B-135326, MARCH 25, 1958, 37 COMP. GEN. 640

B-135326: Mar 25, 1958

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1958: REFERENCE IS MADE TO LETTER DATED FEBRUARY 21. THE DESCRIPTIVE LITERATURE WAS REQUIRED TO CONTAIN. A STATEMENT THAT THE BIDDER WILL COMPLY FULLY WITH THE REQUIREMENTS OF THE GOVERNING SPECIFICATION. AN EXPLANATION OF THE CONTROL OPERATIONS AND FUNCTIONS WHICH WILL PROVIDE FOR COMPLIANCE WITH THE PERFORMANCE REQUIREMENTS OF THE PROCUREMENT DATA UNDER THE SPECIFIED OPERATION AND ENVIRONMENTAL CONDITIONS. IN AN ACCOMPANYING LETTER THE BIDDER STATED THAT THE SEALED ENVELOPE CONTAINED THE DESCRIPTIVE LITERATURE REQUIRED BY PARAGRAPH Q OF THE INVITATION AND REQUESTED THAT ITS CONTENTS NOT BE DISCLOSED TO THE PUBLIC SINCE IT WAS INTENDED ONLY FOR USE OF GOVERNMENT PERSONNEL IN EVALUATING THE BID.

B-135326, MARCH 25, 1958, 37 COMP. GEN. 640

BIDS - PUBLIC OPENING - DESCRIPTIVE LITERATURE PROVISION FOR PUBLIC OPENING OF BIDS IN 10 U.S.C. 2305 DOES NOT REQUIRE THAT DETAILED DESCRIPTIVE LITERATURE CALLED FOR IN INVITATION FOR EVALUATION PURPOSES BE MADE AVAILABLE FOR PUBLIC SCRUTINY UNDER AN INVITATION WHICH REQUIRES CONFORMANCE TO THE SPECIFICATIONS AND DOES NOT PERMIT VARIANCE WITH THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS.

TO THE SECRETARY OF THE AIR FORCE, MARCH 25, 1958:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 21, 1958, FROM THE DEPUTY ASSISTANT SECRETARY, REQUESTING A DECISION AS TO WHETHER IT WOULD BE PROPER TO COMPLY WITH THE REQUEST OF KELLOGG DIVISION, AMERICAN BRAKE SHOE COMPANY, CONTAINED IN ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. IFB 101-608-58-11.

THE INVITATION REQUESTED BIDS FOR FURNISHING A NUMBER OF COMPRESSORS, TYPE MB-9, IN ACCORDANCE WITH SPECIFICATION MIL-C-26810 ( USAF) DATED MARCH 27, 1956, AND AMENDMENT 1 DATED NOVEMBER 29, 1956. PARAGRAPH Q, PAGE 11, OF THE INVITATION REQUIRED BIDDERS TO SUBMIT WITH THEIR BIDS DESCRIPTIVE LITERATURE FOR EVALUATION PURPOSES AND PROVIDED THAT NONCONFORMING LITERATURE WOULD RESULT IN THE REJECTION OF THE BID. THE DESCRIPTIVE LITERATURE WAS REQUIRED TO CONTAIN, AMONG OTHER THINGS, A STATEMENT THAT THE BIDDER WILL COMPLY FULLY WITH THE REQUIREMENTS OF THE GOVERNING SPECIFICATION; A DISCUSSION OF THE BASIC PROBLEMS ANTICIPATED AND THE APPROACH OR APPROACHES TO BE APPLIED TO THE SOLUTION OF THESE PROBLEMS; OUTLINE DRAWINGS OF THE OVERALL UNIT AND MAJOR COMPONENTS THEREOF; SCHEMATIC DIAGRAMS FOR THE COMPRESSOR UNIT SHOWING PIPING, CONNECTIONS, CONTROLS, PROTECTIVE DEVICES, ETC.; AN EXPLANATION OF THE CONTROL OPERATIONS AND FUNCTIONS WHICH WILL PROVIDE FOR COMPLIANCE WITH THE PERFORMANCE REQUIREMENTS OF THE PROCUREMENT DATA UNDER THE SPECIFIED OPERATION AND ENVIRONMENTAL CONDITIONS; AND A DETAILED DESCRIPTION OF THE TEST PROGRAM PROPOSED FOR COMPLIANCE WITH THE REQUIREMENTS OF SECTION 4 OF THE GOVERNING SPECIFICATIONS.

