PROCUREMENT Sealed Bidding Invitations for bids Responsiveness Descriptive literature PROCUREMENT Sealed Bidding Low bids Rejection Propriety Protest that agency should have rejected apparent low bid as nonresponsive because it failed to include descriptive literature is denied where the solicitation effectively did not require descriptive literature. Adrian argues that Arrow's bid should have been rejected as nonresponsive for failure to include descriptive literature called for under the IFB. The IFB was issued on February 18. Three were brand name or equal only. The significant details of the product offered "that are specified elsewhere in the solicitation.". The clause also cautions that failure of the descriptive literature to show that the product offered conforms to the IFB's requirements will result in rejection of the bid.
Matter: Adrian Supply Co. File: B-253656 Date: July 1, 1993
PROCUREMENT Sealed Bidding Invitations for bids Responsiveness Descriptive literature PROCUREMENT Sealed Bidding Low bids Rejection Propriety Protest that agency should have rejected apparent low bid as nonresponsive because it failed to include descriptive literature is denied where the solicitation effectively did not require descriptive literature; it thus would be improper for the procuring agency to reject a bid as nonresponsive for failure to include descriptive literature.
DECISION Adrian Supply Co. protests the award of a contract to Arrow Electrical Supply Co., Inc. under invitation for bids (IFB) No. DAAD05-93- B-0030, issued by the Department of the Army for electrical equipment to be supplied to the Aberdeen Proving Ground, Maryland. Adrian argues that Arrow's bid should have been rejected as nonresponsive for failure to include descriptive literature called for under the IFB.
We deny the protest.
The IFB was issued on February 18, 1993, and requested that bidders submit prices for six contract line item numbers (CLIN). Section C of the IFB contained a list of the salient, functional or other characteristics of the requested CLINs; of the six CLINs, three were brand name or equal only. The IFB incorporated by reference, at section L.7, the standard descriptive literature clause as set forth at Federal Acquisition Regulation (FAR) Sec. 52.214-21, which dictates that bids be accompanied by descriptive literature as "required elsewhere in this solicitation." The clause defines such literature as information necessary to establish, for the purpose of evaluation and award, the significant details of the product offered "that are specified elsewhere in the solicitation." The clause also cautions that failure of the descriptive literature to show that the product offered conforms to the IFB's requirements will result in rejection of the bid. In addition, section L.8 of the IFB provided:
"Descriptive literature is required as indicated. Bidders are cautioned, however, that any such literature which affects the substance of the bid may render the bid nonresponsive.
"Descriptive literature which contains qualifications [or] conditions which reserve the bidder's right to change price, specifications, date (or other conditions affecting the substance of the bid) without notice will render the bid nonresponsive."
Finally, section L.3 incorporated by reference the standard brand name or equal clause at Defense FAR Supplement Sec. 252.210-7000, which instructs that if the bidder proposes to furnish an "equal" product, the bidder must furnish, as part of the bid, all descriptive literature necessary for the contracting activity to determine whether the product offered meets the salient characteristics of the IFB.
By the April 1 bid opening date, 10 bids were timely received. Arrow submitted the apparent low bid of $47,178, but the record shows that its bid did not include any descriptive literature. The Army awarded a contract to Arrow on May 26, and this protest followed. Adrian argues that Arrow's bid should have been rejected as nonresponsive for failure to include descriptive literature.
To be responsive, a bid must represent an unequivocal offer to provide the exact thing called for in the IFB such that acceptance of the bid will bind the contractor in accordance with the solicitation's material terms and conditions. Aidco, Inc., B-249736; B-249736.2, Dec. 11, 1992, 92-2 CPD Para. 407. Where descriptive literature is required to be supplied for use in the bid evaluation, a bid may be rejected as nonresponsive if the bid and the data submitted with the bid do not clearly show that the offered product complies with the specifications. Id.
The purpose of a descriptive literature clause is to require information showing the characteristics, construction, or operation of a product that affirmatively establishes conformance with solicitation requirements. The applicable regulation requires that solicitations calling for descriptive literature clearly state "what descriptive literature is to be furnished" and "the purpose for which it is required." FAR Sec. 14.202-5(d)(1). For this reason, the standard descriptive literature clause, which was included in this IFB, refers to literature "required elsewhere in this solicitation" and the need for the literature to establish "details of the product offered that are specified elsewhere in this solicitation." FAR Sec. 52.214-21. Where the IFB fails to alert bidders as to what specific literature is required and for what purpose it is required, the standard descriptive literature clause is rendered inapplicable. Futura Sys., Inc., 70 Comp.Gen. 365 (1991), 91-1 CPD Para. 327.
While section L.8 mentions descriptive literature, that provision included only general advice regarding the requirement for descriptive literature and, in fact, essentially restated a portion of the standard FAR descriptive literature clause already incorporated at section L.7 of the solicitation. While both the FAR descriptive literature clause and section L.8 stated that bids could be rejected for failing to provide descriptive literature showing that a product offered conforms to the solicitation requirements, neither provision included a list of the particular requirements for which descriptive literature was needed. Because the IFB's specifications for each CLIN contained many different requirements, from reading the IFB's descriptive literature clause a bidder would not reasonably be aware of what literature, if any, was required, and for what purpose. See Koch Corp., 66 Comp.Gen. 92 (1986), 86-2 CPD Para. 544; Cuernilargo Elec. Supply, B-229942, May 10, 1988, 88-1 CPD Para. 449. As a result, we conclude that the IFB did not include a valid requirement to submit descriptive literature for bid evaluation purposes, and that the agency was not required to reject Arrow's bid for failure to submit such descriptive literature. See Aidco, Inc., supra.
Adrian also argues that the IFB's brand name or equal clause required offerors to submit descriptive literature for the three CLINs to which it applied. However, by its terms, the brand name or equal clause requires submission of descriptive literature only if "equal" products are offered. Here, Arrow offered the brand name product for the three relevant CLINs; as a result, it was not required to submit descriptive literature for those CLINs.
The protest is denied.
1. While several other bids were lower than Adrian's bid of $52,148, Adrian contends that those intervening bids are all nonresponsive for various reasons. These reasons include failure to include descriptive literature and failure to properly complete the bid certification.
2. The FAR clause does not operate independently. Since it refers to "[d]escriptive literature, required elsewhere in this solicitation," that clause operates together with other solicitation requirements for the literature, and without such further guidance the clause is effectively meaningless. International Mailing Sys., Inc., B-246214, Feb. 25, 1992, 92-1 CPD Para. 224.