B-174347, NOV 17, 1971

B-174347, NOV 17, 1971

BID PROTEST - MANDATORY REQUIREMENTS - UNENFORCEABLE REQUIREMENTS DECISION DENYING PROTEST BY DERALCO, INC. AGAINST AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER AN IFB ISSUED BY THE ROBINS AFB FOR RELOCATING A SECURITY FENCE AND INSTALLING EMERGENCY LIGHTS. WHILE BID SOLICITATIONS SHOULD BE PREPARED TO INSURE THAT NO USELESS AND UNENFORCEABLE REQUIREMENTS ARE IMPOSED, A BIDDER BY SIGNING THE BID FORM AGREES TO AND BINDS HIMSELF TO PERFORM THE WORK AS SPECIFIED. THEREFORE, THE FURTHER GENERAL CERTIFICATION HERE REQUIRED, THAT THE BIDDER WILL COMPLY WITH THE SPECIFICATIONS ADDS NOTHING TO THE BID AND THE FAILURE TO ADD SUCH CERTIFICATION WAS PROPERLY WAIVED UNDER ASPR 2 405. THE PROTEST IS DENIED.

TO DERALCO, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 15 AND 26, 1971, PROTESTING AN AWARD OF A CONTRACT TO ANY BIDDER WHO DID NOT COMPLY WITH PARAGRAPH 16E-03.10 OF THE SPECIFICATIONS UNDER INVITATION FOR BIDS NO. F09650-72-B-0057, ISSUED BY THE ROBINS AIR FORCE BASE, GEORGIA.

THE INVITATION REQUESTED BIDS FOR RELOCATING THE SECURITY FENCE AND INSTALLING EMERGENCY LIGHTS FOR BUILDING 640, ROBINS AIR FORCE BASE, IN ACCORDANCE WITH CERTAIN DRAWINGS AND SPECIFICATIONS. SECTION 16E OF THE SPECIFICATIONS, CONSISTING OF SIX PAGES, SETS FORTH DETAILED REQUIREMENTS FOR THE EMERGENCY LIGHTS TO BE FURNISHED AND INSTALLED. PARAGRAPH 16E- 03.10 OF THE SPECIFICATIONS PROVIDES AS FOLLOWS:

"CERTIFICATION. THE BIDDER SHALL SUBMIT, WITH HIS BID, DESCRIPTIVE LITERATURE OR DRAWINGS TOGETHER WITH A WRITTEN AND SIGNED CERTIFICATION THAT THE UNIT ASSEMBLIES, FITTINGS, AND ALL COMPONENTS THEREOF MEET OR EXCEED ALL REQUIREMENTS OF THIS SPECIFICATION AND THE APPROPRIATE SECTIONS OF ALL SPECIFICATIONS AND STANDARDS SPECIFIED HEREIN."

THE SEVEN BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE PUBLICLY OPENED ON SEPTEMBER 17, 1971, AND RANGE IN PRICE FROM $5,913 TO $11,900. YOUR BID IN THE AMOUNT OF $9,750 WAS FIFTH HIGH. YOU WERE THE ONLY BIDDER WHO ATTEMPTED TO COMPLY WITH PARAGRAPH 16E-03.10, QUOTED ABOVE.

WITH YOUR BID WAS A LETTER DATED SEPTEMBER 17, 1971, FROM MCDONALD ELECTRIC COMPANY, SIGNED BY CHARLES G. MCDONALD, OWNER, AS FOLLOWS:

"TO WHOM IT MAY CONCERN

RE: PROJECT #WR120-1

ALTER BUILDING 640, ROBINS AFB, GA.

"THIS IS TO CERTIFY THAT THE EMERGENCY LIGHT UNIT ASSEMBLIES, FITTINGS, AND ALL COMPONENTS THEREOF MEET OR EXCEED ALL REQUIREMENTS OF THE SPECIFICATION FOR THE ABOVE REFERENCED PROJECT AND THE APPROPRIATE SECTIONS OF ALL SPECIFICATIONS AND STANDARDS SPECIFIED THEREIN."

