B-167936, DECEMBER 19, 1969 49 COMP. GEN. 398

B-167936, DECEMBER 19, 1969 49 COMP. GEN. 398

CONTRACTS -- SPECIFICATIONS -- DESCRIPTIVE DATA -- UNNECESSARY BIDS UNDER AN INVITATION FOR A PACKAGED AIR COMPRESSOR PLANT AND AIR DRYER THAT FAILED TO FURNISH SUFFICIENT DESCRIPTIVE LITERATURE INFORMATION FOR BID EVALUATION PURPOSES, OR TO SUBMIT THE LITERATURE, SHOULD NOT HAVE BEEN REJECTED WHERE THE DESCRIPTIVE LITERATURE CLAUSE WAS INCLUDED WITHOUT THE JUSTIFICATION REQUIRED BY SECTION 1-2.202-5(C) OF THE FEDERAL PROCUREMENT REGULATIONS FOR BID EVALUATION PURPOSES ONLY, AND WHERE THERE APPEARS NO NEED FOR THE LITERATURE AS THE SPECIFICATIONS WERE SUFFICIENTLY DETAILED, LEAVING NO PERFORMANCE CHARACTERISTICS FOR A BIDDER TO DESCRIBED, AND FURNISHED NO STANDARDS FOR THE EVALUATION OF DESIGN, MATERIALS, OR COMPONENTS. FUTURE INVITATIONS THAT INCLUDE A DESCRIPTIVE LITERATURE CLAUSE SHOULD ADVISE BIDDERS WITH PARTICULARITY BOTH AS TO THE EXTENT OF DETAIL REQUIRED AND THE PURPOSE THE LITERATURE IS EXPECTED TO SERVE.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, DECEMBER 19, 1969:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 5, 1969, WITH ENCLOSURES, FROM THE DIRECTOR OF GENERAL SERVICES, FURNISHING A REPORT ON THE PROTEST OF PREMAC CORPORATION AGAINST THE REJECTION OF ITS BID UNDER FORMALLY ADVERTISED SOLICITATION NO. 2-70, ISSUED BY THE U.S. PUBLIC HEALTH SERVICE, ATLANTA, GEORGIA.

THE INVITATION, ISSUED JULY 14, 1969, SOLICITED BIDS FOR FURNISHING A PACKAGED AIR COMPRESSOR PLANT AND AN AIR DRYER IN ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS. PROSPECTIVE BIDDERS WERE ADVISED ON THE FACESHEET OF THE INVITATION FOR BIDS THAT BIDDERS SHALL "FURNISH AN ASSEMBLED, PACKAGED AIR COMPRESSOR PLANT, TO PROVIDE 142 CFM OF FREE AIR AT 60 PSIG DISCHARGE PRESSURE." IT IS REPORTED THAT THE INVITATION CONTAINED THE CLAUSE AS SET FORTH IN SECTION 1-2.202-5(D) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) FOR THE SUBMISSION OF DESCRIPTIVE LITERATURE. THE CLAUSE READS AS FOLLOWS:

BIDDERS SHALL FURNISH WITH THEIR BIDS DESCRIPTIVE MATERIAL (SUCH AS CUTS, ILLUSTRATIONS, DRAWINGS, OR OTHER INFORMATION) WHICH WILL CLEARLY INDICATE EXACTLY WHAT THEY PROPOSE TO FURNISH.

(A) DESCRIPTIVE LITERATURE, AS SPECIFIED ABOVE, MUST BE FURNISH AS 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 PRODUCT THE BIDDER PROPOSES TO FURNISH AS TO DESIGN AND PERFORMANCE CHARACTERISTICS.

(B) FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS AND OTHER REQUIREMENTS OF THIS SOLICITATION WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH THE DESCRIPTIVE LITERATURE BY THE TIME SPECIFIED IN THE SOLICITATION 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 SOLICITATION.

