B-175324, JUN 1, 1972

B-175324, JUN 1, 1972

BID PROTEST - NONRESPONSIVENESS CONCERNING THE PROTEST OF THE ELGIN SWEEPER COMPANY AGAINST AWARD OF A CONTRACT TO THE WAYNE MANUFACTURING COMPANY UNDER AN IFB ISSUED BY THE PROCUREMENT DIVISION, FORT RILEY, KANS. REJECTION OF ELGIN'S BID AS NONRESPONSIVE FOR FAILING TO SUBMIT DESCRIPTIVE LITERATURE WAS UNWARRANTED SINCE THE REQUIREMENT WAS IMPROPERLY INCLUDED IN THE SOLICITATION. ACCORDINGLY, IT IS RECOMMENDED THAT THE CONTRACT WITH WAYNE BE CANCELLED AND AWARD BE MADE TO ELGIN.

TO MR. SECRETARY:

WE REFER TO THE REPORT, REFERENCE SAOAS (I&L)-MO, DATED APRIL 24, 1972, FROM THE ASSISTANT DEPUTY FOR MATERIEL ACQUISITION, RELATIVE TO THE PROTEST OF THE ELGIN SWEEPER COMPANY (ELGIN) AGAINST THE AWARD OF CONTRACT NO. DABE13-72-C-0160 TO THE WAYNE MANUFACTURING COMPANY (WAYNE) UNDER INVITATION FOR BIDS (IFB) DABE13-72-B-0037, ISSUED BY THE PROCUREMENT DIVISION, FORT RILEY, KANSAS.

FOR THE FOLLOWING REASONS WE CONCUR IN THE RECOMMENDATION OF YOUR DEPARTMENT THAT THE CONTRACT WITH WAYNE BE CANCELED AND AWARD MADE TO ELGIN AS THE RESPONSIVE, RESPONSIBLE BIDDER.

THE IFB, AS AMENDED, SOLICITED BIDS FOR FIVE "SWEEPER, ROTARY, SELF PROPELLED, (STREET TYPE), IN ACCORDANCE WITH FEDERAL SPECIFICATIONS 00 S- 875C, DATED APRIL 15, 1971." THE IFB ALSO INCLUDED THE FOLLOWING PROVISION:

"THE BIDDER SHALL SUBMIT WITH HIS BID DESCRIPTIVE LITERATURE OF THE ROTARY STREET SWEEPER HE PROPOSES TO FURNISH UNDER ANY RESULTING CONTRACT AWARDED AS A RESULT OF THIS SOLICITATION."

ELGIN SUBMITTED THE LOW BID OF $8,985 PER UNIT, BUT WAS REJECTED AS NONRESPONSIVE FOR ITS FAILURE TO INCLUDE THE DESCRIPTIVE LITERATURE WITH ITS BID. CONSEQUENTLY, AWARD WAS MADE TO WAYNE ON FEBRUARY 29, 1972, AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER FOR $9,158 PER UNIT. IT IS NOTED THAT LATER THE SAME DAY, UPON NOTIFICATION OF THE ELGIN PROTEST, THE CONTRACTING OFFICER APPRISED WAYNE OF THE PROTEST AND OBTAINED AGREEMENT THAT WORK WOULD NOT PROCEED UNDER THE CONTRACT UNTIL RESOLUTION OF THIS PROTEST.

ELGIN PROTESTED THE REJECTION OF ITS BID ON THE GROUNDS THAT THE DESCRIPTIVE REQUIREMENT WAS UNNECESSARY IN VIEW OF THE FEDERAL SPECIFICATION PURCHASE DESCRIPTION. IN THIS REGARD, THE MEMORANDUM DAJA- PL 1972/6202 DATED APRIL 20, 1972, FROM THE CHIEF, LOGISTICS & CONTRACT LAW TEAM, PROCUREMENT LAW DIVISION, STATES:

"THE FILE DOES NOT REFLECT THE BASIS FOR REQUIRING THE SUBMISSION OF DESCRIPTIVE LITERATURE. THE LETTER OF 6 APRIL FROM HEADQUARTERS, 1ST INFANTRY DIVISION (MECH) AND FORT RILEY, MERELY STATES THAT THE REQUIRING PERSONNEL DESIRED THE LITERATURE BUT IT DOES NOT INDICATE THE PURPOSE FOR WHICH THE LITERATURE WAS DESIRED. THE FACILITIES ENGINEER APPARENTLY COMPARED WAYNE LITERATURE WITH THE SPECIFICATIONS CONTAINED IN THE SOLICITATION TO ASCERTAIN IF THE OFFERED EQUIPMENT MET THE SPECIFICATIONS BUT THE LITERATURE WAS INADEQUATE FOR THIS PURPOSE AS IT DID NOT INCLUDE THE MODIFICATIONS NECESSARY TO MEET THE SOLICITATION SPECIFICATIONS. THE DETAILED SPECIFICATIONS WOULD INDICATE THAT THEY ARE ADEQUATE TO OBTAIN THE DESIRED PRODUCTS AND THAT NO DESCRIPTIVE LITERATURE WOULD BE NECESSARY. ASSUMING, HOWEVER, THAT THE LITERATURE WERE NEEDED FOR THE PURPOSE OF EVALUATING THE BID, THE COMPTROLLER GENERAL HAS HELD THAT THIS ALONE IS NOT SUFFICIENT TO SUPPORT A REQUIREMENT FOR THE SUBMISSION OF DESCRIPTIVE LITERATURE (49 COMP. GEN. 398, 400 (1969)). IN CONSIDERATION OF THE FOREGOING, I BELIEVE THAT THE DESCRIPTIVE LITERATURE REQUIREMENT WAS IMPROPERLY INCLUDED IN THE SOLICITATION. EVEN ASSUMING THERE WERE ADEQUATE JUSTIFICATION FOR THE DESCRIPTIVE LITERATURE REQUIREMENT, THE PROVISIONS RELATING THERETO IN THE SOLICITATION WERE INADEQUATE. THE PROVISIONS DID NOT DESCRIBE THE DETAIL DESIRED IN THE DESCRIPTIVE LITERATURE OR THE PURPOSE FOR WHICH IT WAS TO BE USED. THE COMPTROLLER GENERAL HAS HELD THAT, IF A DESCRIPTIVE LITERATURE REQUIREMENT IS INCLUDED IN A SOLICITATION, THE REQUIREMENT MUST ADVISE BIDDERS WITH PARTICULARITY BOTH AS TO THE EXTENT OF DETAIL REQUIRED AND THE PURPOSE IT IS EXPECTED TO SERVE SO THAT BIDDERS MIGHT BE ON AN EQUAL BASIS IN MEETING THE DESCRIPTIVE LITERATURE REQUIREMENT. (38 COMP. GEN. 59 (1958); 42 ID. 598 (1963); 46 ID. 315 (1966); 49 COMP. GEN. 398 (1969)). IT IS CONCLUDED, THEREFORE, THAT ELGIN'S BID WAS IMPROPERLY REJECTED AND THE CONTRACT SHOULD NOT HAVE BEEN AWARDED TO WAYNE."

WE CONCUR IN THIS ASSESSMENT. FURTHER, IN VIEW OF THE FACT THAT WAYNE HAS NOT COMMENCED PRODUCTION UNDER THE CONTRACT, WE CONCUR IN THE RECOMMENDATION THAT THE CONTRACT WITH WAYNE BE CANCELED AND AWARD BE MADE TO ELGIN.