B-156539, JUN. 9, 1965

B-156539, JUN. 9, 1965

TO THE AMERICAN PULLEY COMPANY:

YOUR LETTER OF APRIL 12, 1965, PROTESTS THE REJECTION BY THE POST OFFICE DEPARTMENT OF YOUR LOW BID SUBMITTED UNDER INVITATION FOR BIDS NO. 1254, ISSUED FEBRUARY 11, 1965.

THE INVITATION, A READVERTISEMENT OF A PROCUREMENT ORIGINALLY COVERED BY INVITATION NO. 1108, SOLICITED BIDS TO FURNISH ELECTRIC, RIDER TYPE, TRACTORS TO BE CONSTRUCTED IN ACCORDANCE WITH POST OFFICE DEPARTMENT SPECIFICATION POD-T-17D, AS MODIFIED. PURSUANT TO FEDERAL PROCUREMENT REGULATION 1-2.202-5, THE FOLLOWING LANGUAGE WAS INCLUDED ON PAGE 4 OF THE INVITATION:

"REQUIREMENT FOR DESCRIPTIVE LITERATURE:

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 THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS SPECIFIED IN PARAGRAPH 3.1.2 OF POST OFFICE DEPARTMENT SPECIFICATION POD-T-17D.

FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS 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 THE 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.'

PARAGRAPH 3.1.2 OF POST OFFICE DEPARTMENT SPECIFICATION POD-T-17D, WHICH WAS ATTACHED TO THE INVITATION, READS AS FOLLOWS:

"3.1.2 BID DATA--- EACH BIDDER SHALL FURNISH COMPLETE DESCRIPTIVE LITERATURE COVERING THE PROPOSED EQUIPMENT IDENTIFYING THE TRACTOR BY NAME AND MODEL NUMBER. LACK OF SPECIFIC AND COMPLETE INFORMATION WILL BE SUFFICIENT CAUSE FOR REJECTION OF THE BID. ANY DEVIATION FROM THIS SPECIFICATION REQUIREMENT SHALL BE CLEARLY STATED. THE MANUFACTURER'S STANDARD COMMERCIAL BROCHURE WILL BE ACCEPTABLE PROVIDED THE FOLLOWING DATA ARE COVERED: OVERALL DIMENSIONS INCLUDING WIDTH, HEIGHT, LENGTH, TURNING RADIUS, WHEEL BASE; DRAW BAR PULLS AT NORMAL CONSTANT DUTY AND ULTIMATE; SPEED; PHOTOGRAPH AND DESCRIPTION OF DRIVE MECHANISM; WHEEL AND TIRE SIZES; WEIGHT OF UNIT WITHOUT BATTERY; GENERAL DESCRIPTION OF STEERING AND CONTROLS. THIS INFORMATION IS REQUIRED TO FACILITATE THE REVIEW OF BIDS AND TO ENSURE THE BIDDER UNDERSTANDS AND IS ABLE TO COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATION. ACCEPTANCE OF THE ABOVE DATA BY THE CONTRACTING OFFICER SHALL NOT BE CONSTRUED BY THE BIDDER AS WAIVING ANY OF THE REQUIREMENTS OF THIS SPECIFICATION.'

THE SIX BIDS WHICH WERE RECEIVED WERE OPENED ON MARCH 5 AS SCHEDULED IN THE INVITATION. YOUR BID WAS LOW. UPON EVALUATION OF THE BIDS, IT WAS DETERMINED THAT YOU HAD NOT SUBMITTED SUFFICIENT TECHNICAL INFORMATION AS REQUIRED BY THE INVITATION. THE EVALUATION REPORT ON YOUR BID READS AS FOLLOWS:

"THIS BIDDER HAS NOT SUBMITTED SUFFICIENT TECHNICAL INFORMATION AS REQUIRED BY PARAGRAPH 3.1.2 OF THE SPECIFICATION AND THE "REQUIREMENT FOR DESCRIPTIVE LITERATURE" ON PAGE 4 OF THE INVITATION. HE STATES THAT THE BROCHURE HE HAS SUBMITTED WITH THE BID IS AN EXAMPLE OF WHAT HE PRODUCES. HE SUBMITS AN OUTLINE DRAWING NO. N.4524-A OF A TRACTOR, BUT IT IS NOT CLEAR WHETHER THIS IS A DRAWING OF WHAT HE PROPOSES TO FURNISH. ESSENTIAL DATA SUCH AS TURNING RADIUS AND WHEEL BASE ARE NOT GIVEN, AND THE STARTING DRAW BAR PULL OF SUBMITTED BROCHURE IS 400 POUNDS; WHEREAS THE SPECIFICATION REQUIRES 550 POUNDS ULTIMATE(STARTING) DRAW BAR PULL.'

BY LETTER DATED APRIL 1, THE CONTRACTING OFFICER NOTIFIED YOU OF THE DEFICIENCY IN YOUR BID AND ITS REJECTION. ON THE SAME DATE, THE CONTRACT WAS AWARDED TO THE SECOND LOWEST BIDDER.

BY TELEGRAM DATED APRIL 2, YOU QUESTIONED THE REJECTION OF YOUR BID. THE POST OFFICE DEPARTMENT REPORTS THAT SUBSEQUENTLY YOUR REPRESENTATIVE IN WASHINGTON, D.C., WAS ADVISED OF THE SPECIFIC REASONS FOR THE REJECTION AND WAS AFFORDED AN OPPORTUNITY, WHICH HE DECLINED, TO EXAMINE THE DESCRIPTIVE LITERATURE FURNISHED BY THE SUCCESSFUL BIDDER.

