B-155733, JAN. 4, 1965

B-155733, JAN. 4, 1965

TO DR. BASCOM JOHNSON, DIRECTOR, VETERANS ADMINISTRATION, MANCHESTER, NEW HAMPSHIRE:

YOUR LETTER OF DECEMBER 7, 1964, REQUESTS OUR DECISION ON THE PROPER AWARD TO BE MADE UNDER INVITATION FOR BIDS NO. 65-25, ISSUED OCTOBER 29, 1964, BY THE VETERANS ADMINISTRATION HOSPITAL, MANCHESTER, NEW HAMPSHIRE.

THE INVITATION REQUESTED BIDS TO FURNISH A COMMERCIAL TYPE DISHWASHING MACHINE IN ACCORDANCE WITH FEDERAL SPECIFICATIONS NO. 00-D 431B, DATED MAY 22, 1964. PURSUANT TO SUBPART 1-2.202-5 OF THE FEDERAL PROCUREMENT REGULATIONS, THERE WAS INCLUDED ON PAGE 3 OF THE INVITATION A DESCRIPTIVE DATA REQUIREMENT READING AS FOLLOWS:

"REQUIREMENT FOR DESCRIPTIVE LITERATURE

"/A) DESCRIPTIVE LITERATURE AS SPECIFIED IN THIS INVITATION FOR BIDS MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. THE LITERATURE FURNISHED MUST BE IDENTIFIED TO SHOW THE ITEM IN THE BID TO WHICH IT PERTAINS. THE DESCRIPTIVE LITERATURE IS REQUIRED TO ESTABLISH, FOR PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH US TO DESIGN AND SIZE.

"/B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORM TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT IF MATERIAL IS TRANSMITTED BY MAIL AND IS RECEIVED LATE, IT MAY BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.'

ITEM NO. 12, PAGE 4, OF THE INVITATION PROVIDED FOR SUBMISSION OF "THE PUBLICATIONS REQUIRED IN FEDERAL SPECIFICATIONS 00-D-431B PAR 3.17," AND ITEM NO. 13 REQUIRED SUBMISSION OF THE DRAWINGS SPECIFIED IN "3.18" OF THE REFERENCED SPECIFICATION.

ON NOVEMBER 30, BIDS WERE OPENED AS SCHEDULED. THE LOW BID WAS QUALIFIED AND ACCORDINGLY WAS REJECTED. THE NEXT LOW BID, IN THE NET AMOUNT OF $4,880.40, SUBMITTED BY THE INTERSTATE RESTAURANT EQUIPMENT COMPANY, DID NOT INCLUDE THE REQUIRED DESCRIPTIVE DATA, AND IT WAS IMPOSSIBLE TO DETERMINE WHAT TYPE OF EQUIPMENT WAS OFFERED BY THE BIDDER. THE THIRD LOW BID, IN THE NET AMOUNT OF $4,981, SUBMITTED BY THE ALLIANCE RESTAURANT EQUIPMENT AND MANUFACTURING COMPANY, COMPLIED FULLY WITH THE INVITATION PROVISIONS INCLUDING THE DESCRIPTIVE DATA REQUIREMENT.

ON DECEMBER 1, THE DAY AFTER BID OPENING, INTERSTATE'S REPRESENTATIVE DELIVERED TO THE CONTRACTING OFFICE THE REQUIRED DESCRIPTIVE DATA. ON THE BASIS THAT THE MACHINE IT PROPOSES TO FURNISH, A MAJOR NAME BRAND OF EQUIPMENT, CONFORMS EXACTLY TO THE SPECIFICATIONS AND THAT THE ONE-DAY DELAY IN FURNISHING THE DATA WAS DUE TO THE FAILURE OF ITS SUPPLIER TO FURNISH THE CORRECT MODEL NUMBER EARLIER, INTERSTATE CONTENDS THAT ITS BID SHOULD NOT BE REJECTED.

