B-153626, APRIL 30, 1964, 43 COMP. GEN. 707

B-153626, APRIL 30, 1964, 43 COMP. GEN. 707

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - DRAWINGS, SAMPLES, ETC. A BIDDER WHO UNDER A READVERTISED INVITATION RESUBMITTED THE PHOTOGRAPHS HELD NONRESPONSIVE UNDER THE ORIGINAL INVITATION, ALTHOUGH REQUIRED BY THE TERMS OF THE INVITATION TO SUBMIT NEW PHOTOGRAPHS, THE ORIGINAL BID HAVING BEEN CHANGED, AND WHO OFFERED TO COMPLY WITH THE SPECIFICATIONS AND THE TERMS OF THE INVITATION, AND IN THE EVENT OF BEING THE LOW BIDDER TO RESUBMIT NEW PHOTOGRAPHS, HAS NOT MET THE REQUIREMENTS OF THE READVERTISED INVITATION, AND THE BIDDER'S FAILURE TO SUBMIT NEW PHOTOGRAPHS CONFORMING TO THE REBIDDING ON THE PROCUREMENT MAY NOT BE WAIVED AS AN INFORMALITY, THE INFORMATION GOING TO THE RESPONSIVENESS OF THE BID, AND IN THE EVALUATION OF BIDS UNDER THE READVERTISED INVITATION REJECTION OF THE BIDDER'S RESUBMITTED BID, ACCOMPANIED BY THE NONCONFORMING PHOTOGRAPHS, WAS REQUIRED.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, APRIL 30, 1964:

REFERENCE IS MADE TO LETTER DATED MARCH 30, 1964, FROM YOUR GENERAL COUNSEL, FURNISHING A REPORT ON THE PROTEST OF B. P. JOHN FURNITURE CORPORATION CONCERNING INVITATION FOR BIDS NO. FPNFH-A-27161-RA-1-2 64.

THE FEDERAL SUPPLY SERVICE ORIGINALLY ISSUED ON AUGUST 16, 1963, AN INVITATION COVERING MANY FURNITURE ITEMS. DIFFICULTIES WERE ENCOUNTERED WITH RESPECT TO VARIOUS CATEGORIES OF DANISH MODERN FURNITURE WHICH WERE BID UPON ONLY BY B. P. JOHN FURNITURE CORPORATION AND BASIC-WITZ FURNITURE INDUSTRIES, INCORPORATED. THE INVITATION PROVIDED THAT AWARD WOULD BE MADE ONLY IN THE AGGREGATE FOR ALL DANISH MODERN FURNITURE ITEMS AND THE LINE DRAWINGS WHICH FORMED A PART OF THE INVITATION SHOWED MITERED JOINTS AT THE CORNERS.

B. P. JOHN'S BID ON THE DANISH MODERN FURNITURE ITEMS WAS NONRESPONSIVE FOR FAILURE TO COMPLY WITH MINIMUM SIZE REQUIREMENTS AS TO CERTAIN ITEMS. THE BASIC-WITZ BID WAS NONRESPONSIVE BECAUSE IT DID NOT BID ON ALL ITEMS. ALSO THE PHOTOGRAPHS SUBMITTED WITH BASIC-WITZ'S BID SHOWED THAT CERTAIN JOINTS WERE NOT MITERED. SINCE NEITHER OF THE BIDS RECEIVED IN RESPONSE TO THIS FIRST INVITATION WAS RESPONSIVE THE REQUIREMENT WAS READVERTISED ON DECEMBER 11, 1963, FOR OPENING ON JANUARY 2, 1964.

