B-174399, FEB 18, 1972

B-174399, FEB 18, 1972

BID PROTEST - NONRESPONSIVENESS - QUALIFYING DATA DECISION DENYING PROTEST OF A. & E. MANUFACTURING COMPANY AGAINST AWARD OF A CONTRACT TO ANOTHER BIDDER FOR CERTAIN ITEMS OF AN IFB ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA). IN THE ABSENCE OF AN EXPRESS STATEMENT BY THE BIDDER THAT ITS PROPOSAL COMPLIES WITH THE SPECIFICATIONS, THE INSERTION OF IDENTIFYING PARTS NUMBERS CREATES AN AMBIGUITY AS TO WHETHER THE BIDDER WILL MAKE ITS BID RESPONSIVE OR NONRESPONSIVE AFTER OPENING. TO ALLOW SUCH AN OPTION WOULD ADVERSELY AFFECT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. ALTHOUGH ARTICLE 25, GSA SUPPLEMENTAL PROVISIONS, INDICATES THAT REFERENCES TO BRAND NAME ITEMS, IN THEMSELVES, WILL NOT BE CONSIDERED AS QUALIFYING, THE COMP. GEN. HAS PREVIOUSLY HELD THAT SUCH PROVISIONS DO NOT OVERRIDE THE FATAL DEFECT CAUSED BY THE INCLUSION OF A MODEL NUMBER IN THE BID. B-169813, JULY 6, 1970. FURTHER, THE GOVERNMENT IS NOT BOUND BY THE FACT THAT SIMILARLY IMPROPER BIDDING PRACTICES HAVE OCCURRED IN THE PAST. ACCORDINGLY, THE PROTEST IS DENIED.

TO A. & E. MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 21, 1971, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER FOR ITEMS 22 AND 27 UNDER INVITATION FOR BIDS (IFB) NO. FPNTP-C5-19004-A-6-9-71, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), WASHINGTON, D.C.

THE INVITATION WAS ISSUED MAY 7, 1971, INVITING BIDS FOR A REQUIREMENTS CONTRACT, WITH CERTAIN GUARANTEED MINIMUM QUANTITIES, FOR 49 ITEMS OF FSC CLASS-5210-GAGES, FEELER AND THICKNESS.

IN THE BID FOR ITEM NO. 22 YOU TYPED "(A & E MFG. CO. PT #FG-26)". THE BID FOR ITEM NO. 27 YOU TYPED "(A & E MFG. CO. PT #FG-31)".

THE CONTRACTING OFFICER DETERMINED THAT THE INSERTION OF THE UNSOLICITED PART NUMBERS CREATED AN AMBIGUITY AS TO WHETHER YOU WERE OFFERING PRODUCTS THAT CONFORMED TO THE SPECIFICATIONS. THEREFORE, IN ORDER TO ESTABLISH THE RESPONSIVENESS OF YOUR BID FOR ITEMS NOS. 22 AND 27, THE CONTRACTING OFFICER REQUESTED THE HAND TOOLS AND MECHANICAL EQUIPMENT BRANCH, STANDARDIZATION DIVISION, FEDERAL SUPPLY SERVICE, TO FURNISH INFORMATION AS TO WHETHER YOUR CURRENT CATALOGS SHOWED ANY DEVIATIONS FROM THE SPECIFICATIONS, AS INCORPORATED IN THE IFB, FOR A. & E. PART NUMBERS FG-26 AND FG-31. THE STANDARDIZATION DIVISION ADVISED THE CONTRACTING OFFICER THAT THE AVAILABLE A. & E. CATALOG DID NOT CITE PART NUMBERS FG-26 OR FG- 31. IN VIEW OF THIS INFORMATION, THE CONTRACTING OFFICER DETERMINED THAT YOUR BIDS FOR ITEMS NOS. 22 AND 27 WERE NONRESPONSIVE SINCE IT COULD NOT BE DETERMINED WHETHER THE REFERENCED PART NUMBERS CONFORMED TO THE SPECIFICATIONS.

