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B-146211, JUN. 28, 1961

B-146211 Jun 28, 1961
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TO THE SECRETARY OF THE NAVY: WE HAVE A LETTER OF JUNE 22. 27 TRANSPORTERS ARE TO BE PROCURED UNDER A SET- ASIDE WITH FIRMS IN LABOR SURPLUS AREAS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH. "F. MAKE AND MODEL NUMBER OF ALL OTHER MAJOR COMPONENTS "/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. BIDS WERE OPENED ON MAY 1. THE LOW BID WAS SUBMITTED BY THE CLARK EQUIPMENT COMPANY AT A LOT PRICE FOR THE 20 UNITS OF $326.

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B-146211, JUN. 28, 1961

TO THE SECRETARY OF THE NAVY:

WE HAVE A LETTER OF JUNE 22, 1961, WITH ENCLOSURES, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, YOUR REFERENCE R11.1, REQUESTING OUR DECISION WITH RESPECT TO THE PROPER DISPOSITION OF THE LOW BID SUBMITTED PURSUANT TO INVITATION NO. 600-841 61 ISSUED MARCH 23, 1961, FOR THE PROCUREMENT OF 20 TRANSPORTERS, TOGETHER WITH CERTAIN TECHNICAL INFORMATION. IN ADDITION TO THE QUANTITY TO BE AWARDED PURSUANT TO COMPETITIVE BIDDING, 27 TRANSPORTERS ARE TO BE PROCURED UNDER A SET- ASIDE WITH FIRMS IN LABOR SURPLUS AREAS. THE INVITATION PROVIDES AT PAGE 7 OF THE SCHEDULE, IN PART, AS FOLLOWS:

"REQUIREMENT FOR DESCRIPTIVE LITERATURE:

(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 PURPOSE OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCT THE BIDDER PROPOSES TO FURNISH AS SPECIFIED.

"F. MAKE AND MODEL NUMBER OF ALL OTHER MAJOR COMPONENTS

"/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 CONSISIDERED UNDER THE PROVISION FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.'

BIDS WERE OPENED ON MAY 1, 1961. THE LOW BID WAS SUBMITTED BY THE CLARK EQUIPMENT COMPANY AT A LOT PRICE FOR THE 20 UNITS OF $326,823. HOWEVER, THE LOW BIDDER DID NOT ACCOMPANY HIS BID WITH ANY INFORMATION CONCERNING THE MAKE AND MODEL OF THE AXLE OFFERED AS PART OF THE EQUIPMENT. IT IS THE POSITION OF THE CONTRACTING OFFICER THAT THE LOW BID SHOULD BE REGARDED AS NONRESPONSIVE UNDER ITEM F., QUOTED ABOVE, FOR FAILURE TO PROVIDE THE REQUIRED INFORMATION CONCERNING THE AXLE EITHER DIRECTLY OR BY REFERENCE. IT IS FURTHER STATED THAT THE FAILURE TO FURNISH THE INFORMATION PRECLUDES A DETERMINATION ON THE BASIS OF INFORMATION AVAILABLE AT BID OPENING AS TO WHETHER THE CLARK BID IS IN COMPLIANCE WITH THE SPECIFICATIONS.

THE QUOTED PROVISION OF THE INVITATION MAKES IT CLEAR THAT THE DESCRIPTIVE LITERATURE WILL BE USED IN BID EVALUATION AND THAT FAILURE OF THE BIDDER TO FURNISH THE REQUIRED INFORMATION WILL REQUIRE REJECTION OF A BID EXCEPT IN CERTAIN LIMITED CIRCUMSTANCES NOT RELEVANT TO THE MATTER AT HAND. WHERE THE INVITATION CLEARLY REQUIRES THE SUBMISSION OF SUCH DATA WITH THE BID AND ADVISES THE BIDDERS THAT FAILURE TO CONFORM WILL RESULT IN BID REJECTION, IT HAS BEEN OUR CONSISTENT POSITION THAT THE PROVISION SHOULD BE APPLIED IN ACCORDANCE WITH ITS CLEAR MEANING. 40 COMP. GEN. 132, 135; 37 COMP. GEN. 763, 765. THE ONLY POSSIBLE QUESTION WHICH MAY BE RAISED IN THIS INSTANCE IS WHETHER THE DATA CONCERNING AXLES IS REQUIRED UNDER ITEM F. OF THE DESCRIPTIVE LITERATURE PROVISION. IN OUR VIEW, AXLES SHOULD REASONABLY BE REGARDED AS WITHIN THE SCOPE OF ITEM F. THIS POSITION IS REENFORCED BY THE FACT THAT THE OTHER THREE BIDS INCLUDED ADEQUATE DATA ON AXLES; THUS, THE OTHER BIDDERS APPARENTLY RECOGNIZED AXLES AS "MAJOR COMPONENTS.'

ACCORDINGLY, THE BID SUBMITTED BY THE CLARK EQUIPMENT COMPANY MAY NOT BE CONSIDERED AS RESPONSIVE TO THE TERMS OF THE INVITATION AND SHOULD BE REJECTED.

AS TO THE PROPOSAL TO MAKE AWARD ON THE SET-ASIDE PORTION TO THE THIRD LOW BIDDER, THERE APPEARS IN THE RECORD NO BASIS FOR A DETERMINATION THAT SUCH ACTION WOULD BE IMPROPER.

THE ENCLOSURES TO YOUR LETTER, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT OF FACTS AND THE BLANK COPY OF THE INVITATION FOR BIDS, ARE RETURNED AS REQUESTED.

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