THE SECOND INVITATION CONTAINED A COVER SHEET SPECIFICALLY CAUTIONING BIDDERS THAT THE ONE OVERALL AGGREGATE GROUP APPLICABLE TO THE DANISH MODERN FURNITURE IN THE FIRST INVITATION WAS SPLIT INTO FOUR SEPARATE AGGREGATE GROUPS FOR AWARD PURPOSES. IT WAS ALSO STATED THAT MITERED JOINTS AT THE CORNERS AS DEPICTED IN THE LINE DRAWINGS WERE REQUIRED AND THAT "FAILURE TO COMPLY WILL REQUIRE REJECTION OF THE BID.' IT WAS FURTHER PROVIDED: "WHERE THERE IS NO CHANGE FROM THE PREVIOUS OFFER, NEW PHOTOGRAPHS, WOOD AND FABRIC SAMPLES NEED NOT BE SUBMITTED. BIDDER SHOULD SO STATE BY LETTER IF HE IS RESUBMITTING PHOTOGRAPHS, WOOD AND FABRIC SAMPLES SUBMITTED WITH ORIGINAL INVITATION.'

THE SPECIAL PROVISIONS OF BOTH THE FIRST AND SECOND INVITATION CONTAIN A PARAGRAPH WHICH HAS BEEN A PART OF THIS TYPE OF INVITATION FOR A NUMBER OF YEARS, AND WHICH IN THE CASE OF THE SECOND INVITATION, READS AS FOLLOWS:

8. PHOTOGRAPHS.--- BIDDERS SHALL SUBMIT WITH THEIR BIDS PHOTOGRAPHS OF THE ITEMS BEING OFFERED, EXCEPT WHERE THERE IS NO CHANGE FROM THE PREVIOUS OFFER, BIDDER MAY USE THE SAME PHOTOGRAPHS AS A RESUBMIT FOR BID PURPOSES PROVIDED THE BIDDER CLEARLY STATES IN HIS BID THAT THIS IS IN FACT HIS INTENTION. SUBITEMS COMPRISING FABRICS ARE NOT CONSIDERED AS AN "ITEM.' ILLUSTRATIONS, LINE DRAWINGS, SKETCHES, OR PHOTOGRAPHS OF PHOTOGRAPHS WILL NOT BE ACCEPTABLE. THESE PHOTOGRAPHS SHALL BE IN DUPLICATE, 8 BY 10 INCH BLACK AND WHITE GLOSSY PRINTS, OF PROFESSIONAL QUALITY WITH SUFFICIENT CONTRAST, FREE FROM DISTRACTING SHADOWS SUITABLE FOR DIRECT HALF-TONE REPRODUCTION. THE FACE OF ALL PHOTOGRAPHS SHALL BE FREE OF ANY LEGEND, IDENTIFYING NUMBERS OR SYMBOLS, AND INCIDENTAL OBJECTS SUCH AS VASES, CLOCKS, BOOKS, ETC., HOWEVER, THE REVERSE SIDE SHALL SHOW THE (A) BIDDER'S NAME, AND (B) INVITATION ITEM NUMBER. FAILURE TO SUBMIT PHOTOGRAPHS AS DESCRIBED WITH BIDS WILL RESULT IN THE REJECTION OF THE BID. THE PURPOSE FOR REQUIRING SUBMISSION OF SUCH PHOTOGRAPHS WITH THE BID IS TO DETERMINE (1) THE ACCEPTABILITY OF THE STYLES, DESIGNS, AND DETAILS THEREOF OF FURNITURE BEING OFFERED,AND (2) TO EXPEDITE PRINTING AND ISSUANCE OF THE SCHEDULE.

IN RESPONSE TO THE SECOND INVITATION B. P. JOHN SUBMITTED A BID ON ALL ITEMS OF ALL FOUR GROUPS AND THE BID APPARENTLY IS RESPONSIVE IN ALL RESPECTS. BASIC-WITZ SUBMITTED A BID ONLY ON THE BEDROOM FURNITURE GROUP AND IS THE LOW BIDDER AS TO PRICE. A LETTER DATED JANUARY 2, 1964, ACCOMPANYING ITS BID IS, IN PART, AS FOLLOWS:

IN CONNECTION WITH THIS BID, WE ARE RESUBMITTING HEREWITH THE PHOTOGRAPHS SUBMITTED WITH OUR BID ON INV. NO. FPNFH-A-27161-A OPENING SEPTEMBER 17, 1963 AND CONFIRM HEREWITH THAT THE TOP CORNERS OF THE ITEMS BID UPON ARE MITERED AS DEPICTED IN THE LINE DRAWINGS AND AS REQUESTED BY THE TERMS OF THE INVITATION. THESE PHOTOGRAPHS ARE RESUBMITTED IN ACCORDANCE WITH PROVISION 8 ON PAGE 5 OF YOUR NEW INVITATION CLEARLY STATING THE CHANGE OF OUR PREVIOUS OFFER.

