B-170763, OCT 5, 1970

B-170763, OCT 5, 1970

BID PROTEST - DEVIATIONS - DESCRIPTIVE LITERATURE DENIAL OF PROTEST AGAINST REJECTION OF LOW BID FOR ULTRASONIC VAPOR CLEANER BY TINKER AIR FORCE BASE ON BASIS OF FAILURE OF DESCRIPTIVE LITERATURE.

TO AMERICAN PROCESS EQUIPMENT CORPORATION:

YOUR TELEGRAM OF MAY 6 AND LETTER OF MAY 18, 1970, PROTESTING AGAINST REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. F34650-70-B-0149 BY TINKER AIR FORCE BASE, OKLAHOMA, HAS BEEN FORWARDED TO OUR OFFICE BY THE AIR FORCE, ALONG WITH ITS REPORT DATED SEPTEMBER 4, 1970.

THE SUBJECT INVITATION WAS ISSUED ON FEBRUARY 17, 1970, AND CALLED FOR BIDS ON ONE ULTRASONIC VAPOR CLEANER IN ACCORDANCE WITH STATED SPECIFICATIONS. SIX BIDS WERE RECEIVED AND OPENED ON MARCH 19, 1970. YOUR BID WAS DETERMINED NONRESPONSIVE TO THE ADVERTISED SPECIFICATIONS AND, THEREFORE, WAS REJECTED. AWARD WAS MADE TO THE NEXT LOWEST RESPONSIVE BIDDER ON APRIL 20, 1970.

THE INVITATION INCLUDED A DESCRIPTIVE LITERATURE CLAUSE AS PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION 2-202.5(D)(2), WHICH READS AS FOLLOWS:

"REQUIREMENT FOR DESCRIPTIVE LITERATURE (OCT. 1960)

"(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 THE PURPOSES OF BID EVALUATION AND AWARD, DETAILS OF THE PRODUCTS THE BIDDER PROPOSES TO FURNISH AS TO ELEMENTS SUCH AS DESIGN, MATERIALS, COMPONENTS, OR PERFORMANCE CHARACTERISTICS.

"(B) 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."

YOUR BID WAS ACCOMPANIED BY A COVER LETTER DATED MARCH 2, 1970, AND BULLETIN NOS. 7802-1 AND 7802-2, AND INCLUDED THE FOLLOWING PERTINENT LANGUAGE:

"BULLETIN NOS. 7802-1 AND 7802-2 ARE ONLY TO INFORM TINKER AIR FORCE BASE OF APEC'S CAPABILITIES.

"EQUIPMENT TO BE CONSTRUCTED IN THE EVENT OF AN AWARD WILL COMPLY WITH ALL SPECIFICATIONS SET FORTH IN F34650-70-B-0149 *** ."

IN REVIEWING THE BIDS, TECHNICAL PERSONNEL OF THE PROCUREMENT AGENCY FOUND THAT ALTHOUGH YOUR BROCHURES WERE NOT ADEQUATE FOR A COMPLETE EVALUATION, IT WAS APPARENT THAT YOUR EQUIPMENT DID NOT MEET THE SPECIFICATION REQUIREMENTS FOR A SELF-CONTAINED REFRIGERATION SYSTEM TO COOL THE FLUID IN THE ULTRASONIC TANK AND FOR CONDENSATION PURPOSES IN THE VAPOR DEGREASER SECTION. THEREFORE, IN ACCORDANCE WITH THE CAVEAT OF THE DESCRIPTIVE LITERATURE CLAUSE, THEY RECOMMENDED REJECTION OF YOUR BID FOR FAILURE OF THE DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMED TO THE SPECIFICATIONS.

IT IS YOUR POSITION THAT IN VIEW OF THE STATEMENT IN THE COVER LETTER TO THE EFFECT THAT YOU WILL COMPLY WITH ALL SPECIFICATIONS, REJECTION OF YOUR SUBSTANTIALLY LOWER BID WAS NOT IN THE BEST INTERESTS OF THE GOVERNMENT, WAS UNFAIR TO YOUR FIRM AS A PREVIOUS SUPPLIER OF THE SAME EQUIPMENT, AND AN ABUSE OF THE CONTRACTING OFFICER'S PREROGATIVE.

SINCE OUR DECISIONS REPORTED AT 36 COMP. GEN. 376; ID. 415 (1956), WE HAVE CONSISTENTLY RECOGNIZED THAT IN APPROPRIATE CIRCUMSTANCES INVITATIONS MAY REQUIRE, AS A MATERIAL CONDITION OF RESPONSIVENESS, THE SUBMISSION OF DESCRIPTIVE DATA WITH THE BID IN ORDER TO FIX PRECISELY THE NATURE OF THE ITEM OFFERED. SEE 40 COMP. GEN. 132 (1960); 37 ID. 143 (1957). ASPR 2- 202.5 AUTHORIZES THE INCLUSION OF SUCH PROVISION WHERE THE PROCUREMENT OFFICE DEEMS THAT DESCRIPTIVE LITERATURE IS NEEDED TO ENABLE IT TO DETERMINE BEFORE AWARD WHETHER PRODUCTS OFFERED MEET THE SPECIFICATION REQUIREMENTS AND TO ESTABLISH EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH. DESCRIPTIVE LITERATURE WAS NEEDED HERE IN ORDER TO DETERMINE SUITABILITY OF DESIGN AND BECAUSE SEVERAL SPECIFICATIONS PERMITTED VARIANCES IN DIMENSIONS WITHIN STATED MINIMUM AND MAXIMUM LIMITATIONS. THEREFORE, THE FAILURE TO SUBMIT DESCRIPTIVE LITERATURE ESTABLISHING THAT THE ITEM OFFERED CONFORMED TO THE STATED SPECIFICATIONS REQUIRED REJECTION OF YOUR BID. SEE ASPR 2-404.2(A), WHICH REQUIRES REJECTION OF ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION. FURTHERMORE, WE HAVE LONG HELD THAT A BLANKET OFFER TO COMPLY FULLY WITH ALL SPECIFICATIONS CANNOT OVERCOME VARIANCES IN THE BID DATA. SEE 40 COMP. GEN. 132, 135 (1960); 36 ID. 415 (1956). ALTHOUGH ACCEPTANCE OF A NONRESPONSIVE BID IN A GIVEN CASE COULD RESULT IN A SAVINGS TO THE GOVERNMENT, WE HAVE HELD THAT IT IS INFINITELY MORE IN THE PUBLIC INTEREST TO ABIDE BY THE RULES OF COMPETITIVE BIDDING THAN TO GAIN A PECUNIARY ADVANTAGE BY VIOLATION OF SUCH RULES. 17 COMP. GEN. 554 (1938).

ACCORDINGLY, YOUR PROTEST IS DENIED.