B-150704, APR. 24, 1963

B-150704, APR. 24, 1963

TO ADMINISTRATOR, FEDERAL AVIATION AGENCY:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 25, 1963, FROM THE DIRECTOR, INSTALLATION AND MATERIEL SERVICE, FURNISHING A REPORT CONCERNING THE PROTEST OF BRIELLE MARINE AND INDUSTRIAL EQUIPMENT COMPANY AGAINST THE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 87-3 -190-B1.

THE INVITATION, A TOTAL SMALL BUSINESS SET-ASIDE, COVERING VARIOUS SIZES OF ENGINE GENERATORS, WAS ISSUED ON SEPTEMBER 5, 1962. AMENDMENT NO. 1 THERETO, AMONG OTHER THINGS, INCLUDED THE FOLLOWING STATEMENT:

"ATTACHED "ENGINE GENERATOR (GASOLINE) ACCESSORY LIST; " "ENGINE GENERATOR DESCRIPTION SHEET; " AND "ENGINE GENERATOR (DIESEL) ACCESSORY LIST" IS SUBMITTED HEREWITH FOR INCLUSION WITH THE BID.'

THE "ENGINE GENERATOR (GASOLINE) ACCESSORY LIST," ATTACHED TO AMENDMENT NO. 1, LISTED VARIOUS ACCESSORY ITEMS AND CONTAINED SPACES FOR BIDDERS TO LIST THE MANUFACTURE, TYPE AND MODEL AND CONTAINED THE FOLLOWING STATEMENT: "FURNISH DESCRIPTIVE LITERATURE FOR ALL ITEMS.' ALSO THE ,ENGINE GENERATOR DESCRIPTION SHEET" CONTAINED THE STATEMENT: "TO BE COMPLETELY FILLED OUT AND INCLUDED IN BIDDER'S PROPOSAL.'

CLAUSE II, PAGE 13 OF THE INVITATION, PROVIDED IN PERTINENT PART AS FOLLOWS:

"II. GENERAL BID INFORMATION: FOR HIS BID ON SCHEDULES I THROUGH VI TO BE CONSIDERED RESPONSIVE TO THE INVITATION, EACH BIDDER QUOTING ON SCHEDULES I THROUGH VI MUST

(A) COMPLETE AND FURNISH WITH HIS BID AN ENGINE GENERATOR DESCRIPTION SHEET AND AN ENGINE GENERATOR ACCESSORY LIST FOR EACH ENGINE GENERATOR ITEM THE BIDDER PROPOSES TO FURNISH

(B) FURNISH WITH HIS BID THE ENGINE MANUFACTURER'S SALES LITERATURE REQUIRED BY PARAGRAPH 3.6.1 OF THE SUPPLEMENT

(C) QUOTE A UNIT PRICE FOR EACH RANGE OF THE ITEM IDENTIFICATIONS SHOWN IN SCHEDULE VII"

CLAUSE V AND VII, PAGES 15 AND 16 OF THE INVITATION, PROVIDED AS FOLLOWS:

"V. DESCRIPTIVE DATA:(A) AS REQUIRED BY CLAUSE II HEREOF, EACH BIDDER MUST COMPLETE AND FURNISH WITH HIS BID AN ENGINE GENERATOR DESCRIPTION SHEET AND AN ENGINE GENERATOR ACCESSORY LIST FOR EACH ENGINE GENERATOR ITEM THE BIDDER PROPOSES TO FURNISH. IN THE EVENT THERE ARE ANY BLANK SPACES ON THE LIST OR THE SHEET WHICH ARE NOT APPLICABLE, THE BIDDER SHALL INDICATE "N/A" OR MAKE ANY OTHER APPROPRIATE NOTATION.

"/B) THE BIDDER MUST ALSO SUBMIT WITH HIS BID THE ENGINE MANUFACTURER'S SALES LITERATURE REQUIRED BY PARAGRAPH 3.6.1 OF THE SUPPLEMENT, FOR EACH ENGINE GENERATOR ITEM THE BIDDER PROPOSES TO FURNISH.

