B-181838, MAR 17, 1975

B-181838, MAR 17, 1975

ALTHOUGH DESCRIPTIVE DATA CLAUSE IN INVITATION DID NOT PROPERLY SET FORTH REQUIREMENT FOR DESCRIPTIVE DATA AS PROVIDED BY FPR, AGENCY WAS JUSTIFIED IN REJECTING BID SUBMITTED WITHOUT ANY DESCRIPTIVE DATA WHERE BIDDER PROPOSED TO FURNISH A MODIFIED VERSION OF ITS STANDARD MODEL, SINCE CLAUSE REASONABLY DID ADVISE BIDDERS THAT DATA WAS TO BE SUBMITTED WITH BID IF BIDDER PROPOSED TO MODIFY ITS STANDARD MODEL IN ORDER TO MEET THE GOVERNMENT'S REQUIREMENTS.

SUPREME EQUIPMENT AND SYSTEMS CORPORATION:

INVITATION FOR BIDS (IFB) 74-81 WAS ISSUED ON MAY 20, 1974, BY THE CENTER FOR DISEASE CONTROL, ATLANTA, GEORGIA, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE (HEW), FOR THE FURNISHING AND INSTALLATION OF AN AUTOMATED, TWO- UNIT STORAGE AND RETRIEVAL SYSTEM FOR FILM REELS. ON JUNE 20, 1974, TWO BIDS WERE OPENED AS SCHEDULED. ONE FROM PAGE AIRWAYS, INCORPORATED (PAGE), WAS IN THE AMOUNT OF $133,478, AND THE OTHER FROM SUPREME EQUIPMENT AND SYSTEMS CORPORATION (SUPREME) WAS IN THE AMOUNT OF $109,064. BY LETTER DATED JUNE 27, 1974, THE CONTRACTING OFFICER INFORMED THE LOW BIDDER, SUPREME, THAT ITS BID WAS BEING REJECTED AS NONRESPONSIVE BECAUSE IT FAILED TO SUBMIT DESCRIPTIVE DATA AND A STANDARD OR PROPOSED MAINTENANCE AGREEMENT AS REQUIRED BY THE SOLICITATION. ON THE SAME DATE THE CONTRACT WAS AWARDED TO PAGE.

SUPREME PROTESTED THE REJECTION OF ITS BID ARGUING THAT IT OFFERED A PRODUCT IN CONFORMANCE WITH THE SPECIFICATIONS AND THAT ITS FAILURE TO PROVIDE A MAINTENANCE AGREEMENT WITH ITS BID SHOULD HAVE BEEN VIEWED AS A MINOR INFORMALITY WHICH COULD HAVE BEEN CORRECTED AFTER BID OPENING.

IN ITS REPORT SUBMITTED TO THIS OFFICE HEW CONCEDES THAT THE REFERENCE IN THE CONTRACTING OFFICER'S LETTER OF JUNE 27 TO SUPREME'S FAILURE TO SUBMIT A MAINTENANCE AGREEMENT AS A GROUND FOR REJECTION OF THE SUPREME BID WAS "ERRONEOUS AND MISLEADING." HEW STATES THAT THE PURPOSE FOR INCLUDING THE REQUIREMENT IN THE MAINTENANCE PROVISION FOR THE SUBMISSION OF A STANDARD MAINTENANCE AGREEMENT WAS CONSIDERED TO BE A MATTER RELATED TO RESPONSIBILITY AND, THEREFORE, EVEN IF THE PROVISION WAS VALID, SUCH MATERIAL COULD HAVE BEEN SUBMITTED AFTER BID OPENING. THEREFORE, HEW STATES THAT SUPREME'S BID WOULD NOT HAVE BEEN REJECTED BY THE CONTRACTING OFFICER AS NONRESPONSIVE SOLELY FOR FAILURE TO COMPLY WITH THIS PROVISION.

