Matter of: Alaska Unlimited File: B-257156 Date: September 2, 1994

B-257156: Sep 2, 1994

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The IFB was issued as a total small business set-aside on March 21. Failure to provide this information will cause your bid to be rejected as nonresponsive."[1] Seven firms. The contracting officer was unable to evaluate. Its bid was improperly rejected as nonresponsive. While the protester admits that it did not specifically identify in its bid the equipment it was offering and did not submit with its bid descriptive literature and technical data sheets. The protester maintains that these omissions are not fatal to the responsiveness of its bid since the IFB's descriptive literature requirement relates not to a determination of the responsiveness of a bid. Whether it is a responsible bidder.

Matter of: Alaska Unlimited File: B-257156 Date: September 2, 1994

DIGEST

Attorneys

DECISION

Alaska Unlimited protests the rejection of its bid as nonresponsive under invitation for bids (IFB) No. F65503-94-B0012, issued by the Department of the Air Force for the lease of various pieces of heavy equipment at Eielson Air Force Base, Alaska.

We deny the protest.

The IFB was issued as a total small business set-aside on March 21, 1994. Under the terms of the IFB, the agency reserved the right to make multiple awards. Accordingly, the IFB contemplated the award of firm, fixed-price contracts for a base period and four option periods. For each item of equipment, the IFB listed salient characteristics on the bid schedules and in the statements of work (SOW) corresponding to each period of contract performance. The salient characteristics included, among other items, operating weights for the equipment, specific equipment features, and model years for the equipment. After the listing of salient characteristics, each SOW contained a notice advising bidders to submit technical data sheets with their bids for each piece of equipment. The IFB also included the following notice:

"The bidder shall furnish as part of its bid all descriptive literature and technical data sheets necessary for the purchasing activity to determine whether the product offered meets the salient characteristics/requirements of the solicitation. Failure to provide this information will cause your bid to be rejected as nonresponsive."[1]

Seven firms, including the protester, submitted bids by the April 20 bid opening. The protester submitted the apparent low bid for five line items of equipment. However, the protester did not identify in its bid the specific equipment being offered for lease (for example, by providing a manufacturer's name and model number with specific features) and did not submit with its bid the requested descriptive literature and technical data sheets. Since the protester did not identify the specific equipment being offered nor submit descriptive materials, the contracting officer was unable to evaluate, in accordance with the terms of the IFB, whether the equipment being offered by the protester would, in fact, satisfy the IFB's salient characteristics. Accordingly, the contracting officer rejected the protester's bid as nonresponsive.

The protester argues that since it took no exception in its bid to the IFB's salient characteristics, its bid was improperly rejected as nonresponsive. While the protester admits that it did not specifically identify in its bid the equipment it was offering and did not submit with its bid descriptive literature and technical data sheets, the protester maintains that these omissions are not fatal to the responsiveness of its bid since the IFB's descriptive literature requirement relates not to a determination of the responsiveness of a bid, but to a determination of a bidder's capability to perform, i.e., whether it is a responsible bidder, a matter which can be determined after bid opening.

In deciding whether a requirement for descriptive literature relates to responsiveness or responsibility, our Office looks to whether the solicitation otherwise complies with the requirements governing the use of such literature needed for determining exactly what the bidder proposes to furnish and whether it meets the specifications. These requirements include clearly stating in the solicitation the purpose for which the descriptive literature is required, the extent to which it will be considered in the evaluation of the bids, and the rules which will apply if a bidder fails to furnish the literature before bid opening or if the literature fails to comply with the requirements of the solicitation. See FAR Sec. 14.202-5(d); National Window, Inc., B-251959, Apr. 16, 1993, 93-1 CPD Para. 328. Where descriptive literature is required by a solicitation to establish the bidder's conformance to the specifications, and bidders are so cautioned, a bid must be rejected as nonresponsive if the bidder fails to submit with its bid the required descriptive literature. TIMCO Elec. Power & Controls, Inc., B-248308, Aug. 6, 1992, 92-2 CPD Para. 84; BSC Indus., Inc., B-237299, Feb. 5, 1990, 90-1 CPD Para. 152; Adrian Supply Co., B-225630.2, May 7, 1987, 87-1 CPD Para. 489.

Here, the IFB clearly required the submission with a bid of all descriptive literature and technical data sheets necessary for the contracting officer to determine whether offered equipment, as specifically identified, would satisfy the IFB's salient characteristics, and specifically advised that a bidder's failure to provide this information with its bid would result in the rejection of the bid as nonresponsive. Therefore, the descriptive literature requirement involved a matter of bid responsiveness, to be determined from the bids at the time of bid opening, and the protester could not be provided with an opportunity to satisfy the requirement after bid opening. National Window, Inc., supra.

The protester admits that it failed to identify in its bid the specific equipment which it was offering for lease, for example, by including a manufacturer's name and model number with specific features. The protester also admits that it did not submit with its bid descriptive literature and technical data sheets to allow the contracting officer to evaluate whether its unidentified equipment would satisfy the IFB's salient characteristics. While the protester may not have taken exception in its bid to any of the IFB's salient characteristics, this fact does not constitute identification of the specific equipment being offered for lease nor show that the unidentified equipment would satisfy the IFB's salient characteristics.[2] A bidder must demonstrate with sufficiently detailed descriptive literature as required by the IFB that its equipment, as specifically identified, will comply with an IFB's salient characteristics. See BSC Indus., Inc., supra. The protester failed to make this showing and its bid was properly rejected as nonresponsive.[3]

Accordingly, the protest is denied.

1. While the IFB did not include the descriptive literature clause at Federal Acquisition Regulation (FAR) Sec. 52.214-21, the notice in the IFB is substantively equivalent to the FAR clause with respect to requiring the submission of descriptive literature with a bid and notifying bidders that the failure to submit descriptive literature showing that the product offered conforms to the requirements of the IFB will require rejection of the bid.

2. In its protest, the protester stated that it submitted with its bid as the identification and description of its offered equipment the listing of salient characteristics appearing in the IFB's SOWs. The salient characteristics were also repeated on the bid schedules. Contrary to the protester's assertion, the submission of the IFB specifications without even identifying the models being offered does not constitute the submission of descriptive literature such as "cuts, illustrations, drawings, and brochures" furnished by a bidder with its bid describing a bidder's offered product. See FAR Sec. 14.202-5(a).

3. Although not determinative, we point out that the other bidders identified their equipment by a manufacturer's name and model number with specific features and submitted detailed descriptive literature with their bids.

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