B-144437, FEB. 23, 1961

B-144437: Feb 23, 1961

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ESQUIRE: WE HAVE YOUR LETTER OF FEBRUARY 3. IN WHICH IT WAS HELD THAT THE BID SUBMITTED BY BEAR UNDER INVITATION NO. ENG-44-008-61-14 WAS PROPERLY REGARDED BY THE CONTRACTING AGENCY AS NONRESPONSIVE. NO DESCRIPTIVE LITERATURE WAS REQUIRED TO BE FURNISHED BY THE BIDDERS. WHEN BIDS WERE OPENED ON AUGUST 19. IT WAS FOUND THAT THE LOW BID SUBMITTED BY BEAR. WHICH WAS COMPLETE AND REGULAR ON ITS FACE. WAS ACCOMPANIED BY A BROCHURE CONTAINING WHAT APPEAR TO BE PAGES FROM A CATALOGUE SHOWING PICTURES. WHICH WAS HEADED "PROPOSAL. " WAS ADDRESSED TO THE PROCUREMENT OFFICE. THE DETERMINATION WAS PROTESTED ON THE BASIS THAT THE DIAMETRAL RANGE LISTED WAS ERRONEOUS AND THAT THE MACHINE OFFERED IN FACT HAD A RANGE OF 72 INCHES.

B-144437, FEB. 23, 1961

TO ROBERT S. MOSS, ESQUIRE:

WE HAVE YOUR LETTER OF FEBRUARY 3, 1961, REQUESTING, ON BEHALF OF THE BEAR MANUFACTURING COMPANY, RECONSIDERATION OF OUR DECISION B 144437, JANUARY 27, 1961, IN WHICH IT WAS HELD THAT THE BID SUBMITTED BY BEAR UNDER INVITATION NO. ENG-44-008-61-14 WAS PROPERLY REGARDED BY THE CONTRACTING AGENCY AS NONRESPONSIVE.

THE INVITATION, ISSUED AUGUST 9, 1960, BY THE UNITED STATES ARMY ENGINEER CENTER, FORT BELVOIR, VIRGINIA, SOLICITED BIDS FOR THREE INDUSTRIAL TYPE BALANCERS WITH A DIAMETRAL RANGE OF 1 TO 68 INCHES. NO DESCRIPTIVE LITERATURE WAS REQUIRED TO BE FURNISHED BY THE BIDDERS.

WHEN BIDS WERE OPENED ON AUGUST 19, 1960, IT WAS FOUND THAT THE LOW BID SUBMITTED BY BEAR, WHICH WAS COMPLETE AND REGULAR ON ITS FACE, WAS ACCOMPANIED BY A BROCHURE CONTAINING WHAT APPEAR TO BE PAGES FROM A CATALOGUE SHOWING PICTURES, SPECIFICATIONS AND OTHER INFORMATION ON A NUMBER OF BALANCING MACHINES MANUFACTURED BY BEAR. IN ADDITION, THE BROCHURE INCLUDED A TYPED LETTER DATED AUGUST 18, 1960, SIGNED BY THE BEAR VICE PRESIDENT WHO ALSO SIGNED THE BID FORM, WHICH WAS HEADED "PROPOSAL," WAS ADDRESSED TO THE PROCUREMENT OFFICE, AND REFERENCED THE INVITATION. THE LETTER PURPORTED TO DESCRIBE A MODEL 375-R-HD BEAR MACHINE AND SPECIFICALLY LISTED THE MAXIMUM DIAMETRAL RANGE AS 60 INCHES. ONE OF THE CATALOGUE PAGES ALSO COVERED A MODEL 375-R-HD AND GAVE THE SAME MAXIMUM DIAMETRAL RANGE. THE LETTER FURTHER PROVIDED THAT NAME PLATE DATA, MANUALS AND PARTS LISTS WOULD BE PROVIDED AS REQUIRED AND SPECIFIED, AND SHOWED THE SAME UNIT PRICE AND TIME OF DELIVERY AS THE BID PROPER.