THE CONTRACTING OFFICER'S JUNE 27 REJECTION LETTER ALSO ADVISED SUPREME THAT ITS BID WAS REJECTED BECAUSE SUPREME FAILED TO SUBMIT DESCRIPTIVE DATA WITH ITS BID AS REQUIRED BY THE FOLLOWING PROVISION:

"DESCRIPTIVE DATA - BIDDER RESPONSIBILITY. (ALSO, SEE SECOND PARAGRAPH, PAGE 10 OF SPECIFICATIONS, RESUBMITTAL OF PROPOSED MAINTENANCE SERVICE AGREEMENT.)

"BIDDERS SHALL SUBMIT WITH THEIR BIDS DESCRIPTIVE INFORMATION, INCLUDING BROCHURES, SHOP DRAWINGS, AND/OR UNDIMENSIONED DRAWINGS AS NECESSARY, TO SHOW THAT THE OFFERED SYSTEM IS IN ACCORD WITH THE GOVERNMENT'S REQUIREMENTS. IN THE EVENT BIDDERS PROPOSE MODIFICATIONS TO STANDARD UNITS TO MAKE THEM COMPLY HERETO, ALL SUCH MODIFICATIONS AND CHANGES MUST BE CLEARLY MARKED AND DESCRIBED BY THE DATA. DATA SUBMITTED MUST BE SPECIFIC IN IDENTIFICATION; FOR EXAMPLE, MANUFACTURER, MODEL NUMBERS), CAPACITIES, ETC., MUST BE INDICATED FOR THE PROPOSED SYSTEM COMPONENTS.

"BIDDERS ARE CAUTIONED THAT WHEREAS THE DESCRIPTIVE DATA AND OTHER INVESTIGATIONS MAY RESULT IN AN AFFIRMATIVE DETERMINATION OF CAPABILITY TO PRODUCE AN ACCEPTABLE ITEM, SUCH SHALL NOT CONSTITUTE APPROVAL BY THE GOVERNMENT OF ANY ITEM OR COMPONENT, NOR SHALL IT IN ANY WAY RELIEVE THE CONTRACTOR FROM MEETING ANY REQUIREMENT OF THE SPECIFICATION.

"BIDS HEREUNDER WILL BE ACCEPTED ONLY FROM SOURCES WHO HAVE BEEN REGULARLY ESTABLISHED AND ENGAGED IN THIS FIELD FOR NOT LESS THAN 3 YEARS. OPERATIONS SHALL HAVE INVOLVED THE DESIGN, DEVELOPMENT, FABRICATION, INSTALLATION, AND MAINTENANCE OF STORAGE AND RETRIEVAL SYSTEMS. BIDDER MUST BE ABLE TO DEMONSTRATE THAT HE HAS WITHIN THIS PERIOD SUCCESSFULLY FABRICATED, TESTED, AND INSTALLED A SYSTEM OF COMPARABLE SIZE AND COMPLEXITY AS THAT REQUIRED HEREIN AND SHALL PROVIDE SUFFICIENT INFORMATION WITH THE BID TO ALLOW INDEPENDENT VERIFICATION BY THE GOVERNMENT."

THE CONTRACTING OFFICER OFFERS THE FOLLOWING RATIONALE FOR THE REJECTION OF SUPREME'S BID:

"TWO BIDS WERE SUBMITTED. THE PROTESTER SUBMITTED THE LOW BID ON HIS MODEL MTRVLT-SP-0924-1021. THE OTHER OFFEROR, PAGE AIRWAYS, SUBMITTED A COMPLETE DATA PACKAGE OF THE TYPE AND CONTENT REQUIRED BY THE INVITATION. BOTH BIDS WERE RECORDED AND IMMEDIATELY EVALUATED ON THE BASIS OF THE CONTENT OF THE BID SUBMITTED. THE PAGE DATA WAS DETERMINED RESPONSIVE TO THE REQUIREMENTS OF THE PERFORMANCE SPECIFICATION.

