B-174204, FEB 18, 1972

B-174204, FEB 18, 1972

BID PROTEST - NONRESPONSIVENESS - FAILURE TO SUBMIT DATA DECISION DENYING PROTEST OF MARINE EQUIPMENT & SUPPLY CO. AGAINST AWARD OF A SMALL BUSINESS SET-ASIDE TO KESSEL KITCHEN EQUIPMENT CO., INC., UNDER AN IFB ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VA., FOR A PROCUREMENT OF COMMERCIAL DISHWASHING MACHINES. A BID IS NONRESPONSIVE WHEN THE OMISSION OF REQUIRED DATA AFFECTS PRICE, QUANTITY, QUALITY, OR DELIVERY. IN THE INSTANT CASE, INSERTION OF MANUFACTURER'S NAME, MAKE, AND MODEL NUMBER WAS ONLY REQUIRED FOR THE CONVENIENCE OF THE GOVERNMENT IN ASSIGNING FEDERAL STOCK NUMBERS. FURTHER, KESSEL DID NOT OBTAIN AN UNFAIR ADVANTAGE SINCE BIDDERS WERE NOT REQUIRED TO FURNISH ITEMS EXACTLY LIKE THOSE SPECIFIED IN THEIR SUBMITTED DATA, BUT ONLY TO COMPLY WITH THE SPECIFICATIONS OF THE SOLICITATION. ACCORDINGLY, THE PROTEST IS DENIED.

TO MARINE EQUIPMENT & SUPPLY CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1971, PROTESTING AWARD TO THE APPARENT LOW BIDDER UNDER IFB DSA400-72-B-0504 ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA.

YOUR PROTEST IS BASED ON THE FAILURE OF THE GOVERNMENT TO DECLARE NONRESPONSIVE THE APPARENT LOW BID OF KESSEL KITCHEN EQUIPMENT CO., INC., TRENTON, NEW JERSEY (KESSEL). YOU ALLEGE THE FAILURE OF KESSEL TO COMPLETE ALL THE DATA REQUESTED IN THE IFB AS TO THE MANUFACTURER'S NAME, MAKE, MODEL NUMBER, LOCATION OF PRODUCTION FACILITIES AND SHIPPING POINT SHOULD RENDER ITS BID NONRESPONSIVE. YOU STATE THE REASON FOR YOUR OBJECTION IS THAT KESSEL'S BID PERMITS HIM TO BARGAIN WITH SEVERAL MANUFACTURERS AFTER HIS BID POSITION BECOMES KNOWN AT THE BID OPENING, THUS GIVING HIM AN UNFAIR ADVANTAGE OVER OTHER BIDDERS WHO HAVE COMMITTED THEMSELVES TO PROVIDE ONLY THE EQUIPMENT THEY IDENTIFIED IN THEIR RESPECTIVE BIDS.

IFB DSA400-72-B-0504 WAS AN ADVERTISED PROCUREMENT, SET ASIDE 100 PERCENT FOR SMALL BUSINESS CONCERNS. IT SOLICITED FIRM FIXED UNIT PRICES FOR AN ESTIMATED QUANTITY OF 20 COMMERCIAL TYPE DISHWASHING MACHINES DURING A 12 MONTHS PERIOD, TO BE DELIVERED AS ORDERED UNDER THE RESULTING REQUIREMENTS TYPE CONTRACT. UNIT PRICES WERE TO BE BID FOB ORIGIN. THE FOLLOWING LANGUAGE APPEARED PRECEDING THE ITEM DESCRIPTIONS:

"FURNISHING INFORMATION AS TO MANUFACTURER'S NAME, MAKE AND MODEL NO. DOES NOT RELIEVE THE BIDDER FROM SUPPLYING AN ITEM THAT CONFORMS TO THE DESCRIPTION FURNISHED IN THIS SECTION OF THE SOLICITATION. THIS INFORMATION IS REQUIRED TO ASSIGN A PERMANENT FEDERAL STOCK NUMBER TO THE SPECIFIC ITEM BEING PURCHASED."

AFTER THE ITEM DESCRIPTION APPEARED THE FOLLOWING:

"EACH BIDDER/OFFEROR MUST INSERT IN THE FOLLOWING SPACES, THE MANUFACTURER'S MAKE AND/OR MODEL NUMBER OF ITEMS TO BE FURNISHED.

