B-164984, DEC. 27, 1968

B-164984, DEC. 27, 1968

TO MESSRS. FEIDELMAN AND WATSON:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 22, 1968, REQUESTING RECONSIDERATION OF OUR DECISION B-164984 OF OCTOBER 24, 1968, WHICH DENIED THE PROTEST OF ADVANCE BUILDING MAINTENANCE COMPANY AGAINST THE AWARD MADE TO ORBITING ENTERPRISES, INC., UNDER INVITATION FOR BIDS N62477-68-C-0664 FOR MULTIBUILDING JANITORIAL SERVICES AT THE NAVAL STATION, WASHINGTON, D.C.

IN THE NOVEMBER 22 LETTER, YOU OBSERVE THAT THE ORBITING BID PRICE ON ITEM 1 WAS THE SUM OF THE EXTENDED PRICES FOR 311 ITEMS AND YOU STATE THAT THE ONLY REASONABLE INTERPRETATION OF SUCH BID PRICE IS THAT ITDID NOT INCLUDE THE 6 ADDITIONAL ITEMS FOR WHICH ONLY UNIT CHARGES WERE STATED. YOU STATE, THEREFORE, THAT THE TOTAL BID PRICE WAS FOR A LESSER QUANTITY OF ITEMS THAN CALLED FOR IN THE INVITATION AND THAT THIS MUST BE TREATED AS A MAJOR DEVIATION UNDER PARAGRAPH 2 405 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHICH PROVIDES THAT A MINOR INFORMALITY IS ONE THAT HAS NO EFFECT ON QUANTITY. IN THE ALTERNATIVE, YOU STATE THAT, IF IT BE CONCLUDED THAT ORBITING BOUND ITSELF TO PERFORM THE ADDITIONAL SIX ITEMS FOR WHICH NO EXTENDED PRICES WERE GIVEN AND THAT THE TOTAL PRICE SHOULD BE THE TOTAL OF EXTENDED PRICES PLUS THE UNIT PRICES AS REQUIRED, SUCH CONCLUSION WOULD BE A VIOLATION OF ASPR 2-405. YOU TAKE THIS VIEW BECAUSE THE REASONABLE VALUE OF THE SIX ADDITIONAL ITEMS WOULD BE ABOUT $2,000 AND UNDER ASPR 2-405, PROVIDING ALSO FOR THE WAIVER OF DEVIATIONS HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, SUCH AMOUNT COULD NOT BE CONSIDERED AS "TRIVIAL," CITING 44 COMP. GEN. 753. SINCE WE HOLD THAT THE METHOD OF BIDDING EMPLOYED BY ORBITING DID NOT CONSTITUTE A SUBSTANTIAL DEVIATION, THE CITED DECISION IS INAPPLICABLE.

IN THE OCTOBER 24 DECISION, WE HELD THAT THE ORBITING BID COULD BE CONSTRUED AS INCLUDING ALL OF THE 323 WORK ITEMS OR AS REPRESENTING ONLY THE SUM OF THE ITEMS AS TO WHICH UNIT PRICES WERE EXTENDED. BUT WE DID NOT HOLD THAT THERE WAS AN IRRECONCILABLE CONFLICT BETWEEN THESE TWO BID CONSTRUCTIONS. ALTHOUGH THE INVITATION PROVIDED THAT THE BID ON ITEM 1 SHALL BE THE COST OF THE ENTIRE JOB, THE INVITATION ALSO PROVIDED FOR A BREAKDOWN OF THE PRICE ON A PER ITEM BASIS. TOTALING THE PRICES ON THE PER ITEM BASIS REVEALS THAT ITEM 1 IS THE SUM OF 311 ITEMS. IN ADDITION, ORBITING BID "N.C.' FOR SIX OTHER ITEMS AND ITEM 1 MUST, THEREFORE, BE CONSIDERED AS INCLUDING THOSE ITEMS AS WELL OR A TOTAL OF 317 ITEMS. SEE 45 COMP. GEN. 221 AND THE CASES CITED THEREIN. SINCE ORBITING BID "N.C.' FOR SIX ITEMS FOR WHICH IT OBVIOUSLY INTENDED NO CHARGE, IT SEEMS REASONABLE TO CONCLUDE THAT ORBITING WOULD HAVE BID "N.C.' FOR THE OTHER SIX ITEMS IF IT INTENDED NO CHARGE FOR SUCH ITEMS. CONSIDERING THAT ORBITING BID UNIT PRICES FOR THE REMAINING SIX ITEMS, IT IS APPARENT THAT IT INTENDED TO CHARGE SEPARATELY FOR THOSE ITEMS RATHER THAN INCLUDING THEM IN THE PRICE BID FOR ITEM 1.

