B-171833, APR 22, 1971

B-171833, APR 22, 1971

BID PROTEST - BID RESPONSIVENESS - UNSOLICITED MATERIAL DECISION DENYING PROTEST BY LOW BIDDER AGAINST THE AWARD OF A FEDERAL SUPPLY SCHEDULE CONTRACT TO THE SECOND LOW BIDDER FOR LAMINATING PRESSES UNDER A SOLICITATION ISSUED BY THE GSA. BECAUSE THE SPECIFICATIONS REQUIRE THAT THE PRESS SHALL BE CAPABLE OF LAMINATING NOT LESS THAN 500 CARDS PER HOUR, AND PROTESTANT ENCLOSED AN UNSOLICITED DESCRIPTIVE BROCHURE WHICH CONTAINED THE FOLLOWING STATEMENT: "PRODUCTION RATE ADJUSTABLE TO 300 CARDS PER HOUR," THE BID WAS PROPERLY DETERMINED NONRESPONSIVE. THE COMP. GEN. CANNOT CONSIDER PROTESTANT'S EXPLANATION OF WHAT WAS ACTUALLY INTENDED, BUT MUST DETERMINE THE BID INTENDED FROM THE BID PACKAGE ITSELF.

TO LAMINEX INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 2, 1971, AND SUBSEQUENT CORRESPONDENCE CONCERNING YOUR PROTEST AGAINST THE AWARD ON JANUARY 29, 1971, BY THE GENERAL SERVICES ADMINISTRATION (GSA) OF A FEDERAL SUPPLY SCHEDULE CONTRACT FOR LAMINATING PRESSES, TYPE II, CLASS I, STYLE A, SIZE 4, WHICH WERE SET FORTH UNDER INDEX NO. 00003 IN THE SCHEDULE OF SOLICITATION NO. CHN-12992, DATED NOVEMBER 26, 1970, TOGETHER WITH A LIST OF EIGHT OTHER REQUIRED ITEMS. PARAGRAPH 3.9.2.1 OF THE SPECIFICATIONS FOR THE LAMINATING PRESSES REQUIRED BY INDEX NO. 00003 STATED THAT THE LAMINATING PRESS SHALL BE CAPABLE OF LAMINATING NOT LESS THAN 500 IDENTIFICATION CARDS, PHOTOGRAPHS OR OTHER ARTICLES PER HOUR. ADDITIONALLY, PARAGRAPH 3.3 OF THE SPECIFICATION STATED THAT EACH LAMINATED PRESS FURNISHED UNDER THE SPECIFICATION SHALL BE A CURRENTLY STANDARD PRODUCT OF AN ESTABLISHED MANUFACTURER EXCEPT FOR ANY DEVIATIONS FROM THE MANUFACTURER'S STANDARD PRODUCT THAT ARE REQUIRED BY THE SPECIFICATION.

WHEN BIDS WERE OPENED ON DECEMBER 29, 1970, IT WAS NOTED THAT YOU SUBMITTED THE LOWEST OFFER FOR INDEX NO. 00003. ON THIS ITEM YOU OFFERED YOUR "MODEL FOUR" AND ENCLOSED WITH YOUR BID AN UNSOLICITED DESCRIPTIVE BROCHURE OF THAT MODEL WHICH CONTAINED THE FOLLOWING STATEMENT:

"PRODUCTION RATE:

ADJUSTABLE TO 300 CARDS PER HOUR" SINCE THE PRODUCTION RATE INDICATED IN YOUR BROCHURE FOR YOUR MODEL FOUR DEVIATED SUBSTANTIALLY FROM THE PRODUCTION RATE OF 500 WHICH WAS SET FORTH IN PARAGRAPH 3.9.2.1 OF THE SPECIFICATION FOR THE PRESS REQUIRED BY INDEX NO. 00003, GSA CONCLUDED THAT YOUR BID DEMONSTRATED AN INTENT TO OFFER A PRODUCT WHICH DID NOT CONFORM TO ALL OF THE SPECIFICATION REQUIREMENTS.

IN THIS REGARD GSA STATES THAT YOU HAD A FEDERAL SUPPLY SCHEDULE CONTRACT FOR THIS SAME ITEM FOR THE PERIOD FROM MARCH 1, 1969, THROUGH FEBRUARY 28, 1970, AND THAT YOU FURNISHED YOUR MODEL FOUR WITH A PRODUCTION CAPACITY OF APPROXIMATELY 300 CARDS PER HOUR. GSA FURTHER STATES THAT THIS PRODUCTION CAPACITY WAS VERIFIED WITH SEVERAL USING AGENCIES.

IN VIEW OF THE ABOVE, YOUR BID ON THE PRESS SPECIFIED BY INDEX NO. 00003 WAS CONSIDERED NONRESPONSIVE AND A CONTRACT FOR THAT ITEM WAS AWARDED TO THE NEXT-LOW BIDDER ON JANUARY 29, 1971, PRIOR TO GSA'S RECEIPT OF INFORMATION THAT YOU HAD FILED A PROTEST WITH THIS OFFICE.

YOU MAINTAIN THAT YOU DID NOT INTEND TO QUALIFY YOUR BID BY SUBMITTING THE BROCHURE BUT INTENDED ONLY TO SHOW THAT YOUR MODEL FOUR WAS A STANDARD PRODUCT IN ACCORD WITH PARAGRAPH 3.3 OF THE SPECIFICATION; THAT YOUR BID DID NOT CONTAIN ANY REFERENCE TO THE LITERATURE OR GIVE ANY OTHER INDICATION THAT THE LITERATURE WAS INCORPORATED BY REFERENCE; THAT IT WAS YOUR INTENTION TO ALTER THE PRODUCTION RATE OF YOUR MODEL FOUR TO CONFORM WITH THE RATE SPECIFIED IN THE SOLICITATION, IF YOU WERE AWARDED THE CONTRACT; AND THAT SUCH ALTERATION WAS AUTHORIZED BY PARAGRAPH 3.3 OF THE SPECIFICATION.