MFR'S NAME MAKE MODEL NO. "

FOUR TIMELY BIDS WERE RECEIVED AND OPENED ON AUGUST 18, 1971. KESSEL, AS IS INDICATED ABOVE, WAS THE APPARENT LOW BIDDER BUT DID NOT SUPPLY THE DATA REQUESTED BY THE ABOVE-QUOTED LANGUAGE. NEITHER DID KESSEL SUBMIT THE DGSC FORM 350, "PRODUCTION FACILITIES AND TRANSPORTATION DATA" WITH SECTION A COMPLETED, AS WAS REQUIRED FOR OFFERS ON AN FOB ORIGIN BASIS.

WITH REGARD TO YOUR CONTENTION THAT FAILURE TO FURNISH ALL OF THE REQUESTED DATA WITH THE BID SHOULD RENDER IT NONRESPONSIVE, IT IS THE CONTRACTING OFFICER'S POSITION THAT OMISSION OF THIS DATA HAD NO EFFECT ON THE CONTRACTOR'S OBLIGATION TO PERFORM IN COMPLIANCE WITH THE SPECIFICATION REQUIREMENTS, SINCE THE DATA REQUESTED WAS SOLELY FOR THE CONVENIENCE OF THE GOVERNMENT IN ASSIGNING APPROPRIATE FEDERAL STOCK NUMBERS, AS WAS STATED IN THE PARAGRAPH FIRST QUOTED ABOVE. THE OMISSION OF DATA CAN BE WAIVED AS A MINOR INFORMALITY WHERE THE DATA DOES NOT GO TO THE SUBSTANCE OF THE BID, AND WAIVER THEREFORE WOULD NOT WORK AN INJUSTICE ON THE OTHER BIDDERS. A REQUEST FOR THE SUBMISSION OF DATA WITH A BID MAY GENERALLY BE CONSIDERED OF SUBSTANCE ONLY IF IT AFFECTS PRICE, QUANTITY, QUALITY OR DELIVERY. SINCE SUCH WAS NOT THE CASE HERE, WE MUST CONCLUDE THAT THE FAILURE OF KESSEL TO SUBMIT THE DATA IN QUESTION WITH ITS BID DID NOT REQUIRE REJECTION OF ITS BID AS NONRESPONSIVE. SEE OUR DECISIONS B- 173746(2) OCTOBER 26, 1971, AND 49 COMP. GEN. 553 (1970) CITED THEREIN.

REGARDING YOUR CONCERN THAT KESSEL HAS OBTAINED AN UNFAIR ADVANTAGE, SUCH WOULD BE THE CASE ONLY IF, AS YOU CONTEND, THOSE BIDDERS WHO SUBMITTED THE DATA COULD BE REQUIRED TO FURNISH ONLY THOSE ITEMS DESCRIBED BY THE DATA. WE BELIEVE SUCH AN INTERPRETATION OF THE INVITATION WOULD BE COMPLETELY INCONSISTENT WITH THE CONTRACTING OFFICER'S ADVICE THAT THE DATA WAS REQUIRED SOLELY FOR THE PURPOSE OF ASSIGNING FEDERAL STOCK NUMBERS. IT IS THEREFORE OUR OPINION THAT EACH BIDDER, WHETHER OR NOT HE FURNISHED THE REQUESTED DATA, WAS OBLIGATED ONLY TO FURNISH ITEMS WHICH COMPLIED WITH THE SPECIFICATIONS, AND COULD NOT BE REQUIRED TO FURNISH ONLY THE ITEMS DESCRIBED IN THE DATA INCLUDED WITH HIS BID. IT FOLLOWS THAT NO COMPETITIVE ADVANTAGE ACCRUED TO THOSE BIDDERS WHO DID NOT FURNISH THE REQUESTED DATA WITH THEIR BIDS. IN THIS CONNECTION, THE DEFENSE GENERAL SUPPLY CENTER HAS ADVISED US THAT KESSEL SUBSEQUENTLY DID SUBMIT ALL OF THE REQUESTED DATA, INCLUDING DGSC FORM 350.

IN ACCORDANCE WITH THE FOREGOING YOUR PROTEST MUST BE DENIED.