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B-213180, MAY 2, 1984

B-213180 May 02, 1984
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NFWA CONTENDS THAT TODD'S BID WAS IMPROPERLY QUALIFIED AS TO THE DELIVERY SCHEDULE AND THEREFORE SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE. BIDDERS WERE ALLOWED TO QUALIFY THEIR BIDS AS TO THE TOTAL NUMBER OF PLOTS. ALTHOUGH QUALIFICATION WAS LIMITED TO TOTAL BID ITEMS. IF BOTH ITEMS WERE AWARDED TO ONE BIDDER. THE CONTRACT PERIODS WERE TO RUN CONCURRENTLY. ON THE SIGNATURE LINE OF THE "SCHEDULE OF ITEMS" SECTION WAS THE NOTATION: "SEE ENCLOSED LETTER - J.M.T.". IN THE EVENT AWARD WAS MADE TO TODD ON BOTH ITEMS. TODD WAS THE APPARENT LOW BIDDER IN THE AGGREGATE. THE FOREST SERVICE DETERMINED THAT THE EFFECT OF THE ENCLOSED LETTER WAS TO PRESENT TWO BIDS TO THE CONTRACTING OFFICER. THE FIRST BID WAS AN OFFER TO PERFORM BOTH BID ITEMS IF ADDITIONAL CONTRACT TIME WAS ALLOWED.

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B-213180, MAY 2, 1984

DIGEST: THE INCLUSION OF NONRESPONSIVE ALTERNATIVE BID DOES NOT PRECLUDE CONSIDERATION OF THE BID THAT CONFORMS TO THE IFB'S REQUIREMENTS.

NORTHWEST FOREST WORKERS ASSOCIATION:

THE NORTHWEST FOREST WORKERS ASSOCIATION (NFWA), REPRESENTING SECOND GROWTH FOREST MANAGEMENT, A DISAPPOINTED 7 BIDDER, PROTESTS THE AWARD TO JAMES M. TODD UNDER INVITATION FOR BIDS (IFB) NO. R6-20-83-24 ISSUED BY THE FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE. NFWA CONTENDS THAT TODD'S BID WAS IMPROPERLY QUALIFIED AS TO THE DELIVERY SCHEDULE AND THEREFORE SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE. WE DENY THE PROTEST.

THE IFB, FOR TIMBER STAND EXAMINATIONS IN THE WINEMA NATIONAL FOREST, CONTAINED TWO BID ITEMS, THE FIRST CONSISTING OF 1143 PLOTS TO BE EXAMINED AND THE SECOND, 1332 PLOTS. UNDER THE IFB, BIDDERS WERE ALLOWED TO QUALIFY THEIR BIDS AS TO THE TOTAL NUMBER OF PLOTS, ALTHOUGH QUALIFICATION WAS LIMITED TO TOTAL BID ITEMS. THEREFORE, BIDDERS COULD OFFER TO PERFORM EITHER ONE OR BOTH ITEMS IN THE IFB. THE IFB ALSO REQUIRED CONTRACT COMPLETION IN 80 DAYS. IF BOTH ITEMS WERE AWARDED TO ONE BIDDER, THE CONTRACT PERIODS WERE TO RUN CONCURRENTLY.

THE BID SUBMITTED BY TODD, THE AWARDEE, CONTAINED NO ENTRIES IN THE SPACE PROVIDED FOR QUALIFICATION OF BIDS. ON THE SIGNATURE LINE OF THE "SCHEDULE OF ITEMS" SECTION WAS THE NOTATION: "SEE ENCLOSED LETTER - J.M.T." THE ENCLOSED LETTER REQUESTED THAT, IN THE EVENT AWARD WAS MADE TO TODD ON BOTH ITEMS, THE 80-DAY PERFORMANCE PERIODS NOT RUN CONCURRENTLY. THE LETTER FURTHER STATED: "IF YOU DECIDE THAT THE REQUEST CANNOT BE GRANTED, THEN LIMIT THE AWARD TO JUST ONE BID ITEM."