"THE REFERENCE OF SUPREME TO THEIR MODEL NUMBER MTRVLT-SP-0924-1021 WAS IDENTIFIED BY THE CONTRACTING AGENCY TO A SYSTEM CONTAINED IN FSC GROUP 74, PART IV, SECTION A, 'VISIBLE RECORD EQUIPMENT,' AVAILABLE UNDER FEDERAL SUPPLY SCHEDULE. EXAMINATION OF GSA-FSS CONTRACT GS-00S 23508 FOR THE PERIOD OCTOBER 1, 1973 THROUGH SEPTEMBER 30, 1974, REVEALED SEVERAL SIGNIFICANT AREAS OF NONCONFORMANCE TO THE PURCHASE DESCRIPTION: (I) AN OFFERED MAXIMUM WEIGHT OF EACH CONTAINER OF 85 POUNDS VERSUS THE REQUIRED 150 POUNDS OF THE PURCHASE DESCRIPTION; (II) STIPULATION THAT SPECIAL SYSTEMS WOULD BE DESIGNED WITH A 10' 0" MAXIMUM HEIGHT AND 30' 0" MAXIMUM LENGTH VERSUS THE REQUIRED LENGTH OF ONE AISLE UNIT OF 31' 8" AND 43' 10" OF THE SECOND UNIT; (III) A STANDARD CLEAR OPENING HEIGHT OF 10 1/8" MAXIMUM VERSUS THE DIMENSIONS STIPULATED FOR STORAGE (ID) OF FILM REELS 9" DIAMETER, 10 3/4" DIAMETER, 7 1/4" DIAMETER, AND 12 1/2" DIAMETER; AND (IV) NO OFFERED SYSTEM FOR MONITORING CONTROL OPERATIONS VERSUS THE MULTIPLE PURCHASE DESCRIPTION REQUIREMENTS IN PARAGRAPH 5.2 OF THE SPECIFICATION. IN THE ABSENCE OF ANY SUBMITTED DATA REQUIRED BY THE IFB TO DEMONSTRATE ANY PROPOSED MODIFICATION OF ANY OFFERED STANDARD UNIT, THE AGENCY CONCLUDED THAT THE LIGHTWEIGHT, STANDARDIZED DOCUMENT FILING SYSTEM EQUIPMENT OFFERED WAS NOT SUFFICIENT; AND FURTHER, THE MAGNITUDE OF DIFFERENCE WAS SUCH THAT IT APPEARED POTENTIALLY IMPOSSIBLE TO MEET THE SPECIFICATION REQUIREMENTS BY MODIFICATION OF SUCH A SYSTEM."

IN RESPONSE TO THE HEW REPORT, SUPREME CONTENDS THAT ITS BID REFERRED TO THE EQUIPMENT OFFERED AS ITS MODEL NUMBER "MTRVLT SP 0924-1021" WHICH, CONTRARY TO THE CONTRACTING OFFICER'S STATEMENT, DOES NOT CORRESPOND TO THE MODEL NUMBER AVAILABLE FROM SUPREME UNDER ITS FEDERAL SUPPLY SCHEDULE CONTRACT NO. GS-00S-23508. SUPREME INSISTS THAT THE MODEL NUMBER OFFERED IN RESPONSE TO THIS IFB CONTAINS AN "SP" NOTATION WHICH IS NOT IN THE MODEL NUMBER REFERRED TO IN THE SUPPLY SCHEDULE AND THAT THIS NOTATION MEANS THE MODEL BID ON IS TO BE SPECIALLY CONSTRUCTED TO MEET THE REQUIREMENTS OF THE SOLICITATION.

