B-147370, NOVEMBER 29, 1961, 41 COMP. GEN. 366

B-147370, NOVEMBER 29, 1961, 41 COMP. GEN. 366

CONTRACTS - SPECIFICATIONS - DEVIATIONS - DESCRIPTIVE LITERATURE--- CONTRACTS - SPECIFICATIONS - CONFORMABILITY OF EQUIPMENT, ETC., OFFERED - SAMPLES SUBMITTED PRIOR TO AWARD A BIDDER WHO OFFERS ARTICLES OTHER THAN THE BRAND NAME ARTICLES SPECIFIED IN AN INVITATION FOR VARIOUS COMBINATIONS OF ITEMS AND IN LIEU OF THE REQUIRED DESCRIPTIVE DATA INCLUDES ON THE BID THE PHRASE " ACCORDING TO BID SPECS.' MAY NOT BE REGARDED AS HAVING OFFERED AN EXACT DUPLICATE OF THE NAMED BRAND, FOR THE PHRASE " ACCORDING TO BID SPECS.' MAY NOT BE INTERPRETED AS A DEFINITE OFFER TO FURNISH AN ARTICLE CONFORMING TO THOSE CHARACTERISTICS OF THE BRAND NAME MODEL NOT COVERED BY THE REFERENCED FEDERAL SPECIFICATIONS AND, THEREFORE, THE BID IS NONRESPONSIVE TO THOSE ITEMS FOR WHICH ONE OR MORE MATERIAL CHARACTERISTICS ARE REQUIRED TO BE DETERMINED FROM THE BRAND NAME ARTICLES, BUT THE FAILURE TO SUBMIT THE DESCRIPTIVE DATA DOES NOT JUSTIFY REJECTION OF THE BID AS TO THOSE ITEMS WITHOUT A BRAND NAME REFERENCE AND THOSE FOR WHICH THE BRAND NAME REFERENCE DOES NOT CONTRIBUTE MATERIALLY TO THE DEFINITIVE DESCRIPTION OF THE ARTICLES. A BIDDER WHO FAILS TO FURNISH WITH HIS BID THE DETAILED SPECIFICATIONS REQUIRED BY AN INVITATION WHICH ALSO CONTAINED A PROVISION RESERVING THE RIGHT IN THE GOVERNMENT TO REQUIRE SAMPLES AFTER BID OPENING MAY NOT HAVE THE SAMPLE REQUIREMENT INVOKED TO DETERMINE THE RESPONSIVENESS OF HIS BID AT THE TIME OF BID OPENING SINCE THE SAMPLE REQUIREMENT MUST BE INTERPRETED AS HAVING BEEN INCLUDED FOR THE PURPOSE OF DETERMINING WHETHER A PRODUCT CONFORMING TO THE DETAILED SPECIFICATIONS COULD BE MADE AND WHETHER IT WOULD ADEQUATELY SERVE THE GOVERNMENT'S PURPOSE RATHER THAN FOR DETERMINING WHAT THE BIDDER OFFERED.

TO GINSBURG, LEVENTHAL AND BROWN, NOVEMBER 29, 1961:

WE HAVE YOUR LETTER OF NOVEMBER 1, 1961, AND A MEMORANDUM OF LAW DATED OCTOBER 27, 1961, ON BEHALF OF THE FRONTIER MANUFACTURING COMPANY ASSERTING THE RESPONSIVENESS OF THAT FIRM'S BID UNDER INVITATION NO. 13148 ISSUED MAY 22, 1961, BY THE FEDERAL SUPPLY SERVICE FOR THE PROCUREMENT OF ROTARY BINS AND STORAGE EQUIPMENT. THE RESULTING CONTRACT IS TO BE OF THE REQUIREMENTS TYPE, ESTIMATED TO CALL FOR THE FURNISHING OF $750,000 IN SUPPLIES, TO RUN FOR A PERIOD ENDING ONE YEAR FROM DATE OF AWARD OR JULY 31, 1962, WHICHEVER IS LATER.

