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B-152385, AUG. 20, 1964

B-152385 Aug 20, 1964
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ATTORNEYS AT LAW: REFERENCE IS MADE TO YOUR LETTER DATED JULY 13. WHEREIN IT WAS HELD THAT WE PERCEIVE NO OBJECTION TO THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER OF THE PROCUREMENT OF VULCANIZER KITS. THE FACTS AND CIRCUMSTANCES WERE FULLY REPORTED AND SET FORTH IN OUR DECISION OF JUNE 15. IN YOUR PRESENT LETTER IT IS CONTENDED THAT THE DECISION IS PREDICATED ON A FINDING THAT . THE DATA SUBMITTED WITH THE BID WAS INADEQUATE UPON WHICH TO BASE A DETERMINATION OF EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH. " WHEREAS MARK EQUIPMENT COMPANY HAD BEEN ADVISED THAT THE PROCUREMENT WAS CANCELLED BECAUSE OF A REVISION OF REQUIREMENTS. IT WAS POINTED OUT IN OUR DECISION THAT NOT ONLY WAS THE MARK EQUIPMENT BID CONSIDERED DEFICIENT IN THE DATA FURNISHED.

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B-152385, AUG. 20, 1964

TO SCHNEIDER, SUMNER, HANLON AND BOYLE, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 13, 1964, REQUESTING ON BEHALF OF THE MARK EQUIPMENT COMPANY RECONSIDERATION OF OUR DECISION OF JUNE 15, 1964--- B-152385, WHEREIN IT WAS HELD THAT WE PERCEIVE NO OBJECTION TO THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER OF THE PROCUREMENT OF VULCANIZER KITS.

THE FACTS AND CIRCUMSTANCES WERE FULLY REPORTED AND SET FORTH IN OUR DECISION OF JUNE 15, 1964, SUPRA. IN YOUR PRESENT LETTER IT IS CONTENDED THAT THE DECISION IS PREDICATED ON A FINDING THAT ,THE DATA SUBMITTED WITH THE BID WAS INADEQUATE UPON WHICH TO BASE A DETERMINATION OF EXACTLY WHAT THE BIDDER PROPOSED TO FURNISH," WHEREAS MARK EQUIPMENT COMPANY HAD BEEN ADVISED THAT THE PROCUREMENT WAS CANCELLED BECAUSE OF A REVISION OF REQUIREMENTS.

IT WAS POINTED OUT IN OUR DECISION THAT NOT ONLY WAS THE MARK EQUIPMENT BID CONSIDERED DEFICIENT IN THE DATA FURNISHED, BUT ALSO THAT THE JOY MANUFACTURING COMPANY'S BID WAS CONSIDERED NOT ACCEPTABLE BECAUSE ITS BID PRICE WAS CONSIDERED EXCESSIVE. IT WAS BECAUSE OF THE NONACCEPTABILITY OF THE BIDS THAT THEY WERE BOTH REJECTED AND A DECISION REACHED TO READVERTISE WITH A REVISION IN THE REQUIREMENTS. WE PERCEIVE NO ERROR OR INCONSISTENCY IN THIS PROCEDURE.

YOU ALSO CONTEND THAT THE PROCUREMENT OFFICE HAD INFORMATION THAT THE MARK EQUIPMENT VULCANIZER HAD DUAL THERMOSTAT CONTROLS, AND IN ANY EVENT THE PROCUREMENT OFFICE HAD SUFFICIENT INFORMATION TO PROMPT A REQUEST FOR FURTHER INFORMATION IF DEEMED NECESSARY.

IN THIS CONNECTION WE QUOTED FROM REPORTS STATING THAT THE DATA SUBMITTED WERE NOT CONCLUSIVE ENOUGH TO DETERMINE WHETHER OR NOT ONE OR TWO THERMOSTATS AND PILOT LIGHTS WERE INTENDED; THAT WHILE THE VULCANIZER KIT TESTED BY ARMY ENGINEERS AT FORT BELVOIR CONTAINED TWO THERMOSTATS, THEY WERE UNABLE TO STATE THAT THE VULCANIZER TESTED WAS THE ONE DESCRIBED IN THE DATA ACCOMPANYING THE BID. 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.

IT WAS INCUMBENT ON THE MARK EQUIPMENT COMPANY TO FURNISH COMPLETE DESCRIPTIVE DATA WITH ITS BID, NOT UPON THE CONTRACTING OFFICER TO SEEK OUR ADDITIONAL INFORMATION CONCERNING THE PRODUCT OFFERED.

FINALLY, YOU STATE THAT YOUR CLIENT IS OF THE OPINION THAT IT CANNOT AFFORD TO SUBMIT A FURTHER BID, SINCE IT COULD BE CONTENDED THAT INSUFFICIENT DETAIL WAS FURNISHED WITH RESPECT TO SOME COMPONENT SO AS TO INVALIDATE SUCH FUTURE BID AS IT MIGHT MAKE. WE CANNOT DETAIL THE PRECISE NATURE OF DESCRIPTIVE DATA THAT WOULD BE ACCEPTABLE, WHERE SUCH DATA IS REQUIRED IN A PARTICULAR INVITATION. GENERALLY, HOWEVER, WHERE THE ITEM OR PRODUCT SOUGHT IS IDENTIFIED IN THE INVITATION UNDER A BRAND NAME "OR EQUAL," THE BIDDER, IF OFFERING AN "EQUAL" SHOULD SO FULLY DESCRIBE HIS ITEM OR PRODUCT, INCLUDING PERTINENT PHYSICAL, MECHANICAL, ELECTRICAL AND CHEMICAL DETAILS, AND A STATEMENT EXPLAINING THE DIFFERENCES BETWEEN THE ITEM OR PRODUCT OFFERED AND THE BRAND NAME, SO THAT THE CONTRACTING OFFICER AND HIS TECHNICAL ADVISERS CAN DETERMINE WHETHER THE "OR EQUAL" ITEM OR PRODUCT WILL MEET THE REQUIREMENTS OF THE PROCUREMENT. BELIEVE, HOWEVER, THAT THE NEW INVITATION WILL NOT UTILIZE A BRAND NAME "OR EQUAL" DESCRIPTION, AT LEAST NOT ONE RESTRICTED TO ONE BRAND NAME.

WE HAVE FULLY REVIEWED THE FILE IN THIS MATTER AND OUR PRIOR DECISION, AND WE FIND NO BASIS FOR MODIFYING OR CHANGING OUR DECISION OF JUNE 15, 1964.

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