B-157931, JUN. 7, 1966

B-157931, JUN. 7, 1966

TO UNITED SHOE MACHINERY CORPORATION, HARMONIC DRIVE DIVISION:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 4, 1966, REQUESTING "FURTHER AMPLIFICATION AND/OR CLARIFICATION" OF OUR DECISION OF FEBRUARY 17, 1966, DENYING YOUR PROTEST AGAINST AWARD OF A CONTRACT TO ANY OTHER BIDDER BY THE WRIGHT-PATTERSON AIR FORCE BASE UNDER INVITATION FOR BIDS NO. 33-657- 65-295. SINCE THE AWARD WAS MADE TO VAINO A. HOOVER, D/B/A) HOOVER ELECTRIC COMPANY, ON OCTOBER 21, 1965, OUR DECISION WAS CONCERNED ONLY WITH THE ARGUMENTS YOU PRESENTED AGAINST AWARD TO THAT BIDDER.

THE AREAS IN WHICH YOU REQUEST "AMPLIFICATION AND/OR CLARIFICATION" ARE SUMMARIZED, IN YOUR WORDS, AS FOLLOWS:

"1. DATE OF HOOVER'S BID, AS SET FORTH ON PAGE 3 OF THE SUBJECT LETTER.

"2. DATE OF THE OPENING CONTRACTING OFFICER'S CERTIFICATION, AS SET FORTH ON PAGE 6 OF THE SUBJECT LETTER.

"3. ACCEPTABILITY OF THE OPENING CONTRACTING OFFICER'S CERTIFICATION AS SATISFACTORY EVIDENCE OF TIMELY ACKNOWLEDGMENT OF AMENDMENT NO. 1 BY HOOVER.

"4. RESPONSIBLENESS OF HOOVER IN THE MATTER OF ESTIMATED PERCENTAGE OF SUBCONTRACTING.

"5. APPARENT FAILURE TO EVALUATE HOOVER'S RESPONSIVENESS ON THE BASIS OF THE MANDATORY REQUIREMENT FOR INCLUSION AND COMPLETION OF AFPI FORM 28A.'

WE WILL DISCUSS EACH OF THESE MATTERS IN THE ORDER PRESENTED.

IN OUR DECISION WE STATED THAT THE HOOVER BID WAS DATED OCTOBER 26, 1965. AS YOU HAVE INDICATED, THIS WAS IN ERROR, THE CORRECT DATE BEING AUGUST 26, 1965.

THE STATEMENT OF THE CONTRACTING OFFICER, REFERRED TO UNDER YOUR SECOND POINT, WAS INCORRECTLY STATED IN OUR DECISION TO HAVE BEEN DATED AUGUST 13, 1965, WHEN IN FACT IT IS DATED SEPTEMBER 13, 1965.

THE THIRD AREA OF YOUR CONCERN IS OUR ACCEPTANCE OF THE ABOVE MENTIONED STATEMENT AS PROOF OF THE TIMELY RECEIPT OF ACKNOWLEDGMENT OF AMENDMENT NO. 1 BY HOOVER. THE CONTRACTING OFFICER'S STATEMENT IS TO THE EFFECT THAT THE PROPERLY ACKNOWLEDGED AMENDMENT WAS RECEIVED, AND FILED IN THE DESIGNATED OFFICE THREE OR FOUR DAYS PRIOR TO BID OPENING, BUT INADVERTENTLY OVERLOOKED WHEN THE BIDS WERE OPENED AND READ. YOU CITE THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATIONS (ASPR) CONCERNING LATE BIDS AND MODIFICATIONS, ASPR 2-303, ET SEQ., AS PRECLUDING OUR CONSIDERATION OF THIS STATEMENT AS EVIDENCE OF THE TIMELY RECEIPT OF THE ACKNOWLEDGMENT AMENDMENT. SINCE THESE PROVISIONS CONCERN THE SITUATION WHERE THE BID OR MODIFICATION IS NOT IN FACT RECEIVED IN THE OFFICE DESIGNATED PRIOR TO THE EXACT TIME SET FOR BID OPENING, THEY ARE NOT APPLICABLE HERE. AS A FURTHER REASON FOR EXCLUDING CONSIDERATION OF THIS EVIDENCE, YOU REFER TO RULINGS OF OUR OFFICE WHICH HAVE RECOGNIZED THE RULE OF EVIDENCE PRECLUDING ACCEPTANCE OF SELF-SERVING DECLARATIONS TO ESTABLISH A FACT IN DISPUTE. HOWEVER, YOU DO NOT CITE THE PARTICULAR DECISIONS TO WHICH YOU REFER, AND WE ARE THEREFORE UNABLE TO COMPREHEND WHY INFORMATION TAKEN FROM THE OFFICIAL RECORDS OF THE CONTRACTING AGENCY SHOULD BE CONSIDERED SELF-SERVING DECLARATIONS. CONVERSELY, WHERE THE PROBLEM IS TO ASCERTAIN THE DATE ON WHICH A BID OR ACKNOWLEDGEMENT WAS RECEIVED BY THE CONTRACTING AGENCY, IT WOULD APPEAR THAT THE AGENCY'S RECORDS SHOULD BE CONSIDERED THE BEST EVIDENCE AVAILABLE, AND THIS OFFICE HAS LONG TAKEN THE POSITION THAT IT WILL ACCEPT THE FACTS AS SHOWN BY THE RECORDS OF THE AGENCY IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS. 37 COMP. GEN. 568.