SEVEN BIDS WERE RECEIVED AND OPENED ON AUGUST 1, 1969, WITH PREMAC BEING THE LOWEST BIDDER AT $7,336.31. THE SECOND LOWEST BID IN THE AMOUNT OF $7,709 WAS SUBMITTED BY THE E. D. GREEN COMPANY AND THE THIRD LOWEST BID IN THE AMOUNT OF $7,991 WAS SUBMITTED BY THE GARDNER-DENVER COMPANY. THE BID OF PREMAC WAS DETERMINED TO BE NONRESPONSIVE TO THE INVITATION INASMUCH AS THE DESCRIPTIVE LITERATURE ACCOMPANYING ITS BID FAILED TO SHOW THAT THE EQUIPMENT IT WAS OFFERING WOULD MEET THE MOST CRITICAL REQUIREMENT FOR THE COMPRESSOR; THAT IT PROVIDE A MINIMUM OF 142 CFM OF FREE AIR AT 60 P.S.I.G. DISCHARGE PRESSURE. THE RECORD ALSO INDICATES THAT IN A LETTER ACCOMPANYING ITS BID, PREMAC TOOK EXCEPTION TO THE SPECIFICATIONS IN TWO INSTANCES WHICH, OF COURSE, RENDERED ITS BID NONRESPONSIVE AND INELIGIBLE FOR AWARD. THE SECOND LOWEST BID WAS ALSO REJECTED AS BEING NONRESPONSIVE TO THE INVITATION BECAUSE IT WAS NOT ACCOMPANIED BY THE REQUIRED DESCRIPTIVE LITERATURE. THE THIRD LOWEST BID IN THE AMOUNT OF $7,991 SUBMITTED BY THE GARDNER-DENVER COMPANY WAS ACCEPTED ON AUGUST 15, 1969.

THEREAFTER, BY LETTER DATED SEPTEMBER 16, 1969, PREMAC PROTESTED TO OUR OFFICE THE AWARD OF A CONTRACT UNDER THE INVITATION TO ANY BIDDER OTHER THAN ITSELF. THE CORPORATION CONTENDS IN ITS LETTER THAT DURING THE EVALUATION OF THE BIDS RECEIVED ON THE EQUIPMENT, A REPRESENTATIVE OF THE U.S. PUBLIC HEALTH SERVICE VISITED ITS SUPPLIER, THE JOY MANUFACTURING COMPANY, FOR THE PURPOSE OF DISCUSSING THE FIRM'S BID; THAT SINCE THE CORPORATION WAS THE PRIME BIDDER, THE GOVERNMENT REPRESENTATIVE SHOULD HAVE CONTACTED IT RATHER THAN ITS SUPPLIER; AND THAT THE GOVERNMENT REPRESENTATIVE'S CONVERSATION WITH THE SUPPLIER'S REPRESENTATIVE INDICATES THAT THE PUBLIC HEALTH SERVICE REPRESENTATIVE WAS SEEKING AN EXCUSE TO DISQUALIFY THE FIRM RATHER THAN TRYING TO DETERMINE WHETHER THE FIRM COULD MEET THE SPECIFICATIONS. THE CORPORATION ALLEGES THAT IT CAN MEET ALL THE REQUIREMENTS OF THE SPECIFICATIONS AND THAT THE CONTRACT SHOULD HAVE BEEN AWARDED TO THE CORPORATION SINCE IT SUBMITTED THE LOWEST BID ON THE EQUIPMENT.

WITH REGARD TO THE CORPORATION'S COMPLAINT CONCERNING THE CONTACT WITH ITS SUPPLIER, THE CONTRACTING OFFICER STATES IN HIS REPORT THAT AN INVESTIGATION HAS DISCLOSED THAT AN EMPLOYEE FROM THE NATIONAL COMMUNICABLE DISEASE CENTER'S ORGANIZATIONAL UNIT REQUISITIONING THE EQUIPMENT, AND WHO WAS PRESENT AT THE BID OPENING, DID, IN FACT, WITHOUT THE CONSENT OR KNOWLEDGE OF THE CONTRACTING OFFICER OR PERSONNEL FROM THE CONTRACTING OFFICE, CONTACT THE LOCAL JOY MANUFACTURING COMPANY OFFICE FOR THE PURPOSE OF OBTAINING DATA ON THE EQUIPMENT PREMAC PROPOSED TO FURNISH; THAT THIS EMPLOYEE HAS BEEN INFORMED IN DETAIL THAT HIS ACTION WAS IMPROPER AND THAT HE HAS BEEN CAUTIONED AGAINST FUTURE SIMILAR CONDUCT; AND THAT THIS HAPPENING HAD NO INFLUENCE ON AND DID NOT AFFECT THE DECISION OF THE CONTRACTING OFFICER IN REJECTING THE CORPORATION'S BID.