YOU CONTEND THAT YOUR BIDS FOR ITEM NO. 22 AND ITEM NO. 27 SHOULD HAVE BEEN ACCEPTED. YOU STATE THAT IN PREVIOUS PROCUREMENTS YOU HAVE ALWAYS INCLUDED YOUR NAME AND IDENTIFYING PART NUMBER ON EACH ITEM QUOTATION. FURTHER YOU CONTEND THERE WAS NOTHING IN YOUR BID TO INDICATE THAT YOU INTENDED TO QUALIFY IT AND THAT, THEREFORE, UNDER ARTICLE 25, GSA SUPPLEMENTAL PROVISIONS, JUNE 1970 EDITION, WHICH WAS INCORPORATED BY REFERENCE INTO THE INVITATION, YOUR BID SHOULD HAVE BEEN CONSIDERED RESPONSIVE. ARTICLE 25 PROVIDES:

"IF BID SAMPLES, DESCRIPTIVE LITERATURE OR REFERENCES TO BRAND NAME ARE NOT REQUIRED BY THE INVITATION FOR BIDS, BUT ARE FURNISHED WITH A BID, THEY WILL NOT BE CONSIDERED AS QUALIFYING THE BID, AND WILL BE DISREGARDED, UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE BIDDER'S INTENTION TO SO QUALIFY THE BID. *** "

IN B-171417, MARCH 9, 1971, THERE WAS CONSIDERED A CASE INVOLVING FACTS AND CONTENTIONS SIMILAR TO THE IMMEDIATE ONE. MUCH OF WHAT WAS STATED IN THE CITED CASE HAS APPLICATION TO THE IMMEDIATE CASE AND IS THEREFORE HEREINAFTER QUOTED EXTENSIVELY:

"WE HAVE PREVIOUSLY CONSIDERED THE ISSUE WHETHER AN INTERNAL PART NUMBER WHICH A BIDDER TYPES IN ITS BID QUALIFIES THE BID AND RENDERS THE BID NONRESPONSIVE. IN B-169813, JULY 6, 1970, 50 COMP. GEN. , WE STATED AS FOLLOWS:

"' *** WE HAVE CONSIDERED THE PROBLEM PRESENTED BY FPD'S INSERTIONS IN A NUMBER OF OTHER CASES. SEE B-152808, JANUARY 2, 1964; B-151849, SEPTEMBER 10, 1963; B-143084, JUNE 22, 1960. AND OUR DECISION IN B 152808, SUPRA, IS IN ALL MATERIAL RESPECTS ANALOGOUS TO THE PRESENT SITUATION. IN THAT DECISION, WE QUOTED WITH APPROVAL THE FOLLOWING COMMENTS SUBMITTED BY A CONTRACTING OFFICER IN CONNECTION WITH B 151849, SUPRA:

"" *** SOME BIDDERS, WHEN INTENDING TO SUPPLY MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS, HAVE INCLUDED THEIR PART NUMBERS FOR THEIR READY REFERENCE IN THE EVENT OF AN AWARD, WHILE OTHERS HAVE INCLUDED THEIR PART NUMBERS FOR THE PURPOSE OF OFFERING A SIMILAR BUT MATERIALLY DIFFERENT ITEM, WHICH MIGHT OR MIGHT NOT MEET THE APPLICABLE SPECIFICATIONS AND THE NEEDS OF THE GOVERNMENT. WHEN PART NUMBERS ARE INSERTED IN BIDS, THE CONTRACTING OFFICER HAS NO WAY TO DETERMINE WHETHER THE BIDDER IS OFFERING MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS. *** "

"'THE FOREGOING APTLY STATES THE PRECISE DIFFICULTY APPARENT FROM AN EXAMINATION OF FPD'S BID, AND WE MUST INITIALLY CONCLUDE, AS WE DID IN B- 151849, THAT, IN THE ABSENCE OF AN EXPRESS STATEMENT BY FPD IN ITS BID THAT THE SPECIFIED PLANT PARTS NUMBERS WOULD COMPLY WITH THE SPECIFICATIONS, THERE IS AN INITIAL AMBIGUITY AS TO WHETHER FPD AGREED TO OFFER AN ITEM WHICH WOULD COMPLY WITH THE SPECIFICATIONS SET FORTH IN THE INVITATION.