OUR OFFICE HAS HELD THAT IN SITUATIONS WHERE A BIDDER ACCOMPANIES HIS BID WITH UNSOLICITED DESCRIPTIVE MATERIAL THE INTENT OF THE BID MUST BE DETERMINED FROM A REASONABLE CONSTRUCTION OF ITS ENTIRE CONTENTS INCLUDING ANY UNSOLICITED LITERATURE. 49 COMP. GEN. (B-169057, JUNE 17, 1970).

AS WE STATED IN B-166284, APRIL 14, 1969;

"THE CRUX OF THE MATTER IS THE INTENT OF THE OFFEROR AND ANYTHING SHORT OF A CLEAR INTENTION TO CONFORM ON THE FACE OF THE BID REQUIRES REJECTION.

WHEN MORE THAN ONE POSSIBLE INTERPRETATION MAY REASONABLY BE REACHED FROM THE TERMS OF A BID A BIDDER MAY NOT BE PERMITTED TO EXPLAIN THE ACTUAL MEANING OR BID INTENDED SINCE THIS WOULD AFFORD THE BIDDER THE OPPORTUNITY TO ALTER THE RESPONSIVENESS OF HIS BID BY EXTRANEOUS MATERIAL." IN VIEW THEREOF, WE CANNOT CONSIDER YOUR EXPLANATIONS OF WHAT YOU ACTUALLY INTENDED BY ATTACHING THE BROCHURE TO YOUR BID, BUT MUST DETERMINE THE BID INTENDED FROM THE BID PACKAGE ITSELF.

WE NOTE THAT THE MODEL NUMBER WHICH YOU INSERTED ON THE SCHEDULE OF YOUR BID FOR INDEX NO. 00003 CORRESPONDS WITH THE MODEL NUMBER OF THE DESCRIPTIVE BROCHURE ATTACHED TO YOUR BID. WE BELIEVE THE CORRESPONDENCE OF THESE MODEL NUMBERS, TOGETHER WITH THE FACT THAT THE BROCHURE WAS ENCLOSED WITH YOUR BID, REASONABLY JUSTIFIES THE ADMINISTRATIVE DETERMINATION THAT THE BROCHURE CONSTITUTED A PART OF YOUR INTENDED BID FOR THE ITEM DESCRIBED IN INDEX NO. 00003 EVEN THOUGH NO SPECIFIC REFERENCE WAS MADE IN YOUR BID TO THE BROCHURE. SEE B 160474, FEBRUARY 27, 1967; B-163007, JANUARY 10, 1968; AND B-167584, OCTOBER 3, 1969. SINCE THE BROCHURE SPECIFICALLY SHOWS THAT YOUR MODEL FOUR POSSESSES A PRODUCTION RATE WHICH IS ADJUSTABLE TO ONLY 300 CARDS PER HOUR, WHEREAS A PRODUCTION RATE OF 500 IS SPECIFIED FOR THE ITEM SOLICITED UNDER INDEX NO. 00003, IT IS CLEAR THAT THE MODEL WHICH WAS IDENTIFIED IN YOUR BID SCHEDULE AND DESCRIBED IN YOUR BROCHURE DOES NOT COMPLY WITH THE ADVERTISED REQUIREMENTS IN MATERIAL RESPECTS. WE CANNOT CONCLUDE THEREFORE THAT GSA ERRED IN FINDING YOUR BID ON INDEX NO. 00003 TO BE NONRESPONSIVE.

WHILE YOU STATE THAT THE BROCHURE WAS ENCLOSED ONLY TO SHOW THAT YOUR MODEL FOUR WAS A STANDARD MODEL IN ACCORD WITH PARAGRAPH 3.3 OF THE SPECIFICATIONS AND THAT YOU INTENDED TO MODIFY YOUR MODEL FOUR, AS PERMITTED BY THAT PARAGRAPH, TO COMPLY WITH THE REQUIRED PRODUCTION RATE, SUCH STATEMENTS WERE NOT INCLUDED ANYWHERE IN YOUR BID PACKAGE AND, AS STATED ABOVE, INFORMATION CLARIFYING YOUR INTENTIONS MAY NOT BE SUBMITTED AND CONSIDERED AFTER BID OPENING TO MAKE YOUR BID RESPONSIVE.

WE BELIEVE THE CIRCUMSTANCES OF THE SUBJECT CASE ARE READILY DISTINGUISHABLE FROM THE SITUATION IN 39 COMP. GEN. 878 (1960), WHICH YOU CITE. IN THAT CASE THE BIDDER FURNISHED UNSOLICITED DESCRIPTIVE LITERATURE CONCERNING ITS OFFERED MODEL, BUT THERE WAS NOTHING IN THE LITERATURE WHICH SUGGESTED THAT THE BIDDER WAS OFFERING A NONCONFORMING PRODUCT, UNLIKE THE PRESENT CASE WHEREIN THE BASIS UPON WHICH YOU WERE BIDDING WAS AT BEST AMBIGUOUS, AND THEREFORE NOT ACCEPTABLE. B-166284, MAY 21, 1969.

FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST MUST BE DENIED.