RESPONDENT'S MOTION FOR SUMMARY RELIEF DENIED: June 15, 1993 GSBCA 12420-P INTEGRATED SYSTEMS GROUP, INC., Protester, v. DEPARTMENT OF COMMERCE, Respondent. Shelton H. Skolnick, Judy D. Leishman, and Amy M. Hall of Skolnick & Leishman, P.C., Derwood, MD, counsel for Protester. Jerry A. Walz and Kenneth A. Lechter, Office of the Assistant General Counsel for Finance and Litigation, Department of Commerce, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, DeGRAFF, and GOODMAN. GOODMAN, Board Judge. Protester, Integrated Systems Group, Inc. (protester or ISG), has protested the award of a contract for desktop computers by the United States Department of Commerce (respondent or Commerce). ISG submitted a timely bid on the procurement. Respondent rejected ISG's bid on the basis that it was nonresponsive. ISG filed this protest on May 10, 1993. Respondent's delegation of procurement authority was suspended by the Board's order dated May 13, 1993. Respondent has filed a motion for summary relief, alleging that the contracting officer properly rejected ISG's bid as nonresponsive, and that there are no issues of material fact in dispute. For the reasons discussed below, we deny respondent's motion. Findings of Fact 1. Through an invitation for bids issued on February 22, 1993, respondent sought to procure automatic data processing peripheral equipment for use by the National Climatic Data Center, Asheville, North Carolina. Protest File, Exhibit 1. 2. Nineteen bids were received. The bids of the low bidder, the second low bidder, and protester, the third low bidder, were found to be nonresponsive. Protest File, Exhibit 8. 3. Contract clauses contained in Federal Acquisition Regulation (FAR) 52.210-6 and FAR 52.210-7 were incorporated by reference into the solicitation. Protest File, Exhibit 1 at 17, 36. These clauses read as follows: 52.210-6 LISTING OF USED OR RECONDITIONED MATERIAL, RESIDUAL INVENTORY, AND FORMER GOVERNMENT SURPLUS PROPERTY (APR 1984) (a) If the offeror proposes to furnish items or components which are used or reconditioned material, residual inventory resulting from terminated Government contracts, or former Government surplus property, the offeror shall provide the following information as an attachment to the offer: a complete description of the items or components; quantity; name of Government agency from which acquired; and date of acquisition, if applicable. No used, reconditioned, residual inventory, or former Government surplus property other than that listed on the attachment shall be furnished under the resulting contract unless authorized in writing by the Contracting Officer. (b) All items to be furnished under the resultant contract must comply with the terms and specifications contained in the contract. 52.210-7 USED OR RECONDITIONED MATERIAL, RESIDUAL INVENTORY, AND FORMER GOVERNMENT SURPLUS PROPERTY (APR 1984) (a) The Contractor shall not furnish any item or component which is used or reconditioned material, residual inventory resulting from terminated Government contracts, or former Government surplus property, unless such item or component was listed in the applicable attachment to the offer and approved by the Contracting Officer or unless otherwise authorized in writing by the Contracting Officer. (b) All items or components furnished under this contract shall comply with the terms and specifications contained in the contract. 48 CFR 52.210-6, -7 (1992) (FAR 52.210-6, -7). 4. The contracting officer's reasons for finding protester's bid as being nonresponsive to the solicitation were set forth in his Memorandum For File dated April 21, 1993: The third low bidder is Integrated Systems, Inc. In accordance with FAR 52.210-7, the Contractor shall not furnish any item or component which is used or reconditioned material, unless such item or component was listed in the applicable attachment to the offer and approved by the Contracting Officer unless otherwise authorized in writing by the Contracting Officer. The offeror indicated that all equipment is "used/refurbished/warranted as new." The Contracting Officer has not approved such a list verbally or in writing. Additionally the bid did not list the quantity, if obtained from another Government activity, and date of acquisition as required by FAR 52.210-6. The Contractor only gave a complete description of the items as it appeared in Section C. Therefore, their bid is considered non-responsive and shall be rejected in accordance with FAR 14.404-2(a). Protest File, Exhibit 8. 5. The sole undisputed fact alleged in respondent's motion for summary relief is that "[i]t is undisputed that the Protestor did not provide an attachment nor advise the Government of the date of acquisition of the used property, but simply stated in a pricing note that: 'all equipment is used/refurbished/warranted as new.'" Respondent's Motion for Summary Relief at 2. 6. Respondent alleges in its motion that as a result of protester's failure to provide the required attachment, protester's bid was found to be nonresponsive, as the bid failed to comply with FAR 52.210-6, and such failure to provide an attachment or advise the Government of the date of acquisition of the used property was not a minor informality or irregularity which could be either waived or cured. 