THERE WAS ALSO ATTACHED A BROCHURE COVERING LINK-BOY BANTAM, 6 VOLT EXTRA LIFE AUTOMATIC UNITS, BY YORK LITE, MODELS P6MC AND P6SC. NOTHING IN YOUR BID ITSELF OTHERWISE IDENTIFIED THE MCDONALD ELECTRIC COMPANY OR THE TYPE OF LIGHT SETS YOU PROPOSE TO FURNISH.

THE CONTRACTING OFFICER DETERMINED THAT THE SPECIFICATIONS WERE SUFFICIENTLY DETAILED AS TO THE WORK TO BE PERFORMED AND, THEREFORE, PROPOSED TO WAIVE THE BIDDER'S FAILURE TO COMPLY WITH THE REQUIREMENT FOR DESCRIPTIVE LITERATURE AND CERTIFICATION AS A MINOR INFORMALITY AS PERMITTED BY SECTION 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH PROVIDES AS FOLLOWS:

"MINOR INFORMALITIES OR IRREGULARITIES IN BIDS. A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO, BIDDERS. THE CONTRACTING OFFICER SHALL EITHER GIVE TO THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID, OR, WAIVE ANY SUCH DEFICIENCY WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT."

YOU PROTEST THE ACTION PROPOSED BY THE CONTRACTING OFFICER ON THE BASIS THAT THE PROVISION IMPOSES A MANDATORY REQUIREMENT. IT IS STATED THAT YOUR FIRM WENT TO CONSIDERABLE LENGTH AND TROUBLE TO OBTAIN THE REQUIRED CERTIFICATION AND YOU FEEL IT IS GROSSLY UNFAIR AND ILLEGAL TO AVOID A SPECIFIC SPECIFICATION REQUIREMENT.

A BIDDER, BY SIGNING THE BID FORM, AGREES TO AND BINDS HIMSELF TO PERFORM THE WORK IN ACCORDANCE WITH ATTACHED AND REFERENCED SPECIFICATIONS, SCHEDULES, DRAWINGS AND CONDITIONS. THEREFORE, A FURTHER GENERAL CERTIFICATION THAT THE BIDDER WILL COMPLY WITH THE SPECIFICATIONS ADDS NOTHING TO HIS BID AND IS REDUNDANT.

THE REQUIREMENT FOR DESCRIPTIVE LITERATURE OR DRAWINGS IS SO BROADLY STATED AS TO GIVE THE BIDDERS LITTLE OR NO INDICATION OF WHAT IS NECESSARY TO COMPLY WITH THE REQUIREMENT. WHERE THE SPECIFICATIONS ARE SUFFICIENTLY DETAILED AS TO MAKE THE LITERATURE CALLED FOR UNNECESSARY, THE REQUIREMENT IN THE SOLICITATION FOR SUCH LITERATURE IS NOT ENFORCEABLE. 49 COMP. GEN. 398 (1969). AND EVEN WHERE THE LITERATURE IS NEEDED TO DETERMINE PRECISELY THE PERFORMANCE WHICH THE BIDDER WOULD BIND HIMSELF TO UNDERTAKE, THE LITERATURE REQUIREMENT MUST CLEARLY ESTABLISH IN SOME DETAIL THE REQUIREMENT FOR LITERATURE AND THE PURPOSE INTENDED TO BE SERVED THEREBY. 46 COMP. GEN. 1 (1966). WE FIND THAT THE LITERATURE REQUIREMENT IN THIS INSTANCE FAILS ON BOTH COUNTS. IN THIS CONNECTION IT IS REPORTED THAT THE SUBMITTAL REQUIRED BY PARAGRAPH 16E-03.10 OF THE SPECIFICATIONS "WAS A MISTAKE AND SHOULD NOT HAVE BEEN REQUIRED."

FOR THE FOREGOING REASONS, WE FIND NO BASIS TO QUESTION THE ACTION PROPOSED TO BE TAKEN BY THE CONTRACTING OFFICER AND, THEREFORE, YOUR PROTEST MUST BE DENIED. HOWEVER, WE THINK THAT MORE CARE SHOULD BE TAKEN IN THE PREPARATION OF BID SOLICITATIONS TO INSURE THAT NO USELESS AND UNENFORCEABLE REQUIREMENTS ARE IMPOSED ON BIDDERS AND HAVE SO ADVISED THE SECRETARY OF THE AIR FORCE.