B-170884, JUL 2, 1971

B-170884, JUL 2, 1971

BID PROTEST - AWARD WHILE PROTEST UNRESOLVED AFFIRMING PRIOR DECISION OF OCT. 19, 1970, WHICH DENIED PROTEST AGAINST THE AWARD OF A CONTRACT TO Q.V.S., INC., UNDER AN IFB ISSUED BY THE SAN ANTONIO AIR MATERIEL AREA, KELLY AFB. ALTHOUGH THE CONTRACTING OFFICER FAILED TO INCLUDE IN THE FILE FORWARDED TO GAO DOCUMENTATION SUBSTANTIATING THE DETERMINATION THAT AWARD WAS REQUIRED NOTWITHSTANDING THE PROTEST, THE FAILURE TO COMPLY WITH ASPR 2- 407.8(A)(2)(VI) AND (B)(3) IS A PROCEDURAL DEFECT AND DOES NOT AFFECT THE LEGALITY OF THE AWARD.

TO WITTE & WITTE:

REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 6, 1970, AND FEBRUARY 8, 1971, ON BEHALF OF BRUNO-NEW YORK INDUSTRIES CORPORATION, REQUESTING RECONSIDERATION OF OUR DECISION B-170884, OCTOBER 19, 1970, DENYING ITS PROTEST UNDER DEPARTMENT OF THE AIR FORCE INVITATION FOR BIDS (IFB) NO. F41608-70-B-1320, ISSUED BY THE SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS.

OUR OCTOBER DECISION CONCLUDED THAT THE FAILURE OF THE LOW BIDDER, Q.V.S., INC., TO ATTEND A PREBID CONFERENCE ANNOUNCED IN THE INVITATION AND CONDUCTED BY THE CONTRACTING OFFICIALS DID NOT RENDER THE Q.V.S. BID NONRESPONSIVE AND THAT NO BASIS EXISTED FOR DISPLACING THE LOW BID OF Q.V.S. WITH THE HIGHER BID OF BRUNO. YOUR REQUEST FOR RECONSIDERATION MAINTAINS THAT THE AWARD TO Q.V.S. MADE BEFORE OUR DECISION WAS ISSUED IS INVALID FOR A VARIETY OF REASONS, OUTLINED BELOW, INCLUDING, BUT NOT LIMITED TO, THE NONATTENDANCE OF Q.V.S. AT THE PREBID CONFERENCE.

YOUR FIRST CONTENTION IS THAT AWARD WAS MADE PRIOR TO A DECISION BY THE COMPTROLLER GENERAL IN VIOLATION OF PERTINENT ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVISIONS. IN THIS REGARD, YOU POINT OUT THAT ASPR 2- 407.8(B)(3) REQUIRES A DETERMINATION BY THE CONTRACTING OFFICER THAT AWARD IS REQUIRED NOTWITHSTANDING THE PROTEST WITH APPROPRIATE DOCUMENTATION OF THE CONTRACT FILE TO JUSTIFY THE DETERMINATION AND THAT ASPR 2- 407.8(A)(2)(VI) REQUIRES THAT THIS DETERMINATION BE INCLUDED IN THE FILE FURNISHED OUR OFFICE IN RESPONSE TO THE PROTEST. YOU CONTEND THAT THE FAILURE OF THE AIR FORCE TO INCLUDE DOCUMENTATION OF THE AWARD DETERMINATION IN ITS REPORTS TO OUR OFFICE "RAISES THE INFERENCE THAT THE REQUIRED DETERMINATION WAS NOT MADE." ALTHOUGH NO DOCUMENTATION OF THE AWARD DETERMINATION WAS INCLUDED IN THE AIR FORCE REPORT TO OUR OFFICE, OUR FILES REFLECT THAT ON OCTOBER 2, 1970, WE WERE ADVISED IN ACCORDANCE WITH ASPR 2 407.8(B)(2) THAT IT WAS NECESSARY TO MAKE IMMEDIATE AWARD. OUR OPINION, THIS INFORMAL ADVICE CONCERNING THE DETERMINATION REFUTES ANY INFERENCE THAT THE DETERMINATION WAS NOT MADE, AND WE CONCLUDE THAT THE FAILURE TO INCLUDE DOCUMENTATION SUBSTANTIATING THE DETERMINATION IN ACCORDANCE WITH ASPR 2-407.8(A)(2)(VI) AND (B)(3) WAS A PROCEDURAL DEFECT NOT AFFECTING THE LEGALITY OF THE AWARD.

