B-151404, JUNE 27, 1963, 42 COMP. GEN. 737

B-151404, JUNE 27, 1963, 42 COMP. GEN. 737

CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - SUFFICIENCY OF DETAILS A DESCRIPTIVE DATA CLAUSE IN AN INVITATION WHICH REQUESTED BIDDERS TO FURNISH "SUFFICIENT CALCULATIONS TO SUBSTANTIATE THE ADEQUACY OF THE DESIGN" OF THE SPECIALIZED EQUIPMENT BUT DID NOT SPELL OUT WITH PARTICULARITY THE EXTENT OF THE DETAIL OF THE DATA NEEDED TO SHOW THE EFFICIENCY AND SPEED OF THE EQUIPMENT OFFERED IS A DEFECTIVE INVITATION IN THAT IT DOES NOT GIVE BIDDERS ANY BASIS TO DETERMINE THE EXTENT OF THE DESCRIPTIVE DATA TO BE FURNISHED; HOWEVER, SINCE A CONTRACT HAS BEEN AWARDED TO A BIDDER OFFERING EQUIPMENT WHICH MEETS THE NEEDS OF THE PROCURING AGENCY CANCELLATION AND AWARD TO THE PROTESTING BIDDER WHO SUBMITTED A DETAILED DRAWING WHICH WAS DETERMINED TO BE INSUFFICIENT TO SHOW THE ADEQUACY OF THE DESIGN WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT.

TO THE SECRETARY OF THE NAVY, JUNE 27, 1963:

REFERENCE IS MADE TO REPORTS OF MAY 17 AND JUNE 11, 1963, FILE R1.2, REGARDING THE PROTEST OF MARLBORO COMPANY, INC., AGAINST THE AWARD OF CONTRACT NO. N251-18786A (X) FMB BY THE PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, TO THE MATHEWS CONVEYOR COMPANY, PURSUANT TO INVITATION FOR BIDS (IFB) 251-362-63.

THE RECORD SHOWS THAT MARLBORO'S LOW BID TO SUPPLY CERTAIN VERTICAL TRAY CONVEYORS WAS REJECTED FOR FAILURE TO SUBMIT THE FOLLOWING DESCRIPTIVE DATA, AS REQUIRED BY PARAGRAPH 6.1.R.1.A AND B:

A. MOTOR HORSEPOWER AND TYPE, TOGETHER WITH SUFFICIENT CALCULATIONS TO SUBSTANTIATE THE ADEQUACY OF THE DESIGN OF THE POWER UNIT AND DRIVE SYSTEM TO PERFORM THE FUNCTIONS AS REQUIRED BY THIS SPECIFICATION.

B. A BRIEF DESCRIPTION OF THE EQUIPMENT, ITS OPERATION AND ANY SPECIAL FEATURES WHICH ARE INCORPORATED IN THE DESIGN.

IT IS REPORTED THAT WHILE MARLBORO INDICATED THE TYPE AND HORSEPOWER OF THE MOTOR IT INTENDED TO FURNISH, IT SUBMITTED NEITHER "SUFFICIENT CALCULATIONS TO SUBSTANTIATE THE ADEQUACY OF THE DESIGN OF THE POWER UNIT AND THE DRIVE SYSTEMS," NOR A BRIEF DESCRIPTION OF THE EQUIPMENT AND HOW IT OPERATED. MARLBORO CONTENDS THAT A DETAILED DRAWING WHICH IT SUBMITTED WITH ITS BID MET ALL OF THE ABOVE REQUIREMENTS.

WE HAVE RECOGNIZED THAT IN PROCURING HIGHLY SPECIALIZED EQUIPMENT AN ADMINISTRATIVE AGENCY MAY REQUIRE BIDDERS TO SUPPLY SPECIFIC DESCRIPTIVE DATA ON SPECIFIC COMPONENTS OF ITEMS BEING PROCURED TO ENABLE IT TO CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY THE MAKING OF AN AWARD. 36 COMP. GEN. 415. HOWEVER, WE HAVE ALSO HELD THAT A REQUIREMENT THAT BIDDERS FURNISH UNSPECIFIED DATA WHICH IS "SUFFICIENT" TO PROVE COMPLIANCE WITH THE SPECIFICATIONS, MAY RENDER AN INVITATION DEFECTIVE FOR FAILURE TO PUT BIDDERS ON NOTICE OF THE EXTENT OF DETAIL THAT THE AGENCY REQUIRED THEIR DESCRIPTIVE DATA TO INCORPORATE. 42 COMP. GEN. 598, B-150868, DATED APRIL 29, 1963.

