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B-177889, JUN 26, 1973

B-177889 Jun 26, 1973
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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23. BIDS WERE OPENED ON NOVEMBER 8. THE LOW BID WAS REJECTED. AMPLITRONICS SUBMITTED THE SECOND LOW BID AND THE THIRD LOW BID WAS SUBMITTED BY INTERNATIONAL. IF USE OF GOVERNMENT PRODUCTION AND RESEARCH PROPERTY WAS PROPOSED. BIDDERS WERE REQUIRED TO INDICATE THE EXISTENCE OF A RENTAL AGREEMENT OR WHETHER RENT-FREE USE WAS PROPOSED. STATING THAT RENT-FREE USE WAS IMPROPERLY CHECKED. THE CONTRACTING OFFICER DETERMINED THAT THE CONTRADICTION IN AMPLITRONICS' BID WAS MATERIAL IN NATURE. AMPLITRONICS' BID WAS FOUND TO BE NONRESPONSIVE AND WAS REJECTED. YOU CONTEND THAT THE BID WAS RESPONSIVE AS SUBMITTED AND THAT THE CONTRACTING OFFICER'S REQUEST FOR CLARIFICATION OF THE BID SUPPORTS THIS CONTENTION.

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B-177889, JUN 26, 1973

DENIAL OF PROTEST AGAINST REJECTION OF BID UNDER IFB NO. DAAH01-73-B 0081 ISSUED BY U.S. ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA.

TO AMPLITRONICS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23, 1973, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. DAAH01-73-B-0081, ISSUED AUGUST 24, 1972, BY THE UNITED STATES ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA, AND THE AWARD OF THE CONTRACT ON JANUARY 18, 1973, TO INTERNATIONAL SIGNAL CONTROLS (INTERNATIONAL) FOR A QUANTITY OF AMPLIFIERS (DOPPLER, DUAL).

BIDS WERE OPENED ON NOVEMBER 8, 1972. THE LOW BID WAS REJECTED. AMPLITRONICS SUBMITTED THE SECOND LOW BID AND THE THIRD LOW BID WAS SUBMITTED BY INTERNATIONAL.

SECTION B-15, PARAGRAPH C2, PAGE 4 OF THE SOLICITATION, ENTITLED "BASIS FOR EQUITABLE EVALUATION OF GOVERNMENT PRODUCTION AND RESEARCH PROPERTY," REQUIRED BIDDERS TO INDICATE WHETHER THEY OR THEIR SUBCONTRACTOR WOULD USE GOVERNMENT PRODUCTION AND RESEARCH PROPERTY IN PERFORMANCE UNDER THE CONTRACT. IF USE OF GOVERNMENT PRODUCTION AND RESEARCH PROPERTY WAS PROPOSED, BIDDERS WERE REQUIRED TO INDICATE THE EXISTENCE OF A RENTAL AGREEMENT OR WHETHER RENT-FREE USE WAS PROPOSED.

THE BID SUBMITTED BY AMPLITRONICS HAD A CHECK MARK IN BOTH THE BOX MARKED NON-USE OF GOVERNMENT PROPERTY AND IN THE BOX MARKED PROPOSED RENT-FREE USE OF GOVERNMENT PROPERTY. THE CONTRACTING OFFICER FIRST THOUGHT THIS CONTRADICTION TO BE A MINOR INFORMALITY AND BY LETTER DATED NOVEMBER 17, 1972, REQUESTED AMPLITRONICS TO CLARIFY ITS BID. AMPLITRONICS REPLIED BY LETTER DATED NOVEMBER 28, 1972, STATING THAT RENT-FREE USE WAS IMPROPERLY CHECKED. SUBSEQUENTLY, UPON ADVICE OF COUNSEL, THE CONTRACTING OFFICER DETERMINED THAT THE CONTRADICTION IN AMPLITRONICS' BID WAS MATERIAL IN NATURE, THUS MAKING SUBSEQUENT CLARIFICATION IMPROPER. ON THIS BASIS, AMPLITRONICS' BID WAS FOUND TO BE NONRESPONSIVE AND WAS REJECTED.