YOU NEXT OBSERVE THAT THE USE OF AN INDEFINITE QUANTITIES TYPE CONTRACT WAS CONTRARY TO ASPR 3-409.3(B) WHICH STATES THAT "THE INDEFINITE QUANTITY CONTRACT SHOULD BE USED ONLY WHEN THE ITEM OR SERVICE IS COMMERCIAL OR MODIFIED COMMERCIAL IN TYPE." IN THIS RESPECT, YOU POINT OUT THAT THE SUBJECT MULTIMETERS ARE NOT, IN YOUR OPINION, "COMMERCIAL OR MODIFIED COMMERCIAL," AND YOU VIEW THE TERM "SHOULD" AS USED IN THE REGULATION AS REQUIRING THAT INDEFINITE QUANTITIES CONTRACTS BE USED ONLY FOR COMMERCIAL OR MODIFIED COMMERCIAL ITEMS. IN THIS REGARD, IN B-154594, DECEMBER 18, 1964, IN INTERPRETING IDENTICAL LANGUAGE, WE HELD THAT THE WORD "SHOULD" USED IN THE REGULATION IMPLIED THAT THE USE OF INDEFINITE QUANTITY CONTRACTS WAS PERMISSIVE, NOT MANDATORY (SEE, ALSO, B-170544(1) AND B- 170544(3), JANUARY 22, 1971). FURTHER, IT IS WELL SETTLED THAT THE PROCURING AGENCY MUST BE AFFORDED A WIDE RANGE OF DISCRETION IN THE CHOICE OF A CONTRACT FORM PECULIARLY SUITED TO A GIVEN SITUATION. WE THEREFORE CONCLUDE THAT THE DETERMINATION TO USE AN INDEFINITE QUANTITIES TYPE CONTRACT WAS A PROPER EXERCISE OF THIS DISCRETION.

CONCERNING THE PREBID CONFERENCE, YOU MAKE NUMEROUS CONTENTIONS WITH RESPECT TO BOTH THE MANNER IN WHICH THE CONFERENCE WAS ANNOUNCED IN THE INVITATION AND THE MANNER IN WHICH THE CONFERENCE WAS CONDUCTED. IN THIS REGARD, YOU CONTEND THAT PRIOR APPROVAL FROM HIGH AUTHORITY FOR A CONFERENCE WAS NOT OBTAINED; THAT THE INVITATION NOTICE WAS NOT SUFFICIENTLY EXPLICIT AS TO THE NATURE OF THE CONFERENCE; THAT THE CONFERENCE NOTICE ERRONEOUSLY ADVISED BIDDERS THAT INFORMATION CONCERNING THE PROCUREMENT WOULD BE PRESENTED ONLY AT THE CONFERENCE; THAT BIDDERS WERE PRECLUDED FROM BIDDING ON AN EQUAL BASIS BECAUSE CONFERENCE ATTENDEES WERE GIVEN INFORMATION ADDITIONAL TO THAT PROVIDED BY THE INVITATION AND ITS AMENDMENTS; AND THAT A COMPLETE RECORD WAS NOT MADE OF THE CONFERENCE.

