B-190619, MAY 9, 1978

B-190619, MAY 9, 1978

1. IFB IS NOT AMBIGUOUS UNLESS TWO OR MORE REASONABLE INTERPRETATIONS OF SOLICITATION REQUIREMENTS ARE POSSIBLE. FAILURE OF AGENCY TO CORRECT MINOR CLERICAL ERRORS AND INSIGNIFICANT DISCREPANCIES IN IFB HAVING NO EFFECT ON PRICE OR PERFORMANCE OF SERVICES REQUIRED DID NOT RENDER IFB DEFECTIVE. 2. PROTEST OF AWARD TO LOW BIDDER OF SMALL BUSINESS SET-ASIDE CONTRACT TWO WORKING DAYS AFTER BID OPENING IS MOOT WHERE LOW BIDDER WAS SUBSEQUENTLY DETERMINED TO BE SMALL BUSINESS CONCERN BY SBA.

CHEMICAL TECHNOLOGY, INC.:

INVITATION FOR BIDS (IFB) NO. N00612-78-B-0003, A TOTAL SMALL BUSINESS SET-ASIDE, WAS ISSUED ON OCTOBER 7, 1977, BY THE NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA, FOR MESS ATTENDANT SERVICES TO BE PROVIDED AT THE NAVAL STATION, ROOSEVELT ROADS, PUERTO RICO, FOR THE PERIOD DECEMBER 1, 1977, THROUGH SEPTEMBER 30, 1978. THE IFB ESTABLISHED NOVEMBER 7, 1977 AS THE BID OPENING DATE.

ON NOVEMBER 3, 1977, CHEMICAL TECHNOLOGY, INC. (CTI), THE INCUMBENT CONTRACTOR, TELEPHONICALLY ADVISED THE CONTRACTING OFFICER THAT IT BELIEVED THERE WERE AMBIGUITIES IN THE IFB AND REQUESTED CLARIFICATION. THE FOLLOWING DAY, NOVEMBER 4, 1977, CTI PROTESTED ANY AWARD UNDER THE IFB TO OUR OFFICE "BECAUSE OF NUMEROUS AMBIGUITIES AND CLERICAL ERRORS" ALLEGEDLY CONTAINED IN THE SOLICITATION.

IN RESPONSE TO CTI'S REQUEST FOR CLARIFICATION, THE NAVY, ON NOVEMBER 8, 1977, ISSUED AMENDMENT 0002 TO THE IFB, EXTENDING THE BID OPENING DATE TO NOVEMBER 21, 1977, AND REVISING VARIOUS PROVISIONS OF THE SOLICITATION. ON NOVEMBER 14, 1977, CTI TRANSMITTED TO THE CONTRACTING OFFICER AND THIS OFFICE A LETTER DETAILING THIRTY-FIVE AREAS OF AMBIGUITY ALLEGEDLY CONTAINED IN THE SOLICITATION. SINCE MANY OF THE ALLEGED IFB AMBIGUITIES DETAILED IN CTI'S NOVEMBER 14, 1977 LETTER HAD BEEN SPECIFICALLY REVISED AND CLARIFIED BY AMENDMENT 0002, IT IS APPARENT THAT THIS LETTER WAS PREPARED BY CTI PRIOR TO ITS RECEIPT OF THAT AMENDMENT. SINCE THE NAVY CONSIDERED THE AMENDED IFB TO BE "CLEAR AND COMPLETE", BIDS WERE OPENED AS SCHEDULED AND THE AGENCY, ON NOVEMBER 23, 1977, PROCEEDED WITH AWARD UNDER THE SOLICITATION NOTWITHSTANDING CTI'S PROTEST.

IN ITS COMMENTS ON THE AGENCY REPORT FILED WITH THIS OFFICE ON THE PROTEST, CTI FAILED TO SPECIFY WHICH OF THE ALLEGED AMBIGUITIES STILL EXISTED IN THE SOLICITATION. OUR REVIEW OF THE AMENDED IFB AND CTI'S NOVEMBER 14, 1977 LETTER INDICATES THAT OF THE ALLEGED AMBIGUITIES NOT SPECIFICALLY ADDRESSED AND REVISED BY AMENDMENT 0002, THE FOLLOWING EXAMPLES, AS CONTAINED IN CTI'S NOVEMBER 14, 1977 LETTER, ARE ILLUSTRATIVE:

"12. PAGE 1 OF ATTACHMENT A, PARAGRAPH 2.A., STATES THE MEAL HOURS FOR WEEKDAYS, SATURDAYS, SUNDAYS AND HOLIDAYS. IT APPEARS TO US THAT THE BREAKFAST ON SATURDAYS, SUNDAYS AND HOLIDAYS WHICH IS SERVED BETWEEN 0700 AND 0900 IS REALLY A BRUNCH AND SHOULD BE SHOWN IN THE BRUNCH SLOT RATHER THAN IN THE BREAKFAST SLOT.

"15. ON PAGE 3, ATTACHMENT A, TYPES OF TABLEWARE USED, IT LISTS GLASS BEVERAGE, 10 OZ., 1. THIS CONFLICTS WITH NORMAL PRACTICE AT ROOSEVELT ROADS WHEREIN PATRONS NORMALLY TAKE 2 GLASSES PER MEAL. THUS, WE BELIEVE THAT THE NORMAL QUANTITY PER MAN PER MEAL SHOULD BE TWO.