WE HAVE RECOGNIZED THAT IN THE PROCUREMENT OF HIGHLY SPECIALIZED EQUIPMENT AN ADMINISTRATIVE AGENCY PROPERLY MAY REQUIRE BIDDERS TO SUPPLY DESCRIPTIVE DATA IN ORDER TO ENABLE IT TO INTELLIGENTLY CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY THE MAKING OF AN AWARD, 36 COMP. GEN. 415, 416-17 (1956). ALSO, WE HAVE HELD THAT WHERE DESCRIPTIVE DATA IS REQUIRED FOR DETERMINING THE RESPONSIVENESS OF THE BID, THE INVITATION MUST CLEARLY ESTABLISH THE NATURE AND EXTENT OF THE DESCRIPTIVE MATERIAL ASKED FOR, THE PURPOSE INTENDED TO BE SERVED BY SUCH DATA, AND PARTICULARLY WHETHER ALL DETAILS OF SUCH DATA WILL BE CONSIDERED AN INTEGRAL PART OF THE AWARDED CONTRACT. 38 COMP. GEN. 59, 64 (1958). THE FOREGOING IS CONSISTENT WITH THE PRINCIPLE THAT REQUIREMENTS OF AN INVITATION SHOULD BE SET FORTH CLEARLY AND ACCURATELY IN ORDER TO PERMIT BIDDERS TO COMPETE ON AN EQUAL FOOTING. 17 COMP. GEN. 789 (1938).

THE RECORD FURNISHED OUR OFFICE DOES NOT CONTAIN ANY JUSTIFICATION FOR THE INCLUSION OF THE DESCRIPTIVE LITERATURE CLAUSE AS REQUIRED BY FPR SEC. 1-2.202-5(C). IT APPEARS FROM THE CONTRACTING OFFICER'S REPORT THAT DESCRIPTIVE LITERATURE WAS REQUIRED FOR THE PURPOSE OF BID EVALUATION. BELIEVE THAT SUCH REASON, ALONE, DOES NOT JUSTIFY THE REQUIREMENT FOR DESCRIPTIVE LITERATURE. MOREOVER, IT IS DIFFICULT TO UNDERSTAND WHY DESCRIPTIVE LITERATURE WAS CONSIDERED NECESSARY SINCE THE SPECIFICATIONS OF THE EQUIPMENT BEING PROCURED ARE STATED IN SUCH DETAIL THAT THEY LEAVE NOTHING FOR THE BIDDER TO DESCRIBE IN THE WAY OF PERFORMANCE CHARACTERISTICS, AND FURNISH NO STANDARDS FOR EVALUATION OF DESIGN, MATERIALS, OR COMPONENTS EXCEPT TO THE EXTENT THAT SUCH ELEMENTS ARE SPECIFICALLY PRESCRIBED IN THE SPECIFICATIONS. FURTHERMORE, EVEN IF AN ACCEPTABLE PRODUCT COULD NOT HAVE BEEN PROCURED WITHOUT DESCRIPTIVE LITERATURE, THE INVITATION FAILS TO IDENTIFY THOSE ITEMS OR SPECIFICATION FEATURES AS TO WHICH DESCRIPTIVE LITERATURE WAS REQUIRED. WE HAVE HELD THAT THE REQUIREMENT FOR SUCH LITERATURE SHOULD ADVISE BIDDERS WITH PARTICULARITY BOTH AS TO THE EXTENT OF DETAIL REQUIRED AND THE PURPOSE IT IS EXPECTED TO SERVE SO THAT BIDDERS MIGHT BE ON AN EQUAL BASIS IN MEETING THE DESCRIPTIVE LITERATURE REQUIREMENT. 38 COMP. GEN. 59 (1958); 42 ID. 598 (1963); 46 ID. 315 (1966).

ALSO, OF RELEVANCE HERE IS THE FOLLOWING EXCERPT FROM 46 COMP. GEN. 315, 318 (1966):

