B-135160, MARCH 31, 1958, 37 COMP. GEN. 645

B-135160, MARCH 31, 1958, 37 COMP. GEN. 645

CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - ALTERNATE EVALUATION BASES UNDER AN INVITATION WHICH REQUIRES SUBMISSION OF BIDS ON THE BASIS OF EITHER DESCRIPTIVE LITERATURE OR ON THE BASIS OF A PREVIOUSLY SUPPLIED PRODUCT, THE WAIVER OF DESCRIPTIVE LITERATURE SUBMITTED BY A LOW BIDDER AFTER EVALUATION INDICATES THAT THE DATA DID NOT CONFORM TO THE SPECIFICATIONS AND AN AWARD ON THE ALTERNATE BASIS OF EVIDENCE OF HAVING PREVIOUSLY SUPPLIED THE SAME PRODUCT AS A SUBCONTRACTOR WOULD BE CONSIDERATION OF A NEW BID AFTER OPENING AND PREJUDICIAL TO OTHER BIDDERS IN VIOLATION OF THE COMPETITIVE BIDDING STATUTES.

TO THE SECRETARY OF THE AIR FORCE, MARCH 31, 1958:

REFERENCE IS MADE TO LETTER DATED MARCH 12, 1958, FROM GERRITT W. WESSELINK, ASSOCIATE GENERAL COUNSEL, FURNISHING A REPORT RELATIVE TO THE PROTEST OF RECONY CORPORATION AGAINST THE PROPOSED AWARD OF A CONTRACT TO KECO INDUSTRIES UNDER INVITATION FOR BIDS NO. 101-608-58-1, ISSUED BY THE GADSDEN AIR FORCE DEPOT, GADSDEN AIR FORCE STATION, GADSDEN, ALABAMA.

THE INVITATION, AS AMENDED, REQUESTED BIDS TO BE OPENED SEPTEMBER 27, 1957, FOR MA-7 AND MA-8 AIR CONDITIONERS, TRAILER MOUNTED, ON EITHER OF TWO BASES FOR EACH TYPE OF AIR CONDITIONER REQUIRED. IF A BIDDER HAD ALREADY FURNISHED THE TYPE OF UNIT INVOLVED TO THE GOVERNMENT AND HAD SECURED FIRST ARTICLE APPROVAL, THE BIDDER WAS PERMITTED TO BID ON THE BASIS THAT DOES NOT INCLUDE COMPLIANCE WITH THE FIRST ARTICLE APPROVAL PROVISION OF THE INVITATION. OTHERWISE, BIDDERS WERE REQUIRED TO SUBMIT BIDS ON THE BASIS THAT THEY WOULD COMPLY WITH SUCH APPROVAL REQUIREMENT. IT IS REPORTED THAT SINCE NO BIDDER HAD PREVIOUSLY FURNISHED EITHER UNIT AND HAD SECURED FIRST ARTICLE APPROVAL, ALL BIDS WERE SUBMITTED ON THE BASIS THAT FIRST ARTICLE APPROVAL WOULD BE REQUIRED. THE INVITATION FURTHER PROVIDED THAT DESCRIPTIVE LITERATURE CONCERNING THE DESIGN AND COMPONENTS OF THE UNITS WOULD BE FURNISHED FOR EVALUATION OF BIDS. WITH RESPECT TO THE FURNISHING OF SUCH DATA, ARTICLE X OF THE INVITATION PROVIDED, IN MATERIAL PART, AS FOLLOWS:

DESCRIPTIVE LITERATURE:

1. ALL BIDDERS UNDER THIS INVITATION FOR BIDS WILL BE REQUIRED TO SUBMIT TO THE GOVERNMENT THE DESCRIPTIVE LITERATURE LISTED BELOW. SUCH LITERATURE SHALL BE SUBMITTED WITH THE BIDS AND SHALL CONFORM IN EVERY RESPECT WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS. SINCE DESCRIPTIVE LITERATURE IS REQUIRED FOR EVALUATING BIDS, NONCONFORMING LITERATURE SHALL RESULT IN REJECTION OF THAT BID. * * *

2. FAILURE OF A BIDDER TO HAVE FURNISHED DESCRIPTIVE LITERATURE WILL RESULT IN REJECTION OF THAT BID. HOWEVER, THE BID WILL NOT BE REJECTED IF THE BIDDER HAS PREVIOUSLY OFFERED A PRODUCT WHICH HAS BEEN PREVIOUSLY PROCURED SO THAT ADDITIONAL DESCRIPTIVE LITERATURE WOULD NOT ADD TO THE GOVERNMENT'S KNOWLEDGE OF THE ACCEPTABILITY OF THE PRODUCT. THE CONTRACTING OFFICER WILL VERIFY THAT THE PRODUCT PREVIOUSLY PROCURED IS ADEQUATE TO MEET THE REQUIREMENTS OF THIS INVITATION FOR BIDS. UPON VERIFICATION, THE REQUIREMENTS FOR FURNISHING DESCRIPTIVE LITERATURE MAY BE WAIVED AS TO THAT BIDDER.