"/C) FAILURE OF THE BIDDER TO SUBMIT WITH HIS BID THE DATA REQUIRED BY (A) AND (B) ABOVE WILL PRECLUDE CONSIDERATION OF THE BID ON THE BASIS THAT IT IS NOT RESPONSIVE TO THE INVITATION. SUBMISSION OF DATA DESCRIBING EQUIPMENT THAT DEVIATES MATERIALLY FROM THE SPECIFICATIONS SHALL BE CAUSE FOR REJECTION OF THE BID.

"/D) IF A CATALOG NUMBER OR OTHER TYPE OR MODEL NUMBER IS GIVEN ON A DESCRIPTION SHEET OR AN ACCESSORY LIST TO DESCRIBE A COMPONENT OF THE ENGINE GENERATOR, BIDDERS ARE REQUESTED TO FURNISH WITH THEIR BIDS A COMPLETE AND DETAILED DESCRIPTION THEREOF.

"/E) THE DESCRIPTION SHEET, ACCESSORY LIST, ENGINE MANUFACTURER'S SALES LITERATURE, AND OTHER DESCRIPTIVE DATA SUBMITTED WILL BE USED BY THE GOVERNMENT, WITHOUT FURTHER REFERENCE TO THE BIDDER, TO EVALUATE THE BID. THIS DATA WILL NOT BE INCLUDED IN ANY RESULTING CONTRACT. THE DATA WILL BE USED IN EVALUATING THE BID (1) AS EVIDENCE OF THE BIDDER'S TECHNICAL KNOWLEDGE AND (2) TO DETERMINE WHETHER THE BIDDER COMPREHENDS THE SPECIFICATION REQUIREMENTS AND PROPOSES TO MEET THE REQUIREMENTS BY EMPLOYING METHODS WHICH CAN REASONABLY BE EXPECTED TO RESULT IN FULL COMPLIANCE WITH THE SPECIFICATIONS.

"VII. QUALIFICATION OF BIDDERS: IN ADDITION TO THE REQUIREMENTS OF CLAUSE 12 OF THE ,ADDITIONAL TERMS AND CONDITIONS AND ADDITIONAL GENERAL PROVISIONS....' BIDDERS MUST HAVE BEEN REGULARLY ENGAGED IN THE MANUFACTURE OF ASSEMBLY OF ENGINE GENERATOR EQUIPMENT FOR A PERIOD OF AT LEAST TWO YEARS PRIOR TO THE ISSUE DATE OF THE INVITATION. COMPONENTS OF THE EQUIPMENT OFFERED MUST BE THE PRODUCT OF A MANUFACTURER WHOSE PRODUCT OF SIMILAR DESIGN HAS BEEN IN SATISFACTORY SERVICE FOR A CONSECUTIVE AND CONTINUOUS TWELVE-MONTHS PERIOD IMMEDIATELY PRIOR TO THE ISSUE DATE OF THE INVITATION.'

WITH RESPECT TO THE BID OF BRIELLE MARINE AND INDUSTRIAL EQUIPMENT COMPANY, RECEIVED IN RESPONSE TO THE INVITATION, IT IS STATED IN THE REPORT AS FOLLOWS:

"THE BRIELLE COMPANY DID NOT USE THE ACCESSORY LISTS OR THE ENGINE GENERATOR DESCRIPTION SHEET FURNISHED BY AMENDMENT NO. 1 OF THE INVITATION --- INSTEAD THEY FURNISHED ONE LARGE SHEET CONTAINING WHAT THEY CONSIDERED THE INFORMATION REQUIRED. WHEN THE BRIELLE BID WAS FORWARDED FOR TECHNICAL EVALUATION, CERTAIN DEFICIENCIES WERE DISCOVERED.