7. Protester alleges that the required information was contained in its bid, that it had not acquired the used equipment as of the date of its bid, and it therefore had no acquisition date that could be supplied. Thus, protester alleges that its bid fully complied with the clause in the solicitation incorporated from FAR 52.210-6. Protester's Reply to Respondent's Motion for Summary Relief at 1-2. Discussion The FAR includes a general requirement that all contractually-furnished supplies and their components will be new. Used or reconditioned material, former Government surplus property, or residual inventory may, however, be accepted, if such supplies or components conform to solicitation requirements, and if the contracting officer determines that they are acceptable. If such a determination is made, the FAR requires that "the solicitation shall clearly identify the supplies or their components that need not be new, along with the necessary details on their acceptability." In addition, the FAR requires that vendors wishing to supply used or reconditioned material, former Government surplus property, or residual inventory must do so in accordance with the Listing of Used or Reconditioned Material, Residual Inventory, and Former Government Surplus Property and the Used or Reconditioned Material, Residual Inventory, and Former Government Surplus Property provisions. FAR 10.010(a). The inclusion of the clauses specified in FAR 52.210-6 and 52.210-7 in the solicitation of the procurement at issue indicates that the Government might accept used or reconditioned equipment, provided the equipment complies with the terms and specifications contained in the solicitation. Finding 3. To be considered for award, a bid must comply in all material respects with the invitation for bids. FAR 14.301(a). Any bid which fails to conform to the essential requirements of the invitation for bids must be rejected. FAR 14.402-2. A bidder which does not submit required information with its bid may not be permitted to supply the missing information after bid opening. See, e.g., Toyo Menka Kaisha, Ltd. v. United States, 597 F.2d 1371, 1377 (Ct. Cl. 1979). Nonetheless, contracting officers may either give bidders the "opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid or waive the deficiency, whichever is to the advantage of the Government." FAR 14.405; see also Presearch, Inc., GSBCA 8075-P, 85-3 BCA 18,453, 1985 BPD 78. The FAR defines the minor informalities or irregularities in bids which may be cured or waived as follows: A minor informality or irregularity is one that is merely a matter of form and not of substance. It also pertains to some immaterial defect in a bid or variation of a bid from the exact requirements of the invitation that can be corrected or waived without being prejudicial to other bidders. The defect or variation is immaterial when the effect on price, quantity, quality, or delivery is negligible when contrasted with the total cost or scope of the supplies or services being offered. FAR 14.405. In C.M.P. Corporation, GSBCA 8902-P, 87-2 BCA 19,780, 1987 BPD 47, the solicitation specified that all equipment sought was to be either in "new or like-new condition." The solicitation contained the full text of FAR 52.210-6 and incorporated by reference FAR 52.210-7. Protester failed to indicate that its bid had been based on reconditioned equipment. Due to protester's low bid price, the contracting officer expected either that protester had made a bid mistake or had based its bid on reconditioned equipment. The contracting officer contacted protester, and protester confirmed that its bid had been based on reconditioned equipment and then forwarded its confirmation of this fact in writing. C.M.P. had not included the attachment in its bid which was required by FAR 52.210-6, and the contracting officer therefore determined that the bid was nonresponsive. C.M.P. had furnished to respondent in its bid all information necessary for respondent to determine if the equipment offered met the requirements of the solicitation. Even though C.M.P. had not furnished the attachment required by FAR 52.210-6, the only information which it failed to supply was the brand name of the equipment to be furnished. We held that the brand name of the equipment was not information which was required for respondent to determine if the equipment offered would meet the requirements of the solicitation, and was, therefore, a minor irregularity or informality which may be cured or waived. In the instant procurement, it appears that the contracting officer did not find ISG's bid nonresponsive because used or refurbished equipment was offered. Rather, the contracting officer based his determination that ISG's bid was nonresponsive on the fact that although ISG had offered used or refurbished equipment, ISG's bid did not comply in certain respects to the requirements of FAR 52.210-6 and 52.210-7. Finding 4. Respondent's motion for summary relief is predicated on the allegation that "[i]t is undisputed that the Protestor did not provide an attachment nor advise the Government of the date of acquisition of the used property, but simply stated in a pricing note contained in its bid that: 'all equipment is used/refurbished/warranted as new.'" The contracting officer held that this was a failure to comply with the requirements of FAR 52.210-6, thereby rendering ISG's bid nonresponsive. Findings 5, 6. Despite ISG's alleged failure to comply with certain requirements of FAR 52.210-6, respondent has not demonstrated that the information which ISG allegedly failed to supply was necessary to determine if ISG had met the requirements of the solicitation. The contracting officer did note that ISG gave "a complete description of the items as it appeared in Section C [Description/Specifications/Statement of Work]." Finding 4. Protester alleges that the required information was contained in its bid, and that the protester had not acquired the used equipment as of the date of its bid, and therefore there was no acquisition date that could be supplied. Finding 7.