IN PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION, THE GOVERNMENT RESERVED THE RIGHT TO REJECT ANY OR ALL BIDS AND TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN BIDS RECEIVED.

THE RECORD SHOWS THAT 15 BIDS WERE RECEIVED, AND ON THE BASIS OF REQUIREMENTS DETERMINED BY THE AIR FORCE SUBSEQUENT TO BID OPENING, KECO INDUSTRIES WAS THE LOW BIDDER FOR BOTH TYPES OF UNITS AT APPROXIMATELY $1,289,900, AND RECONY CORPORATION WAS THE SECOND LOW BIDDER AT APPROXIMATELY $1,339,681.95. AN EVALUATION WAS MADE OF THE DESCRIPTIVE LITERATURE SUBMITTED BY KECO BY THE WRIGHT AIR DEVELOPMENT CENTER, AND BY LETTER DATED JANUARY 8, 1958, KECO WAS ADVISED THAT ITS BID WAS BEING REJECTED AS NONRESPONSIVE BECAUSE THE DESCRIPTIVE LITERATURE SUBMITTED WITH ITS BID DID NOT CONFORM TO THE APPLICABLE SPECIFICATIONS OF THE INVITATION. BY LETTER OF JANUARY 17, 1958, KECO PROTESTED AGAINST SUCH ACTION AND COMMENTED UPON THE VARIOUS REASONS OF THE AIR FORCE FOR REJECTING ITS BID IN THE LIGHT OF THE DESCRIPTIVE LITERATURE SUBMITTED. IN THAT SAME LETTER, KECO ADVISED THAT IT HAD PREVIOUSLY FURNISHED SIX MA- 7 AIR CONDITIONERS AS A SUBCONTRACTOR TO MCDONNELL AIRCRAFT CORPORATION IN CONNECTION WITH AN AIR FORCE PRIME CONTRACT WITH MCDONNELL, AND 158 MA-8 AIR CONDITIONERS AS A SUBCONTRACTOR TO CONVAIR CORPORATION IN CONNECTION WITH AN AIR FORCE PRIME CONTRACT WITH THAT COMPANY.

WHILE THE WRIGHT AIR DEVELOPMENT CENTER CONSIDERED THAT THE DESCRIPTIVE LITERATURE SUBMITTED BY KECO, EVEN AS SUPPLEMENTED BY ITS JANUARY 17 LETTER, RENDERED THE BID NONRESPONSIVE, IT WAS DETERMINED BY HEADQUARTERS, AIR MATERIEL COMMAND, THAT THE REQUIREMENT FOR SUBMISSION OF DESCRIPTIVE LITERATURE COULD BE WAIVED WITH RESPECT TO KECO IN ACCORDANCE WITH PARAGRAPH 2 OF ARTICLE X OF THE INVITATION, BECAUSE OF THE FACT THAT KECO HAD PREVIOUSLY FURNISHED UNITS TO MCDONNELL AND CONVAIR AS SUBCONTRACTOR UNDER PRIME CONTRACTS WITH THE AIR FORCE.

IN THAT CONNECTION, IT IS REPORTED THAT IT WAS RECOGNIZED THAT THE UNITS PREVIOUSLY FURNISHED WERE NOT BUILT UNDER THE SPECIFICATIONS COVERED BY THE PRESENT INVITATION AND THAT THERE WERE ,SUBSTANTIAL DIFFERENCES" BETWEEN THE UNITS PRESENTLY BEING PROCURED AND THOSE FURNISHED TO MCDONNELL AND CONVAIR. IT WAS DETERMINED, HOWEVER,"THAT WITHOUT QUESTION A CONTRACTOR WHO HAD DELIVERED ACCEPTABLE UNITS OF THE TYPE PROVIDED BY KECO TO MCDONNELL AND CONVAIR WOULD BE CAPABLE OF PRODUCING UNITS WITH THE NECESSARY MODIFICATIONS REQUIRED BY THE SPECIFICATIONS.' ON THE BASIS OF THIS DETERMINATION AND ADVICE FROM MCDONNELL AND CONVAIR THAT THE UNITS PROVIDED BY KECO WERE PERFORMING SATISFACTORILY, THE AIR MATERIEL COMMAND CONCLUDED THAT THE GOVERNMENT'S PURPOSE FOR REQUIRING DESCRIPTIVE LITERATURE HAD BEEN SATISFIED BY KECO'S PREVIOUS FURNISHING OF SIMILAR UNITS, AND THAT, IN THE LIGHT OF THE SUBSTANTIAL PRICE DIFFERENTIAL BETWEEN KECO'S AND RECONY'S BID, IT WAS IN THE GOVERNMENT'S INTEREST TO WAIVE THE REQUIREMENT FOR DESCRIPTIVE LITERATURE WITH REGARD TO KECO. THEREFORE, BY LETTER OF JANUARY 29, 1958, KECO WAS ADVISED OF THE DETERMINATION OF THE AIR FORCE TO WAIVE THE REQUIREMENT FOR DESCRIPTIVE LITERATURE, AND ALSO THAT ACTION WAS BEING TAKEN TO RECOMMEND AWARD TO IT UNDER THE INVITATION.

