B-135160, MAY 15, 1958, 37 COMP. GEN. 763

B-135160, MAY 15, 1958, 37 COMP. GEN. 763

CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - ALTERNATE EVALUATION BASES A DESCRIPTIVE LITERATURE SUBMISSION REQUIREMENT IN AN INVITATION WHICH SPECIFICALLY PROVIDES THAT NONCOMPLIANCE WITH THE REQUIREMENT WOULD RESULT IN REJECTION IN A SUBSTANTIVE REQUIREMENT WHICH CANNOT BE WAIVED FOR ONE BIDDER AFTER OPENING WITHOUT PREJUDICING THE RIGHTS OF OTHER BIDDERS. THE WORD "FAILURE" IN AN INVITATION PROVISION WHICH REQUIRES REJECTION OF BIDS FOR FAILURE TO FURNISH DESCRIPTIVE LITERATURE CONNOTES AN OMISSION TO FURNISH THE MATERIAL RATHER THAN A FAILURE OF THE DESCRIPTIVE LITERATURE TO COMPLY WITH THE SPECIFICATIONS. AN ELECTION ON THE PART OF A BIDDER TO SUBMIT HIS BID ON A DESCRIPTIVE LITERATURE BASIS RATHER THAN ON THE ALTERNATIVE BASIS OF PREVIOUS PROCUREMENT PRECLUDES THE CONTRACTING AGENCY FROM MAKING AN EVALUATION ON THE BASIS OF PREVIOUS PROCUREMENT. PREVIOUS PRODUCTION INFORMATION SUBMITTED BY A BIDDER WITH THE REQUIRED DESCRIPTIVE LITERATURE PURSUANT TO AN INVITATION WHICH REQUIRED BIDDERS TO INCLUDE WITH THE DESCRIPTIVE LITERATURE ,GENERAL EXPERIENCE AND BACKGROUND ON SIMILAR PROJECTS" AND WHICH ALSO PERMITTED THEM TO SUBMIT SIMILAR PROCUREMENT PRODUCTION EXPERIENCE AS AN ALTERNATIVE TO THE SUBMISSION OF DESCRIPTIVE LITERATURE IS FOR CONSIDERATION AS PART AND PARCEL OF THE DESCRIPTIVE LITERATURE RATHER THAN AS AN ALTERNATIVE EVALUATION ELECTION. INFORMALITIES AND MINOR IRREGULARITIES IN BIDS WHICH MAY BE WAIVED BY CONTRACTING OFFICERS ARE THOSE OF FORM AND NOT OF SUBSTANCE, OR OF SOME IMMATERIAL AND INCONSEQUENTIAL DEFECT IN OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION. A BIDDER WHO SUBMITS DESCRIPTIVE LITERATURE, WHICH DOES NOT CONFORM TO THE SPECIFICATIONS, AND ALSO INFORMATION THAT HE HAD PREVIOUSLY FURNISHED SIMILAR (BUT NOT IDENTICAL) ARTICLES AS A SUBCONTRACTOR UNDER A PROCUREMENT WHICH WAS NOT IN COMPLETE CONFORMANCE WITH THE CURRENT SPECIFICATIONS MAY NOT HAVE THE MANDATORY DESCRIPTIVE LITERATURE REQUIREMENT WAIVED NOR THE BID CONSIDERED FOR AWARD ON THE BASIS OF SPECIFICATION VARIATIONS WITHOUT PREJUDICE TO THE RIGHTS OF OTHER BIDDERS.

TO WILMER AND BROWN, MAY 15, 1958:

REFERENCE IS MADE TO YOUR BRIEF SUBMITTED ON APRIL 23, 1957, URGING, ON BEHALF OF KECO INDUSTRIES, INC., RECONSIDERATION OF OUR DECISION B 135160, MARCH 31, 1958, 37 COMP. GEN. 645, TO THE SECRETARY OF THE AIR FORCE, WHICH HELD THAT THE BID OF YOUR CLIENT MUST BE REJECTED AND NOT CONSIDERED FOR AWARD UNDER INVITATION FOR BIDS NO. 101-608-58-1, ISSUED BY THE GADSDEN AIR FORCE DEPOT, GADSDEN, ALABAMA.

