B-176181, NOV 28, 1972

B-176181, NOV 28, 1972

BID PROTEST - INADEQUACY OF TIME - TYPOGRAPHICAL ERROR CONCERNING THE DENIAL OF PROTEST ON BEHALF OF SCANWELL LABORATORIES, INC., AGAINST THE PROPOSED AWARD OF A CONTRACT TO THE ANTENNA PRODUCTS COMPANY UNDER AN IFB ISSUED BY THE FAA, DOT. THE SUBMISSION OF A BID, IN RESPONSE TO AN IFB, BY OPENING DATE PREVENTS THE BIDDER FROM RAISING THE ISSUE OF INADEQUANCY OF TIME FOR PREPARATION IN ORDER TO FORMULATE COMPETITIVE PRICES. WHERE THE INTENDED BID PRICE IS CLARIFIED BY THE CORRECTION OF A TYPOGRAPHICAL ERROR AWARD WILL BE MADE TO THE LOW BIDDER. ACCORDINGLY, THE PROTEST IS DENIED.

TO SANDOE, HOPGOOD & CALIMAFDE:

WE REFER TO YOUR LETTER OF SEPTEMBER 5, 1972, AND TO THE LETTER OF JUNE 8 FROM SCANWELL LABORATORIES, INC., PROTESTING AGAINST THE PROPOSED AWARD OF A CONTRACT TO THE ANTENNA PRODUCTS COMPANY, UNDER INVITATION FOR BIDS (IFB) NO. WA5M-2-7561B1, ISSUED BY THE FEDERAL AVIATION ADMINISTRATION (FAA), DEPARTMENT OF TRANSPORTATION.

THE IFB, WHICH SOLICITED BIDS ON GLIDE SLOPE ANTENNA SYSTEMS AND THEIR SPARE PARTS AND PERTINENT TECHNICAL DATA AND DOCUMENTATION, WAS SYNOPSIZED IN THE MAY 9, 1972, COMMERCE BUSINESS DAILY AND WAS ISSUED 3 DAYS LATER ON MAY 12. WE ARE ADVISED THAT THE IFB WAS SENT TO 69 PROSPECTIVE BIDDERS. TWENTY-EIGHT ADDITIONAL REQUESTS FOR COPIES OF THE IFB WERE RECEIVED AS A RESULT OF THE SYNOPSIS. NONE WAS SENT TO SCANWELL, HOWEVER, AND THAT FIRM LEARNED OF THE PROCUREMENT AND RECEIVED A COPY OF THE IFB FROM A THIRD PARTY. ONLY TWO BIDS, ONE FROM ANTENNA PRODUCTS AND ONE FROM SCANWELL, HAD BEEN RECEIVED BY THE JUNE 1 OPENING DATE.

YOU BELIEVE THAT BOTH BIDS SHOULD BE SET ASIDE AND THAT THE PROCUREMENT SHOULD BE RESOLICITED. THE REASONING UNDERLYING THIS CONCLUSION IS AS FOLLOWS. EVEN THOUGH SCANWELL IS PROVIDING FAA UNDER ANOTHER PROCUREMENT WITH THE SAME EQUIPMENT AS IS BEING PROCURED HERE, SCANWELL WAS NOT SENT A COPY OF THE IFB. INSTEAD, SCANWELL LEARNED OF THE PROCUREMENT WITH ALLEGEDLY ONLY 5 WORKING DAYS LEFT BEFORE BID OPENING. BECAUSE OF THE RESULTING INADEQUACY OF TIME FOR PREPARATION OF ITS BID, SCANWELL WAS UNABLE TO FORMULATE COMPETITIVE PRICES. THIS FACT MAY ALLEGEDLY BE SEEN UPON AN EXAMINATION OF THE PRICES IN BOTH BIDS ON ITEMS 4 AND 5. THE BID PRICES SUBMITTED BY SCANWELL WERE ALSO ALLEGEDLY AFFECTED BY THE FACT THAT SCANWELL DID NOT RECEIVE NOTICE OF AMENDMENT NO. 1 TO THE IFB. THE CONTRACTING OFFICER DID NOT KNOW UNTIL THE BID OPENING DATE THAT SCANWELL WAS BIDDING ON THE PROCUREMENT. ALSO AS REGARDS ITEMS 4 AND 5, IT IS CONTENDED THAT THE WORDING EMPLOYED BY THE IFB IS AMBIGUOUS, THUS NEGATING THE POSSIBILITY OF EACH BIDDER SUBMITTING PRICES ON AN EQUAL BASIS. FINALLY, IT IS CONTENDED THAT THE ANTENNA PRODUCTS BID SHOULD NOT BE ACCEPTED BECAUSE THAT FIRM ALLEGEDLY BID TWO PRICES ON ITEM 7B FOR ONE UNIT, SUBMITTING A UNIT PRICE OF $300 WITH AN EXTENDED AMOUNT PRICE OF $3,000.