"28. PAGE 31 OF ATTACHMENT A, PARAGRAPH (5), LINE 1, STATES THAT THE CONTRACTOR SHALL 'PROVIDE SUFFICIENT SERVING LINE PERSONNEL TO SERVICE ALL FOOD EXCEPT ***' WE BELIEVE THAT THE WORD 'SERVICE' REALLY MEANS 'SERVE.'

"29. PAGE 33 OF ATTACHMENT A, PARAGRAPH 9.A. STATES 'THE FOOD SERVICE OFFICER WILL MAKE UNANNOUNCED INSTRUCTIONS ***' WE BELIEVE THE WORD 'INSTRUCTIONS' SHOULD BE DELETED AND THE WORD 'INSPECTIONS' SHOULD BE SUBSTITUTED.

"30. PAGE 34 OF ATTACHMENT A, SECTION 1, 'PORTION CONTROL' HAS BEEN DELETED BY PAGE 31A. THUS, WE WOULD RECOMMEND THAT THIS ITEM ALSO BE DELETED FROM THE PROPOSED SERVICE RATING SHEET SPECIFIED IN THE SOLICITATION."

FOR THE REASONS STATED BELOW, WE DO NOT FIND THE SOLICITATION, AS AMENDED, TO BE AMBIGUOUS. OUR OFFICE CONSIDERS PROTESTS CONCERNING AMBIGUITIES IN SOLICITATIONS TO INSURE THAT BIDDERS COMPETE ON AN EQUAL WE REALIZE THAT MINOR CLERICAL ERRORS AND IMMATERIAL DISCREPANCIES SOMETIMES EXIST IN SOLICITATIONS. AN AMBIGUITY IN THE LEGAL SENSE ONLY EXISTS IF TWO OR MORE REASONABLE INTERPRETATIONS OF IFB REQUIREMENTS ARE POSSIBLE. 48 COMP.GEN. 757, 760 (1969); KLEEN-RITE CORPORATION, B-189458, SEPTEMBER 28, 1977, 77-2 CPD 237.

AMENDMENT 0002 TO THE IFB REVISED THE PROVISIONS OF THE SOLICITATION CONCERNING MATTERS RAISED BY CTI WHICH THE AGENCY BELIEVED TO BE OTHER THAN TRIVIAL. AS STATED PREVIOUSLY, CTI FAILED TO SPECIFY IN ITS COMMENTS ON THE AGENCY REPORT WHICH OF THE "AMBIGUITIES" STILL EXISTED IN THE IFB AFTER ISSUANCE OF AMENDMENT 0002. OUR REVIEW OF THE AMENDED IFB AND CTI'S NOVEMBER 14, 1977 LETTER INDICATES THAT THE REMAINING ALLEGED AMBIGUITIES ARE MERELY MINOR CLERICAL ERRORS AND IMMATERIAL DISCREPANCIES, WHOLLY INSIGNIFICANT IN NATURE, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE OR THE PERFORMANCE OF THE SERVICES BEING PROCURED. SINCE CTI HAS NOT ALLEGED THAT TWO OR MORE REASONABLE INTERPRETATIONS OF THE IFB ARE POSSIBLE AFTER ISSUANCE OF AMENDMENT 0002, AND SINCE OUR REVIEW INDICATES THAT THERE ARE NO SUCH AMBIGUITIES, WE DO NOT BELIEVE THAT THE FAILURE OF THE AGENCY TO CORRECT THESE IMMATERIAL DISCREPANCIES MADE THE IFB DEFECTIVE.

FINALLY, CTI ARGUES THAT ALTHOUGH IT TIMELY PROTESTED THE SIZE STATUS OF THE LOW BIDDER, THE CONTRACTING OFFICER PROCEEDED WITH AWARD ON NOVEMBER 23, 1977, TWO DAYS AFTER THE BID OPENING DATE, IN VIOLATION OF ASPR SEC. 1 -703(B)(5) (1976 ED.). THAT SECTION READS, IN PART, AS FOLLOWS:

"(5) AWARD OF SET-ASIDE PROCUREMENTS. EXCEPT AS PROVIDED IN 3-508.1 OR WHEN THE CONTRACTING OFFICER DETERMINES IN WRITING THAT AWARD MUST BE MADE WITHOUT DELAY TO PROTECT THE PUBLIC INTEREST, AWARD WILL NOT BE MADE PRIOR TO (I) FIVE WORKING DAYS AFTER THE BID OPENING DATE FOR PROCUREMENTS PLACED THROUGH SMALL BUSINESS RESTRICTED ADVERTISING ***."

THE RECORD, HOWEVER, CONTAINS THE APPROPRIATE WRITTEN DETERMINATION BY THE CONTRACTING OFFICER. FURTHERMORE, WE CONSIDER THIS ISSUE TO BE MOOT SINCE THE SMALL BUSINESS ADMINISTRATION DENIED CTI'S SIZE PROTEST AND FOUND THE LOW BIDDER TO BE A SMALL BUSINESS CONCERN FOR THE PURPOSES OF THE PRESENT SOLICITATION. THEREFORE, THIS MATTER REQUIRES NO FURTHER CONSIDERATION BY OUR OFFICE.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.