B-168243, JAN. 2, 1970

B-168243, JAN. 2, 1970

BID PROTEST--DESCRIPTIVE LITERATURE DECISION DENYING PROTEST OF CONRAC CORP. AGAINST REJECTION OF LOW BID FOR FURNISHING TUBE BENDING MACHINE TO NAVAL AIR ENGINEERING CENTER BECAUSE OF FAILURE OF DESCRIPTIVE LITERATURE TO CONFORM TO SPECIFICATIONS. UNDER AN INVITATION THAT INDICATES THAT THE PROCURING ACTIVITY CONSIDERS COMPLETE DESCRIPTIVE LITERATURE ESSENTIAL TO ITS DETERMINATION OF WHETHER THE EQUIPMENT MEETS ITS REQUIREMENTS, THE FAILURE OF A LOW BIDDER'S DESCRIPTIVE LITERATURE MAY NOT BE CONSIDERED TO BE AFFECTED BY A GENERAL REPRESENTATION OF COMPLIANCE, THEREFORE REJECTION WAS PROPER.

TO CONRAC CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 29, 1969, PROTESTING THE REJECTION OF YOUR LOW BID UNDER INVITATION FOR BIDS NO. N00156-70-B-0013, ISSUED BY THE NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PENNSYLVANIA.

THE REFERENCED INVITATION SOLICITED BIDS FOR A NUMERICALLY CONTROLLED TUBE BENDING MACHINE, TOOLING AND DATA TO CONFORM TO NAVAL WEAPONS INDUSTRIAL SUPPORT OFFICE SPECIFICATION NOS. 69-545-1 AND 69 545-2. DESCRIPTIVE LITERATURE AS SPECIFIED IN THE INVITATION WAS REQUIRED TO BE FURNISHED AS PART OF THE BID.

IN A LETTER DATED OCTOBER 23, 1969, THE CONTRACTING OFFICER NOTIFIED YOU OF THE REASONS FOR THE REJECTION OF YOUR BID, AS FOLLOWS:

"THE PTB-101 BOOKLET AND LETTER OF 2 SEPTEMBER 1969 SUBMITTED WITH CONRAC CORPORATION'S BID, WHICH DESCRIBES THE CONTROL SYSTEM OFFERED, INDICATE EXCEPTIONS TO THE SPECIFICATION AS FOLLOWS:

"A. THE ACCURACY AND REPEATABILITY TOLERANCE SHOWN ON PAGE I IN THE PTB- 101 BOOKLET OF0.2" FOR THE Y AXIS AND THE 0.2 DEGREES FOR THE B AND C MOTIONS DOES NOT COMPLY TO THE 0.1 DEGREES SPECIFIED IN PARAGRAPHS 3.1.1; 3.27.2 AND 4.1.3.2 FOR THESE MOTIONS. ALTHOUGH THERE IS AN INDICATION THAT SOME MODIFICATION WILL BE DONE, THE MODIFICATIONS ARE NOT SPECIFICALLY NOTED NOR, BY NO MEANS, FULLY DESCRIBED TO PERMIT A DEFINITE DETERMINATION AS TO ACCEPTABILITY.

"B. THE AMBIENT TEMPERATURE RANGE OF 60-105 DEGREES F SHOWN ON PAGE 1 IN THE PTB-101 BOOKLET DOES NOT COMPLY TO THE 60-110 DEGREES F REQUIRED BY PARAGRAPH 3.1.2.

"THEREFORE, IT HAS BEEN DETERMINED THAT YOU ARE NON-RESPONSIVE TO THE REQUIREMENTS OF THE IFB."

ESSENTIALLY IT IS YOUR POSITION THAT YOUR BID SHOULD NOT HAVE BEEN REJECTED FOR THE REASONS GIVEN SINCE YOUR COMPANY REPRESENTED IN A LETTER ACCOMPANYING THE BID THAT IT WOULD "MEET THE SPECIFIED REQUIREMENTS." YOU STATE THAT THE DESCRIPTIVE LITERATURE SUBMITTED WITH YOUR BID WAS OF A GENERAL NATURE AND WAS INTENDED ONLY TO "INDICATE DESIGN PHILOSOPHY."

THE INVITATION'S DESCRIPTIVE LITERATURE PROVISIONS REQUIRED, IN PERTINENT PART, THAT ALL DESIGN MODIFICATIONS BE SPECIFICALLY NOTED AND FULLY DESCRIBED TO PERMIT A DEFINITE DETERMINATION AS TO THE ACCEPTABILITY OF SUCH MODIFICATION. THE CLAUSE ALSO ADVISED BIDDERS THAT A BID WOULD BE REJECTED IF THE DESCRIPTIVE LITERATURE FAILED TO SHOW THAT THE PRODUCT OFFERED CONFORMED TO THE SPECIFICATIONS AND THE REQUIREMENTS OF THE INVITATION.

IN THE PAST THIS OFFICE HAS TAKEN THE POSITION THAT A BID IS NONRESPONSIVE IF THE BIDDER EITHER FAILS TO SUBMIT DESCRIPTIVE LITERATURE WHICH ADEQUATELY CONFORMS TO A LEGITIMATE MANDATORY REQUIREMENT THEREFOR IN THE SOLICITATION, OR SUBMITS LITERATURE INDICATING DEVIATIONS FROM THE SPECIFICATIONS. 41 COMP. GEN. 366, 368 (1961) AND 46 ID. 315, 318 (1966). MOREOVER, WE HAVE HELD THAT A BIDDER'S FAILURE TO FURNISH COMPLETE DESCRIPTIVE LITERATURE, OR FAILURE OF HIS DESCRIPTIVE LITERATURE TO INDICATE FULL COMPLIANCE WITH THE SPECIFICATION REQUIREMENTS. 36 COMP. GEN. 415 (1956) AND 40 ID. 132 (1960). THESE RULES ARE FOR APPLICATION WHERE, AS HERE, THE INVITATION INDICATES THAT THE PROCURING ACTIVITY CONSIDERS COMPLETE DESCRIPTIVE LITERATURE ESSENTIAL TO ITS DETERMINATION OF WHETHER THE EQUIPMENT OFFERED BY THE BIDDER MEETS THE REQUIREMENTS OF THE GOVERNMENT, AND TO ENABLE THE ACTIVITY TO DETERMINE PRECISELY WHAT THE BIDDER PROPOSES TO FURNISH AND WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING AN AWARD.

SINCE YOUR DESCRIPTIVE LITERATURE DID NOT COMPLY WITH THE SPECIFICATIONS, AND YOUR BID FAILED TO DESCRIBE FULLY THE MODIFICATIONS PROPOSED, SO AS TO PERMIT A DEFINITE DETERMINATION AS TO ACCEPTABILITY, WE BELIEVE YOUR BID WAS PROPERLY REJECTED.