"'FAILURE, AS HERE, TO ESTABLISH CONFORMANCE OF THE PLANT PARTS NUMBERS TO THE SPECIFICATIONS PRIOR TO BID OPENING LEAVES UNRESOLVED THE AMBIGUITY. FURTHERMORE, THE APPARENT RELIANCE BY THE CONTRACTING OFFICER ON FPD'S POST-BID-OPENING LETTER OF MAY 19, WHILE, IN OUR OPINION, ESSENTIAL TO HIS CONCLUSION, IS NOT PROPER. AS WE HAVE INDICATED IN NUMEROUS CASES, RELIANCE ON SUCH INFORMATION AFFORDS THE BIDDER AN OPTION TO AFFECT THE RESPONSIVENESS OF ITS BID - AN OPTION WHICH IS DETRIMENTAL TO THE COMPETITIVE BIDDING SYSTEM. 36 COMP. GEN. 705 (1967); 37 ID. 110, 112 (1957).'

"THE SAME REASONING USED IN THE ABOVE-CITED CASE WOULD BE APPLICABLE HERE. THE NUMBERS TYPED IN BY SKIL ADMITTEDLY HAVE SOME INTERNAL SIGNIFICANCE FOR THIS BIDDER AND THE POSSIBILITY EXISTS THAT THERE MAY BE SOME INTERNAL DATA RELATING TO THOSE NUMBERS WHICH MIGHT OR MIGHT NOT CONFORM TO THE SPECIFICATIONS. ANY INTERNAL DATA WOULD BE IN THE BIDDER'S CONTROL AND SINCE SUCH DATA WAS NOT FURNISHED PRIOR TO BID OPENING THE BIDDER SHOULD HAVE IT WITHIN ITS POWER TO DECIDE AFTER OPENING TO EITHER MAKE ITS BID RESPONSIVE OR NONRESPONSIVE. TO PERMIT SUCH A PROCEDURE WOULD VIOLATE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. WE, THEREFORE, HOLD THAT THE MODEL NUMBERS INSERTED BY SKIL FOR INTERNAL CONTROL PURPOSES CREATED A FATAL QUALIFICATION IN ITS BID FOR ITEMS 2 AND 5 WHICH CANNOT BE RESOLVED AFTER BID OPENING AND THAT SKIL'S BID FOR THESE ITEMS MUST BE REJECTED AS NONRESPONSIVE.

"'WITH RESPECT TO WHETHER SKIL'S BID MAY BE CONSIDERED RESPONSIVE ON THE BASIS OF ARTICLE 25, OF GSA SUPPLEMENTAL PROVISIONS, WHICH APPEARS TO BE PATTERNED AFTER FPR 1-2.202-5(F), WE HAVE NEVER CONSIDERED THIS PROVISION AS OVERRIDING THE DEFECT IN A BID CAUSED BY A QUALIFICATION WHERE A BIDDER INSERTS A MODEL NUMBER IN ITS BID. FOR EXAMPLE, B 169813, JULY 6, 1970, SUPRA, AND B-152808, JANUARY 2, 1964, BOTH CONCLUDED THAT THE BIDDER'S INSERTION OF A PART NUMBER OR MODEL NUMBER CREATED AN AMBIGUITY REQUIRING REJECTION OF THE BID EVEN THOUGH AN ASPR PROVISION COMPARABLE TO FPR 1- 2.202-5(F), IN ITS PRESENT FORM, HAD BEEN PROMULGATED AND WAS IN EFFECT AT THE TIME BOTH OF THESE CASES WERE DECIDED. IN B-165424, NOVEMBER 19, 1968, OUR OFFICE SPECIFICALLY HELD THAT THE REJECTION OF A BID WHERE A BIDDER HAD INSERTED ITS MODEL NUMBER AND ALSO ATTACHED DESCRIPTIVE DATA ON ITS MODELS WHICH DID NOT SHOW THAT THE ARTICLES OFFERED MET OR EXCEEDED THE REQUIREMENTS OF THE SPECIFICATIONS WAS IN ACCORDANCE WITH ASPR 2- 202.5(F) WHICH IS SUBSTANTIALLY THE SAME AS FPR 1-2.202-5(F).

"'WITH RESPECT TO THE COMMENT THAT SKIL'S INCLUSION OF ITS PART NUMBERS WAS IN ACCORDANCE WITH ITS BIDDING PRACTICE IN PRIOR GSA PROCUREMENTS, ASSUMING THE FACTUAL SITUATIONS ARE THE SAME, WE CAN ONLY REITERATE THAT IMPROPER PRIOR BIDDING PRACTICES DO NOT JUSTIFY A REPETITION OF THE SAME ERROR. SEE B-152808, JANUARY 2, 1964.'"

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.