B-171910, AUG 13, 1971

B-171910, AUG 13, 1971

BID PROTEST - REQUIREMENT FOR CERTIFIED LABORATORY REPORT - BID RESPONSIVENESS - BIDDER RESPONSIBILITY DENIAL OF PROTEST BY THE FIRESTONE TIRE AND RUBBER COMPANY THAT INFLATED PRODUCTS COMPANY, INC. WAS NONRESPONSIVE UNDER AN IFB ISSUED BY THE U.S. ARMY MOBILITY EQUIPMENT COMMAND. FIRESTONE CONTENDS THAT THE BID WAS NONRESPONSIVE IN THAT INFLATED FAILED TO SUBMIT A CERTIFIED LABORATORY REPORT BEFORE BID OPENING AS REQUIRED. THE COMP. GEN. HAS CONSISTENTLY HELD THAT A REQUIREMENT FOR SUBMISSIONS, THE PURPOSE OF WHICH IS TO ENABLE THE CONTRACTING AGENCY TO DETERMINE THE BIDDER'S CAPABILITY TO COMPLY WITH THE CONTRACT SPECIFICATIONS, IS A MATTER OF THE BIDDER'S RESPONSIBILITY, AND MAY THEREFORE BE PROVIDED SUBSEQUENT TO THE BID OPENING. THE CITED LANGUAGE OF THE SPECIFICATION CLEARLY SHOWS THAT THIS TEST REPORT WAS TO BE USED FOR DETERMINING BIDDER RESPONSIBILITY, AND, CONSEQUENTLY, COULD BE SUBMITTED AFTER BID OPENING.

TO THE FIRESTONE TIRE & RUBBER COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 21, 1971, AND SUBSEQUENT COMMUNICATIONS TO THE DEPARTMENT OF THE ARMY, UNITED STATES ARMY MOBILITY EQUIPMENT COMMAND, ST. LOUIS, MISSOURI, PROTESTING THAT INFLATED PRODUCTS COMPANY, INC., WAS NONRESPONSIVE UNDER INVITATION FOR BIDS (IFB) DAAK01-71 -B-1792.

THE SUBJECT IFB WAS ISSUED OCTOBER 9, 1970, BY THE REFERENCED ACTIVITY FOR THE PROCUREMENT OF 354 ALUMINUM-FRAMED CLOTH PASSAGEWAYS, 314 AIR- SUPPORTED SHELTER SECTIONS, ONE ADDITIONAL ITEM OF EACH FOR FIRST ARTICLE APPROVAL, AND VARIOUS DATA PERTAINING TO EACH.

BIDS WERE OPENED DECEMBER 7, 1970, AND, AFTER THE RESOLUTION BY OUR OFFICE OF THE PROTEST OF AIRFLOTE, INC. (B-171910, JUNE 29, 1971), THE CONTRACTING OFFICER HAS RECOMMENDED AWARD TO INFLATED AS THE APPARENT LOW RESPONSIVE, RESPONSIBLE BIDDER.

YOU PROTEST THAT INFLATED SHOULD BE DECLARED NONRESPONSIVE FOR FAILURE TO SUBMIT, PRIOR TO OPENING OF BIDS, A CERTIFIED LABORATORY REPORT CALLED FOR BY SPECIFICATION MIL-C-43285(GL). YOU COMPARE THE REQUIREMENT TO MATTERS PERTAINING TO THE QUALIFIED PRODUCTS LIST AND YOU CONTEND THAT FAILURE TO FURNISH A QUALIFICATION TEST REFERENCE NUMBER OR NAME THE SOURCE FOR A QUALIFIED MATERIAL NECESSITATES REJECTION OF THE BID. YOU ALSO CITE A DECISION OF OUR OFFICE RENDERING NONRESPONSIVE A BID WHICH FAILED TO NAME A SOURCE OF SUPPLY, AS WELL AS OTHER DECISIONS WHEREBY WE RULED THAT FAILURE TO LIST SUBCONTRACTORS PRIOR TO BID OPENING ALSO NULLIFIED THE RESPONSIVENESS OF A BID.

THE SPECIFIC REQUIREMENT OF MIL-C-43285(GL) WITH WHICH YOU CONTEND THAT INFLATED FAILED TO COMPLY BEFORE BID OPENING, AND FOR WHICH ITS BID SHOULD THEREFORE BE DECLARED NONRESPONSIVE, IS SECTION 3.1 ENTITLED "LABORATORY REPORT APPROVAL." THAT SECTION REQUIRES, IN ESSENCE, THAT THE BIDDER SUBMIT TO THE CONTRACTING OFFICER A CERTIFIED COPY OF A RECENT LABORATORY REPORT COVERING THE MATERIAL HE PROPOSES TO DELIVER, AND THAT HE CERTIFY THAT THE MATERIAL WAS MANUFACTURED IN A PLANT WHERE THE COATING WILL BE PERFORMED IF A CONTRACT IS AWARDED. THIS SECTION STATES, MOST SIGNIFICANTLY, THAT:

