B-132390, SEP. 5, 1957

B-132390, SEP. 5, 1957

TO GARDNER-DENVER COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 21, 1957, PROTESTING THE REJECTION OF YOUR LOW BID AND THE AWARD OF THE CONTRACT TO THE SECOND LOW BIDDER.

THE DEPARTMENT OF THE AIR FORCE HAS FURNISHED OUR OFFICE WITH A REPORT ON THIS MATTER, INCLUDING COPIES OF CORRESPONDENCE AND OF THE INVITATION AND BIDS. INVITATION NO. 09-603-57-436, ISSUED MARCH 28, 1957, SOLICITED BIDS FOR SUPPLYING 119 PORTABLE PNEUMATIC GRINDERS IN ACCORDANCE WITH PURCHASE DESCRIPTION WRMT-56-G-144, DATED APRIL 11, 1956. PARAGRAPH 3.1.4 OF THE PURCHASE DESCRIPTION, INSOFAR AS PERTINENT, STATED,"THE GRINDER MOTOR SHALL BE PROVIDED WITH A SUITABLE AND ADEQUATE MEANS OF LUBRICATION.' PARAGRAPH 5.1 OF THE PURCHASE DESCRIPTION LISTED YOUR GRINDER, AMONG OTHERS, AS ACCEPTABLE. PARAGRAPH B OF THE INVITATION PROVIDED.

"DESCRIPTIVE LITERATURE: (A) ALL BIDDERS UNDER THIS INVITATION FOR BIDS WILL BE REQUIRED TO SUBMIT TO THE GOVERNMENT THE DESCRIPTIVE LITERATURE LISTED BELOW: SUCH LITERATURE SHALL BE SUBMITTED WITH THE BIDS AND SHALL CONFORM IN EVERY RESPECT WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS. SINCE DESCRIPTIVE LITERATURE IS REQUIRED FOR EVALUATING BIDS, NON- CONFORMING LITERATURE SHALL RESULT IN REJECTION OF THAT BID. THE DESCRIPTIVE LITERATURE RELATIVE TO DESIGN APPROACHES, ETC., WHICH WILL BE REQUIRED FOR EVALUATION PURPOSES IS AS FOLLOWS:

"/1) OUTLINE CLEARLY HOW ALL THE ESSENTIAL REQUIREMENTS WILL BE MET (NOT JUST A STATEMENT THAT THE REQUIREMENTS WILL BE MET OR NO EXCEPTION TAKEN).

"/2) INDICATE WHAT IS PROPOSED OR WILL BE FURNISHED IN ALL INSTANCES WHEREIN A REQUIREMENT WAS SPELLED OUT, BUT SELECTION OR DETERMINATION OF THE ITEM, TECHNIQUE, DESIGN, OR MATERIAL TO SATISFY THE REQUIREMENT IS LEFT UP TO THE VENDOR.

"/3) DESCRIPTION OF THE PROPOSED ITEM WHICH SHOULD INCLUDE CATALOGS, CUTS, DIAGRAMS, BLUE PRINTS, COMMERCIAL HANDBOOK, OR SUCH OTHER DESCRIPTIVE INFORMATION AS MAY BE REQUIRED TO SHOW FULL COMPLIANCE WITH THE PROCUREMENT DATA.

"/4) LIST ACCESSORIES OR ATTACHMENTS WHICH WILL BE FURNISHED.

"/5) DEVIATIONS

"/B) FAILURE OF A BIDDER TO HAVE FURNISHED DESCRIPTIVE LITERATURE WILL RESULT IN REJECTION OF THAT BID. HOWEVER, THE BID WILL NOT BE REJECTED IF THE BIDDER HAS PREVIOUSLY OFFERED A PRODUCT WHICH HAS BEEN PREVIOUSLY PROCURED SO THAT ADDITIONAL DESCRIPTIVE LITERATURE WOULD NOT ADD TO THE GOVERNMENT'S KNOWLEDGE OF THE ACCEPTABILITY OF THE PRODUCT. THE CONTRACTING OFFICER WILL VERIFY THAT THE PRODUCT PREVIOUSLY PROCURED IS ADEQUATE TO MEET THE REQUIREMENTS OF THIS INVITATION FOR BIDS. UPON VERIFICATION, THE REQUIREMENT FOR FURNISHING DESCRIPTIVE LITERATURE MAY BE WAIVED AS TO THAT BIDDER.'

SIX BIDS WERE RECEIVED AND OPENED. YOU SUBMITTED A LOW BID OF $37.50 PER UNIT AND THE NEXT LOW BIDDER SUBMITTED A PRICE OF $46.20 PER UNIT. WITH YOUR BID YOU SUBMITTED CERTAIN SALES AND ENGINEERING LITERATURE WHICH INDICATED THAT AN AIRLINE LUBRICATOR WAS REQUIRED FOR LUBRICATION OF THE GRINDER YOU OFFERED TO SUPPLY, BUT WAS NOT AN INTEGRAL PART OF THE BASIC GRINDER. THE DESCRIPTIVE LITERATURE FURNISHED BY YOU DID NOT INCLUDE ANY DESCRIPTION OR DATA PERTAINING TO AN AIRLINE LUBRICATOR, AND YOUR LIST OF ACCESSORIES AND ATTACHMENTS TO BE FURNISHED DID NOT INCLUDE ANY SUCH ITEM. THE CONTRACTING OFFICER CONSIDERED THIS A MAJOR DEVIATION FROM THE TERMS OF THE INVITATION AND CONCLUDED THAT YOUR BID DID NOT INCLUDE THE FURNISHING OF A SUITABLE MEANS OF LUBRICATION AS REQUIRED BY THE PURCHASE DESCRIPTION. FURTHERMORE, THE CONTRACTING OFFICER DID NOT CONSIDER IT PROPER TO PERMIT YOU TO CLARIFY YOUR INTENTION AFTER THE OPENING OF BIDS HAD TAKEN PLACE. THEREFORE, YOUR BID WAS REJECTED AS NON-RESPONSIVE FOR FAILURE TO COMPLY WITH PARAGRAPH M OF THE INVITATION.