OUR OFFICE HAS BEEN ADVISED THAT A SET OF CARDS BEARING THE NAMES OF PROSPECTIVE BIDDERS WAS UTILIZED IN ASCERTAINING THE FIRMS THAT WOULD BE SENT COPIES OF THE IFB. THE CARD CONTAINING THE SCANWELL NAME REPORTEDLY WAS MISPLACED WITH THE RESULT THAT SCANWELL WAS OVERLOOKED WHEN THE IFB'S WERE ADDRESSED FOR MAILING. SO FAR AS CONCERNS SCANWELL'S FAILURE TO RECEIVE AMENDMENT NO. 1, IT IS THE ADMINISTRATIVE POSITION THAT SUCH AMENDMENT INVOLVED A MINOR MODIFICATION WHICH SHOULD NOT HAVE AFFECTED THE BID PRICE.

THE FAILURE TO SOLICIT A CURRENT SUPPLIER, PARTICULARLY WHEN THE TOTAL OF 97 IFB'S SENT OUT ELICITED ONLY ONE BID IN ADDITION TO SCANWELL'S, SEEMS HARDLY CONSISTENT WITH GOOD PROCUREMENT PRACTICE.

WE NOTE ALSO THAT THE PROCUREMENT WAS ADVERTISED IN THE COMMERCE BUSINESS DAILY ONLY 3 DAYS PRIOR TO ISSUANCE OF THE SOLICITATION INSTEAD OF 10 DAYS AS REQUIRED BY FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.1003-6. HOWEVER, WHILE WE ARE BY A SEPARATE LETTER OF TODAY BRINGING THESE DEFICIENCIES TO THE ATTENTION OF THE SECRETARY OF TRANSPORTATION, WE CANNOT OVERLOOK THE FACT THAT SCANWELL DID SUBMIT A BID BY THE BID OPENING DATE AND THAT NEVER PRIOR TO THAT TIME DID THE BIDDER REQUEST AN EXTENSION OR COMPLAIN THAT THE TIME PERIOD WAS NOT ADEQUATE TO PREPARE ITS BID. WE BELIEVE THAT THE ISSUE SHOULD HAVE BEEN RAISED PRIOR TO BID OPENING AND NOT AFTER DISCLOSURE OF THE BID PRICES. ALSO, ALTHOUGH WE FAIL TO SEE THE AMBIGUITY ALLEGED TO EXIST ON ITEMS 4 AND 5, THE APPROPRIATE TIME TO ALLEGE AN AMBIGUITY AND SEEK CLARIFICATION OF AN UNCERTAINTY IS PRIOR TO THE TIME FOR THE SUBMISSION OF BIDS AND A PROTEST AFTER BID OPENING ON MATTERS ONE WOULD REASONABLY EXPECT TO HAVE CLARIFIED DURING THE PERIOD WHEN BIDS ARE PREPARED TENDS TO CAUSE DOUBT AS TO THE PURPOSE AND VALIDITY OF THE PROTEST. 48 COMP. GEN. 757, 760 (1969).

ALTHOUGH THERE IS A DISCREPANCY IN ANTENNA PRODUCT'S BID BETWEEN THE $300 UNIT PRICE AND THE $3,000 EXTENDED TOTAL FOR A SINGLE UNIT ON ONE ITEM, REGARDLESS OF WHICH AMOUNT IS CONSIDERED CORRECT, THE BID IS LOW OVERALL FOR THE ITEMS TO BE PROCURED. IN A LETTER TO OUR OFFICE THE BIDDER HAS CONFIRMED THAT THE $3,000 PRICE WAS A TYPOGRAPHICAL ERROR AND THAT THE $300 PRICE WAS INTENDED. WHATEVER INITIAL UNCERTAINTY THERE MAY HAVE BEEN AS TO THE PRICE OF PERFORMANCE OF THE ITEM IN QUESTION, THE OBLIGATION TO PERFORM IS FIXED BY THE SIGNING OF THE BID AND THIS IS NOT A SITUATION WHERE AFTER BID OPENING THE BIDDER HAS AN OPTION TO ACCEPT OR REFUSE TO ACCEPT THE AWARD. WHERE CLARIFICATION OF THE LOW BID HAS BEEN MADE AND EITHER OF THE TWO AMOUNTS IN THE BID IS LOWER THAN THE NEXT HIGHEST BID, WE HAVE NOT OBJECTED TO AN AWARD TO THE LOW BIDDER. SEE B-148648, APRIL 19, 1962, B-153977, JUNE 24, 1964, AND B-171763, MAY 9, 1971. IN THE CIRCUMSTANCES, CORRECTION OF THE ERROR WOULD BE APPROPRIATE RATHER THAN CANCELLATION AND RESOLICITATION OF THE PROCUREMENT.

FOR THE ABOVE REASONS, THE PROTEST IS DENIED.