ALLIANCE PROTESTS THAT INTERSTATE'S FAILURE TO INCLUDE IN ITS BID THE NECESSARY DESCRIPTIVE DATA MAKES INTERSTATE INELIGIBLE FOR AWARD.

IN YOUR SUBMISSION, YOU MAKE THE FOLLOWING STATEMENTS:

"THE QUESTION IS - SHOULD THE FAILURE TO SUBMIT THE DESCRIPTIVE LITERATURE BY THE INTERSTATE RESTAURANT EQUIPMENT CO. BE CONSIDERED A MINOR DEVIATION AND BE ALLOWED TO MAKE UP THE DEFICIENCY - OR, IN VIEW OF PARAGRAPH (A) AND (B) IN THE INVITATION, SHOULD THE BID BE REJECTED?

"IT IS ALSO FELT THAT THE ADDITIONAL COST OF $110.40 FOR A MACHINE WITH MORE DESIRABLE FEATURES, SUCH AS A 24-INCH PRE-WASH AS COMPARED TO A 12- INCH PRE-WASH DEVICE, WOULD BE MORE ADVANTAGEOUS TO THE GOVERNMENT.'

THE PURPOSE OF THE DESCRIPTIVE DATA REQUIREMENT CONTEMPLATED BY FPR 1- 2.202-5 IS TO REQUIRE A BIDDER TO SHOW BY SUCH DATA THE CHARACTERISTICS OR CONSTRUCTION OF THE PRODUCT WHICH HE IS OFFERING TO FURNISH BY HIS BID. THE LANGUAGE INCORPORATED IN THE INVITATION IS IN ACCORD WITH THE REGULATION, AND THE DATA, WHICH IS REQUIRED BY THE APPLICABLE FEDERAL SPECIFICATION, MUST THEREFORE BE CONSIDERED A PART OF THE BID. FAILURE TO FURNISH THE DATA PRIOR TO BID OPENING THEREFORE REQUIRES REJECTION OF THE BID AS NONRESPONSIVE. B-150373, MARCH 7, 1963.

WE HAVE HELD THAT WHEN AN INVITATION PROVIDES THAT NONCOMPLIANCE WITH A MATERIAL DESCRIPTIVE DATA REQUIREMENT WILL RESULT IN REJECTION OF A BID, THE REQUIREMENT CANNOT BE WAIVED FOR ONE BIDDER AFTER OPENING WITHOUT PREJUDICE TO THE RIGHTS OF OTHER BIDDERS. 37 COMP. GEN. 763; 40 ID. 132. OTHERWISE, A NONCOMPLYING BIDDER WOULD BE PUT IN A POSITION TO ELECT, AFTER BID OPENING, EITHER TO MAKE HIS BID RESPONSIVE OR TO PERMIT IT TO BE REJECTED. ACCORDINGLY, INTERSTATE'S FAILURE TO TIMELY SUBMIT THE REQUIRED DATA MAY NOT BE WAIVED AS A MINOR DEVIATION, AND ITS BID MUST THEREFORE BE REJECTED.

AS TO THE FACT THAT THE EQUIPMENT OFFERED BY ALLIANCE HAS MORE DESIRABLE FEATURES THAN THE EQUIPMENT OFFERED BY INTERSTATE, SUCH FACTOR ALONE WOULD NOT JUSTIFY AWARD TO ALLIANCE WERE AN ITEM IN CONFORMANCE WITH THE SPECIFICATIONS OFFERED BY A LOWER RESPONSIVE, RESPONSIBLE BIDDER. WE HAVE HELD, HOWEVER, THAT A BIDDER IS NOT PRECLUDED FROM OFFERING A PRODUCT WHICH IN ADDITION TO COMPLYING WITH THE SPECIFICATION REQUIREMENTS IS ALSO SUPERIOR THERETO IN CERTAIN RESPECTS AND MEETS THE NEEDS OF THE GOVERNMENT. 38 COMP. GEN. 830. ACCORDINGLY, THE BID OF ALLIANCE BEING THE LOWEST RESPONSIVE BID, AWARD MAY PROPERLY BE MADE TO ALLIANCE.