B-145026, MAR. 23, 1961

B-145026, MAR. 23, 1961

TO ALLIS-CHALMERS MANUFACTURING COMPANY:

BY TELEGRAM OF FEBRUARY 9 AND LETTER OF FEBRUARY 10, 1961, YOU HAVE PROTESTED THE REJECTION BY THE NAVY PURCHASING OFFICE OF YOUR LOW BID SUBMITTED PURSUANT TO INVITATION NO. 600-365-61 ISSUED NOVEMBER 10, 1960, FOR THE PROCUREMENT OF 30 FORK LIFT TRUCKS.

THE INVITATION REQUIRED THAT THE CONTRACTOR FURNISH, IN ADDITION TO THE TRUCKS, REPAIR PARTS AND TECHNICAL MANUALS, DESIGN DATA AND DRAWINGS, AND TECHNICAL AND CATALOGING DATA FOR PROVISIONING IN ACCORDANCE WITH MIL-P- 15137B/SHIPS) DATED JANUARY 20, 1959. BIDS WERE OPENED AS SCHEDULED ON DECEMBER 7, 1960. YOUR BID WAS FOUND TO BE LOW. HOWEVER, YOUR BID WAS ACCOMPANIED BY A NOTE READING, IN PART, AS FOLLOWS:

"AS A MATTER OF CLARIFICATION OF OUR COMPLIANCE WITH SUBJECT DATA CLAUSE, WE PROPOSE TO FURNISH DATA AND DRAWINGS OF SUFFICIENT DETAIL FOR PURPOSES OF IDENTIFICATION AND STOCKAGE RECORDS FOR PARTS OF OUR MANUFACTURE AT NO COST TO THE GOVERNMENT. SUBCONTRACTOR DATA AND DRAWINGS OF SUFFICIENT DETAIL TO FULFILL IDENTIFICATION PURPOSES AND STOCKAGE RECORDS WILL BE SUPPLIED SUBJECT TO OUR ABILITY TO PROCURE SAME FROM THE SUBCONTRACTORS. PROPRIETARY DATA PROVIDING INFORMATION CONCERNING THE DETAILS OF OUR SECRETS OF MANUFACTURE WILL NOT BE FURNISHED.'

UPON A DETERMINATION BY THE CONTRACTING OFFICER THAT THE UNDERLINED SENTENCE IN THE QUOTATION CONSTITUTED A MATERIAL QUALIFICATION, YOUR BID WAS REJECTED AND AWARD WAS MADE TO ANOTHER BIDDER.

IT IS YOUR CONTENTION THAT THE NOTE ACCOMPANYING YOUR BID SHOULD BE REGARDED SOLELY AS RESERVING THE RIGHT NOT TO FURNISH DATA AND DRAWINGS ON SUBCONTRACTOR-FURNISHED MATERIALS IF SUCH DATA AND DRAWINGS CONSTITUTED PROPRIETARY DATA. YOU ALLEGE THAT SUCH RESERVATION IS NOT A QUALIFICATION OF THE BID BUT IS ENTIRELY CONSISTENT WITH PROVISION (I) OF THE SCHEDULE, WHICH STATES:

"/I) NOTWITHSTANDING ANY TABLES OR SPECIFICATIONS INCLUDED OR INCORPORATED IN THE CONTRACT BY REFERENCE,"PROPRIETARY DATA" NEED NOT BE FURNISHED UNLESS SUITABLY IDENTIFIED IN THE SCHEDULE OF THE CONTRACT AS BEING REQUIRED. FOR THE PURPOSE OF THIS CLAUSE,"PROPRIETARY DATA" MEANS DATA PROVIDING INFORMATION CONCERNING THE DETAILS OF A CONTRACTOR'S SECRETS OF MANUFACTURE, SUCH AS MAY BE CONTAINED IN BUT NOT LIMITED TO HIS MANUFACTURING METHODS OR PROCESSES, TREATMENT AND CHEMICAL COMPOSITION OF MATERIALS, PLANT LAYOUT AND TOOLING, TO THE EXTENT THAT SUCH INFORMATION IS NOT DISCLOSED BY INSPECTION OR ANALYSIS OF THE PRODUCT ITSELF AND TO THE EXTENT THAT THE CONTRACTOR HAS PROTECTED SUCH INFORMATION FROM UNRESTRICTED USE BY OTHERS.'