TODD WAS THE APPARENT LOW BIDDER IN THE AGGREGATE, AND FOR EACH OF THE TWO INDIVIDUAL ITEMS. THE FOREST SERVICE DETERMINED THAT THE EFFECT OF THE ENCLOSED LETTER WAS TO PRESENT TWO BIDS TO THE CONTRACTING OFFICER. THE FIRST BID WAS AN OFFER TO PERFORM BOTH BID ITEMS IF ADDITIONAL CONTRACT TIME WAS ALLOWED. THE CONTRACTING OFFICER DETERMINED THAT THIS BID WAS NOT RESPONSIVE TO THE DELIVERY SCHEDULE OF THE IFB, WHICH REQUIRED CONTRACT COMPLETION IN 80 DAYS, AND THEREFORE REJECTED THE BID AS NONRESPONSIVE. THE SECOND BID WAS AN ALTERNATIVE OFFER TO DO THE WORK UNDER ONLY ONE BID ITEM IN 80 DAYS. THE FOREST SERVICE FOUND THIS BID RESPONSIVE, AND AWARDED TODD A CONTRACT FOR ONLY ONE OF THE TWO BID ITEMS.

THE NFWA ARGUES THAT TODD'S LETTER, BY REQUESTING THAT THE CONTRACT TIME OF 80 DAYS NOT RUN CONCURRENTLY IF TODD WERE AWARDED BOTH ITEMS, QUALIFIED THE BID AND THE BID THEREFORE SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE.

THERE IS NO LEGAL MERIT TO THE PROTEST. INITIALLY, WE POINT OUT THAT EXTRANEOUS DOCUMENTS SUBMITTED WITH A BID MUST BE CONSIDERED A PART OF THE BID FOR PURPOSES OF DETERMINING THE BID'S RESPONSIVENESS. FREE-FLOW PACKAGING CORPORATION, B-204482, FEB. 23, 1982, 82-1 CPD PARA. 162. THEREFORE, IT IS APPROPRIATE TO CONSIDER THE EFFECT OF TODD'S LETTER ON THE RESPONSIVENESS OF THE FIRM'S BID.

WE AGREE WITH THE FOREST SERVICE THAT TODD ESSENTIALLY SUBMITTED ALTERNATIVE BIDS. TODD CLEARLY SUBMITTED AN AGGREGATE BID ON BOTH ITEMS IF MORE THAN 80 DAYS WERE ALLOWED FOR CONTRACT COMPLETION, AND A BID ON EITHER OF THE BID ITEMS, WITH PERFORMANCE TO BE COMPLETED WITHIN THE REQUIRED 80-DAY PERIOD. WE ALSO AGREE WITH THE AGENCY THAT TODD'S AGGREGATE BID WAS NONRESPONSIVE TO THE CONTRACT SCHEDULE REQUIRED BY THE IFB. IN THIS RESPECT, THE QUESTION OF THE RESPONSIVENESS OF A BID CONCERNS WHETHER A BIDDER HAS UNEQUIVOCALLY OFFERED TO PROVIDE THE REQUESTED ITEMS IN TOTAL CONFORMANCE WITH THE INVITATION'S SPECIFICATIONS. DATA CONTROLS/NORTH INC., B-205726, JUNE 21, 1982, 82 1 CPD PARA. 610.

THE NONRESPONSIVENESS OF TODD'S AGGREGATE BID, HOWEVER, DOES NOT RENDER THE FIRM'S SINGLE-ITEM BID NONRESPONSIVE. THE INCLUSION OF A NONRESPONSIVE ALTERNATIVE OFFER DOES NOT PRECLUDE THE CONSIDERATION OF OTHER OFFERS WHICH CONFORM TO THE IFB'S REQUIREMENTS. SEE P&N CONSTRUCTION COMPANY, INC., 56 COMP.GEN. 328, 333 (1977), 77-1 CPD PARA. 88; BVR, INC., B-209511, JAN. 28, 1983, 83-1 CPD PARA. 96. AS STATED ABOVE, THIS INVITATION SPECIFICALLY PERMITTED A BIDDER TO QUALIFY ACCEPTANCE OF THE BID TO A SINGLE BID ITEM, AND TODD'S BID TO PERFORM ONLY ONE BID ITEM CLEARLY WAS RESPONSIVE TO THE REQUIRED PERFORMANCE SCHEDULE. SINCE TODD OTHERWISE TOOK NO EXCEPTION TO THE IFB'S TERMS, THE BID PROPERLY WAS ACCEPTED BY THE FOREST SERVICE.

THE PROTEST IS DENIED.

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