WE ARE BIDDING STRICTLY IN ACCORDANCE WITH THE GOVERNING SPECIFICATIONS AND ARE COMPLYING WITH ALL TERMS CONTAINED IN THE READVERTISED INVITATION.

IN THE EVENT WE ARE LOW BIDDER AND YOU FIND IT NECESSARY TO SUBMIT A COMPLETE SET OF BID FORMS WITH NEW PHOTOGRAPHS, WE SHALL BE GLAD TO SUBMIT SAME.

THERE IS NO QUESTION THAT BASIC-WITZ HAS AGREED IN ITS BID TO FURNISH MITERED TOP CORNERS ON THE ITEMS BID UPON AS DEPICTED IN THE LINE DRAWINGS AND AS SPECIFICALLY REQUIRED BY THE TERMS OF THE INVITATION. HOWEVER, THE BID DOES NOT MEET THE REQUIREMENTS OF PARAGRAPH 8 IN THAT THE RESUBMITTED PHOTOGRAPHS SHOW THAT THE CORNERS OF CERTAIN ITEMS ARE UNMITERED. THE QUESTION THUS PRESENTED IS WHETHER THE FAILURE TO COMPLY WITH THE REQUIREMENTS OF PARAGRAPH 8 MAY BE WAIVED AS A MINOR INFORMALITY.

IN 36 COMP. GEN. 376 WE RECOGNIZED THE RIGHT OF THE CONTRACTING AGENCIES TO REQUIRE THAT BIDS BE ACCOMPANIED BY CERTAIN KINDS OF INFORMATION, WHICH WOULD INCLUDE PHOTOGRAPHS. WE STATED IN THE CITED CASE, AT PAGE 378, THAT WHERE INFORMATION IS DEEMED ESSENTIAL THE INVITATION SHOULD CONTAIN AN AFFIRMATIVE STATEMENT TO THE EFFECT THAT FAILURE TO CONFORM WILL RESULT IN REJECTION OF THE BID. THE CONCEPT HAS BEEN EXPANDED TO THE POINT THAT WHERE DESIGNATED INFORMATION IS BY THE TERMS OF THE INVITATION REQUIRED TO BE SUBMITTED WITH THE BID THE INFERENCE ARISES THAT THE INFORMATION IS REGARDED AS MATERIAL AND FAILURE TO CONFORM REQUIRES THE REJECTION OF THE BID. 39 COMP. GEN. 247, 249. THAT RULE, HOWEVER, APPLIES ONLY WHERE THE INFORMATION GOES TO THE RESPONSIVENESS OF THE BID. WHERE THE INFORMATION IS INTENDED TO BE USED IN DETERMINING THE BIDDERS' RESPONSIBILITY, IT MAY BE CHANGED SUBSEQUENT TO THE BID OPENING WITHOUT PREJUDICE TO CONSIDERATION OF THE BID EVEN WHERE THE INVITATION WARNS THAT FAILURE TO CONFORM MAY RESULT IN REJECTION OF THE BID. 39 COMP. GEN. 655; ID. 881.

