B-171973, MAR 18, 1971

B-171973, MAR 18, 1971

BID PROTEST - BID RESPONSIVENESS - TEST DATA DECISION HOLDING THAT BID OF INDUSTRIAL ACOUSTICS COMPANY, INC., FOR A SOUND ISOLATION BOOTH WAS PROPERLY REJECTED AS NONRESPONSIVE. ALTHOUGH THE SOLICITATION REQUIRED THAT ALL TEST DATA BE SUBMITTED WITH THE BID, AND REQUIRED PERFORMANCE UNDER A 1966 TEST STANDARD, PROTESTANT FURNISHED TEST DATA UNDER THE 1960 STANDARD. SINCE USER CANNOT DETERMINE HOW THE ITEM WOULD PERFORM UNDER THE 1966 STANDARD, THE INFORMATION SUBMITTED MUST BE CONSIDERED AS DEVIATING MATERIALLY FROM THE SPECIFICATION REQUIREMENTS. FURTHER, PROTESTANT CANNOT MAKE A NONRESPONSIVE BID RESPONSIVE BY FURNISHING THE CORRECT TEST DATA 21 DAYS AFTER BID OPENING. THE REJECTION OF PROTESTANT'S BID AS NONRESPONSIVE WAS PROPER.

TO MR. ANDRE J. RICHARD:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19, 1971, REQUESTING THE VIEWS OF OUR OFFICE RELATIVE TO A PROTEST BY INDUSTRIAL ACOUSTICS COMPANY, INC. (INDUSTRIAL), AGAINST YOUR PLANNED AWARD ON SOLICITATION 518-71-45, ISSUED JANUARY 5, 1971, FOR A SOUND ISOLATION BOOTH.

YOU RELATE THAT INDUSTRIAL SUBMITTED WITH ITS OFFER A SOUND ABSORPTION TEST REPORT 64-88, PERFORMED IN ACCORDANCE WITH A 1960 STANDARD (ASTM C423 -60T), IN LIEU OF THE 1966 STANDARD (C423-66) REQUESTED BY PARAGRAPH 1.B. OF THE SPECIFICATIONS APPEARING ON PAGE 7 OF THE SUBJECT SOLICITATION.

INCLUDED WITHIN THE FILE WHICH YOU TRANSMITTED TO OUR OFFICE IS A COPY OF YOUR LETTER OF FEBRUARY 2, 1971, TO MR. ELLIS SINGER OF INDUSTRIAL IN WHICH YOU INDICATED THAT YOU REJECTED INDUSTRIAL'S BID BECAUSE, AMONG OTHER REASONS, IT WAS TECHNICALLY IMPOSSIBLE TO PREDICT, FROM THE RESULTING DATA OF THE TEST PERFORMED IN ACCORDANCE WITH THE 1960 STANDARD, THE MANNER IN WHICH THE ITEM OFFERED BY INDUSTRIAL WOULD PERFORM UNDER THE TEST PROCEDURE SPECIFIED BY THE SOLICITATION.

YOU PREDICATE THIS CONCLUSION UPON A REPORT FROM THE RIVERBANK ACOUSTICAL LABORATORY, DATED JANUARY 21, 1971, WHICH STATES:

"THERE IS NO WAY THAT WE CAN ABSOLUTELY PREDICT PERFORMANCE UNDER EITHER TEST PROCEDURE FROM DATA OBTAINED UNDER THE OTHER."

ON FEBRUARY 10, 1971, TWENTY-ONE DAYS AFTER BID OPENING, INDUSTRIAL SUBMITTED TEST REPORT 711-7 IN ACCORDANCE WITH THE 1966 STANDARD REQUIRED IN THE SOLICITATION.

IN REVIEWING THE TERMS OF THE SOLICITATION, WE NOTE THAT AT PARAGRAPH K. PAGE 9, IT IS STIPULATED:

"ALL TEST DATA OUTLINED IN THE SPECIFICATION SHALL BE SUBMITTED WITH THE BID FOR USER'S APPROVAL. NO SUBSTITUTION SHALL BE ALLOWED AFTER SUBMISSION OF TEST DATA."

AT 40 COMP. GEN. 435, 437 (1961) WE DECLARED THAT "THE PURPOSE OF DATA REQUIRED TO BE SUBMITTED WITH A BID IS TO PERMIT A DETERMINATION BY THE PROCURING AGENCY OF PRECISELY WHAT THE BIDDER PROPOSES, AND WILL BE BOUND, TO FURNISH IF AWARDED THE CONTRACT. A DISTINCTION MUST THEREFORE BE DRAWN BETWEEN A FAILURE TO COMPLY FULLY WITH DATA REQUIREMENTS WHICH DOES NOT AFFECT THE ABILITY OF THE CONTRACTING AGENCY TO EVALUATE THE BID AND BIND THE BIDDER TO STRICT COMPLIANCE WITH THE SPECIFICATION REQUIREMENTS BY ACCEPTING THE BID."

IT IS CONCEDED THAT INFORMATION WHICH DEVIATES FROM THAT REQUESTED BY THE SOLICITATION WILL NOT RENDER THE BID NONRESPONSIVE IF IT CAN BE DETERMINED WITH REASONABLE CERTAINTY FROM THE INFORMATION FURNISHED THAT THE OFFEROR'S PRODUCT WILL COMPLY WITH THE ESSENTIAL REQUIREMENTS OF THE SOLICITATION. CF. 39 COMP. GEN. 595 (1960).

IN THE PRESENT CASE, THE RIVERBANK LABORATORY HAS ESTABLISHED THE IMPOSSIBILITY OF DETERMINING, FROM THE DATA SUBMITTED PURSUANT TO THE 1960 TEST, HOW THE PRODUCT WOULD PERFORM UNDER THE 1966 TEST REQUIRED BY THE SOLICITATION. THEREFORE, THE INFORMATION SUBMITTED BY INDUSTRIAL MUST BE CONSIDERED AS DEVIATING MATERIALLY FROM THE SPECIFICATION REQUIREMENTS, IN THAT THERE EXISTS NO FORMULA WHICH MAY BE APPLIED BY THE CONTRACTING AGENCY TO DETERMINE, FROM THE DEVIATING INFORMATION SUBMITTED, WHETHER THE PRODUCT OFFERED WOULD MEET THE TECHNICAL STANDARDS SET FORTH IN THE SOLICITATION.

WE AGREE WITH YOUR ASSERTION THAT IT WOULD BE IMPROPER TO CONSIDER THE DATA OBTAINED PURSUANT TO THE APPROPRIATE TEST STANDARD, WHICH WAS TRANSMITTED TO YOU BY INDUSTRIAL AFTER THE BID OPENING. WE HAVE CONSISTENTLY STATED THAT TO PERMIT A BIDDER TO MAKE A BID, WHICH WAS ORIGINALLY NONRESPONSIVE TO THE INVITATION, RESPONSIVE BY SUBMITTING THE REQUESTED DATA AFTER THE BID OPENING WOULD BE TANTAMOUNT TO PERMITTING THE BIDDER TO SUBMIT A NEW BID, WHICH WOULD BE CONTRARY TO THE BIDDING REGULATIONS AND ESTABLISHED PROCEDURES. CF. 38 COMP. GEN. 819 (1959), 40 COMP. GEN. 432 (1961).

IN VIEW OF THE FOREGOING, WE CONCUR IN YOUR ACTION OF REJECTING INDUSTRIAL'S BID, AND WE HAVE SO ADVISED INDUSTRIAL BY LETTER OF THIS DATE.

THE FILE FORWARDED WITH YOUR LETTER OF FEBRUARY 19 IS RETURNED.