"THE FOLLOWING IS AN EXAMPLE OF THE DESCRIPTIVE AND ACCESSORY DATA SUBMITTED BY THE BIDDER WHICH DOES NOT SHOW THE TYPE AND MODEL IDENTIFICATION OF ACCESSORIES HE PROPOSES TO FURNISH:

TABLE

REQUIREMENT PROPOSES TO FURNISH

A. IMMERSION HEATER ED WEIGAND COMPANY

B. AUTOMATIC TRANSFER SWITCH ASCO (AUTOMATIC SWITCH

COMPANY) OR EQUAL

C. VOLTAGE REGULATOR (STATIC TYPE) ELECTRIC REGULATOR

CORPORATION OR EQUAL

D. POTENTIAL RELAYS HARTMAN MANUFACTURING

COMPANY

E. BATTERY CHARGER, POTENTIAL TRANSFORMER HINDLE OR EQUAL

F. RECTIFIER RADIO RECEPTOR

G. METERS G.E. OR EQUAL

H. TIMING DEVICES CRAMER CONTROL

"THE FIGURE SHOWN UNDER SCHEDULE 4, SUPPLEMENT NO. 119, FOR GENERATOR KVA RATING, APPEARS TO BE 250/240. HOWEVER, THE FIGURE HAS BEEN TYPED OVER ANOTHER FIGURE AND IS BLURRED. IN EVALUATING THE BID, WE CANNOT MAKE ASSUMPTIONS, BUT MUST BASE IT ON FACT. IN THIS SPECIFIC CASE, UNDER NO CIRCUMSTANCE COULD WE ASSUME THAT THE BIDDER INTENDED THIS FIGURE AS HE STATES TO BE 25 (WHICH WAS CORRECT) AND NOT 250/240.

"THE CONTINUOUS NET BRAKE HORSEPOWER FOR SCHEDULE VIII, ITEM 1 HAS BEEN TYPED OVER ANOTHER FIGURE AND IS SO BLURRED WE COULD NOT DETERMINE THE NUMBER INTENDED.

"NO ELAPSED TIME METER WAS LISTED TO BE FURNISHED. IN THIS CONNECTION PARAGRAPHS 3.7.3.4 AND 3.7.3.4.4 OF SPECIFICATION FAA 1050C DATED JUNE 1, 1960, SPECIFICALLY REQUIRE THIS METER.

"NO DESCRIPTIVE LITERATURE WAS FURNISHED FOR THE VARIOUS ITEMS LISTED, AS REQUIRED BY THE INVITATION FOR BIDS.

"AS THE ABOVE LIMITED DESCRIPTION FAILED TO RESPOND TO INVITATION REQUIREMENTS, IT WAS IMPOSSIBLE FOR THIS AGENCY TO DETERMINE THAT THE BIDDER COMPREHENDED THE SPECIFICATIONS, AND THAT ITS TECHNICAL KNOWLEDGE WAS SUFFICIENT TO QUALIFY THE BIDDER, AS RESPONSIBLE WITHIN THE MEANING OF FPR, SECTION 1-1.310 AND 1-2.407 AND CLAUSE V (E) OF THE INVITATION. WAS THEREFORE CONCLUDED THAT THE BRIELLE COMPANY'S BID WAS NONRESPONSIVE TO THE INVITATION BY REASON OF THE FAILURE OF THE BIDDER TO SUPPLY THE DATA REQUIRED BY THE INVITATION. UNDER THE LANGUAGE OF CLAUSE V (B) OF THE INVITATION, THIS FAILURE CONSTITUTED A FATAL DEFECT, WHICH THE GOVERNMENT COULD NOT WAIVE.

"CONSEQUENTLY, THE BID OF BRIELLE MARINE AND INDUSTRIAL EQUIPMENT COMPANY WAS REJECTED AND THE CONTRACT AWARDED TO JOHN R. HOLLINGSWORTH COMPANY THE LOW RESPONSIBLE AND RESPONSIVE BIDDER, ON DECEMBER 20, 1962.'

IN DECISION TO YOU OF MARCH 7, 1963, B-150373, WHICH INVOLVED A SIMILAR "DESCRIPTIVE DATA" CLAUSE, IT WAS STATED:

"IN OUR OPINION THE LANGUAGE OF THE "DESCRIPTIVE DATA" CLAUSE IS NOT APPROPRIATE FOR THE PURPOSE FOR WHICH IT WAS INTENDED. THERE ARE BASICALLY ONLY TWO VALID REASONS FOR THE SUBMISSION BY BIDDERS OF DESCRIPTIVE DATA. THE FIRST, AND THE ONLY ONE CONTEMPLATED BY THE FEDERAL PROCUREMENT REGULATIONS (SECTION 1-2.202-5), IS TO REQUIRE A BIDDER THEREBY TO SHOW THE CHARACTERISTICS OR CONSTRUCTION OF THE PRODUCT WHICH HE IS OFFERING TO FURNISH BY HIS BID. IN SUCH CASE, AS STATED IN THE MANDATORY INVITATION PROVISION SET OUT IN SECTION 1 2.202-5 (D) (1), FPR, THE DESCRIPTIVE DATA OR LITERATURE IS A PART OF THE BID AND FAILURE TO FURNISH IT OR MATERIAL DEVIATIONS THEREIN REQUIRE REJECTION OF THE BID AS NONRESPONSIVE.

"THE OTHER JUSTIFICATION FOR DESCRIPTIVE DATA IS THAT STATED TO HAVE BEEN INTENDED IN THE PRESENT CASE, NAMELY, TO EVALUATE A BIDDER'S "CAPACITY" TO PERFORM IN TERMS OF HIS TECHNICAL KNOWLEDGE, UNDERSTANDING OF THE SPECIFICATIONS, SKILL,"KNOW-HOW," OR OTHER ATTRIBUTES MENTIONED IN SECTION 1-1.708.1 FPR. THE ATTRIBUTES TO BE EVALUATED ON THE BASIS OF DATA SUBMITTED FOR THIS PURPOSE PERTAIN NOT TO THE RESPONSIVENESS OF THE BID BUT TO THE BIDDER'S RESPONSIBILITY. IT SHOULD BE NOTED THAT A SMALL BUSINESS BIDDER'S DEFICIENCY IN THIS AREA DOES NOT, WITH CERTAIN EXCEPTIONS, JUSTIFY REJECTION OF HIS BID, IF OTHERWISE ACCEPTABLE, WITHOUT GIVING THE SMALL BUSINESS ADMINISTRATION OPPORTUNITY TO ISSUE HIM A CERTIFICATE OF COMPETENCY. SECTION 1-1.708-2 FPR. CONSEQUENTLY, IF THE PURPOSE TO BE SERVED BY DESCRIPTIVE DATA IS ASSISTANCE IN EVALUATING A BIDDER'S RESPONSIBILITY OR CAPACITY, AS IS STATED TO HAVE BEEN THE USE INTENDED FOR THE DATA IN THE INSTANT CASE, IT CONTRAVENES APPLICABLE LAW AND REGULATIONS, AT LEAST IN THE CASE OF SMALL BUSINESS BIDDERS, TO PROVIDE THAT FAILURE TO FURNISH SUCH DATA WILL FOR THAT REASON ALONE REQUIRE REJECTION OF THE BID.

"IN THE PRESENT CASE THE "DESCRIPTIVE DATE" CLAUSE IS STATED TO HAVE BEEN INTENDED TO ELICIT INFORMATION AS TO BIDDERS' CAPACITY, AND THE LANGUAGE USED SUPPORTS THIS INTENTION. THE CLAUSE STATES THAT THE DATA IS TO BE USED "AS EVIDENCE OF THE BIDDER'S TECHNICAL KNOWLEDGE," AND TO DETERMINE WHETHER THE BIDDER "COMPREHENDS THE SPECIFICATIONS" AND PROPOSES TO MEET THEM "BY EMPLOYING METHODS WHICH CAN REASONABLY BE EXPECTED TO RESULT IN FULL COMPLIANCE WITH THE SPECIFICATIONS.' THE CLAUSE FURTHER STATES SPECIFICALLY THAT THE DATA SUBMITTED "WILL NOT BE INCLUDED IN ANY RESULTING CONTRACT.' THERE CAN BE NO QUESTION, IT SEEMS TO US, THAT THIS LANGUAGE SERVES TO NOTIFY BIDDERS THAT THE DATA REQUESTED IS NOT TO BE CONSIDERED AS A DESCRIPTIVE LIMITATION OF WHAT IS TO BE FURNISHED, AND THAT THEY WILL BE REQUIRED TO MEET THE SPECIFICATION REQUIREMENTS, WHICH ARE PREPONDERANTLY OF THE "PERFORMANCE" TYPE, EVEN THOUGH THIS REQUIRES CHANGE IN THE PRODUCT DESCRIBED BY THE DATA SUBMITTED.