SIX BASES ARE CITED AS ARGUMENT FOR OVERRULING OUR PRIOR DECISION IN THE MATTER. THEY ARE SET OUT BELOW AND CONSIDERED IN THE ORDER PRESENTED IN YOUR BRIEF.

1. ARTICLE X OF THE INVITATION, FAIRLY INTERPRETED, ALLOWS THE WAIVER WHICH THE AIR FORCE MADE HERE AND DOES NOT REQUIRE OBJECTION ON YOUR(OUR) PART.

ARTICLE X, PARAGRAPH 1, OF THE INVITATION IMPOSED A MANDATORY REQUIREMENT ON ALL BIDDERS TO SUBMIT DESCRIPTIVE LITERATURE WHICH "SHALL CONFORM IN EVERY RESPECT WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS," AND PROVIDED THAT NONCONFORMING LITERATURE WOULD RESULT IN THE REJECTION OF THE BID. PARAGRAPH 2 THEREOF DEALT WITH THE FAILURE TO FURNISH DESCRIPTIVE LITERATURE AND WITH THE GOVERNMENT'S RIGHT TO WAIVE THE FURNISHING OF DESCRIPTIVE LITERATURE ON THE BASIS THAT A BIDDER HAD PREVIOUSLY OFFERED A PRODUCT WHICH HAD BEEN PREVIOUSLY PROCURED,"SO THAT ADDITIONAL DESCRIPTIVE LITERATURE WOULD NOT ADD TO THE GOVERNMENT'S KNOWLEDGE OF THE ACCEPTABILITY OF THE PRODUCT.' WE DO NOT AGREE THAT DESCRIPTIVE LITERATURE REQUIREMENT DOES NOT GO TO THE SUBSTANCE OF THE BID. NOR DO WE FEEL THAT THE FACT THAT KECO HAD PREVIOUSLY FURNISHED SIMILAR (BUT NOT IDENTICAL) ARTICLES AS A SUBCONTRACTOR UNDER AN AIR FORCE CONTRACT WAS AN ADEQUATE BASIS, UNDER THE EXPRESS TERMS OF THE INVITATION, FOR WAIVING THE DESCRIPTIVE LITERATURE REQUIREMENT. THE DETERMINATION "THAT WITHOUT QUESTION A CONTRACTOR WHO HAD DELIVERED ACCEPTABLE UNITS OF THE TYPE PROVIDED BY KECO * * * WOULD BE CAPABLE OF PRODUCING UNITS WITH THE NECESSARY MODIFICATIONS REQUIRED BY THE SPECIFICATIONS IN THE PRESENT INVITATION" DOES NOT MEET THE CONDITION OF PARAGRAPH 2, ARTICLE X, THAT THE CONTRACTING OFFICER "WILL VERIFY THAT THE PRODUCT PREVIOUSLY PROCURED IS ADEQUATE TO MEET THE REQUIREMENTS OF THIS INVITATION FOR BIDS.' CONSTRUE ARTICLE X AS A WHOLE TO MEAN THAT A BID WOULD HAVE TO BE REJECTED IF THE BIDDER'S DESCRIPTIVE LITERATURE FAILED TO CONFORM IN EVERY RESPECT WITH THE INVITATION REQUIREMENTS, BUT COULD BE ACCEPTED WITHOUT ANY DESCRIPTIVE LITERATURE IF THE BIDDER HAD PREVIOUSLY OFFERED A PRODUCT WHICH HAD BEEN PROCURED BY THE GOVERNMENT BUT WHICH WAS NOT ITSELF IN COMPLETE CONFORMITY WITH THE CURRENT REQUIREMENTS, WOULD IN OUR VIEW DEFEAT THE MANIFEST INTENT OF THE ARTICLE.