THE INVITATION SOLICITED BIDS ON TWO SCHEDULES: THE FIRST REQUIRING THE BID TO INCLUDE ALL OF CERTAIN COMBINATIONS OF ITEMS, AND THE SECOND REQUIRING THAT BIDS ON THE SCHEDULE BE ON AN ALL OR NONE BASIS. THE ITEMS IN SCHEDULE 1 APPEAR SUBSTANTIALLY TO DUPLICATE THOSE IN SCHEDULE 2. THE ITEMS ARE IDENTIFIED BY REFERENCE TO FEDERAL SPECIFICATIONS; HOWEVER, MANY ARE ALSO IDENTIFIED BY REFERENCE TO FRICK-GALLAGHER MANUFACTURING COMPANY CATALOG NUMBERS. CONCERNING THE LATTER ITEMS, THE FOLLOWING APPEARS ON PAGE 3.1 OF THE ATTACHMENT TO THE INVITATION UNDER THE HEADING GOVERNMENT SPECIFIED BRAND NAMES:

* * * BIDS OFFERING ARTICLES OTHER THAN BRAND NAME ARTICLES REFERENCED IN THIS INVITATION WILL BE CONSIDERED ONLY IF SUCH OFFERED ARTICLES ARE CLEARLY IDENTIFIED IN THE BIDS AND BIDDERS FURNISH WITH THEIR BIDS (1) DESCRIPTIVE MATERIAL, INCLUDING CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER GRAPHIC MATERIAL, WHICH WILL CLEARLY SHOW THE CHARACTERISTICS OF THE ARTICLES OFFERED, AND (2) A STATEMENT SHOWING IN DETAIL THE DIFFERENCES BETWEEN THE ARTICLES OFFERED AND THOSE REFERENCED IN THE INVITATION. FAILURE TO FURNISH THE INFORMATION REQUIRED BY (1) AND (2) ABOVE WILL REQUIRE REJECTION OF THE BIDS.

(B) UNLESS THE BIDDER CLEARLY INDICATES IN HIS BID THAT HE IS OFFERING A DIFFERENT ARTICLE, HIS BID SHALL BE CONSIDERED AS OFFERING A BRAND NAME ARTICLE REFERENCED IN THE INVITATION. ( ITALICS SUPPLIED.)

IN ADDITION, THE FOLLOWING INFORMATION IS FURNISHED ON PAGES 10 AND 31 OF THE INVITATION:

CATALOG REFERENCES WHERE SHOWN IN THE ITEMS ARE FROM FRICK-GALLAGHER MANUFACTURING COMPANY CATALOG.

THE ROTARY STORAGE AND DISPLAY BINS AND ACCESSORIES, ITEMS 1 TO 28, INCLUSIVE, SHALL BE TYPE I, COMPLETE IN ACCORDANCE WITH REQUIREMENTS OF INTERIM FEDERAL SPECIFICATION GGG-B-00351A DATED NOVEMBER 1, 1960: EXCEPT THOSE ITEMS IDENTIFIED BY BRAND NAME, WHICH SHALL BE IN ACCORDANCE WITH THE PROVISIONS OF THE ABOVE FEDERAL SPECIFICATION INSOFAR AS THEY APPLY.

BIDS WERE OPENED AS SCHEDULED ON JUNE 12, 1961. THE BID SUBMITTED BY THE FRONTIER MANUFACTURING COMPANY WAS FOUND TO BE LOWER THAN THE NEXT ACCEPTABLE BID BY SOME 13 PERCENT, AND LOWER THAN THE PRIOR YEAR'S CONTRACT BY 4 TO 9 PERCENT. HOWEVER, IN THE SPACES PROVIDED IN CONNECTION WITH EACH ITEM TO SHOW THE MANUFACTURER, BRAND NAME, AND NUMBER OF THE ITEM OFFERED THE LOW BIDDER IN EACH CASE INSERTED, RESPECTIVELY," FRONTIER MFG. CO., " " OUR PRODUCTS," AND " ACCORDING TO BID SPECS.' THE LOW BID FAILED TO INCLUDE WITH REFERENCE TO THE BRAND NAME ITEMS THE INFORMATION REQUIRED BY THE PROVISION OF THE INVITATION QUOTED ABOVE.

IT IS YOUR POSITION THAT THE FRONTIER BID IS PROPERLY FOR ACCEPTANCE NOTWITHSTANDING THE FAILURE TO SUBMIT DESCRIPTIVE MATERIAL AND OTHER INFORMATION CLEARLY REQUIRED BY THE TERMS OF THE INVITATION. THE REASONS ASSERTED IN SUPPORT OF YOUR POSITION ARE, BRIEFLY STATED, THAT FRONTIER BY THE USE OF THE PHRASE " ACCORDING TO BID SPECS.' WAS OFFERING A PRODUCT EXACTLY IN ACCORDANCE WITH THE SPECIFICATIONS AND IDENTICAL WITH THE FRICK -GALLAGHER MODEL SPECIFIED, EXCEPT FOR THE BRAND NAME, TO THE EXTENT THE "BRAND NAME OR EQUAL" REQUIREMENT WAS APPLICABLE. YOU ALSO CONTEND THAT THE REFERENCE TO "BRAND NAME ARTICLES" IN THE FIRST SENTENCE OF THE QUOTED PORTION OF THE PROVISION APPEARING AT PAGE 3.1 OF THE INVITATION WAS INTENDED TO REQUIRE THE DESCRIPTIVE MATERIAL ONLY AS TO ARTICLES WHICH VARIED FROM THE NAMED PRODUCT, TO THE EXTENT THE CHARACTERISTICS OF THE LATTER ARE APPLICABLE, AND SHOULD NOT BE INTERPRETED TO CALL FOR THE DATA WHERE AN EXACTLY CONFORMING COPY OF ANOTHER MANUFACTURING IS OFFERED.