IT IS ELEMENTARY THAT A BID TO BE CONSIDERED RESPONSIVE MUST CONFORM TO THE MATERIAL REQUIREMENTS OF THE INVITATION. RESERVING THE RIGHT TO REFUSE TO FURNISH SUBCONTRACTOR DATA REQUIRED BY THE TERMS OF THE INVITATION MUST BE DEEMED A MATERIAL DEVIATION UNLESS SUCH RESERVATION MAY PROPERLY BE REGARDED AS WITHIN ONE OF THE EXCEPTIONS SPECIFIED IN THE INVITATION. B-141871, MARCH 15, 1960. IN OUR VIEW THE EXCEPTION WITH RESPECT TO SUBCONTRACTOR DATA AND DRAWINGS MUST, THEREFORE, BE REGARDED AS A MATERIAL QUALIFICATION UNLESS THE LANGUAGE EMPLOYED MAY REASONABLY BE SAID TO APPLY ONLY TO PROPRIETARY DATA WHICH, UNDER THE EXPRESS TERMS OF PARAGRAPH (I), WOULD NOT HAVE TO BE FURNISHED IN ANY CASE.

THE QUALIFICATION IN YOUR BID APPEARS SUFFICIENTLY BROAD TO COVER BOTH THE REQUIREMENT IN ITEM NO. 4 FOR DESIGN DATA AND DRAWINGS AND THAT IN ITEM NO. 5 FOR TECHNICAL AND CATALOGING DATA. WHILE THE FORMER MIGHT READILY CONTAIN PROPRIETARY INFORMATION, IT IS DIFFICULT TO CONCEIVE THAT ANY SIGNIFICANT AMOUNT OF SUCH INFORMATION WOULD BE INCLUDED IN THE LATTER. A MATERIAL QUALIFICATION OF THE BIDDER'S OFFER TO COMPLY WITH EITHER ITEM WOULD, UNLESS COVERED BY AN EXCEPTION, WARRANT REJECTION OF THE BID.

IN ANALYZING THE PARAGRAPH QUOTED FROM THE ATTACHMENT TO YOUR BID, WE NOTE THAT THE FIRST SENTENCE, WHICH APPEARS TO COMPLY WITH THE DATA FURNISHING REQUIREMENT, IS LIMITED TO PARTS OF YOUR OWN MANUFACTURE. THE LAST SENTENCE WITHDRAWS FROM THE OFFER PROPRIETARY DATA CONCERNING YOUR (AS DISTINGUISHED FROM SUBCONTRACTORS-) SECRETS OF MANUFACTURE. THE MIDDLE SENTENCE OF THE PARAGRAPH, ON ITS FACE, OFFERS TO FURNISH SUBCONTRACTOR DATA AND DRAWINGS SUBJECT TO YOUR ABILITY TO PROCURE THEM FROM THE SUBCONTRACTORS. THE INFORMATION COVERED BY THAT SENTENCE APPEARS TO BE AS BROAD AS THAT COVERED BY THE FIRST SENTENCE. IF, AS YOU CONTEND, THE QUALIFICATION ON THE FURNISHING OF SUBCONTRACTORS' DATA AND DRAWINGS WAS INTENDED TO APPLY ONLY TO PROPRIETARY DATA, SUCH QUALIFICATION SHOULD HAVE EITHER BEEN INCLUDED IN THE LAST SENTENCE OR IN A SENTENCE EMPLOYING THE SAME GENERAL LANGUAGE.

IN VIEW OF THE BROAD SCOPE OF THE MIDDLE SENTENCE AND THE LIMITATION IN THE FIRST SENTENCE TO PARTS OF YOUR OWN MANUFACTURE, WE MUST CONCLUDE THAT THE ONLY REASONABLE INTERPRETATION OF THE PARAGRAPH IN QUESTION IS THAT ADOPTED BY THE CONTRACTING OFFICER. IN ACCORDANCE WITH THIS CONCLUSION, WE FIND THAT THERE HAS BEEN PRESENTED NO BASIS UPON WHICH TO QUESTION THE LEGALITY OF ..END :