B-161466, JUL. 24, 1967

B-161466, JUL. 24, 1967

BIDS - DESCRIPTIVE DATA, ETC. - ADEQUACY DECISION TO UNSUCCESSFUL PROTESTING BIDDER FOR AWARD OF OPERATORLESS TRACTOR SYSTEM FOR ARMY IN FORT BRAGG FACILITY DENYING PROTEST THAT DATA SUBMITTED BY LOW BIDDER WAS INADEQUATE SINCE DESCRIPTIVE LITERATURE WAS REQUIRED FOR ESTABLISHMENT OF BIDDERS RESPONSIBILITY RATHER THAN FOR DETERMINATION OF BID RESPONSIVENESS. FURTHER, SINCE GOOD FAITH EXPLANATION IS GIVEN BY THE CONTRACTING AGENCY THAT THE DATA MET THE REQUIREMENT, GAO WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE AGENCY ABSENT "OVERRIDING EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION.'

TO CONTROL ENGINEERING DIVISION, JERVIS B. WEBB COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 10, 1967, WITH ENCLOSURES, PROTESTING AGAINST THE PROPOSED AWARD OF A CONTRACT TO MECHANICAL HANDLING SYSTEMS, INC., UNDER DEPARTMENT OF THE ARMY INVITATION FOR BIDS NO. DABC21 67 B 0083, ISSUED BY THE PURCHASING AND CONTRACTING DIVISION, FORT BRAGG, NORTH CAROLINA.

THE SUBJECT INVITATION WAS ISSUED ON MARCH 10, 1967, SOLICITING BIDS FOR FURNISHING AND INSTALLING AN OPERATORLESS TRACTOR SYSTEM IN BUILDING NO. J -2535, AT FORT BRAGG, NORTH CAROLINA. AFTER THE BIDS WERE OPENED ON APRIL 14, 1967, YOU PROTESTED IN A LETTER DATED APRIL 17, 1967, THAT A REVIEW OF THE BID DATA FURNISHED BY MECHANICAL, THE LOW BIDDER, SHOWED THAT THE DATA FURNISHED WAS TOTALLY INADEQUATE AND RENDERED THE BID OF MECHANICAL NONRESPONSIVE. BY LETTER DATED APRIL 28, 1967, THE ADMINISTRATIVE OFFICE ADVISED YOU THAT THE DATA FURNISHED BY MECHANICAL WAS ADEQUATE AND THAT THE BID WAS RESPONSIVE AND WAS BEING CONSIDERED FOR AWARD. IN YOUR LETTER OF MAY 10, 1967, TO THE PURCHASING AND CONTRACTING OFFICE, YOU CONTEND THAT PARAGRAPH 1.2 TITLED ,BID DATA" SPECIFIED THE INFORMATION REQUIRED TO BE FURNISHED; THAT MECHANICAL DID NOT FURNISH THE INFORMATION; AND THAT, THEREFORE, ITS BID MUST BE CONSIDERED NONRESPONSIVE.

PARAGRAPH 1.2 OF THE GENERAL CONDITIONS OF THE INVITATION PROVIDED AS FOLLOWS:

"1.2 BID DATA: EACH BIDDER SHALL FURNISH ENGINEERING DRAWINGS AND 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. 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 SPEEDS; PHOTOGRAPHS AND DESCRIPTIONS OF DRIVE MECHANISM; WHEEL AND TIRE SIZES; WEIGHT OF UNIT WITHOUT BATTERY; GENERAL DESCRIPTION OF STEERING AND CONTROLS. THIS INFORMATION IS REQUIRED TO FACILITATE REVIEW OF BIDS AND TO INSURE THE BIDDER UNDERSTANDS AND IS ABLE TO COMPLY WITH 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.'

IT IS REPORTED BY THE CONTRACTING AGENCY THAT THE DESCRIPTIVE DATA WAS REQUIRED TO ASSIST THE CONTRACTING OFFICER IN ESTABLISHING THE RESPONSIBILITY OF THE BIDDERS AS DISTINGUISHED FROM RESPONSIVENESS AND, THEREFORE, FAILURE TO FURNISH THE DATA WOULD NOT REQUIRE REJECTION OF A BID AS BEING NONRESPONSIVE. THE LANGUAGE OF PARAGRAPH 1.2, QUOTED ABOVE, INDICATES THAT THE LACK OF SPECIFIC AND COMPLETE INFORMATION WOULD BE CAUSE FOR REJECTION OF A BID. HOWEVER, THE LAST SENTENCE OF THE PARAGRAPH STATES THAT ACCEPTANCE OF THE DATA WOULD NOT RELIEVE A BIDDER FROM COMPLYING WITH ALL THE REQUIREMENTS OF THE SPECIFICATION. IN VIEW OF THESE PROVISIONS, IT IS OUR OPINION THAT THE EXACT PURPOSE OF THE DATA REQUIRED TO BE FURNISHED WITH THE BID WAS, AT LEAST, AMBIGUOUS. CONSIDERING, HOWEVER, THAT PARAGRAPH 2-202.5 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT DESCRIPTIVE LITERATURE SHALL NOT BE REQUIRED AS A PART OF THE BIDS UNLESS IT IS DEEMED NECESSARY BY THE PURCHASING ACTIVITY TO DETERMINE BEFORE AWARD WHETHER THE PRODUCT OFFERED MEETS THE SPECIFICATION REQUIREMENTS OF THE INVITATION, WE BELIEVE THAT THE PARAGRAPH SHOULD BE CONSTRUED AS AFFECTING THE RESPONSIVENESS OF A BID.

IN THAT CONNECTION, WE HAVE BEEN INFORMED BY THE ADMINISTRATIVE OFFICE THAT THE DESCRIPTIVE LITERATURE FURNISHED BY MECHANICAL WITH ITS BID INCLUDED GENERAL AND INDIVIDUAL SPECIFICATIONS WITH ENGINEER DRAWINGS OF CERTAIN COMPONENTS, ALL OF WHICH ADEQUATELY DESCRIBED THE TRACTOR AND MET THE REQUIREMENTS OF PARAGRAPH 1.2 OF THE INVITATION. IN ADDITION, WE ARE ADVISED THAT THE DATA FURNISHED BY MECHANICAL WAS EVALUATED BY TECHNICAL PERSONNEL OF THE USING SERVICE AND THAT THEY DETERMINED THAT THE SYSTEM OFFERED MET THE INVITATION SPECIFICATIONS.

IT LONG HAS BEEN RECOGNIZED THAT THE FACTUAL DETERMINATION AS TO WHETHER EQUIPMENT OFFERED BY THE BIDDER CONFORMS TO THE SPECIFICATION IS TO BE DECIDED PRIMARILY BY THE CONTRACTING AGENCY. 17 COMP. GEN. 554, 557. WHERE, AS HERE, A GOOD-FAITH EXPLANATION IS GIVEN BY THE CONTRACTING AGENCY THAT THE DATA MET THE INVITATION REQUIREMENTS, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE AGENCY ABSENT OVERRIDING EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION. THIS RULE ALSO HAS BEEN APPLIED WITH RESPECT TO THE ADEQUACY OF THE DATA SUBMITTED PURSUANT TO THE TERMS OF AN INVITATION. 43 COMP. GEN. 77.