A BID IS AN OFFER WHICH UPON PROPER ACCEPTANCE RIPENS INTO A CONTRACT BINDING UPON THE PARTIES. TO BE VALID AN OFFER MUST BE SUFFICIENTLY CERTAIN TO ENABLE A COURT TO UNDERSTAND WHAT THE PROMISOR UNDERTAKES AND WHAT HE AGREES TO ACCEPT IN RETURN IF THE OFFER IS ACCEPTED. 1 WILLISTON ON CONTRACTS, 3D EDITION, SECTION 24. SEE ALSO THE RESTATEMENT OF CONTRACTS, SECTION 32. THE PURPOSE OF REQUIRING DATA TO BE SUBMITTED WITH A BID IN A CASE SUCH AS THIS IS TO PERMIT A DETERMINATION BY THE PROCURING AGENCY OF PRECISELY WHAT THE BIDDER PROPOSES, AND WILL BE BOUND, TO FURNISH IF AWARDED THE CONTRACT. 39 COMP. GEN. 595, 598. IN EFFECT, THE DESCRIPTIVE DATA REQUIREMENT IS IN PART A DEVICE TO INSURE THE RECEIPT OF AN OFFER SUFFICIENTLY DEFINITE IN SUBJECT MATTER AS TO RESULT IN A BINDING CONTRACT UPON ACCEPTANCE. FROM THE FOREGOING WE BELIEVE IT IS FAIR TO STATE THAT A BID WHICH DOES NOT CONFORM TO A PROPERLY UTILIZED DESCRIPTIVE DATA REQUIREMENT IS DEFECTIVE NOT ONLY BECAUSE IT FAILS TO COMPLY WITH A MATERIAL PROVISION OF THE INVITATION BUT, GENERALLY, BECAUSE AS AN OFFER IT IS TOO INDEFINITE TO MEET THE STATED TEST. SEE 38 COMP. GEN. 345. SHOULD BE POINTED OUT HERE TOO THAT THE APPLICABLE PROVISIONS OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 41 U.S.C. 253, REQUIRE IN EFFECT THAT A BID MUST CONFORM TO THE INVITATION FOR BIDS TO BE ELIGIBLE FOR AWARD. THEREFORE, IN THIS CASE THE FIRST SIGNIFICANT QUESTION TO BE ANSWERED IS WHETHER THE TERM," ACCORDING TO BID SPECS., " MAY BE REGARDED AS CONSTITUTING A DEFINITE OFFER TO CONFORM TO THE REFERENCED FEDERAL SPECIFICATIONS, THE DETAILS INCLUDED IN THE DESCRIPTION OF EACH ITEM, AND, TO THE EXTENT APPLICABLE, THE CHARACTERISTICS OF THE BRAND NAME MODELS SPECIFIED.

IN OUR DECISION B-143585, OCTOBER 13, 1960, WE CONSIDERED THE RESPONSIVENESS OF A BID TO AN INVITATION WHICH INCLUDED A SOMEWHAT SIMILAR BRAND NAME OR EQUAL PROVISION. THAT BID OFFERED AN ITEM TO BE MANUFACTURED BY OTHER THAN THE BRAND NAME MANUFACTURER AND IN LIEU OF THE STIPULATED DESCRIPTIVE DATA INCLUDING THE FOLLOWING STATEMENT:

PLEASE BE ADVISED THAT THE CHAIR WE ARE OFFERING WILL BE BUILT IN EXACT ACCORDANCE TO THE SPECIFICATIONS AS DETAILED ON PAGE 3 OF THE ABOVE MENTIONED INVITATION. THE STYLING WILL BE EXACTLY THE SAME AS THE MENTIONED CHAIR.