"WE HAVE HERETOFORE HELD THAT A BIDDER'S CAPACITY OR RESPONSIBILITY MAY BE DETERMINED ON THE BASIS OF INFORMATION SUBMITTED AFTER BID OPENING. COMP. GEN. 247; ID. 655; ID. 881; 41 ID. 555. WE HAVE ALSO HELD THAT QUESTIONS AS TO THE CAPACITY OR RESPONSIBILITY OF A SMALL BUSINESS BIDDER MAY NOT BE TREATED AS QUESTIONS OF RESPONSIVENESS OF HIS BID BECAUSE OF A STATEMENT TO THAT EFFECT IN THE BID INVITATION. 40 COMP. GEN. 106. WHILE THE INSTANT CASE INVOLVES A SMALL BUSINESS BIDDER, WE BELIEVE THE RULE SHOULD BE APPLIED EQUALLY TO ALL BIDDERS.

"IN VIEW OF WHAT HAS BEEN SAID ABOVE, IT IS OUR OPINION THAT THE LAST SENTENCE OF CLAUSE VII IN THE PRESENT CASE, WHICH CALLS FOR REJECTION OF BIDS UNACCOMPANIED BY DATA, IS NOT COMPATIBLE WITH THE RULES APPLICABLE TO THE FURNISHING OF DATA PERTAINING TO CAPACITY OR RESPONSIBILITY AND SHOULD NOT BE CONSIDERED CONTROLLING. THE BID OF AERONAUTICAL ELECTRONICS, INCORPORATED, THEREFORE, SHOULD NOT BE CONSIDERED NONRESPONSIVE BECAUSE IT WAS NOT ACCOMPANIED BY THE DATA REQUESTED. IF THAT COMPANY IS NOW DETERMINED TO BE A RESPONSIBLE BIDDER, AND ITS BID IS OTHERWISE RESPONSIVE AND ACCEPTABLE, THE BID SHOULD BE CONSIDERED ELIGIBLE FOR AWARD.

FOR THE REASONS STATED IN THAT DECISION IT IS CLEAR THAT THE "DESCRIPTIVE DATA" CLAUSE USED BY YOUR AGENCY IS NOT IN ACCORDANCE WITH EITHER THE FEDERAL PROCUREMENT REGULATIONS OR THE REQUIREMENTS FOR THE SMALL BUSINESS ACT. FUTURE INVITATIONS FOR BIDS SHOULD BE SO DRAWN AS TO COMPLY WITH THE SMALL BUSINESS ACT AND THE FEDERAL PROCUREMENT REGULATIONS.

IN THE CASE INVOLVED IN THE DECISION OF MARCH 7, 1963, AWARD HAD NOT BEEN MADE, WHEREAS IN THE INSTANT CASE AWARD WAS MADE, PRIOR TO THE DATE THAT DECISION WAS RENDERED. IN THESE CIRCUMSTANCES, AND IN VIEW OF THE FACT THAT THERE APPEARS TO BE SOME DOUBT AS TO WHETHER THE BID OF THE BRIELLE MARINE AND INDUSTRIAL EQUIPMENT COMPANY WAS IN FACT COMPLETELY RESPONSIVE TO THE INVITATION--- FOR EXAMPLE THE BIDDER, IN EFFECT, ADMITS IN HIS LETTER OF JANUARY 24, 1963, THAT THE BID WAS NOT BASED ON FURNISHING AN "ELAPSED TIME METER" EVEN THOUGH THIS ITEM APPARENTLY IS LISTED UNDER ITEM 18 (D) OF THE "ENGINE GENERATOR (GASOLINE) ACCESSORY LIST" WHICH WAS TO BE SUBMITTED WITH THE BID--- WE CONCLUDE THAT CANCELLATION OF THE CONTRACT AWARDED IS NOT REQUIRED. THE ENCLOSURES FORWARDED WITH THE LETTER OF FEBRUARY 25, 1963, ARE RETURNED.