THE REQUIREMENT TO SUBMIT PHOTOGRAPHS WITH THE BID HERE INVOLVED CLEARLY CAN NOT BE CONSIDERED AS INTENDED FOR THE PURPOSE OF DETERMINING THE BIDDERS' RESPONSIBILITY. IT IS OUR UNDERSTANDING THAT SOME DIFFICULTIES WERE ENCOUNTERED IN THE PAST WITH BIDDERS TIMELY SUBMITTING ACCEPTABLE PHOTOGRAPHS FOR THE ISSUANCE OF THE SCHEDULE. IT IS UNDERSTOOD THAT THIS WAS ONE OF THE PRIMARY PURPOSES FOR THE REQUIREMENT THAT ACCEPTABLE PHOTOGRAPHS OF THE ITEM BEING OFFERED BE SUBMITTED WITH THE BID AND OF COURSE THIS IS SHOWN TO BE THE CASE BY THE LANGUAGE OF PARAGRAPH 8 OF THE INVITATION QUOTED ABOVE. IN THE CASE CONSIDERED IN B-144388, JANUARY 3, 1961, THE BIDDER INVOLVED SUBMITTED UNDER A SIMILAR PROVISION PHOTOGRAPHS OF PHOTOGRAPHS (HALF TONE REPRODUCTIONS) OF ITEMS SHOWN IN THE FEDERAL SUPPLY SCHEDULES AND THE QUESTION THERE INVOLVED WAS WHETHER SUCH PHOTOGRAPHS COMPLIED WITH THE REQUIREMENTS. IT WAS HELD THAT THE PHOTOGRAPHS DID COMPLY SINCE THEY WERE OF PROFESSIONAL QUALITY, SHOWED THE STYLE AND DESIGN OF THE ITEMS OFFERED, AND WERE ADEQUATE FOR REPRODUCTION IN THE SCHEDULE ALTHOUGH CONTINUOUS TONE PHOTOGRAPHS WOULD HAVE RESULTED IN CLEARER REPRODUCTIONS. HOWEVER, THE PARAGRAPH WAS LATER AMENDED TO SPECIFICALLY PROHIBIT PHOTOGRAPHS OF PHOTOGRAPHS, AS DOES PARAGRAPH 8 OF THIS INVITATION. THUS IT APPEARS TO US THAT THE CLEAR INTENT OF PARAGRAPH 8 IS TO MAKE MATERIAL THE REQUIREMENTS THAT THE PHOTOGRAPHS TO BE SUBMITTED WITH THE BID REFLECT THE ITEMS BEING OFFERED AND BE SUCH AS COULD BE USED IN ISSUANCE OF THE SCHEDULE. THAT THE PHOTOGRAPH REQUIREMENT IN PARAGRAPH 8 WAS INTENDED TO BE A MATERIAL REQUIREMENT IS EVIDENCED BY THE SPECIFIC PROVISION IN PARAGRAPH 8 THAT FAILURE TO SUBMIT WITH A BID A PHOTOGRAPH AS DESCRIBED "WILL RESULT IN THE REJECTION OF THE BID.'

IT MIGHT BE ARGUED THAT THE REQUIREMENTS OF PARAGRAPH 8 ARE STRICTER THAN ACTUALLY NEEDED. IF SUCH BE THE CASE IT IS OUR OPINION THAT THE PROVISION SHOULD BE MODIFIED TO REFLECT THE ACTUAL NEEDS OF THE GOVERNMENT WITH RESPECT TO PHOTOGRAPHS. IT IS DOUBTFUL THAT BASIC WITZ, OR ANY OTHER BIDDER, WAS MISLED AS THEY WERE AWARE OF THE PROVISIONS OF PARAGRAPH 8 FROM PRIOR EXPERIENCE.

WE BELIEVE THAT THE BIDS HERE INVOLVED SHOULD BE EVALUATED IN ACCORDANCE WITH THE CLEAR LANGUAGE OF THE INVITATION INCLUDING PARAGRAPH 8. ACCORDINGLY, THE FAILURE OF BASIC-WITZ TO COMPLY WITH THE REQUIREMENTS OF PARAGRAPH 8 MAY NOT BE WAIVED AS A MINOR INFORMALITY AND THE BID SHOULD BE DECLARED NONRESPONSIVE TO THE SPECIFIC REQUIREMENTS OF THE INVITATION.

THE PAPERS SUBMITTED WITH THE LETTER OF MARCH 30 ARE RETURNED HEREWITH.