PAGE 3 OF THE INVITATION INCLUDED A DESCRIPTION OF MANY, BUT NOT ALL OF THE SALIENT FEATURES OF THE PRODUCT AND, IN ADDITION, STIPULATED A BRAND NAME ITEM WHICH, PRESUMABLY, FURNISHED THE REMAINING PERTINENT INFORMATION. REJECTION OF THE BID, FOR FAILURE TO MEET THE DESCRIPTIVE DATA REQUIREMENTS, WAS PROTESTED ON THE GROUNDS THAT THE BID WITH THE QUOTED LANGUAGE CONSTITUTED A DEFINITE OFFER TO FURNISH "AN EXACT DUPLICATE" OF THE NAMED BRAND. WE REJECTED THE PROTEST BECAUSE IN OUR VIEW THE TERM "SPECIFICATIONS" IN THE QUOTED STATEMENT REFERRED ONLY TO THE DETAILED SPECIFICATIONS FURNISHED AND DID NOT EMBRACE THOSE FEATURES IDENTIFIED ONLY BY REFERENCE TO THE BRAND NAME. IF THE SAME RULE IS APPLIED IN THIS CASE, AND WE ARE AWARE OF NO REASON WHY IT SHOULD NOT BE, THE TERM," ACCORDING TO BID SPECS., " MAY NOT BE INTERPRETED TO INCLUDE THE CHARACTERISTICS OF THE BRAND NAME MODEL WHICH ARE NOT COVERED BY THE REFERENCED FEDERAL SPECIFICATIONS.

WE DO NOT AGREE THAT YOUR POSITION IS SUPPORTED BY OUR DECISION AT 40 COMP. GEN. 435. IN THAT CASE THE FAILURE TO FURNISH THE DESCRIPTIVE DATA WAS WAIVED BECAUSE THE BIDDER HAD PREVIOUSLY FURNISHED THE ARTICLES IN QUESTION TO THE AGENCY UNDER AN EARLIER CONTRACT AND HAD REFERRED TO THAT FACT IN ITS BID. IN OTHER WORDS, THE BID WAS REGARDED AS OFFERING ITEMS IDENTICAL TO THOSE WHICH HAD BEEN FURNISHED TO THE AGENCY EARLIER SO THAT THERE COULD BE NO QUESTION AS TO THE ITEM CHARACTERISTICS. FRONTIER, HOWEVER, SO FAR AS WE ARE AWARE, HAD NEVER PREVIOUSLY FURNISHED THE ITEMS TO THE GOVERNMENT OR EVEN MANUFACTURED THEM. THEREFORE, NO DEFINITE MODELS OR DESIGNS OR OTHER MATERIAL DATA COULD HAVE BEEN IN THE HANDS OF THE AGENCY AT THE TIME OF BID OPENING TO SERVE AS A BASIS FOR DETERMINING THE EXACT NATURE OF THE PRODUCTS OFFERED.

WE CONCLUDE, IN ACCORDANCE WITH THE FOREGOING, THAT THE FRONTIER BID MAY NOT BE REGARDED AS HAVING OFFERED AN EXACT DUPLICATE OF THE NAMED BRAND WITH RESPECT TO THOSE ITEMS FOR WHICH ONE OR MORE MATERIAL CHARACTERISTICS WERE REQUIRED TO BE DETERMINED FROM THE BRAND NAME ARTICLE. YOU CONTEND THAT EVEN IF THIS IS THE CASE, THE SPECIFICATIONS, EXCLUDING THE REFERENCE TO THE BRAND NAME AND MODEL, WERE SUFFICIENTLY DEFINITE TO PERMIT THE CONTRACTING OFFICER TO INVOKE A PROVISION OF THE CLAUSE OF THE INVITATION ENTITLED SPECIFICATIONS AND DELIVERY TIME, WHICH APPEARS AT PAGE 6, RESERVING THE RIGHT IN THE GOVERNMENT TO REQUIRE SAMPLES AFTER BID OPENING "TO ESTABLISH WHETHER OR NOT THE EQUIPMENT BEING OFFERED MEETS THE NEEDS OF THE GOVERNMENT AND ALSO TO DETERMINE COMPLIANCE WITH THE SPECIFICATIONS BEFORE AWARD OF CONTRACT.' THAT CLAUSE CONTAINS ANOTHER PARAGRAPH WHICH READS AS FOLLOWS:

BIDS SHALL BE ACCOMPANIED WITH SPECIFICATIONS IN SUFFICIENT DETAIL TO ESTABLISH THAT EQUIPMENT OFFERED WILL MEET REQUIREMENTS OF THIS INVITATION. FAILURE TO FURNISH DETAILED SPECIFICATIONS WITH BID CAN RESULT IN DISQUALIFICATION OF BID ON BASIS THAT IT IS NONRESPONSIVE.