FURTHERMORE, WHILE IT IS NOT CLEAR WHAT WAS EXPECTED OF BIDDERS WITH RESPECT TO DESCRIBING PERFORMANCE CHARACTERISTICS, THE COMMENTS OF THE AGENCY REGARDING THE DEFICIENCIES IN YOUR BID WITH RESPECT TO CERTAIN PARAGRAPHS OF THE PURCHASE DESCRIPTION INDICATE IT EXPECTED BIDDERS TO RENDER THEIR BIDS RESPONSIVE MERELY BY AFFIRMING THAT THEIR EQUIPMENT WOULD INDEED MEET THE REQUIREMENTS OF THE PURCHASE DESCRIPTION WHICH THEY WOULD HAVE BEEN REQUIRED TO HAVE MET WITHOUT SUCH A SUPERFLUOUS AFFIRMATION. IF THE REQUIREMENT FOR DESCRIPTIVE LITERATURE CAN BE MET BY PARROTING BACK THE GOVERNMENT SPECIFICATIONS, THE LEGITIMACY OF THAT REQUIREMENT IS QUESTIONABLE. B-150622, DATED JUNE 6, 1963. THE LEGITIMACY OF THE REQUIREMENT CERTAINLY IS NOT HERE ESTABLISHED, AS IT SHOULD BE, BY THE "JUSTIFICATION FOR DESCRIPTIVE LITERATURE," WHICH DOES LITTLE MORE THAN STATE A CONCLUSION THAT DESCRIPTIVE LITERATURE IS REQUIRED, AND FURNISHES NO STANDARDS FOR OR IDENTIFICATION OF PERFORMANCE CHARACTERISTICS WHICH MIGHT BE DESCRIBED, EXCEPT TO THE EXTENT SUCH ELEMENTS ARE ALREADY SPECIFICALLY PRESCRIBED BY THE PURCHASE DESCRIPTION REQUIREMENTS.

FOR THE FOREGOING REASONS, IT IS OUR OPINION THAT THE DESCRIPTIVE LITERATURE REQUIREMENT WAS IMPROPERLY INCLUDED IN THE INVITATION. AND, EVEN IF ITS INCLUSION COULD BE JUSTIFIED, IT IS OUR OPINION THAT THE INVITATION WAS DEFECTIVE BECAUSE THE EXTENT OF DESCRIPTIVE DETAIL REQUIRED AND THE PURPOSE TO BE SERVED WERE NOT SET OUT, 46 COMP. GEN. 1, 5 (1966).

ALTHOUGH THE INCLUSION OF A DEFECTIVE PROVISION IN AN INVITATION MAY BE DISREGARDED AND AN AWARD MADE THEREUNDER WHERE COMPETITION HAS NOT BEEN AFFECTED, WHERE THE AGENCY BY AWARD WOULD ENTER INTO A BINDING CONTRACT FOR WHAT IT WANTED, AND WHERE NO BIDDER OBTAINED AN OPTION OR OTHER UNDUE ADVANTAGE BECAUSE OF THE DEFECT IN THE INVITATION, B 157297, SEPTEMBER 17, 1965, WE DO NOT BELIEVE THAT IT IS THE CASE HERE. TWO BIDS WERE REJECTED AS NONRESPONSIVE TO THE INVITATION. THESE TWO BIDS WERE LOWER THAN THE BID OF GARDNER-DENVER COMPANY AND, WHILE THE RECORD SHOWS THAT THE BID OF THE SECOND LOWEST BIDDER WAS REJECTED BECAUSE HE FAILED TO SUBMIT ANY DESCRIPTIVE LITERATURE, THE BID OF THE LOWEST BIDDER, PREMAC, WAS REJECTED BECAUSE IT DID NOT CONTAIN SUFFICIENT INFORMATION TO EVALUATE ITS CONFORMITY TO THE SPECIFICATIONS, AND NOT BECAUSE THE DESCRIPTIVE LITERATURE SHOWED NONCOMPLIANCE WITH THE SPECIFICATIONS. SINCE NOWHERE IN THE INVITATION WAS THERE A STATEMENT AS TO WHAT DESCRIPTIVE DATA WAS REQUIRED FOR COMPLETE TECHNICAL EVALUATION, IT WAS PREJUDICIAL TO THE BIDDERS TO REJECT THEIR BIDS FOR FAILURE TO SUPPLY DESCRIPTIVE INFORMATION TO SHOW COMPLIANCE TO THE DETAILED SPECIFICATIONS.

WE HAVE BEEN INFORMALLY ADVISED THAT GARDNER-DENVER DELIVERED THE EQUIPMENT ON NOVEMBER 7, 1969. IT IS THEREFORE APPARENT THAT CORRECTIVE ACTION AT THIS LATE DATE WOULD BE IMPRACTICABLE. WE RECOMMEND, HOWEVER, THAT APPROPRIATE MEASURES BE TAKEN TO PRECLUDE ANY RECURRENCE OF THE CIRCUMSTANCES INVOLVED IN THE IMMEDIATE PROTEST.

BY COPY OF THIS DECISION, WE ARE ADVISING THE PREMAC CORPORATION OF OUR DECISION WITH RESPECT TO ITS PROTEST.