THE CONTRACTING OFFICER DETERMINED THAT THE BEAR BID SHOULD BE REJECTED AS NONRESPONSIVE BECAUSE OF THE DISCREPANCY BETWEEN THE MAXIMUM DIAMETER SHOWN IN THE BROCHURE AND THAT REQUIRED BY THE SPECIFICATIONS. THE DETERMINATION WAS PROTESTED ON THE BASIS THAT THE DIAMETRAL RANGE LISTED WAS ERRONEOUS AND THAT THE MACHINE OFFERED IN FACT HAD A RANGE OF 72 INCHES. IT WAS ALSO URGED THAT THE BROCHURE SHOULD NOT BE REGARDED AS QUALIFYING THE BID AND THAT ANY DISCREPANCY WHICH MAY HAVE EXISTED WAS CURED BY AN OVERALL OFFER TO COMPLY. BY OUR DECISION OF JANUARY 27, 1961, WE HELD, FOR THE REASONS THEREIN STATED, THAT THE DECISION OF THE CONTRACTING OFFICER TO REGARD THE BEAR BID AS NONRESPONSIVE WAS PROPER.

YOU URGE RECONSIDERATION OF OUR EARLIER DECISION ON THE GROUNDS THAT THE SUBMISSION OF THE BROCHURE WAS A PURELY GRATUITOUS ACT BY THE BIDDER AND SHOULD NOT BE REGARDED AS QUALIFYING THE BID IN ANY MANNER IN THE ABSENCE OF SOME INDICATION IN THE BID PROPER THAT THE BROCHURE WAS SO INTENDED. IN YOUR LETTER OF NOVEMBER 11, 1960, YOU POINT OUT THAT SECTION 1-2.202-5 (F) OF THE FEDERAL PROCUREMENT REGULATIONS IS CONSISTENT WITH YOUR POSITION.

THE CITED PROVISION OF THE FPR WAS FIRST PROMULGATED BY FPR CIRCULAR NO. 11, ISSUED AUGUST 30, 1960, ELEVEN DAYS AFTER BID OPENING. THE EFFECTIVE DATE OF THE PROVISION, BY THE TERMS OF THE CIRCULAR, WAS DECEMBER 1, 1960, ALTHOUGH IT WAS PROVIDED THAT IT COULD BE OBSERVED EARLIER. THUS, THE CONTRACTING AGENCY COULD PROPERLY HAVE DISREGARDED THE SECTION AT THE TIME THE DETERMINATION AS TO RESPONSIVENESS WAS MADE.

WE NOTE FURTHER THAT THIS IS A PROCUREMENT BY ONE OF THE SERVICES WITHIN THE DEPARTMENT OF DEFENSE. WITH RESPECT TO THE APPLICABILITY OF THE FPR TO THE MILITARY SERVICES, PARAGRAPH 5 OF THE INTRODUCTION TO THE FPR STATES:

"RELATIONSHIP TO THE DEPARTMENT OF DEFENSE. WHILE THE FEDERAL PROCUREMENT REGULATIONS ARE APPLICABLE TO ALL EXECUTIVE AGENCIES, THEY ARE NOT MADE MANDATORY ON THE DEPARTMENT OF DEFENSE, EXCEPT WITH RESPECT TO MATTERS CONCERNING STANDARD GOVERNMENT FORMS AND CLAUSES, FEDERAL SPECIFICATIONS AND STANDARDS, AND EXCEPT AS DIRECTED BY THE PRESIDENT, CONGRESS, OR OTHER AUTHORITY. THEREFORE, THE EXTENT OF IMPLEMENTATION OF FPR BY THE DEPARTMENT OF DEFENSE AND PARTICIPATION IN THE SYSTEM WILL BE DETERMINED BY THAT DEPARTMENT. HOWEVER, COORDINATION WITH THAT DEPARTMENT IN THE DEVELOPMENT AND ISSUANCE OF THESE REGULATIONS IS CONTEMPLATED.'

IT IS CUSTOMARY, WHEN IT IS DETERMINED BY THE DEPARTMENT OF DEFENSE TO ADOPT PROVISIONS OF THE FPR, TO PUBLISH THEM IN THE ARMED SERVICES PROCUREMENT REGULATION. THE CITED PROVISION OF THE FPR WAS ADOPTED IN ASPR 2-202.5 (F) BY REVISION NO. 2 ISSUED OCTOBER 3, 1960, AFTER THE CONTRACTING OFFICER HAD DECIDED THE BID WAS NONRESPONSIVE.

