B-153986, JUN. 30, 1964

B-153986, JUN. 30, 1964

TO THE WARNER AND SWASEY CO.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1964, IN EFFECT REQUESTING REVIEW OF DECISION DATED JUNE 5, 1964, B-153986, WHICH DENIED YOUR PROTEST AGAINST AN AWARD MADE BY THE UNITED STATES COAST GUARD OF ITEMS 3 AND 4 UNDER INVITATION FOR BIDS NO. B-86-64-B.

THE FACTS ON WHICH YOU BASED YOUR PROTEST WERE FULLY DISCUSSED IN OUR DECISION OF JUNE 5, 1964, TO YOU, AND NEED NOT BE REPEATED HERE. IN YOUR CURRENT LETTER YOU TAKE ISSUE WITH THE USE OF THE FOLLOWING SENTENCE IN OUR DECISION:

"WHILE YOU ATTEMPTED TO CURE THE DEFICIENCIES IN YOUR DESCRIPTIVE LITERATURE BY FURNISHING FORM ZD-1-1157 WHICH WAS A BASE ENGINE HORSEPOWER CURVE PUBLISHED BY CONTINENTAL, IT WOULD HAVE BEEN CLEARLY IMPROPER FOR THE PROCUREMENT AGENCY TO CONSIDER THE FORM ZD-1-1157 IN DETERMINING THE RESPONSIVENESS OF YOUR BID. 40 COMP. GEN. 132; 37 ID. 763.'

YOU STATE THAT SUCH IS A "FALSE AND INACCURATE STATEMENT" AND ON SUCH BASIS YOU CONCLUDE THAT AN IMPROPER AWARD WAS MADE BY THE COAST GUARD.

AT THE OUTSET, THE ABOVE-QUOTED SENTENCE TO WHICH YOU OBJECT, WAS BASED ON AN ADMINISTRATIVE STATEMENT THAT "PARAGRAPH 6.3 OF MIL-G-23171 A REQUIRES ALL BIDDERS TO SUBMIT A COMPLETE DETAILED DESCRIPTION OF THE PROPOSED GENERATOR WHICH DETAILED DESCRIPTION WAS NOT FURNISHED WITH THE WARNER AND SWASEY BID. THE ZD-1-1157 SHOULD HAVE BEEN SUBMITTED WITH THE BID AS REQUIRED.' ASSUMING, ARGUENDO, THAT YOU NEVER SUBMITTED WITH THE FORM IN QUESTION FOR CONSIDERATION WITH YOUR BID, THE MATTER STILL RESOLVES ITSELF INTO A TECHNICAL EVALUATION OF YOUR BID TAKING INTO CONSIDERATION THE DESCRIPTIVE LITERATURE SUBMITTED BY YOU CONCERNING CURVES NOS. SP-2429 AND SP-2430. IN THIS RESPECT, SEE 41 COMP. GEN. 366, 368, WHEREIN WE STATED:

"A BID IS AN OFFER WHICH UPON PROPER ACCEPTANCE RIPENS INTO A CONTRACT BINDING UPON THE PARTIES. TO BE VALID AN OFFER MUST BE SUFFICIENTLY CERTAIN TO ENABLE A COURT TO UNDERSTAND WHAT THE PROMISOR UNDERTAKES AND WHAT HE AGREES TO ACCEPT IN RETURN IF THE OFFER IS ACCEPTED. 1 WILLISTON ON CONTRACTS, 3D EDITION, SEC. 24. SEE ALSO THE RESTATEMENT OF CONTRACTS, SEC. 32. THE PURPOSE OF REQUIRING DATA TO BE SUBMITTED WITH A BID IN A CASE SUCH AS THIS IS TO PERMIT A DETERMINATION BY THE PROCURING AGENCY OF PRECISELY WHAT THE BIDDER PROPOSES, AND WILL BE BOUND, TO FURNISH IF AWARDED THE CONTRACT. 39 COMP. GEN. 595, 593. IN EFFECT, THE DESCRIPTIVE DATA REQUIREMENT IS IN PART, A DEVICE TO INSURE THE RECEIPT OF AN OFFER SUFFICIENTLY DEFINITE IN SUBJECT MATTER AS TO RESULT IN A BINDING CONTRACT UPON ACCEPTANCE. FROM THE FOREGOING WE BELIEVE IT IS FAIR TO STATE THAT A BID WHICH DOES NOT CONFORM TO A PROPERLY UTILIZED DESCRIPTIVE DATA REQUIREMENT IS DEFECTIVE NOT ONLY BECAUSE IT FAILS TO COMPLY WITH A MATERIAL PROVISION OF THE INVITATION BUT, GENERALLY, BECAUSE AS AN OFFER IT IS TOO INDEFINITE TO MEET THE STATED TEST.'

IT SHOULD ASLO BE POINTED OUT THAT OUR OFFICE IS NOT CHARGED WITH THE RESPONSIBILITY OF DETERMINING THE NEEDS OF THE GOVERNMENT. THAT IS THE PROPER FUNCTION OF THE PROCURING AGENCY, AS IS ALSO THE DRAFTING OF PROPER SPECIFICATIONS TO STATE THOSE NEEDS IN TERMS ON WHICH COMPETITIVE BIDS MAY BE OBTAINED. SEE 17 COMP. GEN. 554, 557.

THE COAST GUARD DETERMINED THAT YOUR FIRM PROPOSED TO FURNISH AN ENGINE WHICH IS OF TOO LARGE A DISPLACEMENT AND YOU ATTEMPTED TO QUALIFY THE ENGINE BY FUEL RACK ADJUSTMENT. THE COAST GUARD STATES THAT THIS WOULD GIVE POOR ENGINE PERFORMANCE AND CONSIDERED IT NOT ACCEPTABLE. IN VIEW OF SUCH ADMINISTRATIVE DETERMINATION, THERE IS NO LEGAL BASIS ON WHICH WE MAY OBJECT TO THE AWARD OF THE CONTRACT, AND YOUR PROTEST MUST AGAIN BE DENIED.