"THE PURPOSE OF THE ABOVE REQUIREMENT IS TO ASSIST THE GOVERNMENT TO DETERMINE THE CAPABILITY OF BIDDERS TO MANUFACTURE A CLOTH MEETING ALL THE REQUIREMENTS OF THIS SPECIFICATION. *** "

ALTHOUGH THE CERTIFICATION OF CONFORMANCE OF MATERIALS WAS NOT FURNISHED WITH INFLATED'S BID, THE MATERIAL WAS FURNISHED SHORTLY AFTER BID OPENING AND, PURSUANT TO A LEGAL OPINION BY THE AGENCY, THE CONTRACTING OFFICER DETERMINED TO WAIVE THE REQUIREMENT AS A MINOR INFORMALITY WHICH COULD BE CORRECTED AFTER BID OPENING.

WE HAVE CONSISTENTLY HELD THAT A REQUIREMENT FOR SUBMISSIONS, THE PURPOSE OF WHICH IS TO ENABLE THE CONTRACTING AGENCY TO DETERMINE THE BIDDER'S CAPABILITY TO CONFORM TO AND COMPLY WITH THE SPECIFICATIONS OF A CONTRACT, IS A MATTER OF THE BIDDER'S RESPONSIBILITY, AND MAY THEREFORE BE PROVIDED SUBSEQUENT TO BID OPENING WITHOUT PREJUDICE TO CONSIDERATION OF THE BID. 39 COMP. GEN. 247, 249 (1959); 39 COMP. GEN. 655, 657-658 (1960); 39 COMP. GEN. 881, 883 (1960), 41 COMP. GEN. 106, 108 (1961). ACCORDINGLY, THE CITED LANGUAGE OF SECTION 3.1 OF MIL-C 43285(GL), SETTING FORTH THAT SECTION'S EXPRESS PURPOSE AS BEING TO ASSIST THE GOVERNMENT TO DETERMINE THE CAPABILITY OF BIDDERS TO MANUFACTURE A CLOTH MEETING ALL THE REQUIREMENTS OF THIS SPECIFICATION, CLEARLY SHOWS THAT THIS TEST REPORT WAS TO BE USED FOR DETERMINING BIDDER RESPONSIBILITY AND, BY VIRTUE OF THE CITED DECISIONS, THE REPORT COULD BE SUBMITTED AFTER BID OPENING. ADDITION, OUR EXAMINATION OF THE SUBJECT IFB INDICATES THAT YOUR COMPARISON OF THE QUALIFIED PRODUCTS LIST FOR END ITEMS, TO THE TEST REQUIREMENT FOR THE CLOTH TO BE USED WITH OTHER MATERIALS IN THE MANUFACTURE OF THE END ITEMS, IS INAPPROPRIATE AND YOUR ANALOGY TO THAT LIST DOES NOT, IN OUR VIEW, SUPPORT YOUR POSITION.

WE HAVE REVIEWED THE DECISIONS OF OUR OFFICE WHICH YOU HAVE CITED IN YOUR LETTER OF JULY 8, 1971, AND HAVE CONCLUDED THAT THEY ARE ALSO INAPPLICABLE TO THE FACTUAL SITUATION IN THE INSTANT CASE. OUR DECISION 39 COMP. GEN. 531 (1960) (CITED BY YOU AS B-141357) ADDRESSED ITSELF TO THE PROBLEM OF A BIDDER NAMING A PLACE OF MANUFACTURE ONLY AFTER BID OPENING WHERE THE DECISION AT THAT TIME TO UTILIZE A DOMESTIC OR A FOREIGN SOURCE (WITH A 6 PERCENT DIFFERENTIAL ADDED TO FOREIGN SOURCES) WOULD ENABLE A BIDDER TO CONTROL HIS RELATIVE STANDING AMONG THE OTHER BIDDERS. AS SUCH, THIS WAS A MATTER THAT MATERIALLY AFFECTED THE EVALUATION OF BIDS AND THEREFORE THE OMISSION COULD NOT BE WAIVED AND RENDERED THE BID NONRESPONSIVE.

THE OTHER DECISIONS CITED BY YOU B-156426, MAY 10, 1965, AND B 156194, MARCH 4, 1965, ARE CONSIDERED INAPPLICABLE, NOT ONLY BECAUSE THEY CONCERNED THE UNDESIRABLE PRACTICE OF BID SHOPPING AND THE FAILURE TO LIST SUBCONTRACTORS (AN ISSUE NOT PERTINENT TO THE INSTANT CASE) BUT ALSO BECAUSE THE SOLICITATIONS THERE INVOLVED EXPRESSLY PROVIDED FOR REJECTION OF BIDS FOR FAILURE TO LIST THEREIN THE PROPOSED SUBCONTRACTORS. THE IFB IN THE PRESENT CASE WAS DEVOID OF ANY SUCH PROVISION PERTAINING TO THE TEST REPORT.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.