCE UNDER ASPR 2-202.5(F) THE GENERAL BROCHURE SUBMITTED BY IT SHOULD HAVE BEEN DISREGARDED, SUCH BROCHURE SHOULD NOT HAVE BEEN USED IN ANY TECHNICAL EVALUATION OF ITS BID. THE COMPANY POINTS OUT THAT THE WAYNE PRESS BROCHURE AND THE SPECIFICATIONS CONTAINED THEREIN ARE GENERAL IN NATURE AND THAT IN SUCH BROCHURE IT IS SPECIFICALLY STATED THAT THE SPECIFICATIONS ARE SUBJECT TO CHANGE WITHOUT NOTICE.

IN THE PREPARATION OF ITS SIGNED BID, WAYNE TOOK NO EXCEPTION TO ANY OF THE REQUIREMENTS OF THE INVITATION FOR BIDS, AND IT APPEARS THAT THE COMPANY FURNISHED ALL OF THE INFORMATION REQUIRED BY THE BIDDING SCHEDULE. THE COMPANY DID NOT GIVE THE MODEL NUMBER OF THE EQUIPMENT IT PROPOSED TO FURNISH AND IT WAS NOT REQUIRED BY THE INVITATION TO PROVIDE SUCH INFORMATION. IT IS NOTED THAT THE PRICE LIST AND BROCHURE ARE GENERAL IN NATURE AND THAT NO CROSS-REFERENCES OR IDENTIFYING MARKINGS WERE MADE IN THE COMPANY'S BID, PRICE LIST, OR BROCHURE.

WE DO NOT FEEL THAT WAYNE OFFERED IN ITS BID TO FURNISH OTHER THAN SPECIFICATION PRESSES IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-P 80041A DATED AUGUST 20, 1968, EXCEPT AS MODIFIED ON PAGES 8, 9, AND 10 OF THE BIDDING SCHEDULE. WE CANNOT CONCLUDE, UNDER THE CIRCUMSTANCES HERE INVOLVED, THAT THE WAYNE BID WAS AMBIGUOUS OR OTHERWISE UNCERTAIN SOLELY BECAUSE ITS BROCHURE ACCOMPANIED ITS BID. IT IS OUR VIEW THAT THE VOLUNTARY FURNISHING 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. SEE 39 COMP. GEN. 878 (1960). WE NOTE IN THIS REGARD THAT PAGE 18 OF THE SOLICITATION PROVIDES AS FOLLOWS:

"WAIVER OF PRE-PRINTED INFORMATION

"SIGNATURE ON THE INVITATION FOR BIDS CONSTITUTES A WAIVER OF PRE PRINTED TERMS AND CONDITIONS APPEARING ON ANY COMPANY LETTERHEAD OR OTHER DOCUMENT SUBMITTED WITH THE BID UNLESS THE BIDDER STATES IN EITHER HANDWRITTEN OR TYPEWRITTEN FORM THAT SUCH PRE-PRINTED TERMS AND CONDITIONS APPLY TO HIS BID." WE FEEL THAT THIS CLAUSE LENDS SUBSTANTIAL WEIGHT TO THE HOLDING HERE THAT THE MERE TRANSMISSION OF CATALOG INFORMATION, WITH NOTHING MORE, IS NOT FATAL TO THE CONSIDERATION OF THE BID.

IN SUPPORT OF THE PROPOSED REJECTION OF WAYNE'S BID, THE CONTRACTING OFFICER HAS CITED OUR DECISION OF OCTOBER 3, 1969, B-167584. IN THAT DECISION WE ADVISED THE PROTESTING BIDDER AS FOLLOWS:

"WE CANNOT CONCLUDE THAT THE PROCUREMENT OFFICE ACTED INCORRECTLY IN REJECTING YOUR BID. THE PROBLEM PRESENTED IN YOUR PROTEST IS COMMON IN SITUATIONS WHERE A BIDDER ACCOMPANIES HIS BID WITH UNSOLICITED MATERIAL WHICH DOES, OR MIGHT, QUALIFY THE BID. SINCE THE SPECIFIC ITEMS SOLICITED UNDER THE INVITATION WERE DESCRIBED ITEM BY ITEM IN THE CATALOG PAGES ATTACHED TO YOUR BID, AND WERE FOUND TO BE NONCONFORMING TO THE SPECIFICATIONS, THE CONTRACTING OFFICER COULD NOT PROPERLY ACCEPT YOUR BID AS SUBMITTED, NOTWITHSTANDING YOUR OVERALL OFFER TO CONFORM TO THE SPECIFICATIONS. THE OVERALL OFFER TO CONFORM TO THE SPECIFICATIONS, IN WHATEVER FORM, CAN CURE A SPECIFIC DEVIATION ONLY IN SITUATIONS WHERE THAT PROMISE OR OFFER MAKES IT PATENTLY CLEAR THAT THE OFFEROR DID IN FACT INTEND TO SO CONFORM. 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. SEE B-166284, APRIL 14, 1969."

WE BELIEVE THAT THE CITED DECISION IS DISTINGUISHABLE FROM THE INSTANT CASE. IN THAT DECISION, THE SPECIFIC ITEMS SOLICITED UNDER THE INVITATION WERE DESCRIBED ITEM BY ITEM IN THE CATALOG PAGES ATTACHED TO THE PROTESTING BIDDER'S BID. FURTHER, IN THAT CASE, THERE WERE DIRECT, SPECIFIC DEVIATIONS DEMONSTRATED IN THE CATALOG DATA FROM THE SPECIFICATION REQUIREMENTS. IN THE PRESENT CASE, WAYNE SUBMITTED AN UNMARKED, UNREFERENCED BROCHURE COVERING VARIOUS MODELS OF COMMERCIAL PRESSES. THE BROCHURE DESCRIBES PRESSES OF EIGHT SEPARATE AND DISTINCT CAPACITIES. IN HIS STATEMENT OF FACTS, THE CONTRACTING OFFICER STATES THAT SINCE SEVERAL (BUT NOT ALL) OF THE PRESSES DESCRIBED IN THE BROCHURE DO NOT CONFORM TO THE SPECIFICATIONS, HE DETERMINED THAT THE BID OF WAYNE SHOULD BE REJECTED AS BEING NONRESPONSIVE TO THE INVITATION. SINCE WAYNE DID NOT INDICATE IN ITS BID A SPECIFIC REFERENCE TO THE PARTICULAR MODEL OF PRESS IT WAS PROPOSING TO FURNISH, IT IS OUR OPINION THAT IT CANNOT BE ASSUMED THAT IT INTENDED TO FURNISH PRESSES AS DESCRIBED IN ITS BROCHURE.

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 PROVISIONS OF ASPR 2-202.5(F). ACCORDINGLY, WE CONCLUDE THAT THE BID OF THE WAYNE PRESS COMPANY SHOULD BE CONSIDERED FOR AWARD IF PROPER IN OTHER RESPECTS.

THE ENCLOSURES SUBMITTED WITH THE CONTRACTING OFFICER'S STATEMENT OF FACTS ARE RETURNED AS REQUESTED.