IN ANY CASE, WE DO NOT BELIEVE THE DATES OF ADOPTION OF THE PROVISION ARE SIGNIFICANT SINCE IT SIMPLY EMBODIES A PRINCIPLE PREVIOUSLY APPLIED BY OUR OFFICE. THE PROVISION STATES:

"UNSOLICITED DESCRIPTIVE LITERATURE. IF THE FURNISHING OF DESCRIPTIVE LITERATURE IS NOT REQUIRED BY THE INVITATION FOR BIDS, BUT SUCH LITERATURE IS FURNISHED WITH A BID, IT WILL NOT BE CONSIDERED AS QUALIFYING THE BID, AND WILL BE DISREGARDED, UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE BIDDER'S INTENTION SO TO QUALIFY THE BID.'

IN OUR DECISION 39 COMP. GEN. 878 WE CONSIDERED A CASE WHERE THE LOW BIDDER HAD, IN RESPONSE TO AN INVITATION WHICH HAD NO DESCRIPTIVE DATA REQUIREMENT, SUBMITTED WITH HIS BID PAGES FROM HIS CATALOGUE PROVIDING PICTURES, DRAWINGS AND OTHER SPECIFICATION INFORMATION ON SEVERAL OF HIS PRODUCTS. IT WAS NOTED, HOWEVER, THAT NOTHING IN THE BID OR LITERATURE INDICATED THE PARTICULAR MODEL INTENDED TO BE FURNISHED AND THAT NEITHER THE BID NOR THE LITERATURE CONTAINED ANY LEGEND OR OTHER REFERENCES FROM WHICH IT MIGHT BE INFERRED THAT THE LITERATURE WAS INTENDED TO CONSTITUTE A PART OF THE BID. WE HELD IN THAT CASE:

"* * * 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.'

THAT DECISION FOLLOWS THE REASONING OF B-136050, JUNE 18, 1958.

BOTH OF THE DECISIONS CITED ABOVE ARE DISTINGUISHED FROM 36 COMP. GEN. 705, IN WHICH THE UNSOLICITED DESCRIPTIVE LITERATURE WAS IN THE FORM OF A DRAWING CONTAINING MATERIAL VARIANCES FROM THE SPECIFICATIONS ON WHICH THE BIDDER HAD WRITTEN THE NAME OF THE CONTRACTING AGENCY, THE INVITATION NUMBER AND OTHER DATA. WE HELD IN THAT CASE THAT THE BID MUST BE REGARDED AS QUALIFIED BY THE DESCRIPTIVE LITERATURE. IN OUR VIEW, THE SITUATION HERE JUSTIFIES THE SAME CONCLUSION.

A BID WHICH IS RESPONSIVE TO THE TERMS OF AN INVITATION IS AN OFFER WHICH UPON ACCEPTANCE RIPENS INTO A CONTRACT. AWARD MAY BE MADE UNDER 10 U.S.C. 2305 (C) ONLY TO A BIDDER WHOSE BID CONFORMS TO THE INVITATION. OUR POSITION, CONSISTENT WITH THE TERMS OF THE CITED REGULATORY PROVISION, IS THAT UNSOLICITED LITERATURE OF A GENERAL OR VARIED NATURE ACCOMPANYING A BID MAY, IN THE ABSENCE OF ANY INDICATION TO THE CONTRARY, BE REGARDED AS GENERAL BACKGROUND INFORMATION NOT QUALIFYING THE BID. HOWEVER, WHERE THE BIDDER SUBMITS A TYPEWRITTEN LETTER SPECIFICALLY REFERENCED TO THE INVITATION AND DESCRIBING AN INDIVIDUAL ITEM OF PROCUREMENT, AS IN THIS CASE, WE BELIEVE THAT THE BIDDER HAS DEMONSTRATED AN INTENTION TO MAKE SUCH LETTER A PART OF HIS BID. UNDER OUR DECISIONS AND THE REGULATIONS THE BID, IN SUCH CASE, MUST BE REGARDED AS QUALIFIED BY THE CONTENTS OF THE LETTER.

IN ACCORDANCE WITH THE FOREGOING, OUR DECISION OF JANUARY 27, 1961, IS AFFIRMED.

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