B-151370, JUN. 4, 1963

B-151370, JUN. 4, 1963

TO NATIONAL LOCK BOX COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED APRIL 24, 1963, AND LETTER DATED MAY 1, 1963, PROTESTING THE PROPOSED REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. 161-73-63, ISSUED ON MARCH 12, 1963, BY THE UNITED STATES NAVAL ACADEMY, ANNAPOLIS, MARYLAND, COVERING A REQUIREMENT FOR THE FURNISHING AND INSTALLING OF QUANTITIES OF ONE-MAN AND TWO-MAN STUDY DESKS IN MIDSHIPMEN'S DORMITORY ROOMS, WINGS 1, 2, 3 AND 5, BANCROFT HALL.

SIX BIDS WERE RECEIVED AND THE ADMINISTRATIVELY PROPOSED REJECTION OF YOUR BID IS BASED UPON A BELIEF THAT IT WAS NOT RESPONSIVE TO THE INVITATION. PART 2.2.2 THEREOF DESCRIBES THE DESIRED CHARACTERISTICS OF THE HIGH PRESSURE LAMINATED PLASTIC MATERIAL TO BE USED ON THE DESK TOPS AND STATES THAT IT "SHALL BE OF THE QUALITY OF TEXTOLITE, FORMICA, MICARTA, OR PANELYTE.' YOUR BID INSERTED THE NAME OF PIONEER PLASTICS AS THE MANUFACTURER, AND PIONITE AS THE BRAND. IT IS YOUR CONTENTION THAT PIONITE IN EVERY INSTANCE EXCEEDS THE REQUIREMENTS OF PART 2.2.2 OF THE INVITATION. HOWEVER, YOU RECOGNIZE THE FACT THAT YOU FAILED TO COMPLY WITH THE "BRAND NAME OR EQUAL" PROVISIONS OF THE INVITATION IN THAT YOUR BID WAS NOT ACCOMPANIED WITH A FULL DESCRIPTION OF THE "OR EQUAL" ITEM AND A STATEMENT EXPLAINING THE DIFFERENCES BETWEEN THE ITEM BEING OFFERED AND ANY ONE OF THE CORRESPONDING BRAND NAMES CALLED FOR BY THE INVITATION.

IT IS NEVERTHELESS ARGUED THAT THE BRAND NAME IDENTIFICATIONS ARE DESCRIPTIVE RATHER THAN RESTRICTIVE; THAT THE PLASTIC TOP WILL ONLY BE AN INFINITESIMAL PART OF THE COMPLETED PRODUCT; AND THAT THE GOVERNMENT WOULD SAVE APPROXIMATELY $6,656.67 BY MAKING THE CONTRACT AWARD TO YOUR COMPANY. IT IS IN EFFECT SUGGESTED THAT THE NAVY SHOULD WAIVE THE REQUIREMENT FOR SUBMISSION OF THE NECESSARY DESCRIPTIVE MATERIAL WITH THE BID AND CONSIDER YOUR EXHIBITS DESCRIBING PIONITE AND EXPLAINING THE DIFFERENCES BETWEEN IT AND MICARTA, SUBMITTED AFTER THE OPENING OF BIDS.

YOU FURTHER INDICATE THAT THREE OF THE OTHER FIVE BIDDERS OFFERED OTHER THAN THE SPECIFIED FOUR TYPES OF ACCEPTABLE PLASTIC MATERIAL WITHOUT EXPLAINING THE DIFFERENCES BETWEEN ANY OF THE SPECIFIED TYPES AND THEIR "OR EQUAL" ITEMS, THAT ONE BIDDER SPECIFIED TEXTOLITE AS THE BRAND OFFERED AND THAT ANOTHER BIDDER SPECIFIED PANELYTE. YOU REFER TO THE FACT THAT PART 2.2.2 OF THE INVITATION DOES NOT SET FORTH THE NAMES OF THE MANUFACTURERS OF THE FOUR SPECIFIED TYPES OF ACCEPTABLE MATERIAL, AND STATE THAT A CHECK OF SWEET'S PRODUCT DESIGN CATALOG, FILE 1963, WOULD INDICATE THAT PANELYTE IS MANUFACTURED BY TWO FIRMS. ON THAT POINT YOU RAISE THE QUESTION AS TO WHETHER THE CONTRACTING OFFICER HAD IN MIND THIOKOL PANELYTE WHEN THE BID SPECIFICATIONS WERE PREPARED AND, IF SO, WHETHER THE SECOND LOWEST BIDDER'S DESIGNATION OF ST. REGIS PANELYTE WOULD PLACE THAT BIDDER IN THE CATEGORY OF HAVING OFFERED AN "OR EQUAL" BRAND.