YOU CONTEND THAT THE BID WAS RESPONSIVE AS SUBMITTED AND THAT THE CONTRACTING OFFICER'S REQUEST FOR CLARIFICATION OF THE BID SUPPORTS THIS CONTENTION. YOU EXPLAIN THAT SINCE THE PROCUREMENT WAS ISSUED IN AUGUST 1972, THE STATUS OF EQUIPMENT USAGE HAD CHANGED SO THAT YOUR RESPONSE TO THE CONTRACTING OFFICER'S INQUIRY OF NOVEMBER 17 MERELY REFLECTED THE CHANGE IN STATUS, BUT DID NOT EFFECT THE RESPONSIVENESS OF YOUR BID.

ESSENTIALLY IT IS YOUR CONTENTION THAT YOUR BID WAS RESPONSIVE SINCE IT INCLUDED A RESPONSE TO THE INFORMATION REQUESTED IN SECTION B-15 OF THE SOLICITATION. WE DO NOT AGREE. THE INFORMATION SUPPLIED IN YOUR BID WAS CONTRADICTORY IN THAT BOTH THE NON-USE AND THE RENT-FREE USE OF GOVERNMENT PROPERTY WERE INDICATED. AS A RESULT, IT WAS IMPOSSIBLE TO DETERMINE FROM THE BID IF YOU PROPOSED TO USE GOVERNMENT-FURNISHED PROPERTY ON A RENT- FREE BASIS IN PERFORMANCE OF THE CONTRACT. IN THE EVENT A BIDDER PROPOSED TO USE SUCH PROPERTY, THE BIDDER WAS REQUIRED TO FURNISH CERTAIN SUPPORTING DATA, AS LISTED IN PARAGRAPH E OF SECTION B-15, IN ORDER TO PERMIT CALCULATION OF THE RENTAL FACTOR TO BE INCLUDED IN THE EVALUATION OF THE BID. WE HAVE HELD THAT THE FAILURE TO SUBMIT SUCH SUPPORTING DATA FOR EVALUATION PURPOSES MAY NOT BE WAIVED AND REQUIRES REJECTION OF THE BID SINCE THE DATA IS ESSENTIAL TO A PROPER EVALUATION OF THE BID. 154899, APRIL 26, 1965; B-165799, FEBRUARY 7, 1969.

WHILE IT MAY BE ARGUED THAT YOUR FAILURE TO SUPPLY THE DATA REQUESTED UNDER PARAGRAPH E INDICATES THAT YOU DID NOT INTEND TO USE ANY GOVERNMENT PROPERTY, A CONTRARY INTENTION WAS ALSO INDICATED IN THE BID. IN THIS REGARD, WE NOTE IN YOUR PROTEST LETTER OF JANUARY 23, 1973, THE INDICATION THAT AT THE TIME OF BID SUBMISSION YOU HAD INTENDED TO UTILIZE GOVERNMENT PROPERTY IN PERFORMANCE OF THE CONTRACT, WHEREAS AFTER THE BID OPENING THE SITUATION HAD CHANGED.

BE THAT AS IT MAY, WE BELIEVE THE CONTRACTING OFFICER PROPERLY DETERMINED THAT YOUR BID WAS NONRESPONSIVE BECAUSE OF THE INCLUSION OF THE TWO "X MARKS" IN RESPONSE TO SECTION B-15, PARAGRAPH C2 OF YOUR BID. IN REACHING OUR CONCLUSION, WE ARE MINDFUL OF THE FACT THAT YOUR BID PRICE WAS $69,263.80 WHILE THE AWARD WAS MADE AT $79,941. NEVERTHELESS, AS STATED BY ARMY COUNSEL, "AMPLITRONICS BID FAILED TO CLEARLY MAKE KNOWN A REQUIREMENT WHICH MATERIALLY RELATED TO THE EVALUATION PROCESS AND THE RELATIVE STANDING OF THE BIDDERS ***." IN THE CIRCUMSTANCES, WE MUST CONCLUDE THE BID WAS PROPERLY REJECTED.

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