B-175028, APR 28, 1972

B-175028, APR 28, 1972

BID PROTEST - ALLEGED NONRESPONSIVENESS - QUALIFIED BID DECISION ALLOWING THE PROTEST OF THE BLACK & DECKER MANUFACTURING COMPANY (B & D) AGAINST THE PROPOSED AWARD OF A CONTRACT TO THE ROCKWELL MANUFACTURING COMPANY UNDER AN IFB ISSUED BY THE FEDERAL SUPPLY SERVICE FOR DEFINITE QUANTITIES OF PORTABLE ELECTRIC TOOLS. THE LETTER ACCOMPANYING THE ROCKWELL PROPOSAL REQUESTED A WAIVER OF THE PREPRODUCTION SAMPLE REQUIREMENT AND MUST BE REGARDED AS PART OF THAT PROPOSAL SINCE IT CITES THE IFB, ADDRESSES ITSELF TO THE AWARD TO BE MADE, AND WAS SIGNED BY THE SAME PERSON WHO SIGNED THE BID. B 164690, OCTOBER 15, 1968. FURTHER, IT IS NOTED THAT THE PREPRODUCTION SAMPLES CLAUSE DID NOT REQUEST PART NUMBERS. ROCKWELL'S INSERTION OF ITS MODEL NUMBER CREATED AN AMBIGUITY WHICH SERVED TO QUALIFY THE BID. ACCORDINGLY, IT SHOULD BE REJECTED AS NONRESPONSIVE TO THE ADVERTISED SPECIFICATIONS.

TO MR. RODERICK F. KREGER:

WE REFER TO LETTER OF MARCH 8, 1972, FROM YOUR GENERAL COUNSEL, REPORTING ON THE PROTEST OF THE BLACK & DECKER MANUFACTURING COMPANY (B&D) AGAINST AWARD TO ANY OTHER BIDDER OF A CONTRACT FOR ITEM 6 UNDER INVITATION FOR BIDS (IFB) NO. FPNTP-B5-41805-A-1-17-72, ISSUED DECEMBER 14, 1971, BY THE FEDERAL SUPPLY SERVICE FOR DEFINITE QUANTITIES OF PORTABLE ELECTRIC TOOLS.

B&D SUBMITTED THE APPARENT LOW BID ON ITEMS 2, 3, 4, 5 AND 12 OF THE IFB. ROCKWELL MANUFACTURING COMPANY (ROCKWELL) AND SKIL CORPORATION (SKIL) WERE THE APPARENT LOW BIDDERS ON ITEM 6 AND ITEM 13, RESPECTIVELY. HOWEVER, IN A LETTER OF JANUARY 14, 1972, ATTACHED TO ITS BID, B&D OFFERED LOWER PRICES ON AN "ALL OR NONE" BASIS FOR ITEMS 2, 3, 4, 5, 6, 12 AND 13. AWARD OF THESE ITEMS IS BEING DELAYED PENDING OUR RESOLUTION OF THE PROTEST. ON THE BASIS OF OUR DECISION UPHOLDING THE PROTEST, B&D BECOMES LOW BIDDER ON THE ABOVE ITEMS.

DIRECTIONS CONCERNING SUBMISSION OF PREPRODUCTION SAMPLES FOR ITEM 6 AND OTHER ITEMS OF THE IFB WERE INCLUDED IN THE SOLICITATION INSTRUCTIONS AND CONDITIONS. BIDDERS WERE INSTRUCTED CONCERNING WAIVER OF THAT REQUIREMENT, AS FOLLOWS:

"THE GOVERNMENT RESERVES THE RIGHT TO WAIVE THE REQUIREMENTS FOR PREPRODUCTION SAMPLES AS TO THOSE OFFERORS OFFERING A PRODUCT WHICH HAS BEEN PREVIOUSLY PROCURED AND APPROVED BY GENERAL SERVICES ADMINISTRATION UNDER THE SAME SPECIFICATIONS APPLICABLE TO THIS PROCUREMENT. OFFERORS OFFERING SUCH PRODUCTS ARE REQUESTED TO FURNISH WITH THEIR OFFERS INFORMATION IDENTIFYING THE PRODUCT BY CITING THE NUMBER, DATE AND ITEM OF THE PURCHASE ORDER AND/OR CONTRACT NUMBER INVOLVED IN SUCH PRIOR PURCHASE."