IN RESPONSE TO THE INVITATION THE KELLOGG DIVISION, AMERICAN BRAKE SHOE COMPANY, SUBMITTED A BID ON STANDARD FORM 30 FOR THE COMPRESSORS, SPARE PARTS, ETC., AND ATTACHED A SEALED ENVELOPE. IN AN ACCOMPANYING LETTER THE BIDDER STATED THAT THE SEALED ENVELOPE CONTAINED THE DESCRIPTIVE LITERATURE REQUIRED BY PARAGRAPH Q OF THE INVITATION AND REQUESTED THAT ITS CONTENTS NOT BE DISCLOSED TO THE PUBLIC SINCE IT WAS INTENDED ONLY FOR USE OF GOVERNMENT PERSONNEL IN EVALUATING THE BID.

THE QUESTION PRESENTED IS WHETHER THE REQUIREMENTS FOR PUBLIC OPENING OF BIDS AS SET FORTH IN SECTION 2305, TITLE 10, U.S.C. REQUIRE THAT SUCH DESCRIPTIVE LITERATURE BE MADE AVAILABLE FOR PUBLIC SCRUTINY AT THE BID OPENING OR WHETHER THAT SECTION WOULD BE SATISFIED BY A PUBLIC OPENING AND READING OF THE BID PRICES FOLLOWED BY A PUBLIC POSTING OF AN ABSTRACT OF BIDS CONTAINING THE USUAL INFORMATION BUT NOT REVEALING THE DETAILS OF THE DESCRIPTIVE LITERATURE.

SECTION 2305, TITLE 10, U.S.C. REQUIRES THAT SPECIFICATIONS AND INVITATIONS BE SO DRAWN AS TO PERMIT FREE AND FULL COMPETITION AND THAT THE BIDS BE OPENED PUBLICLY AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT. THE INSTANT ADVERTISEMENT REQUESTS BIDS FOR COMPRESSORS IN ACCORDANCE WITH CERTAIN SPECIFICATIONS. BIDS NOT OFFERING TO COMPLY WITH THE SPECIFICATIONS ARE FOR REJECTION. THE DESCRIPTIVE LITERATURE APPARENTLY IS FOR THE PURPOSE OF SHOWING TO THE GOVERNMENT THAT THE BIDDER CAN, AND INTENDS TO, FURNISH EQUIPMENT WHICH WILL MEET THE REQUIREMENTS OF THE SPECIFICATIONS. THE LITERATURE MAY NOT VARY THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS AS SET FORTH IN THE ADVERTISEMENT.

IT IS OUR OPINION THAT THE PROVISION OF SECTION 2305, TITLE 10, U.S.C. IS FULLY COMPLIED WITH BY THE PUBLIC OPENING OF THE BIDS AND MAKING AVAILABLE FOR PUBLIC SCRUTINY THE INFORMATION NORMALLY REQUIRED BY THE BID FORM WITH RESPECT TO PRICES, DISCOUNT, DELIVERY, ETC. THERE IS NO REQUIREMENT THAT THERE BE MADE AVAILABLE FOR PUBLIC SCRUTINY THE DETAILED DESCRIPTIVE LITERATURE, EVEN IF REQUIRED TO BE SUBMITTED WITH THE BID, WHICH IS INTENDED MERELY TO SHOW HOW THE BIDDER PROPOSES TO MANUFACTURE AND TEST THE EQUIPMENT SO THAT IT WILL MEET SPECIFICATION REQUIREMENTS.

ACCORDINGLY, YOU ARE ADVISED THAT THE DESCRIPTIVE LITERATURE SUBMITTED BY KELLOGG DIVISION, AMERICAN BRAKE SHOE COMPANY, NEED NOT BE MADE AVAILABLE TO THE PUBLIC.