IN 36 COMP. GEN. 376 WE HAD OCCASION TO POINT OUT THE NEED FOR CLEAR STATEMENT, IN AN INVITATION CALLING FOR DESCRIPTIVE MATERIAL, OF THE PURPOSE AND EFFECT OF SUCH A REQUIREMENT. SUBSEQUENT DECISIONS HAVE FURTHER DEVELOPED AND EMPHASIZED THE DISTINCTION SUGGESTED, BETWEEN CASES IN WHICH THE DESCRIPTIVE MATERIAL FURNISHED WOULD NOT ITSELF BE CONSIDERED A PART OF THE BID OR CONTRACT OR AS A QUALIFICATION OF THE SPECIFICATIONS IN ANY RESPECT, BUT IS REQUIRED TO ENABLE THE PROCURING AGENCY TO DETERMINE THE CAPABILITY OF BIDDERS TO FURNISH SUPPLIES IN CONFORMITY WITH THE SPECIFICATIONS (37 COMP. GEN. 143), AND CASES IN WHICH THE DESCRIPTIVE MATERIAL IS AFFIRMATIVELY REQUIRED IN ITSELF TO CONFORM COMPLETELY TO THE SPECIFICATIONS, TO ENABLE THE GOVERNMENT "TO INTELLIGENTLY CONCLUDE PRECISELY WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY THE MAKING OF AN AWARD.' 36 COMP. GEN. 415.

WE CANNOT AGREE WITH YOUR CONTENTION THAT ARTICLE X OF THE SUBJECT INVITATION FALLS WITHIN THE FIRST OF THE ABOVE-MENTIONED CATEGORIES. WHILE AFPI2-2003.5 (B) PROVIDES THAT AN AWARD BASED ON DESCRIPTIVE DATA WILL IN NO CASE CONSTITUTE A WAIVER OF THE REQUIREMENTS OF THE SPECIFICATIONS, THE INVITATION ITSELF CONTAINED NO SUCH STIPULATION, AND WE REGARD IT AS EXTREMELY DOUBTFUL, TO SAY THE LEAST, WHETHER IT COULD BE SUCCESSFULLY MAINTAINED THAT AN AWARD UNDER ARTICLE X WOULD NOT CONSTITUTE A BINDING ACKNOWLEDGMENT BY THE GOVERNMENT THAT ARTICLES CONFORMING TO THE SUCCESSFUL BIDDER'S DESCRIPTIVE MATERIAL WOULD BE ACCEPTABLE UNDER THE SPECIFICATIONS OF THE INVITATION. THE RECORD INDICATES SOME CONFUSION ON THE PART OF THE AIR FORCE AS TO THE ACTUAL INTENT OF THE PROVISION, BUT IF IT BE CONSIDERED BY THAT AGENCY THAT THE INTERPRETATION HERE INDICATED IS SO AT VARIANCE WITH ITS INTENTIONS THAT AWARD UNDER THE INVITATION WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT, IT IS WITHIN ITS DISCRETIONARY POWER TO CANCEL THE INVITATION AND READVERTISE UNDER TERMS MORE CLEARLY EXPRESSING ITS REQUIREMENTS.

AS STATED IN 36 COMP. GEN. 415, A BLANKET OFFER TO COMPLY WITH SPECIFICATIONS CANNOT RENDER NUGATORY THE DESCRIPTIVE LITERATURE REQUIREMENT. ONCE HAVING INCLUDED SUCH A MANDATORY, ESSENTIAL PROVISION WITH WHICH ALL BIDDERS MUST COMPLY, THE AIR FORCE WAS OBLIGATED TO EVALUATE ALL BIDS SUBMITTED ON A DESCRIPTIVE LITERATURE BASIS WITH THE SAME YARDSTICK--- CONFORMANCE IN EVERY RESPECT WITH THE REQUIREMENTS OF THE INVITATION. A BID EVALUATION CRITERION WAS MADE PART OF THE INVITATION AND ALL BIDDERS WERE SPECIFICALLY WARNED THAT NONCOMPLIANCE THEREWITH WOULD RESULT IN REJECTION; HENCE, TO WAIVE THAT BID CRITERION AS TO ONE BIDDER AFTER BID OPENING WAS CLEARLY PREJUDICIAL TO OTHER BIDDERS WHO HAD COMPLIED WITH AND RELIED UPON THE DESCRIPTIVE LITERATURE REQUIREMENT. 36 COMP. GEN. 415, 418. WE BELIEVE THAT THE AREA OF ADMINISTRATIVE DISCRETION TO WAIVE INVITATION REQUIREMENTS IS RESTRICTED TO THOSE MINOR INFORMALITIES OR DEFECTS OF FORM WHICH DO NOT AFFECT THE QUALITY, QUANTITY OR PRICE OF THE ARTICLES OFFERED TO THE PREJUDICE OF OTHER BIDDERS. SEE 30 COMP. GEN. 179; 17 ID. 554. HENCE, WE ARE OF THE VIEW THAT THE WAIVER OF THE LITERATURE REQUIREMENT IN THIS CASE WAS IMPROPER AND TO THE DETRIMENT OF OTHER BIDDERS.