FURTHERMORE, GSA FORM 1424, GSA SUPPLEMENTAL PROVISIONS (JULY, 1971), INCORPORATED BY REFERENCE AND MADE A PART OF THE IFB, PROVIDES, IN ARTICLE 25, AS FOLLOWS:

"UNSOLICITED SAMPLES, DESCRIPTIVE LITERATURE OR BRAND NAME REFERENCES

"WHERE PROCUREMENT IS EFFECTED UNDER SPECIFICATIONS OR PURCHASE DESCRIPTIONS (OTHER THAN 'BRAND NAME OR EQUAL') AND THE GOVERNMENT DOES NOT SPECIFICALLY REQUEST BID SAMPLES, DESCRIPTIVE LITERATURE OR REFERENCES TO BRAND NAMES, MODELS OR PART NUMBERS AS AN INTEGRAL PART OF THE BID, BIDS WHICH ARE ACCOMPANIED BY ANY OF THE FOREGOING WILL BE REJECTED UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT THE SAMPLES, DESCRIPTIVE LITERATURE, OR REFERENCES TO BRAND NAMES, MODELS OR PART NUMBERS ARE NOT INTENDED TO QUALIFY THE BID AND THAT THE BIDDER PROPOSES TO FURNISH ITEMS FULLY IN ACCORDANCE WITH THE SPECIFICATIONS OR PURCHASE DESCRIPTIONS. WHERE OFFERS CONTAIN UNSOLICITED MATERIAL SUCH AS SAMPLES, DESCRIPTIVE LITERATURE, OR REFERENCES TO BRAND NAMES, MODELS, OR PART NUMBERS, THE GOVERNMENT WILL NOT BE RESPONSIBLE IN ANY WAY FOR DETERMINING WHETHER THE ITEMS WHICH ARE OFFERED MEET THE GOVERNMENT'S REQUIREMENTS SET FORTH IN THE APPLICABLE SPECIFICATIONS OR PURCHASE DESCRIPTIONS."

THE ROCKWELL BID IS DATED JANUARY 14, 1972, AND IS SIGNED BY THE ROCKWELL GENERAL MANAGER. ATTACHED TO THE BID IS A LETTER OF THE SAME DATE SIGNED BY THE SAME PERSON WHO SIGNED THE BID. THE LETTER CITES THE IFB NUMBER AND IS ADDRESSED TO THE SAME ADDRESS DESIGNATED IN THE IFB FOR THE SUBMISSION OF OFFERS AND TO THE ATTENTION OF THE PERSON DESIGNATED IN THE IFB TO BE CONTACTED FOR INFORMATION CONCERNING THE PROCUREMENT. IN THE LETTER ROCKWELL REQUESTED WAIVER OF THE REQUIREMENT FOR PROVIDING PREPRODUCTION SAMPLES, AS FOLLOWS:

"IN THE EVENT THAT ROCKWELL MFG. CO. IS AWARDED A CONTRACT FOR ITEM 6 OR ITEM 10, OR ITEM 13, THIS LETTER IS TO REQUEST A WAIVER OF PREPRODUCTION SAMPLES FOR THE FOLLOWING REASON:

"ITEM 6: FSN 5130-889-8993 DRILL (RMC MODEL 754G2). THIS MACHINE SIMILAR TO FSN 5130-293-1386 DRILL NEW BEING FURNISHED ON GSA TERM CONTRACT GS-00S -89548 (MARCH 1, 1970-THRU FEBRUARY 29, 1972) EXCEPT FOR FILTER FOR SUPPRESSION."

INCLUDED IN THE ADMINISTRATIVE REPORT IS A COPY OF SECTION H3 OF THE CURRENT ROCKWELL CATALOG IN WHICH RMC MODEL NUMBER 754 IS LISTED. IN A MEMORANDUM ACCOMPANYING THE COPY, THE CONTRACTING OFFICER STATES THAT THE LISTING INDICATES NO DEVIATION FROM SPECIFICATIONS OF THE IFB, EXCEPT FOR THE REQUIREMENTS FOR SUPPRESSION OF ELECTROMAGNETIC INTERFERENCE AND TREATMENT TO RESIST FUNGUS GROWTH.

B&D ALLEGES THAT ROCKWELL'S LETTER IS AN ATTACHMENT TO THE BID AND THAT BY THE GRATUITOUS REFERENCE TO A MODEL NUMBER, WITHOUT FURTHER CLARIFICATION, ROCKWELL QUALIFIED ITS BID. THE LATTER ALLEGATION IS BASED ON A STANDARD UNDER WHICH BIDS ARE CONSIDERED NONRESPONSIVE WHEN SUBMITTED UNDER SOME CONDITION OR WITH SOME INFORMATION WHICH CREATES AN AMBIGUITY CONCERNING THE BIDDER'S WILLINGNESS TO PERFORM UNDER THE SPECIFICATIONS OF THE IFB.