HOWEVER, WE DO NOT AGREE THAT AWARD TO KECO WOULD BE PROPER. PARAGRAPH 1 OF ARTICLE X OF THE INVITATION REQUIRED IN MANDATORY TERMS THAT THE DESCRIPTIVE LITERATURE "SHALL" BE SUBMITTED WITH ALL BIDS FOR THE PURPOSE OF EVALUATION AND SPECIFICALLY WARNED THAT THE SUBMISSION OF DATA WHICH DID NOT CONFORM IN EVERY RESPECT WITH THE REQUIREMENTS OF THE INVITATION WOULD RESULT IN REJECTION OF THE BID. ON THE OTHER HAND, PARAGRAPH 2 OF ARTICLE X DEALT SOLELY WITH THE SITUATION WHERE THERE WAS A "FAILURE" BY THE BIDDER TO FURNISH DESCRIPTIVE LITERATURE AND THE GOVERNMENT'S RIGHT TO WAIVE SUCH FAILURE IF THE BIDDER HAS PREVIOUSLY OFFERED A PRODUCT WHICH HAS BEEN PREVIOUSLY PROCURED. WE HAVE HELD THAT IT IS APPROPRIATE AND DESIRABLE FOR AN INVITATION TO CONDITION THE CONSIDERATION AND EVALUATION OF A BID UPON THE FURNISHING OF DESCRIPTIVE DATA (36 COMP. GEN. 376; ID. 415).

WE THINK THE PRESENT INVITATION, PROPERLY INTERPRETED, CONTEMPLATED THAT A BIDDER SUBMIT HIS BID EITHER ON THE BASIS OF THE DESCRIPTIVE LITERATURE TO BE FURNISHED, OR ON THE BASIS OF A PREVIOUSLY PROCURED PRODUCT, AND IF HE ELECTS TO SUBMIT HIS BID UPON ONE BASIS HE IS PRECLUDED FROM HAVING HIS BID CONSIDERED UPON THE ALTERNATIVE BASIS SUBMITTED AS SUGGESTED AFTER THE OPENING OF BIDS. KECO CHOSE TO SUBMIT ITS BID UPON THE BASIS OF DESCRIPTIVE LITERATURE AS REQUIRED BY PARAGRAPH 1 OF ARTICLE X. THERE IS NOTHING IN THAT PARAGRAPH WHICH COULD BE REGARDED AS AUTHORIZING THE WAIVER OF THE REQUIREMENT OF DESCRIPTIVE LITERATURE; IN FACT IT CLEARLY PROVIDES THAT WHERE SUCH DATA IS SUBMITTED FOR EVALUATION THE BID WILL BE REJECTED IF THE DATA IS NONCONFORMING. THE ONLY AUTHORITY IN THE INVITATION FOR WAIVER OF DESCRIPTIVE LITERATURE APPEARS IN PARAGRAPH 2 OF ARTICLE X WHICH RELATES TO A BIDDER'S "FAILURE" TO SUBMIT SUCH DATA IN RELIANCE UPON A PREVIOUSLY PROCURED PRODUCT. SINCE KECO DID NOT PREDICATE ITS BID UPON PREVIOUS TRANSACTIONS WHICH MIGHT HAVE BEEN OFFERED UNDER THAT PARAGRAPH AS AN ALTERNATIVE TO DESCRIPTIVE LITERATURE, WE THINK ITS BID HAD TO BE CONSTRUED ONLY ON THE BASIS OF THE DESCRIPTIVE LITERATURE FURNISHED.

FOR THESE REASONS, IT IS OUR OPINION THAT TO WAIVE THE DESCRIPTIVE LITERATURE REQUIREMENT UNDER PARAGRAPH 2 OF ARTICLE X AFTER SUCH DATA HAD BEEN PREVIOUSLY EVALUATED AS NONCONFORMING, AND THE BID REJECTED, WOULD IN EFFECT BE GIVING CONSIDERATION TO A NEW BID SUBMITTED AFTER THE BIDS WERE OPENED IN VIOLATION OF THE SPIRIT AND PURPOSE OF THE STATUTES RELATING TO COMPETITIVE BIDDING. REINSTATEMENT OF KECO'S BID AFTER BID OPENING FOR CONSIDERATION UPON A BASIS DIFFERENT FROM THAT UPON WHICH IT WAS ORIGINALLY SUBMITTED AND EVALUATED WAS CLEARLY PREJUDICIAL TO OTHER BIDDERS. SEE 34 COMP. GEN. 82; 17 ID. 554; CF. UNITED STATES V. BROOKRIDGE FARMS, 111 F.2D 461, AND CITY OF CHICAGO V. MOHR, 74 N.E. 1056; 38 OP.ATTY.GEN. 555.

ACCORDINGLY, WE CONCLUDE THAT THE BID OF KECO INDUSTRIES UNDER THE INSTANT INVITATION MUST BE REJECTED AND MAY NOT BE CONSIDERED FOR AWARD.

THE DESCRIPTIVE LITERATURE SUBMITTED BY KECO INDUSTRIES AND RECONY CORPORATION AND ENCLOSED WITH THE LETTER OF MARCH 12, 1958, IS RETURNED HEREWITH.