THE NEXT MATTER WHICH YOU PRESENT CONCERNS THE REPRESENTATION IN HOOVER'S BID THAT HE CONTEMPLATED NO SUBCONTRACTING. IN CONSIDERING THIS ISSUE IN OUR DECISION OF FEBRUARY 17, WE STATED THAT SINCE THE REQUIREMENT TO STATE THE PERCENTAGE OF SUBCONTRACTING CONTEMPLATED WAS FOR THE PURPOSE OF ENABLING THE PROCURING ACTIVITY TO DETERMINE THE RESPONSIBILITY OF THE BIDDERS IT COULD PROPERLY BE FURNISHED AFTER BID OPENING, AND WE CITED SEVERAL OF OUR DECISIONS IN SUPPORT OF THIS PROPOSITION. IN THOSE DECISIONS, AS WELL AS IN OTHERS, OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT INFORMATION REQUIRED TO DETERMINE THE RESPONSIBILITY OF THE BIDDER, RATHER THAN THE RESPONSIVENESS OF THE BID, MAY BE CHANGED OR PROVIDED SUBSEQUENT TO BID OPENING, EVEN WHERE BIDDERS ARE WARNED THAT FAILURE TO CONFORM TO THE REQUIREMENT MAY RESULT IN THE REJECTION OF THEIR BIDS. SEE, FOR EXAMPLE, 39 COMP. GEN. 655, 658, AND CASES CITED; 37 ID. 143. WHILE OUR OFFICE AGREES THAT EVALUATION OF BIDS FOR CONFORMANCE WITH THE SPECIFICATIONS ON THE BASIS OF THE INFORMATION FURNISHED THEREIN IS NECESSARY TO MAINTENANCE OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM, 17 COMP. GEN. 554, 558, IT WAS THE ABILITY OF HOOVER TO PERFORM IN ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS, RATHER THAN CONFORMITY OF THE HOOVER BID TO THE ADVERTISED SPECIFICATION WHICH WAS INVOLVED IN THIS CASE. THEREFORE, THE CRITICAL TIME TO DECIDE THIS QUESTION WOULD BE ANYTIME BEFORE AWARD, AND NOT AT THE TIME BIDS WERE SUBMITTED, AS WOULD BE THE CASE IF THE QUESTION WAS WHETHER AN AWARD AT THAT POINT IN TIME WOULD BIND HOOVER TO PERFORM IN ACCORD WITH THE ADVERTISED SPECIFICATIONS ON AN EQUAL BASIS WITH ALL OTHER BIDDERS. SINCE THE QUESTION INVOLVED, INSOFAR AS THE 45 PERCENT FIGURE OF CONTEMPLATED SUBCONTRACTING IS CONCERNED, RELATES TO A MATTER OF RESPONSIBILITY, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE PROCURING ACTIVITY PERSONNEL (WHO HAVE THE PRIMARY RESPONSIBILITY FOR MAKING SUCH DETERMINATIONS) IN THE ABSENCE OF A CLEAR INDICATION THAT SUCH DETERMINATION IS WITHOUT A SUBSTANTIAL BASIS, OR THAT IT WAS MADE OTHER THAN IN GOOD FAITH. 39 COMP. GEN. 705, 711.