WE HAVE RECOGNIZED THAT IN THE PROCUREMENT OF HIGHLY SPECIALIZED EQUIPMENT AN ADMINISTRATIVE AGENCY PROPERLY MAY REQUIRE BIDDERS TO SUPPLY DESCRIPTIVE DATA IN ORDER TO ENABLE IT TO INTELLIGENTLY CONCLUDE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY THE MAKING OF AN AWARD. 49 COMP. GEN. 398, 400 (1969). ALSO, WE HAVE HELD THAT WHERE DESCRIPTIVE DATA IS REQUIRED FOR DETERMINING THE RESPONSIVENESS OF THE BID, THE INVITATION MUST CLEARLY ESTABLISH THE NATURE AND EXTENT OF THE DESCRIPTIVE MATERIAL REQUESTED, THE PURPOSE INTENDED TO BE SERVED BY SUCH DATA AND WHETHER ALL DETAILS OF SUCH DATA WILL BE CONSIDERED AN INTEGRAL PART OF THE AWARDED CONTRACT. FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-2.202-5 (1964 ED.) INCORPORATES THESE REQUIREMENTS AND PRESCRIBES A CLAUSE TO BE INSERTED IN AN INVITATION WHEN DESCRIPTIVE LITERATURE IS REQUIRED.

IN THIS INSTANCE, THE PROCURING ACTIVITY STATES THAT IT WAS NOT ITS INTENTION TO REQUIRE THE SUBMISSION OF DESCRIPTIVE LITERATURE AS DEFINED BY FPR. HOWEVER, HEW CONCEDES THAT SINCE INFORMATION WHICH WOULD SUPPLEMENT THE SPECIFICATION WAS REQUESTED THE PROVISIONS OF FPR SEC. 1- 2.202-5 WERE FOR APPLICATION AND THEREFORE THE INVITATION SHOULD HAVE MORE CLEARLY STATED THE PURPOSE FOR WHICH THE DATA WAS REQUIRED, THE EXTENT TO WHICH IT WOULD BE CONSIDERED IN THE EVALUATION OF BIDS, AND THE CONSEQUENCES OF FAILURE TO SUBMIT DATA WITH THE BID. IN ADDITION, WE NOTE THAT THE TITLE OF THE CLAUSE "DESCRIPTIVE DATA - BIDDER RESPONSIBILITY" IS MISLEADING.

HOWEVER, WHILE THE IFB DATA CLAUSE DID NOT CONFORM TO THE FPR REQUIREMENTS AND A BIDDER READING ONLY THE TITLE OF THE CLAUSE COULD CONCLUDE THAT DATA MAY BE SUBMITTED AFTER BID OPENING, WE BELIEVE READING OF THE BODY OF THE CLAUSE CLEARLY SHOWS THAT CERTAIN DATA WAS REQUIRED TO BE SUBMITTED WITH THE BID. THE FIRST SENTENCE OF THE CLAUSE, CITED ABOVE, CLEARLY INDICATES THAT DATA SHOULD BE SUBMITTED WITH THE BID. THE NEXT SENTENCE OF THE CLAUSE STATED THAT BIDDERS PROPOSING TO MODIFY THEIR STANDARD UNITS IN ORDER TO COMPLY WITH THE REQUIREMENTS OF THE SOLICITATION SHOULD CLEARLY DESCRIBE SUCH MODIFICATIONS IN THE DATA SUBMITTED. IN OUR OPINION A BIDDER COULD NOT READ THE ENTIRE CLAUSE AND REASONABLY CONCLUDE THAT IT COULD OFFER A SPECIALLY CONSTRUCTED, MODIFIED VERSION OF ITS STANDARD MODEL AND NOT SUBMIT ANY DATA WITH ITS BID TO SHOW HOW THE BIDDER PROPOSED TO MODIFY ITS STANDARD MODEL. WE THINK THE CLAUSE CLEARLY REQUIRED A DATA SUBMISSION UNDER SUCH CIRCUMSTANCES. THEREFORE, ALTHOUGH THE DESCRIPTIVE DATA CLAUSE WAS DEFECTIVE IN CERTAIN RESPECTS, WE BELIEVE SUPREME'S BID PROPERLY WAS REJECTED BECAUSE OF THE BIDDER'S FAILURE TO SUBMIT ANY DESCRIPTIVE DATA WITH ITS BID.

ACCORDINGLY, THE PROTEST IS DENIED.