B-145930, AUG. 4, 1961

B-145930, AUG. 4, 1961

TO COLLINS, LANGFORD AND PINE:

BY LETTERS DATED MAY 18 AND 22, 1961, YOU PROTESTED, ON BEHALF OF THE BARTON CONSTRUCTION COMPANY, INC., AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. ORD-29-040-61-150, AS AMENDED, ISSUED BY WHITE SANDS MISSILE RANGE, NEW MEXICO, ON MARCH 17, 1961, FOR THE FURNISHING OF DISPLAY CASES FOR THE COMMISSARY.

PARAGRAPH 1-02 OF THE SPECIFICATIONS ACCOMPANYING THE INVITATION REQUIRED BIDDERS TO SUBMIT WITH THEIR BIDS CERTAIN DATA AND INFORMATION DESCRIPTIVE OF THE DISPLAY CASES INTENDED TO BE FURNISHED. PAGE 2 OF THE INVITATION PROVIDED:

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH.

"THE BIDDER SHALL SUBMIT WITH HIS BID A COMPLETE LIST IN TRIPLICATE OF THE EQUIPMENT, AND MATERIAL TO BE INCORPORATED IN THE WORK, TOGETHER WITH NAMES AND ADDRESSES OF THE MANUFACTURERS AND THEIR CATALOG NUMBERS AND TRADE NAMES. THE LIST SHALL INCLUDE CATALOGS, CUTS, DIAGRAMS, DRAWINGS AND SUCH OTHER DESCRIPTIVE DATA AS MAY BE REQUIRED TO FULLY IDENTIFY THE EQUIPMENT.

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF THE MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISION FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.'

CONCERNING LATE DESCRIPTIVE DATA SUBMISSION, THE INVITATION INCORPORATED THE FOLLOWING PROVISION:

" "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS. BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF THE BIDS WILL NOT BE CONSIDERED, UNLESS THEY ARE RECEIVED BEFORE AWARD IS MADE AND (I) ARE SUBMITTED BY MAIL (OR BY TELEGRAPH IF AUTHORIZED), AND (II) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (A) DELAY IN THE MAILS (OR BY THE TELEGRAPH COMPANY IF TELEGRAPHIC BIDS ARE AUTHORIZED) FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (B) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. * * *" "

FIVE BIDS WERE RECEIVED AND OPENED AT 2 P.M. ON APRIL 18, 1961, AS SCHEDULED, AND THE AGGREGATE BIDS WERE ABSTRACTED AS FOLLOWS:

TABLE

BARTON CONST. CO., INC. $42,731.70

GULDEMAN CONST. AND ENG. CO. 44,484.00

THOMAS PLUMBING AND HEATING, INC. 47,274.04

DUNN ELECTRIC CO. 47,533.00

HARRY L. HUSSMAN, JR., INC. 49,500.44

HOWEVER, THE LOW BID OF BARTON WAS NOT ACCOMPANIED BY THE REQUIRED DESCRIPTIVE LITERATURE; INSTEAD, IT WAS RECEIVED UNDER SEPARATE COVER IN THE PROCUREMENT OFFICE AT 9 A.M. (M.S.T.) ON APRIL 21, 1961. THE ENVELOPE CONTAINING THIS LITERATURE WAS NOT PROPERLY IDENTIFIED AND WAS OPENED BY GOVERNMENT PERSONNEL FOR IDENTIFICATION. ACCORDING TO THE POSTAL METER STAMP ON THE ENVELOPE, THE DESCRIPTIVE LITERATURE WAS MAILED AT EL PASO, TEXAS, ON APRIL 20, 1961--- TWO DAYS AFTER THE BID OPENING DATE FIXED IN THE INVITATION. IN VIEW THEREOF, IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT THE DESCRIPTIVE DATA WAS NOT MAILED IN SUFFICIENT TIME TO HAVE ALLOWED FOR ITS ARRIVAL AT THE DESIGNATED OFFICE PRIOR TO THE TIME SCHEDULED FOR BID OPENING AND, IN ACCORDANCE WITH THE ABOVE-QUOTED LATE BID SUBMISSION PROVISION, SUCH DATA COULD NOT BE CONSIDERED IN EVALUATION OF BARTON'S BID. WE THINK THAT SUCH ACTION WAS PROPER. SEE 40 COMP. GEN. 91, ID. 148.

WE HAVE CONSISTENTLY HELD THAT A DESCRIPTIVE LITERATURE REQUIREMENT, SUCH AS HERE INVOLVED, IS A SUBSTANTIVE CONDITION OF THE INVITATION WHICH MAY NOT BE WAIVED FOR ONE BIDDER AFTER BID OPENING WITHOUT PREJUDICING THE RIGHTS OF CONFORMING BIDDERS. 37 COMP. GEN. 763; 36 ID. 415. THERE IS NO QUESTION BUT THAT THE TIMELY SUBMISSION OF DESCRIPTIVE DATA WAS TO PLACE ALL BIDDERS ON AN EQUAL BASIS FOR EVALUATION PURPOSES. THAT BEING THE CASE, AWARD TO A BIDDER WHO FAILED TO COMPLY WITH A MATERIAL REQUIREMENT OF THE INVITATION WOULD HAVE BEEN WHOLLY AT VARIANCE WITH THE INVITATION AND THE PROVISIONS OF 10 U.S.C. 2305 (C) WHICH REQUIRE THAT AWARD SHALL BE MADE TO THE RESPONSIBLE BIDDER "WHOSE BID CONFORMS TO THE INVITATION.'

TO HAVE GIVEN EFFECT TO BARTON'S DESCRIPTIVE LITERATURE WOULD HAVE VIOLATED THE SPIRIT AND INTENT OF THE COMPETITIVE BIDDING STATUTE SINCE IT WOULD HAVE CONSTITUTED A REINSTATEMENT OF BARTON'S BID AFTER BID OPENING FOR CONSIDERATION ON A BASIS SUBSTANTIALLY DIFFERENT FROM THAT UPON WHICH IT WAS ORIGINALLY SUBMITTED AND REJECTED FOR NONRESPONSIVENESS TO THE DESCRIPTIVE LITERATURE REQUIREMENTS OF THE INVITATION. SEE 34 COMP. GEN. 82; CF. UNITED STATES V. BROOKRIDGE FARMS, 111 F.2D 461; CITY OF CHICAGO V. MOHR, 74 N.E. 1056; 38 OP.ATTY.GEN. 555.

THE RECORD BEFORE US SHOWS THAT AWARD WAS MADE TO THOMAS PLUMBING AND HEATING COMPANY, INC., ON MAY 15, 1961, AS THE LOWEST RESPONSIVE BIDDER TO THE TERMS AND CONDITIONS OF THE INVITATION. WHILE THE RESULTING CONTRACT IS IN EXCESS OF BARTON'S BID PRICE, AS WE HAVE POINTED OUT IN MANY DECISIONS (17 COMP. GEN. 554; 30 ID. 179), THE STRICT MAINTENANCE OF THE COMPETITIVE BIDDING PROCEDURES REQUIRED BY LAW IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING A PECUNIARY ADVANTAGE IN INDIVIDUAL CASES BY PERMITTING PRACTICES WHICH DO VIOLENCE TO THE SPIRIT AND PURPOSE OF THE LAW.

ACCORDINGLY, WE CONCLUDE THAT THE AWARD AS MADE WAS PROPER UNDER THE CIRCUMSTANCES AND THAT PROTEST OF THE BARTON CONSTRUCTION COMPANY, INC., MUST BE DENIED.