TITLE:   Jamco Constructors, Inc., B-283172.2, October 4, 1999
BNUMBER:  B-283172.2
DATE:  October 4, 1999
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Jamco Constructors, Inc., B-283172.2, October 4, 1999

Decision

                    Matter of: Jamco Constructors, Inc.

File: B-283172.2

Date: October 4, 1999

Richard R. Flowers, Jr., Esq., Fairfield, Farrow, Flowers, Pierson & Strotz,
and Bari A. Hankins, Jamco Constructors, Inc., for the protester.

M. Brooke Lamson, Esq., U.S. Army Corps of Engineers, for the agency.

Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Procuring agency properly rejected protester?s bid for transformers as
nonresponsive, where bid included descriptive literature for two
transformers, the literature for one showed it did not meet solicitation
requirement, and bid did not indicate which transformer would be furnished;
it thus was not clear that protester was offering to meet all solicitation
requirements.

DECISION

Jamco Constructors, Inc. protests the rejection of its bid as nonresponsive
under invitation for bids (IFB) No. DACW54-99-B-0015, issued by the U.S.
Army Corps of Engineers for replacement of a transformer and electrical
upgrade work at the Island Creek Pumping Station, John H. Kerr Reservoir,
near Boydton, Virginia.

We deny the protest.

The IFB required bidders to submit descriptive literature, including a
sketch or drawing, for the transformer being offered. IFB at 00100-6,
00010-8. The IFB cautioned that if the descriptive literature failed to show
that the product offered conforms to the requirements of the solicitation,
the bid would be rejected. IFB at 00100-6.

Jamco submitted drawings for both a Delta Star, Inc. transformer and a
General Electric (GE) Prolec transformer. The Corps determined from the
drawings that the GE transformer was unacceptable because (among other
reasons) the drawings showed the low-voltage bushings on the incorrect
sidewall. Although the Delta Star descriptive literature did show compliance
with the solicitation requirements, Jamco?s bid did not indicate which
transformer it would supply if it were awarded the contract. Consequently,
the agency rejected Jamco?s bid as nonreponsive because it was not clear
from the bid that Jamco would supply an acceptable transformer. In this
regard, where, as here, an IFB requires descriptive literature to establish
that the offered item meets IFB requirements, a bid accompanied by
descriptive literature that is ambiguous as to whether the bidder is
offering an acceptable item must be rejected as nonresponsive.
Electrophysics Corp., B-258674, Feb. 13, 1995, 95-1 CPD para. 63 at 2; Calma
Co., B-209260.2, June 28, 1983, 83-2 CPD para. 31 at 6-7.

It is undisputed that Jamco?s descriptive literature showed the low-voltage
bushings in a different location than the IFB drawings. Jamco argues,
however, that the solicitation did not require that the low-voltage bushings
be in the same location as shown in the solicitation drawings, and that the
Corps thus improperly determined that its literature showed the GE
transformer did not meet the specifications. In this regard, Jamco believed
that the final locations and dimensions of items such as the low-voltage
bushings could not be determined until the final transformer design is
completed. Jamco therefore assumed that the descriptive literature only had
to show that the transformer met the technical specifications relating to
the transformer?s operational and performance capabilities. In support of
this position, Jamco notes that the IFB required the successful bidder to
submit outline drawings and assembly and detail drawings for approval within
120 days after award, IFB at 16320-5, and that the equipment arrangement or
equipment device requirements could be changed subject to approval. IFB at
16050-16. [1]

Where a dispute exists as to the meaning of the terms of a solicitation, we
will resolve the matter by reading the solicitation as a whole and in a
manner that gives effect to all of its provisions. Lankford-Sysco Food
Servs., Inc.; Sysco Food Servs. of Arizona, Inc., B-274781, B-275081, Jan.
6, 1997, 97-1 CPD para. 11 at 3-4. We think the IFB provisions here, read
together, required that the bushings be located in accordance with the IFB
drawings. The standard descriptive literature clause in the IFB (Federal
Acquisition Regulation sect.  52.214-21) stated that "[d]escriptive literature
is required to establish, for the purpose of evaluation and award, details
of the product offered that are specified elsewhere in the solicitation . .
. ." IFB at 00100-6. The clause went on to state that "[t]he failure of
descriptive literature to show that the product offered conforms to the
requirements of this solicitation will require rejection of the bid." Id.
The IFB specified that the descriptive literature submitted was to include
"[a] sketch or drawing of the transformers which the bidder proposes to
furnish, showing outline dimensions, location of bushings and general
appearance." IFB at 00010-8. The IFB included drawings that located the
bushings in a specific place, IFB Drawing UE 1005, Plate E-6, and required
that all work be performed in accordance with the drawings. IFB Document
00800 at 9.

These provisions clearly established a close relationship between the IFB
drawings and the required descriptive literature. In light of this
relationship, and the nature and purpose of the literature requirement, we
think Jamco and the other bidders were on notice that the drawings were not
provided merely for information purposes, but reflected the agency?s
requirements. It follows that Jamco should have known that their descriptive
literature was required to show that their offered tranformer was configured
in a manner that conformed to the IFB drawings. This is particularly the
case with the bushings, the locations of which were specifically required to
be indicated on the submitted drawings.

The fact that the IFB required the contractor to submit other drawings after
award, and provided that changes might be approved after award, did not
negate the requirement to show that the offered item conformed to the IFB
drawings. Notwithstanding the provisions that applied to performance of the
contract, the agency legitimately could require bidders to demonstrate in
their bids that the offered transformer was configured in a manner that met
the agency?s known needs at the time of bid submission. In this regard, if,
as the protester states it assumed, the only purpose of the descriptive
literature requirement was to show that the transformer met operational and
performance requirements, there would have been no need for bidders to
submit drawings showing where the bushings were located. Since the drawings
of the GE transformer do not show compliance with the solicitation, and it
was not clear from the bid which transformer Jamco would supply, the bid
properly was rejected as nonresponsive. [2]

The protest is denied.

Comptroller General
of the United States

Notes

1. Jamco asserts that the GE drawing should have been deemed acceptable
because it stated that the bushings could be located in a different place
than shown on the drawing. However, this statement was not a valid
substitute for the required drawing showing that the bushings were properly
located, and Jamco could not supply information to demonstrate the
responsiveness of its bid after bid opening. See Sillcocks Plastics Int?l,
Inc., B-277549, Sept.19, 1997, 97-2 CPD para. 81 at 3.

2. To the extent Jamco now argues that there is no need for the bushings to
be located as indicated on the IFB drawings, its protest is untimely. Given
our finding that the IFB made it sufficiently clear that the drawings
reflected the agency?s requirements, any protest that the IFB drawings
should not be controlling for purposes of determining the acceptability of
offered items had to be raised prior to bid opening. See 4 C.F.R. sect.
21.2(a)(1) (1999).