WE UNDERSTAND THAT IT WAS THE CONTRACTING OFFICER'S BELIEF THAT PANELYTE COULD BE MANUFACTURED ONLY BY ONE COMPANY AND THAT ST. REGIS LAMINATE,"PANELYTE," WAS IN FACT THE MATERIAL REFERRED TO IN THE INVITATION. THE RECORD OTHERWISE SHOWS THAT THE THIOKOL COMPANY MANUFACTURES A "PANELYTE" PRODUCT WHICH IS USED IN THE ELECTRONIC AND RADIO INDUSTRY BUT HAS NO APPLICATION COMPETITIVE WITH ST. REGIS LAMINATE, "PANELYTE.'

THE DRAFTING OF PROPER SPECIFICATIONS IS WITHIN THE PROVINCE OF THE CONTRACTING AGENCY. CONSISTENT WITH SUCH AUTHORITY, OUR OFFICE HAS TAKEN THE POSITION THAT AN INVITATION FOR BIDS MAY REQUIRE BIDDERS TO SUBMIT DESCRIPTIVE LITERATURE SHOWING THAT THEIR PROPOSALS CONFORM TO SPECIFICATIONS WHEN IT APPEARS THAT SUCH A REQUIREMENT IS ESSENTIAL FOR A PROPER DETERMINATION AS TO THE RESPONSIVENESS OF BIDS. SEE 36 COMP. GEN. 415. THAT PRINCIPLE HAS ALSO BEEN APPLIED WITH RESPECT TO ADVERTISING FOR BIDS WHEN BRAND NAMES ARE SPECIFIED, AS HERE, WITH PROVISIONS BEING MADE FOR CONSIDERATION OF "OR EQUAL" ITEMS, SUBJECT TO THE CONDITIONS THAT A BIDDER WHO OFFERS AN ,OR EQUAL" ITEM MUST FULLY DESCRIBE SAME AND EXPLAIN THE DIFFERENCES BETWEEN THE ITEM OFFERED AND THE ITEM IDENTIFIED IN THE INVITATION BY BRAND NAME.

IN THIS CASE THE INVITATION EXPRESSLY PROVIDES THAT A BID WILL BE REJECTED IF THE BIDDER DOES NOT IDENTIFY THE BRAND NAME OR DESCRIBE IN FULL THE "OR EQUAL" ITEM WHICH IS OFFERED. IT WAS CONTEMPLATED THAT A FULL DESCRIPTION OF ANY PROPOSED SUBSTITUTE MATERIAL AND A STATEMENT OF THE DIFFERENCES BETWEEN IT AND ONE OF THE FOUR SPECIFIED TYPES OF ACCEPTABLE MATERIAL WOULD BE FURNISHED IN THE BID ITSELF OR IN SEPARATE ATTACHMENT THERETO, AND NOT AFTER THE SCHEDULED BID OPENING DATE.

IN THE CIRCUMSTANCES, IT IS OUR OPINION THAT YOUR BID MAY NOT BE CONSIDERED AS HAVING BEEN RESPONSIVE TO THE INVITATION AND THAT IT WOULD NOT BE PROPER FOR THE DEPARTMENT OF THE NAVY TO ACCEPT THE BID. IT IS ALSO OUR OPINION THAT THE DEPARTMENT WOULD BE JUSTIFIED IN ACCEPTING ONE OF THE BIDS WHICH WAS FULLY RESPONSIVE, REGARDLESS OF THE APPARENT FACT THAT ONLY TWO OF THE SIX BIDDERS OFFERED MATERIAL MEETING THE SPECIFICATION INVOLVED, OR THAT, BY ACCEPTANCE OF YOUR BID, THE GOVERNMENT WOULD OBTAIN A CONSIDERABLE PECUNIARY ADVANTAGE.

THE FAILURE OF A BIDDER TO COMPLY WITH THE MANDATORY REQUIREMENTS OF AN INVITATION FOR BIDS ISSUED BY A GOVERNMENT AGENCY CANNOT BE WAIVED SINCE SUCH ACTION WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS AND IT IS IN THE PUBLIC INTEREST TO MAINTAIN THE RULES OF FORMAL COMPETITIVE PROCUREMENT RATHER THAN TO OBTAIN A PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. UNITED STATES V. BROOKRIDGE FARM, 111 F.2D. 461, 463; CITY OF CHICAGO V. MOHR, 74 N.E. 1056.

ACCORDINGLY, YOUR PROTEST TO OUR OFFICE IN THE MATTER MUST BE, AND IS, DENIED.