READING THE TWO PARAGRAPHS OF THE CLAUSE TOGETHER, AND HAVING IN MIND THE LAW RELATING TO THE FORMATION OF CONTRACTS, IT IS OUR VIEW THE SAMPLE REQUIREMENT WAS INCLUDED NOT TO DETERMINE WHAT THE BIDDER OFFERED TO FURNISH--- I.E., THE DETAILED DIMENSIONS AND OTHER MATERIAL CHARACTERISTICS--- BUT TO DISCOVER WHETHER A PRODUCT CONFORMING TO THOSE CHARACTERISTICS COULD BE MADE AND, IF SO, WHETHER IT WOULD ADEQUATELY SERVE THE GOVERNMENT'S PURPOSES. IT IS OUR UNDERSTANDING THAT YOU AGREE WITH THIS INTERPRETATION. YOU CONTEND, IN ADDITION, THAT THE SAMPLE PROVISION WAS PROPERLY INVOKED IN THIS CASE BECAUSE EVEN IF IT IS ASSUMED THAT THE QUOTED PHRASE USED IN THE FRONTIER BID WAS NOT SUFFICIENTLY DEFINITE TO BE REGARDED AS AN OFFER TO FURNISH AN EXACT DUPLICATE OF THE BRAND NAME ARTICLE, THE OTHER INFORMATION CONTAINED IN THE INVITATION--- THE SPECIFICATION REFERENCES AND THE DESCRIPTION DETAILS--- WERE IN THEMSELVES SO COMPREHENSIVE AND EXACT AS TO CONSTITUTE A DEFINITIVE DESCRIPTION OF THE ARTICLE OFFERED AND THAT THE CATALOG REFERENCES SERVED ONLY TO PROVIDE DESIRABLE BUT UNNECESSARY PICTORIAL REPRESENTATIONS.

IT IS, OF COURSE, OUR POSITION THAT NO REQUIREMENTS MAY BE MADE MATERIAL BY THE LANGUAGE OF THE INVITATION UNLESS IT SERVES SOME REAL PURPOSE. COMP. GEN. 435; 39 ID. 595. THUS, IF THE BRAND NAME REFERENCES SERVE ONLY THE PURPOSES YOU ALLEGE WE WOULD BE REQUIRED TO CONCLUDE THAT THE BRAND NAME PROVISIONS OF THE INVITATION ARE MERE SURPLUSAGE WHICH MAY PROPERLY BE IGNORED. IN FACT, UNDER SUCH CIRCUMSTANCES THE USE OF THE BRAND NAME REFERENCE WOULD BE CONTRARY TO FPR 1-1.305-1.

AS INDICATED EARLIER, THE INVITATION CONTAINS TWO SCHEDULES AND THE CONTRACTING AGENCY MAY AWARD ON THE BASIS OF EITHER DEPENDING UPON WHAT IS DETERMINED TO BE IN THE BEST INTEREST OF THE UNITED STATES. CONSISTENT WITH SUCH DETERMINATION AND THE STATED BASES FOR EVALUATION IN THE INVITATION, THE FAILURE TO SUBMIT THE DESCRIPTIVE DATA DOES NOT JUSTIFY REJECTION OF THE FRONTIER BID AS TO THOSE ITEMS WITHOUT A BRAND NAME REFERENCE AND AS TO THOSE FOR WHICH THE BRAND NAME REFERENCE DOES NOT CONTRIBUTE MATERIALLY TO THE DEFINITIVE DESCRIPTION OF THE ARTICLE. THE CONTRACTING AGENCY IS BEING ADVISED OF THIS CONCLUSION.

WE ARE AWARE THAT UNDER THE CLAUSE OF THE INVITATION PREVIOUSLY CITED THE CONTRACTING OFFICER REQUESTED SAMPLES FROM FRONTIER, THAT THESE SAMPLES WERE FURNISHED AND THAT THEY WERE FOUND TO MEET OR EXCEED THE GOVERNMENT'S REQUIREMENTS IN ALL MATERIAL RESPECTS. THERE IS NO QUESTION THAT FRONTIER SUBMITTED THE SAMPLES IN GOOD FAITH AND PREPARED AND SHIPPED THEM AT NO INCONSIDERABLE EXPENSE. HOWEVER, THE RESPONSIVENESS OF A BID MUST BE DETERMINED FROM THE CONTENTS OF THE BID ITSELF AT THE TIME OF BID OPENING. SUBSEQUENT ACTIONS OF THE BIDDER OR THE CONTRACTING OFFICER CANNOT BE CONSIDERED IN DISPOSING OF THE QUESTION OF RESPONSIVENESS.