ALTHOUGH THE TOTAL BID ON ITEM 1 WAS NOT INDICATIVE OF ANY INTENT TO INCLUDE THE REMAINING SIX ITEMS, ORBITING QUOTED UNIT PRICES FOR SUCH ITEMS WHICH REASONABLY ESTABLISHED AN INTENTION TO FURNISH SUCH SERVICES AT THE QUOTED PRICES. SECTION 3.1 OF THE SPECIFICATIONS TO WHICH ORBITING DID NOT TAKE ANY EXCEPTION PROVIDES THAT THE CONTRACTOR SHALL PROVIDE SUFFICIENT PERSONNEL, EQUIPMENT AND CLEANING MATERIALS TO ACCOMPLISH "ALL WORK UNDER THIS CONTRACT.' FURTHER, SECTION 3.5 OF THE SPECIFICATIONS INDICATES THAT THE CONTRACTOR SHALL SCHEDULE THE WORK ON THE BASIS OF THE LISTING OF FREQUENCIES ATTACHED TO THE SPECIFICATION. THE ATTACHMENT TO THE SPECIFICATION PROVIDES THE SAME FREQUENCIES FOR THE WORK ON THE SIX ITEMS, EITHER "AS DIRECTED" OR "AS UIRED," AS IS STATED IN THE INVITATION SCHEDULE. ORBITING BY OFFERING UNIT PRICES FOR THE SIX ITEMS INVOLVED HAS AGREED TO PERFORM THE WORK ITEMS AS DIRECTED OR AS REQUIRED. THUS, WE CONCLUDE THAT ORBITING IN SO BIDDING DID NOT DEVIATE FROM THE QUANTITY OF WORK ADVERTISED.

ALTHOUGH THE MANNER OF BIDDING EMPLOYED BY ORBITING MAY HAVE TECHNICALLY VARIED FROM THE EXACT TERMS OF THE INVITATION, THE NAVY WAS ABLE TO ASCERTAIN FROM THE BID ITSELF THAT THE COST OF THE CONTRACT COULD NOT POSSIBLY EXCEED THE AMOUNT BID BY THE NEXT LOW BIDDER. THIS CIRCUMSTANCE IS SIGNIFICANTLY DIFFERENT FROM A SITUATION WHERE THE BIDDER FAILED TO QUOTE UNIT PRICES. IN SUCH A CASE, THE PRICES THE BIDDER WOULD HAVE QUOTED FOR THE ITEMS AND ITS INTENDED BID WOULD BE CONJECTURAL AND IT WOULD BE CLEAR THAT THE BIDDER HAD DEVIATED WITH RESPECT TO A MATTER OF SUBSTANCE. ALTHOUGH ORBITING MAY HAVE AVOIDED THE RISK THAT WOULD HAVE BEEN INVOLVED IN A TOTAL BID ON EACH OF THE SIX ITEMS, THE DEVIATION DID NOT AFFECT THE PRICE, QUANTITY OR QUALITY OF THE ARTICLE OFFERED IN VIEW OF THE PRICE COMPARISON AND THE FACT THAT IT COULD BE WAIVED WITHOUT PREJUDICING THE RIGHTS OF OTHER BIDDERS. SEE B-159176, JULY 14, 1966; B- 160767" MARCH 7, 1967.