2. THE WAIVER IS JUSTIFIED BY KECO'S "FAILURE" TO SUBMIT DESCRIPTIVE LITERATURE.

THE WORD "FAILURE" AS USED IN PARAGRAPH 2 OF ARTICLE X CONNOTES AN OMISSION TO FURNISH THE REQUIRED LITERATURE; IT REFERS TO A "FAILURE * * * TO HAVE FURNISHED" AND NOT TO A FAILURE TO COMPLY WITH INVITATION REQUIREMENTS. WHILE NOT SPECIFICALLY STATED IN OUR DECISION, WE REGARD A FAILURE TO FURNISH LITERATURE UNDER PARAGRAPH 2 AS IN THE NATURE OF A NONPERFORMANCE OR NONCOMPLIANCE WITH THE REQUIREMENT AND NOT AS RELATING TO THE FURNISHING OF LITERATURE WITH A RESULTING DETERMINATION NONCONFORMANCE.

3. ARTICLE X DOES NOT REQUIRE ANY ELECTION.

ARTICLE X READ AS A WHOLE PROVIDES TWO BASES FOR SUBMITTING BIDS; OTHERWISE NO MEANING OR EFFECT COULD BE ATTRIBUTED TO THE PROVISIONS OF PARAGRAPH 2. THAT PARAGRAPH HAS REFERENCE TO THE RIGHT OF A BIDDER NOT TO FURNISH DESCRIPTIVE LITERATURE BUT TO RELY INSTEAD UPON THE FACT OF PREVIOUS PROCUREMENT OF AN ARTICLE ADEQUATE TO MEET THE REQUIREMENTS OF THE INVITATION. THE RATIONALE OF THAT PARAGRAPH IS APPARENT SINCE ADDITIONAL DATA WOULD SERVE NO USEFUL PURPOSE. WE BELIEVE THAT PARAGRAPH ENVISAGES A SITUATION WHERE A BIDDER SUBMITS WITH ITS BID INFORMATION AS TO PREVIOUS PROCUREMENTS OF ARTICLES CONFORMING TO THE SPECIFICATIONS AS JUSTIFICATION FOR NOT FURNISHING DESCRIPTIVE LITERATURE, AND ON THAT BASIS, THE CONTRACTING OFFICER THEN DETERMINES THE ADEQUACY OF THE PRIOR PRODUCT TO MEET THE INVITATION REQUIREMENTS. CERTAINLY, THE PROCUREMENT AGENCY IS NOT IN A POSITION TO ELECT THE BASIS OF BIDDING UPON WHICH IT WILL EVALUATE A BID. RATHER, THE RESPONSIBILITY FOR THE METHOD OF BIDDING UNDER THE INSTANT INVITATION WAS THAT OF THE INDIVIDUAL BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.1CLS. 120, 123.

4.THE WAIVER IS JUSTIFIED BY THE ACT, NOT PREVIOUSLY CALLED TO YOUR (OUR) ATTENTION, THAT KECO POINTED OUT ITS PREVIOUS PRODUCTION EXPERIENCE IN ITS BID.