IN YOUR PROTEST YOU CONTEND: (1) THAT THE CONTRACTING OFFICER, ACTING IN THE INTEREST OF THE GOVERNMENT, SHOULD HAVE REQUESTED ADDITIONAL DESCRIPTIVE LITERATURE INASMUCH AS YOUR BID PRICE WAS THE LOWEST; (2) THAT IN THE PAST YOU HAVE FURNISHED TO THE AIR FORCE SEVERAL HUNDRED OF THE IDENTICAL ITEMS SPECIFIED IN THE SUBJECT INVITATION; AND (3) THAT IN THE ABSENCE OF AN EXCEPTION STATED IN YOUR BID, THE CONTRACTING OFFICER IS REQUIRED TO ACCEPT YOUR LOW BID AND TO DIRECT YOU TO FURNISH THE LUBRICATOR.

PARAGRAPH H OF THE INVITATION REQUIRED IN MANDATORY TERMS THAT THE DESCRIPTIVE LITERATURE ,SHALL" BE SUBMITTED WITH THE BID FOR THE PURPOSE OF EVALUATING THE BID AND SPECIFICALLY WARNED THAT THE FAILURE TO FURNISH DATA CONFORMING IN EVERY RESPECT WITH THE REQUIREMENTS OF THE INVITATION WOULD RESULT IN REJECTION OF THE BID. IN PARAGRAPH H, BIDDERS WERE FOREWARNED TO OUTLINE HOW ALL ESSENTIAL REQUIREMENTS WOULD BE MET, TO INDICATE WHAT WOULD BE FURNISHED, AND TO LIST THE ACCESSORIES OR ATTACHMENTS THAT WOULD BE FURNISHED. IT IS APPROPRIATE FOR AN INVITATION TO CONDITION THE CONSIDERATION AND EVALUATION OF A BID UPON THE FURNISHING OF DESCRIPTIVE DATA. 36 COMP. GEN. 376 AND ID. 415. THE FAILURE TO SUBMIT THE DESCRIPTIVE DATA IN QUESTION CANNOT BE WAIVED AND TO ACCEPT AND CONSIDER SUCH MATERIAL AFTER THE BID OPENING WOULD BE UNAUTHORIZED, 36 COMP. GEN. 415. "CONDITIONS OR RESERVATIONS WHICH GIVE A BIDDER A CHANCE TO SECOND-GUESS HIS COMPETITORS AFTER BID-OPENING MUST BE REGARDED AS FATAL TO THE BID.' 34 COMP. GEN. 82, 84. THE PRESERVATION OF THE COMPETITIVE BIDDING SYSTEM IS MORE BENEFICIAL TO THE GOVERNMENT FROM A LONG-RANGE STANDPOINT THAN A PECUNIARY SAVINGS REALIZED IN AN INDIVIDUAL CASE. 17 COMP. GEN. 554 AND 34 COMP. GEN. 82, 84. CF. UNITED STATES V. BROOKRIDGE FARMS, 111 F.2D 461, 464, AND CITY OF CHICAGO V. NOHR, 74 N.E. 1056.

IN REGARD TO YOUR CONTENTION THAT YOU HAVE FURNISHED THE AIR FORCE HUNDREDS OF THE IDENTICAL ITEMS SPECIFIED IN THE SUBJECT INVITATION, YOU DID NOT INDICATE IN YOUR BID THAT YOU WERE OFFERING TO PROVIDE A PRODUCT WHICH YOU HAD PREVIOUSLY FURNISHED TO THE GOVERNMENT, AND IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER HAD ANY PERSONAL KNOWLEDGE OF GRINDERS WHICH MAY HAVE BEEN PREVIOUSLY FURNISHED BY YOU. IN THE ABSENCE OF SPECIFIC REFERENCE BY YOU TO SUCH PREVIOUS TRANSACTIONS, WHICH MIGHT HAVE BEEN OFFERED UNDER PARAGRAPH H (B) AS AN ALTERNATIVE TO DESCRIPTIVE LITERATURE, YOUR BID HAD TO BE CONSTRUED ON THE BASIS OF THE DESCRIPTIVE LITERATURE FURNISHED.

IN CONNECTION WITH YOUR CONTENTION THAT IN THE ABSENCE OF AN EXCEPTION STATED IN YOUR BID, THE CONTRACTING OFFICER IS REQUIRED TO ACCEPT YOUR LOW BID AND TO DIRECT YOU TO FURNISH THE LUBRICATOR, THE QUESTION IS WHETHER ACCEPTANCE OF YOUR BID AS SUBMITTED WOULD HAVE OBLIGATED YOU TO FURNISH IT. CONSIDERING THE TERMS OF THE INVITATION AND OF YOUR BID, WE ARE OF OPINION THAT IT WOULD BE HIGHLY QUESTIONABLE AS A MATTER OF LAW WHETHER YOU COULD HAVE BEEN REQUIRED TO DO SO.

WE THEREFORE CONCLUDE THAT WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE ACTION TAKEN.