B-201028, APR 6, 1981

B-201028, APR 6, 1981

DIGEST: 1. REJECTION OF LOW BID AS NONRESPONSIVE IS PROPER WHERE DESCRIPTIVE LITERATURE DOES NOT DEMONSTRATE BIDDER'S COMPLIANCE WITH SPECIFICATIONS. 2. GENERAL COMPLIANCE OFFER AND BIDDER'S PAST EXPERIENCE DO NOT CURE FAILURE TO SUPPLY DESCRIPTIVE LITERATURE REQUIRED BY IFB AS NECESSARY ELEMENT IN EVALUATION TO DETERMINE IF PRODUCT OFFERED MEETS SPECIFICATIONS.

SPRAGUE & HENWOOD, INC.:

SPRAGUE & HENWOOD, INC. (S & H) HAS PROTESTED THE AWARD OF A CONTRACT FOR AN UNDERGROUND DRAINAGE DRILL TO DOWTY CORPORATION (DOWTY) UNDER INVITATION FOR BIDS (IFB) NO. S0308130, ISSUED BY THE DEPARTMENT OF THE INTERIOR, BUREAU OF MINES.

THREE BIDS WERE RECIEVED AND PUBLICLY OPENED ON SEPTEMBER 19, 1980. THE LOW BID WAS SUBMITTED BY S & H. HOWEVER, S & H'S BID WAS DETERMINED TO BE NONRESPONSIVE FOR FAILURE TO PROVIDE ADEQUATE DESCRIPTIVE LITERATURE AS REQUIRED BY THE SOLICITATION. THEREFORE, AWARD WAS MADE TO DOWTY, THE SECOND LOW BIDDER.

THE IFB CONTAINED A REQUIREMENT FOR DESCRIPTIVE LITERATURE CLAUSE ESSENTIALLY IDENTICAL TO THAT WHICH APPEARS AT FEDERAL PROCUREMENT REGULATIONS SEC. 1-2.202-5 (D)(1) (1964 ED. AMEND. 10). DURING EVALUATION OF BIDS, THE AGENCY'S TECHNICAL PROJECT OFFICER CONCLUDED THAT S & H'S DESCRIPTIVE LITERATURE INDICATED THAT S & H WOULD SUPPLY A DRILL HAVING AN EXCESSIVE FEED LENGTH. IN ADDITION, THE LITERATURE FAILED TO ADDRESS THE FOLLOWING TECHNICAL MATTERS:

1. THRUST AND RPM POTENTIAL OF DRILL. 2. CLAMPING DEVICE USED IN CONNECTING DRILL RODS. 3. TYPE AND QUANTITY OF DRILL RODS. 4. FLUID LEVEL AND HIGH TEMPERATURE "CUTOUT" SWITCHES. 5. APPROVED MOTOR AND MOTOR CONTROL.

THE CONTRACTING OFFICER THEN PREPARED A MEMORANDUM FOR THE CONTRACT FILE AND A LETTER TO S & H IN WHICH HE SET FORTH HIS DECISION TO REJECT THAT FIRM'S BID AS NONRESPONSIVE BECAUSE IT OFFERED A DRILL WHOSE FEED LENGTH WAS EXCESSIVELY LONG. S & H SUBSEQUENTLY POINTED OUT, AND THE AGENCY HAS CONCEDED, THAT THE CORRECT FEED LENGTH WAS REFLECTED IN ITS BID: THEREFORE, THE REASON GIVEN FOR REJECTION OF THE BID WAS IN ERROR. HOWEVER, THE AGENCY MAINTAINS THAT THE REJECTION OF THE BID WAS STILL PROPER, IN VIEW OF THE INFORMATIONAL DEFICIENCIES, LISTED ABOVE, WHICH EXISTED IN S & H'S DESCRIPTIVE LITERATURE. S & H DOES NOT DISPUTE THAT IT FAILED TO DISCUSS THESE ASPECTS OF THE DRILL IT PROPOSED TO FURNISH. THE FIRM ARGUES, HOWEVER, THAT THIS FAILURE DOES NOT WARRANT REJECTION OF ITS BID BECAUSE (1) ON THE BID SCHEDULE S & H WROTE "WE WILL COMPLETELY MEET YOUR SPECS" AND (2) S & H IS AN ESTABLISHED MANUFACTURER OF DRILLS WITH OVER 40 YEARS' EXPERIENCE WHO COULD BE RELIED UPON TO SATISFY THE AGENCY'S REQUIREMENTS.