CONTRARY TO YOUR STATEMENT, WE WERE AWARE OF THE FACT THAT KECO INCLUDED INFORMATION IN ITS DESCRIPTIVE LITERATURE THAT IT HAD PRODUCED AIR- CONDITIONERS FOR PRIME GOVERNMENT CONTRACTORS AND THAT THEY WERE DESIGNATED AS "MA-7" AND "MA-8" UNITS. THE RECORD SHOWS THAT THOSE UNITS WERE BUILT IN ACCORDANCE WITH WRIGHT AIR DEVELOPMENT CENTER EXHIBITS RATHER THAN UNDER THE SPECIFICATIONS INCLUDED IN THE SUBJECT INVITATION, AND THAT THERE WERE SUBSTANTIAL DIFFERENCES BETWEEN THE UNITS CALLED FOR UNDER THIS INVITATION AND THOSE FURNISHED TO THE PRIME CONTRACTORS. HOWEVER, UNDER PARAGRAPH 1 (A) OF ARTICLE X, KECO WAS REQUIRED TO INCLUDE IN ITS DESCRIPTIVE LITERATURE ITS ,GENERAL EXPERIENCE AND BACKGROUND ON SIMILAR PROJECTS.' HENCE, IT WAS OUR VIEW THAT INFORMATION RELATING TO SUCH PREVIOUS PRODUCTION EXPERIENCE WAS PART AND PARCEL OF KECO'S DESCRIPTIVE LITERATURE AND OBVIOUSLY WAS NOT OFFERED AS A DEFINITIVE PROPOSAL TO FURNISH IDENTICAL ARTICLES.

5. ASIDE FROM THE EXPRESS WAIVER PROVISION OF ARTICLE X.2, THE AIR FORCE HAS AUTHORITY UNDER PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION TO WAIVE CONSIDERATION OF KECO'S DESCRIPTIVE LITERATURE.

UNDER THE CITED PARAGRAPH, THE GOVERNMENT RESERVES THE RIGHT TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN BIDS RECEIVED. IN AMPLIFICATION OF WHAT IS STATED ABOVE IN OUR COMMENTS TO YOUR ARGUMENT NO. 1, WE HAVE CONSISTENTLY HELD THAT THE INFORMALITIES WHICH MAY BE WAIVED ARE THOSE OF FORM AND NOT OF SUBSTANCE, OR OF SOME IMMATERIAL AND INCONSEQUENTIAL DEFECT IN OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION. WE CANNOT AGREE THAT THE DESCRIPTIVE LITERATURE REQUIREMENT OF THE INVITATION DOES NOT GO TO THE SUBSTANCE OF THE BID SINCE THE FAILURE TO COMPLY WITH THE FURNISHING REQUIREMENT WOULD RESULT IN THE REJECTION OF THE BID. SEE 36 COMP. GEN. 415, 418. ACCORDINGLY, IT IS OUR OPINION THAT NO AUTHORITY EXISTS UNDER PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS TO WAIVE THE MANDATORY REQUIREMENTS OF ARTICLE X.

6. ALLOWANCE OF AN AWARD TO KECO WILL NOT RESULT IN ANY UNFAIRNESS TO OTHER BIDDERS.

THE QUESTION SUGGESTED HERE IS WHETHER THE WAIVER OF THE DESCRIPTIVE LITERATURE REQUIREMENT AS TO KECO, BASED UPON THE FACT OF PREVIOUS PROCUREMENTS, IF ALLOWED TO STAND WOULD BE UNFAIR OR PREJUDICIAL TO OTHER BIDDERS UNDER THE INVITATION. UNDER THE INTERPRETATION INDICATED IN ANSWER TO YOUR FIRST CONTENTION, NO AWARD COULD PROPERLY BE MADE EXCEPT UPON A FINDING THAT EITHER THE DESCRIPTIVE MATERIAL FURNISHED, OR THE ARTICLES PREVIOUSLY FURNISHED UNDER A GOVERNMENT CONTRACT, CONFORMED IN EVERY RESPECT TO THE INVITATION SPECIFICATIONS. AWARD OTHERWISE WOULD BE WHOLLY AT VARIANCE WITH THE INVITATION, AND THEREFORE OBVIOUSLY PREJUDICIAL TO OTHER BIDDERS UNDER THE SAME INVITATION. AS POINTED OUT IN MANY DECISIONS OF OUR OFFICE, SEE, FOR EXAMPLE, 17 COMP. GEN. 554; 30 ID. 179, THE STRICT MAINTENANCE OF THE COMPETITIVE BIDDING PROCEDURES REQUIRED BY LAW IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING A PECUNIARY ADVANTAGE IN INDIVIDUAL CASES BY PERMITTING PRACTICES WHICH DO VIOLENCE TO THE SPIRIT AND PURPOSE OF THE LAW.

FOR THE REASONS STATED, WE CONCLUDE THAT THE DECISION OF MARCH 31, 1958, 37 COMP. GEN. 645, MUST BE AND IS SUSTAINED.