IN YOUR LETTER OF APRIL 12 TO OUR OFFICE, YOU MAKE THE FOLLOWING STATEMENTS:

"WE ADMIT THAT WE ARE IN ERROR DUE TO SENDING AN OLD PIECE OF LITERATURE (EXHIBIT D) WITH OUR PROPOSAL WHICH GAVE THE WRONG DRAWBAR PULL AND OMITTED THE TURNING RADIUS; HOWEVER, IT DID GIVE THE WHEELBASE DIMENSIONS AND ALL OTHER REQUIREMENTS WHICH WERE IN EXCESS OF THE SPECIFIED REQUIREMENTS.

"YOU WILL NOTE THAT AT THE TOP OF THIS PIECE OF LITERATURE (EXHIBIT D) WE TYPED,"WE PROPOSE TO FURNISH TRACTOR, ELECTRIC, RIDER TYPE, IN FULL COMPLIANCE WITH POST OFFICE DEPARTMENT SPECIFICATION POD-T-17D, DATED DECEMBER 15, 1964, AS AMENDED.' YOU WILL ALSO NOTE IN EXHIBIT A, WHICH WAS INCLUDED IN INVITATION POD 1108 AND WHICH IS ALSO STILL IN THE HANDS OF THE POST OFFICE DEPARTMENT, THAT THE CORRECT DRAWBAR PULL WAS GIVEN ALONG WITH OTHER DIMENSIONS.'

IT IS YOUR POSITION THAT SINCE YOUR BID WAS EXPOSED TO YOUR COMPETITORS AND SINCE YOU WERE THE LOW BIDDER UNDER BOTH THE ORIGINAL INVITATION AND THE READVERTISEMENT, YOU SHOULD BE AWARDED THE CONTRACT IN QUESTION. ALSO, YOU ASSERT THAT AS LOW BIDDER YOU ARE SAVING THE GOVERNMENT MONEY.

WE HAVE HELD THAT A BIDDER'S FAILURE TO FURNISH DESCRIPTIVE DATA REQUIRED BY AN INVITATION FOR BIDS TO ENABLE THE PROCURING AGENCY TO DETERMINE THE RESPONSIVENESS OF ITS BID IS A SUBSTANTIVE DEVIATION THAT CANNOT BE WAIVED, NOR MAY THE DEFICIENCY BE CURED BY A BLANKET OFFER TO COMPLY WITH THE SPECIFICATIONS. 36 COMP. GEN. 415; 41 ID. 366.

AS TO YOUR CONTENTION THAT THE POST OFFICE DEPARTMENT HAS ON FILE THE CORRECT DATA WHICH YOU PREVIOUSLY SUPPLIED WITH YOUR BID UNDER THE ORIGINAL INVITATION, THE SUBMISSION BY YOU WITH YOUR BID OF A BROCHURE CONTAINING DIFFERENT DATA, WITHOUT ANY REFERENCE TO DATA PREVIOUSLY SUBMITTED, CAN BE CONSTRUED ONLY AS A DELIBERATE SUBSTITUTION OF THE BROCHURE IN QUESTION AS THE INFORMATION ON WHICH YOU INTENDED YOUR BID TO BE EVALUATED. WE CAN SEE NO BASIS UPON WHICH THE CONTRACTING OFFICER COULD BE CHARGED WITH NOTICE OF YOUR ERROR IN SUBMITTING AN OLD BROCHURE. THE EFFECT OF THE READVERTISEMENT WAS TO INITIATE THE PROCUREMENT AS IF THERE HAD BEEN NO EARLIER SOLICITATION, AND ONLY SUCH DATA AS WAS SUBMITTED WITH YOUR BID, OR AT LEAST REFERRED TO AND IDENTIFIED THEREIN, COULD BE CONSIDERED. THIS DATA NOT ONLY FAILED TO INCLUDE ALL OF THE INFORMATION CALLED FOR, BUT AFFIRMATIVELY SHOWED NONCONFORMITY WITH ONE ESSENTIAL CHARACTERISTIC STATED IN THE INVITATION, NAMELY THE MINIMUM 550 POUND ULTIMATE (STARTING) DRAW-BAR PULL.

WHILE IT IS UNFORTUNATE THAT THROUGH ERROR YOU APPARENTLY SUBMITTED THE WRONG DATA, THIS ERROR IS IN NO WAY CHARGEABLE TO THE GOVERNMENT AND TO PERMIT YOU TO SUBSTITUTE DIFFERENT DATA AFTER BID OPENING WOULD BE TANTAMOUNT TO A CHANGE IN YOUR BID IN DISREGARD OF THE RULES OF COMPETITIVE BIDDING. MOREOVER, THE MERE FACT THAT A SAVING TO THE GOVERNMENT WOULD HAVE BEEN EFFECTED BY ACCEPTANCE OF YOUR BID DOES NOT WARRANT A DEPARTURE FROM SUCH RULES, IT BEING MORE IN THE PUBLIC'S INTEREST TO COMPLY WITH ESTABLISHED PROCEDURES THAN TO REALIZE A PECUNIARY ADVANTAGE IN A PARTICULAR CASE. 41 COMP. GEN. 412, 416.

FOR THE REASONS STATED, WE MUST CONCUR WITH THE ACTION OF THE CONTRACTING AGENCY IN REJECTING YOUR BID AS NONRESPONSIVE, AND SINCE WE FAIL TO FIND A LEGAL BASIS FOR OBJECTION TO THE AWARD TO THE SECOND LOW BIDDER YOUR PROTEST MUST BE DENIED.