THE FINAL POINT YOU PRESENT CONCERNS THE FAILURE OF HOOVER TO COMPLETE AIR FORCE PROCUREMENT INSTRUCTION (AFPI) FORM 28A, WHICH RELATES TO TRANSPORTATION COSTS. IN OUR DECISION OF FEBRUARY 17 WE CONCLUDED THAT SINCE THE INVITATION DID NOT INDICATE A DESTINATION POINT, EITHER KNOWN OR THEORETICAL, FOR THE GOODS, THE INCLUSION OR EXCLUSION OF SHIPPING WEIGHT GUARANTEES COULD HAVE NO EFFECT UPON EVALUATION, AND A BIDDER'S FAILURE TO INCLUDE SUCH INFORMATION IN HIS BID THEREFORE COULD NOT ADVERSELY AFFECT ITS CONSIDERATION. YOU NOW POINT OUT THAT SINCE AFPI 1-1313 (A) REQUIRES INCLUSION OF AFPI FORM 28A THE ABOVE LINE OF REASONING IS NOT VALID. IS TRUE THAT THE CITED REGULATION CALLS FOR THE COMPLETION OF 28A WHERE THE IFB PROVIDES FOR DELIVERY OTHER THAN F.O.B. DESTINATION. HOWEVER, IT SHOULD BE NOTED THAT THE REASON FOR REQUIRING SUCH INFORMATION IS TO "ENABLE THE EVALUATION OF COMPETITIVE BIDS....' SINCE THE SHIPPING WEIGHTS COULD HAVE NO EFFECT ON THE EVALUATION OF BIDS IN THE INSTANT CASE, THE REASON FOR THEIR INCLUSION IS SUPERFLUOUS, AND THEIR OMISSION MUST THEREFORE BE CONSIDERED A MINOR DEVIATION WHICH MAY BE WAIVED. WAS SAID IN ANOTHER OF OUR DECISIONS, B-154064, JUNE 23, 1964, INVOLVING THE QUESTION OF THE RESPONSIVENESS OF A BID:

"* * * THE CONCEPT OF FORMALLY ADVERTISED PROCUREMENT, INSOFAR AS IT RELATES TO THE SUBMISSION AND EVALUATION OF BIDS, GOES NO FURTHER THAN TO GUARANTEE EQUAL OPPORTUNITY TO COMPETE AND EQUAL TREATMENT IN THE EVALUATION OF BIDS. IT DOES NOT CONFER UPON BIDDERS ANY RIGHT TO INSIST UPON THE ENFORCEMENT OF PROVISIONS IN AN INVITATION THE WAIVER OF WHICH WOULD NOT RESULT IN AN UNFAIR COMPETITIVE ADVANTAGE TO OTHER BIDDERS BY PERMITTING BID PRICES TO BE EVALUATED UPON A BASIS NOT COMMON TO ALL BIDS. SUCH PROVISIONS MUST THEREFORE BE CONSTRUED TO BE SOLELY FOR THE PROTECTION OF THE GOVERNMENT AND THEIR ENFORCEMENT OR WAIVER CAN HAVE NO EFFECT UPON THE RIGHTS OF BIDDERS TO WHICH THE RULES AND PRINCIPLES APPLICABLE TO FORMAL ADVERTISING ARE DIRECTED. TO THIS END, THE DECISIONS OF OUR OFFICE HAVE CONSISTENTLY HELD THAT WHERE DEVIATIONS FROM, OR FAILURES TO COMPLY WITH, THE PROVISIONS OF AN INVITATION DO NOT AFFECT THE BID PRICE UPON WHICH A CONTRACT WOULD BE BASED OR THE QUANTITY OR QUALITY OF THE WORK REQUIRED OF THE BIDDER IN THE EVENT HE IS AWARDED A CONTRACT, A FAILURE TO ENFORCE SUCH PROVISION WILL NOT INFRINGE UPON THE RIGHTS OF OTHER BIDDERS AND THE FAILURE OF A BIDDER TO COMPLY WITH THE PROVISIONS MAY BE CONSIDERED A MINOR DEVIATION WHICH CAN BE WAIVED AND THE BID CONSIDERED RESPONSIVE. B-153636, MARCH 17, 1964.'

WE TRUST THAT THE FOREGOING WILL PROVIDE THE CLARIFICATION YOU HAVE REQUESTED. HOWEVER, WE MUST CONCLUDE THAT YOUR LETTER PRESENTS NO BASIS FOR REVISION OF OUR PREVIOUS CONCLUSIONS, AND OUR DECISION OF FEBRUARY 17, 1966, MUST THEREFORE BE AFFIRMED.