ASPR 2-207 PROVIDES THAT THE PREBID CONFERENCE PROCEDURE MAY BE EMPLOYED "ONLY WHEN APPROVED AT A LEVEL HIGHER THAN THE CONTRACTING OFFICER." HAVE BEEN ADVISED BY THE CONTRACTING OFFICER THAT THE "ADVANCE PROCUREMENT DATA SUPPORT WORKSHEET" PREPARED BY THE COGNIZANT ENGINEERING ACTIVITY, WHICH ACCOMPANIED THE PURCHASE REQUEST, SET FORTH THE REQUIREMENT FOR A PREBID CONFERENCE AND THAT THIS WORKSHEET, TOGETHER WITH THE INITIAL REVIEW AND ASSIGNMENT OF THE PURCHASE REQUEST BY THE COGNIZANT SECTION CHIEF, CONSTITUTED THE NECESSARY APPROVAL ACTION. WE NOTE THAT NO MANDATE AS TO WHEN OR BY WHOM A REQUEST FOR A PREBID CONFERENCE IS APPROVED IS INCLUDED IN THE ASPR, SO THAT AS LONG AS APPROVAL, ABOVE THE CONTRACTING OFFICER LEVEL, IS OBTAINED WITHIN SUFFICIENT TIME TO ALLOW INTERESTED OFFERORS TO ATTEND THE CONFERENCE, THE ASPR REQUIREMENT FOR APPROVAL IS MET.

WHILE YOU MAINTAIN THAT THE PREBID CONFERENCE NOTICE WAS NOT SUFFICIENTLY EXPLICIT, YOU HAVE OFFERED NO SUBSTANTIATION FOR THIS ALLEGATION. FROM OUR REVIEW OF THE RECORD WE ARE SATISFIED THAT THERE WAS COMPLIANCE WITH ASPR 3-504.2(A), PROVIDING THAT "THE NOTICE SHALL DEFINE AS EXPLICITLY AS POSSIBLE THE NATURE AND SCOPE OF THE CONFERENCE." FURTHER, YOU POINT OUT THAT THE NOTICE CONTAINED THE LEGEND "BIDDERS ARE CAUTIONED THAT ADDITIONAL INFORMATION ON THIS PROPOSED PROCUREMENT WILL NOT BE PRESENTED TO THEM AT ANY OTHER TIME THAN AT THE ABOVE BRIEFING." HOWEVER, BY CERTIFICATION DATED AUGUST 19, 1970, THE TWO BUYERS IN ATTENDANCE AT THE MEETING STATED THAT IN RESPONSE TO A REQUEST FOR INTERPRETATION OF THIS SECTION, OFFERORS ATTENDING THE CONFERENCE WERE ADVISED THAT:

" *** MINUTES OF THE MEETING WOULD NOT BE PUBLISHED TO PROSPECTIVE BIDDERS AND RESULTS OF THE BID CONFERENCE WOULD NOT BE GIVEN OVER THE PHONE. HOWEVER, THE IFB WOULD BE MODIFIED TO THE EXTENT NECESSARY TO INCORPORATE ALL CHANGES APPROVED AS A RESULT OF THE MEETING." ASPR 2 208(C) AND 3-504.2(C) BOTH REQUIRE THAT ANY INFORMATION GIVEN A PROSPECTIVE OFFEROR CONCERNING THE IFB MUST BE RELEASED TO ALL OFFERORS IN THE FORM OF AN AMENDMENT. ALSO, ASPR 3-504.2(C) SPECIFICALLY STATES THAT REMARKS AND EXPLANATIONS MADE AT THE CONFERENCE SHALL NOT QUALIFY THE TERMS OF THE SOLICITATION AND SPECIFICATIONS AND THAT CONFEREES SHALL BE ADVISED THAT UNLESS THE SOLICITATION IS CHANGED IN WRITING, IT SHALL REMAIN UNCHANGED. FURTHER, STANDARD FORM 33A, SOLICITATION INSTRUCTIONS AND CONDITIONS, SECTION 3, WHICH IS ATTACHED TO THE INVITATION, CAUTIONS THAT "ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING." INASMUCH AS THE EXPLANATION QUOTED ABOVE WAS MADE AT THE CONFERENCE AND THE SOLICITATION INSTRUCTIONS AND CONDITIONS CONTAINED ADVICE WITH RESPECT TO ORAL EXPLANATIONS SUBSTANTIALLY THE SAME AS THAT INCLUDED IN ASPR, WE FIND NO BASIS TO QUESTION THE INVITATION NOTICE OF A PREBID CONFERENCE.