THE ROCKWELL LETTER REQUESTS AN AWARD THAT INCLUDES A WAIVER OF THE PREPRODUCTION SAMPLE REQUIREMENT. SINCE THE LETTER ACCOMPANYING THE BID CITES THE IFB, ADDRESSES ITSELF TO THE AWARD TO BE MADE AND WAS SIGNED BY THE SAME PERSON WHO SIGNED THE BID, OUR OFFICE REGARDS IT AS A PART OF THE BID. 36 COMP. GEN. 535 (1957), 40 ID. 432 (1961), AND B 164690, OCTOBER 15, 1968.

IN REGARD TO THE INSERTION OF A MODEL NUMBER IN ROCKWELL'S LETTER OF JANUARY 14, 1972, WE NOTE THAT THE PREPRODUCTION SAMPLES CLAUSE DID NOT REQUEST THE CITATION OF ANY PART NUMBERS - ONLY THE NUMBER, DATE AND ITEM OF THE PURCHASE ORDER OR CONTRACT OF PRIOR PURCHASE. IN THE CIRCUMSTANCES, WE CONSIDER THAT THE REFERENCE TO MODEL 754G2 IN THE LETTER CREATED AN INITIAL AMBIGUITY IN THE BID AS TO ITEM 6 OF THE IFB AND, AS SUCH, QUALIFIED THE BID. 50 COMP. GEN. 8 (1970). FURTHER, WE DO NOT REGARD ARTICLE 25 OF THE GSA SUPPLEMENTAL PROVISIONS AS OVERRIDING THE DEFECT IN THE BID CAUSED BY A QUALIFICATION WHERE A BIDDER INSERTS A MODEL NUMBER IN THE BID. B-171417, MARCH 9, 1971. ALTHOUGH THE JANUARY 14 LETTER STATES THAT RMC MODEL 754G2 IS SIMILAR TO THAT FURNISHED UNDER ANOTHER CONTRACT EXCEPT FOR A SUPPRESSION FILTER, ROCKWELL FURNISHED NOTHING WITH ITS BID ESTABLISHING THAT THE MODEL 754G2 MEETS THE SPECIFICATIONS. MOREOVER, WE NOTE THAT THE REVIEW OF THE CURRENT CATALOGS OF ROCKWELL BY THE CONTRACTING OFFICER TURNED UP INFORMATION ONLY ON A MODEL 754, NOT A MODEL 754G2. OUR DECISION B-174403, FEBRUARY 9, 1972, CITED IN THE ADMINISTRATIVE REPORT IN SUPPORT OF CONSIDERATION OF THE ROCKWELL BID IS NOT APPLICABLE TO THE IMMEDIATE SITUATION. IN THAT CASE THE IFB, UNLIKE THE IMMEDIATE SOLICITATION, REQUESTED BIDDERS TO SUPPLY THE MODEL NUMBER AND STATED THAT IT WAS FOR FEDERAL STOCK NUMBER PURPOSES AND THAT FURNISHING THE MODEL NUMBER WOULD NOT RELIEVE THE BIDDER FROM CONFORMING TO THE PURCHASE DESCRIPTION.

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THE ROCKWELL BID SHOULD BE REJECTED AS NONRESPONSIVE TO THE ADVERTISED SPECIFICATIONS.

AS THIS DECISION CONTAINS A RECOMMENDATION FOR ACTION TO BE TAKEN, IT IS BEING TRANSMITTED BY LETTERS OF TODAY TO THE CONGRESSIONAL COMMITTEES NAMED IN SECTION 232 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, PUBLIC LAW 91-510. IN VIEW THEREOF, YOUR ATTENTION IS DIRECTED TO SECTION 236 OF THE ACT WHICH REQUIRES THAT YOU SUBMIT WRITTEN STATEMENTS OF THE ACTION TAKEN WITH RESPECT TO THE RECOMMENDATION. THE STATEMENTS ARE TO BE SENT TO THE HOUSE AND SENATE COMMITTEES ON GOVERNMENT OPERATIONS NOT LATER THAN 60 DAYS AFTER THE DATE OF THIS LETTER AND TO THE COMMITTEES ON APPROPRIATIONS IN CONNECTION WITH THE FIRST REQUEST FOR APPROPRIATIONS MADE BY YOUR AGENCY MORE THAN 60 DAYS AFTER THE DATE OF THIS LETTER.

WE WOULD APPRECIATE ADVICE OF WHATEVER ACTION IS TAKEN ON OUR RECOMMENDATION.