THE DESCRIPTIVE LITERATURE CLAUSE INCLUDED IN THE IFB PROVIDED THAT THE DATA WAS REQUIRED TO ESTABLISH DETAILS OF THE DRILL OFFERED AND, FURTHER, THAT FAILURE OF THE DATA TO SHOW CONFORMANCE WITH THE SPECIFICATIONS WOULD REQUIRE REJECTION OF THE BID. OUR OFFICE HAS HELD THAT THE SUBMISSION OF DESCRIPTIVE DATA, WHERE THE DATA IS USED FOR BID EVALUATION, IS A MATTER OF RESPONSIVENESS AND WHERE SUCH DATA INDICATES A DEVIATION FROM THE SPECIFICATIONS REJECTION OF THE BID IS REQUIRED. 40 COMP.GEN. 132 (1960); 46 COMP.GEN. 315 (1966).

IN THE INSTANT CASE, THE BUREAU OF MINES HAS DETERMINED THAT THE DATA SUBMITTED BY S & H WAS INSUFFICIENT TO ASSURE THAT THE DRILL OFFERED WOULD MEET ALL THE SPECIFICATIONS. IN THIS REGARD, WE UNDERSTAND THAT THE UNDERGROUND DRAINAGE DRILL, FOR EXAMPLE, WILL BE USED UNDER METHANE GAS CONDITIONS AND THAT ONLY A PROPERLY APPROVED MOTOR AND MOTOR CONTROL, SEALED TO PREVENT ELECTRICAL SPARKS, WOULD BE ACCEPTABLE IN MEETING THE AGENCY'S MINIMUM SAFETY NEEDS. CONSEQUENTLY, LACK OF INFORMATION FROM S & H CONCERNING APPROVED MOTOR AND MOTOR CONTROL DID NOT PERMIT THE AGENCY TO DETERMINE CONFORMANCE OF THE PROTESTER'S OFFERED PRODUCT WITH THE SPECIFICATIONS. NO SHOWING HAS BEEN MADE THAT THE AGENCY'S DETERMINATION THAT THE DATA SUBMITTED BY S & H WAS INSUFFICIENT IS ERRONEOUS OR ARBITRARY. FURTHER, WE NOTE THAT A GENERAL COMPLIANCE OFFER DOES NOT CURE A FAILURE TO SUPPLY DESCRIPTIVE LITERATURE REQUIRED BY THE IFB AS A NECESSARY ELEMENT IN THE EVALUATION TO DETERMINE IF THE PRODUCT OFFERED MEETS THE SPECIFICATIONS. 36 COMP.GEN. 415 (1956); SLACK ASSOCIATES, INC., B-195305, JULY 28, 1980, 80-2 CPD 69. NEITHER DOES EXTENSIVE PREVIOUS EXPERIENCE CURE SUCH A FAILURE SINCE A BIDDER'S INTENTION TO COMPLY WITH ALL IFB SPECIFICATIONS MUST BE DETERMINED FROM THE FACE OF THE BID ITSELF. UNITED MCGILL CORPORATION AND LIEB-JACKSON, INC., B-190418, FEBRUARY 10, 1978, 78-1 CPD 119. THEREFORE, WE FIND THE REJECTION OF S & H'S BID TO HAVE BEEN PROPER.

THE PROTEST IS DENIED.