WHILE YOU MAINTAIN THAT INFORMATION PROVIDED AT THE CONFERENCE PRECLUDED ATTENDEES AND NONATTENDEES FROM BIDDING ON AN EQUAL BASIS, IT IS SIGNIFICANT TO NOTE THAT THE INVITATION WAS AMENDED IN CONFORMANCE WITH THE UNDERSTANDING CONVEYED AT THE PREBID CONFERENCE. THUS, BIDDERS WHO ACKNOWLEDGED THIS AMENDMENT COMPETED ON AN EQUAL BASIS.

CONCERNING YOUR CONTENTION THAT A COMPLETE RECORD OF THE CONFERENCE WAS NOT MAINTAINED AS PER ASPR 3-504.2(C), WE HAVE BEEN ADVISED THAT A RECORD OF THE SALIENT POINTS OF THE CONFERENCE WAS MAINTAINED COMMENSURATE WITH THE OBJECTIVES OF THE CONFERENCE, AND THAT AMENDMENT 0002 WAS ISSUED AS A RESULT OF A REVIEW OF THESE NOTES. ALTHOUGH THE CONFERENCE WAS NOT RECORDED VERBATIM, IT IS OUR OPINION THAT THE INTENT OF THE REGULATION IS TO CAPTURE ONLY THAT AMOUNT OF INFORMATION NECESSARY TO PERMIT EQUAL DISSEMINATION OF SIGNIFICANT INFORMATION BY WAY OF AMENDMENT. THEREFORE, THE RECORD OF SALIENT POINTS DISCUSSED WAS SUFFICIENT TO COMPLY WITH THE CITED ASPR SECTION.

THE REMAINDER OF YOUR PROTEST DEALS WITH SPECIFIC ELEMENTS OF THE INVITATION SPECIFICATIONS RAISED BY BRUNO AT THE PREBID CONFERENCE BUT NOT INCLUDED IN AMENDMENT 0002 TO THE INVITATION. THESE CONTENTIONS DEAL WITH PURPORTED SPECIFICATION AMBIGUITIES AND WITH CERTAIN SPECIFICATION REQUIREMENTS ALLEGED EITHER TO BE UNSAFE OR TO NOT MEET THE GOVERNMENT'S MINIMUM NEEDS. A POINT-BY-POINT DISCUSSION OF BRUNO'S CONTENTIONS AND ALLEGATIONS CONCERNING THE ADEQUACY OF THE SPECIFICATIONS BY THE CHIEF OF THE SERVICE ENGINEERING DIVISION AT THE PROCURING ACTIVITY WAS INCLUDED IN THE JANUARY 7, 1971, ADMINISTRATIVE REPORT, WHICH WAS FURNISHED TO YOU BY OUR LETTER DATED JANUARY 18, 1971. WHILE YOU CONTEND THAT THESE SPECIFICATION QUESTIONS BEAR ON THE QUESTION OF FULL AND FREE COMPETITION, WE FIND NOTHING IN THE RECORD WHICH DEMONSTRATES THE MATERIALITY OF THESE QUESTIONS INSOFAR AS COMPLIANCE WITH THE SPECIFICATIONS IS CONCERNED. LEAST, THE QUESTIONS WERE NOT CONSIDERED TO BE OF SUCH MOMENT AS TO WARRANT THE ISSUANCE OF AN AMENDMENT.

CONCERNING THE SUBSTANCE OF THE QUESTIONS RAISED BY BRUNO AT THE CONFERENCE BUT NOT DEALT WITH IN AMENDMENT 0002, WE MUST DEFER TO THE JUDGMENT OF THE COGNIZANT TECHNICAL PERSONNEL. IN THIS REGARD, IT IS WITHIN THE AGENCY'S DISCRETION TO DETERMINE AND DRAFT SPECIFICATIONS TO REFLECT ITS MINIMUM NEEDS, AND WE FIND NOTHING IN THE RECORD WHICH WOULD REQUIRE US TO QUESTION THE JUDGMENT OF THE AGENCY'S CONTRACTING OFFICIALS.

ACCORDINGLY, OUR DECISION OF OCTOBER 19, 1970, IS AFFIRMED.