IT IS APPARENT THAT MARLBORO AND THE DEPARTMENT OF THE NAVY DISAGREE AS TO WHAT EXTENT OF DETAIL IS NEEDED TO SHOW THE "ADEQUACY" OF THE DESIGN OF CERTAIN COMPONENTS. THE QUOTED LANGUAGE WHICH CALLS FOR THE DATA PROVIDES NO HELP IN SETTLING THIS DISAGREEMENT, SINCE IT EMPLOYS ONLY THE GENERALIZED REQUIREMENT THAT THE DESIGN BE ADEQUATE ENOUGH TO MEET THE WRITTEN SPECIFICATIONS. THE USE OF THE WORD "ADEQUATE" IS IN OUR VIEW NO MORE INFORMATIVE THAN THE WORD "SUFFICIENT.'

WE RECOGNIZE THAT IT WILL SOMETIMES BE DIFFICULT FOR THE AGENCY TO SPELL OUT THE PARTICULARS OF WHAT PERFORMANCE CHARACTERISTICS THE DESCRIPTIVE DATA IS REQUIRED TO SHOW OR PROVE. NONETHELESS, IT IS REPORTED BY THE CONTRACTING ACTIVITY THAT THEY NEEDED DATA WHICH WOULD SHOW THE EFFICIENCY AND SPEED OF THE SYSTEM, AND HOW MANY PLATFORMS WOULD BE PUT INTO THE SYSTEM AT ONE TIME, IN ORDER TO ESTABLISH WHETHER THE MOTOR AND GEAR BOX WOULD OPERATE THE CONVEYOR AT THE SPEED NECESSARY TO MAINTAIN REQUIRED OUTPUT. WE THINK THAT SINCE THE PARTICULARITY OF THE ABOVE LANGUAGE WAS NOT APPLIED TO THE INSTANT SPECIFICATIONS, BIDDERS WERE UNABLE TO DETERMINE THE EXTENT OF THE DETAIL THEIR DESCRIPTIVE DATA WAS EXPECTED TO SHOW, AND ACCORDINGLY, THAT THE INVITATION WAS DEFECTIVE.

THE SPECIFICATIONS ALSO REQUIRED SUBMISSION OF A BRIEF DESCRIPTION OF THE EQUIPMENT AND ITS OPERATION. MARLBORO CLAIMS ENTITLEMENT TO A WAIVER OF THIS AND THE OTHER REQUIREMENTS UNDER PARAGRAPH 6.1.N BECAUSE IT STATED IN ITS BID THAT IT WAS CURRENTLY MANUFACTURING THIS PRODUCT FOR THE PHILADELPHIA NAVAL SHIPYARD. IN SUPPORT OF ITS POSITION MARLBORO REFERS US TO THE FOLLOWING LANGUAGE AT PAGE 17 OF THE IFB WHICH PERMITS WAIVER OF DESCRIPTIVE LITERATURE IF:

* * * (I) THE BIDDER STATES IN HIS BID THAT THE PRODUCT HE IS OFFERING TO FURNISH IS THE SAME AS A PRODUCT HE HAS PREVIOUSLY FURNISHED TO THE PURCHASING ACTIVITY UNDER A PRIOR CONTRACT AND THE BIDDER IDENTIFIES THE CONTRACT, AND (II) THE CONTRACTING OFFICER DETERMINES THAT SUCH PRODUCT MEETS THE REQUIREMENTS OF THIS INVITATION FOR BIDS.

IN VIEW OF OUR CONCLUSION THAT IN ANY EVENT THE INVITATION ITSELF IS DEFECTIVE, AND THEREFORE UNFAIR TO ALL BIDDERS, WE DO NOT BELIEVE IT IS NECESSARY FOR US TO DETERMINE WHETHER MARLBORO'S PARTICULAR BID WAS RESPONSIVE TO THAT INVITATION.

WE SUGGEST THAT IN FUTURE PROCUREMENTS THERE SHOULD BE SET OUT IN AS GREAT A DETAIL AS PRACTICAL THE INFORMATION EXPECTED TO BE GLEANED FROM THE DESCRIPTIVE DATA. IN THE INSTANT CASE, SINCE THE CONTRACT FOR THE CONVEYORS WAS AWARDED APPROXIMATELY 2 MONTHS AGO, TO A BIDDER OFFERING EQUIPMENT WHICH MEETS THE NEEDS OF THE ACTIVITY, WE DO NOT BELIEVE IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO REQUIRE CANCELLATION OF THE AWARD AND THE IFB.