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B-187701, MARCH 22, 1977

B-187701 Mar 22, 1977
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PROTEST AGAINST AWARD TO LOW BIDDER FOR RENTAL OF OXYGEN EQUIPMENT ALLEGING THAT BID IS NONRESPONSIVE BECAUSE LOW BIDDER STATED "NO RENT. RENTAL FOR EQUIPMENT IS INCLUDED IN THE PRICE OF DELIVERED OXYGEN" IS SUSTAINED. CONTRACTING OFFICER'S CONCLUSION THAT LOW BIDDER WAS NOT BIDDING ON OXYGEN BUT EXPLAINING HOW IT WAS ABLE TO BID "NO RENT" FOR RENTAL OF EQUIPMENT WAS NOT REASONABLE. LOW BIDDER WAS. SINCE BIDDERS WERE CAUTIONED AGAINST SUBMITTING PRICE FOR OXYGEN. BID IS NONRESPONSIVE AND WE RECOMMEND THAT CONTRACT BE TERMINATED FOR CONVENIENCE. INC.: THIS IS A PROTEST BY CRYOGENICS NORTHWEST. THE SOLICITATION WAS ISSUED ON SEPTEMBER 7. THE BID OPENING DATE WAS SEPTEMBER 27. BIDDERS WERE INFORMED THAT THE PRICE OF OXYGEN WAS NOT TO BE INCLUDED IN THIS CONTRACT.

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B-187701, MARCH 22, 1977

PROTEST AGAINST AWARD TO LOW BIDDER FOR RENTAL OF OXYGEN EQUIPMENT ALLEGING THAT BID IS NONRESPONSIVE BECAUSE LOW BIDDER STATED "NO RENT, RENTAL FOR EQUIPMENT IS INCLUDED IN THE PRICE OF DELIVERED OXYGEN" IS SUSTAINED. CONTRACTING OFFICER'S CONCLUSION THAT LOW BIDDER WAS NOT BIDDING ON OXYGEN BUT EXPLAINING HOW IT WAS ABLE TO BID "NO RENT" FOR RENTAL OF EQUIPMENT WAS NOT REASONABLE. LOW BIDDER WAS, IN EFFECT, OFFERING TO PROVIDE EQUIPMENT WITHOUT COST IF IT RECEIVED INDICATED PRICE FOR OXYGEN. SINCE BIDDERS WERE CAUTIONED AGAINST SUBMITTING PRICE FOR OXYGEN, BID IS NONRESPONSIVE AND WE RECOMMEND THAT CONTRACT BE TERMINATED FOR CONVENIENCE.

CRYOGENICS NORTHWEST, INC.:

THIS IS A PROTEST BY CRYOGENICS NORTHWEST, INC. (CRYOGENICS), AGAINST THE AWARD OF A CONTRACT TO THE LOW BIDDER, AID LIFE SYSTEMS, INC. (AID LIFE), FOR THE RENTAL OF LINDE OXYGEN WALKER SYSTEMS (LINDE EQUIPMENT), OR EQUAL, UNDER SOLICITATION NO. 663-59-7T ISSUED BY THE VETERANS ADMINISTRATION (VA), SEATTLE, WASHINGTON.

THE SOLICITATION WAS ISSUED ON SEPTEMBER 7, 1976, AND THE BID OPENING DATE WAS SEPTEMBER 27, 1976. CRYOGENICS, THE INCUMBENT CONTRACTOR, BID A MONTHLY RENTAL CHARGE OF $19.85 PER UNIT FOR A TOTAL BID PRICE OF $15,429. AID LIFE BID "NO RENT" ON VIRTUALLY ALL ITEMS EXCEPT FOR ITEMS NOS. 9, 10 AND 11 FOR A TOTAL BID PRICE OF $59.

ON PAGE 5 OF THE SOLICITATION, BIDDERS WERE INFORMED THAT THE PRICE OF OXYGEN WAS NOT TO BE INCLUDED IN THIS CONTRACT. HOWEVER, SPECIAL CONDITION 11 OF THE SOLICITATION REQUIRES THE SUCCESSFUL BIDDER TO FURNISH OXYGEN FOR THE EQUIPMENT ON AN OUTPATIENT FEE BASIS, PAID FOR BY VA, WHEN ORDERED BY THE PATIENT. AID LIFE NOTED ON EACH PAGE OF ITS BID WHERE A PRICE WAS TO BE SUBMITTED THAT THE CHARGE WAS "NO RENT, RENTAL FOR EQUIPMENT IS INCLUDED IN THE PRICE OF DELIVERED OXYGEN. $30 RESERVOIR REFILL ($6.1475 PER 100 CU. FT.)." THIS IS THE SAME PRICE CHARGED BY CRYOGENICS DURING FISCAL YEAR 1976; HOWEVER, THE RENTAL OF THE LINDE EQUIPMENT WAS NOT INCLUDED IN THE PRICE. SINCE THE CONTRACTING OFFICER DETERMINED THAT AID LIFE WAS THE LOWEST RESPONSIVE BIDDER, IT WAS AWARDED THE CONTRACT ON OCTOBER 1, 1976.

CRYOGENICS CONTENDS THAT BY INCLUDING THE EQUIPMENT RENTAL IN THE PRICE OF THE OXYGEN AND BIDDING THE OXYGEN REFILL CHARGE, AID LIFE IS OFFERING SUPPLIES OR SERVICES OTHER THAN THOSE REQUESTED BY THE SOLICITATION AND THUS AID LIFE'S BID IS NONRESPONSIVE.

AS A GENERAL RULE, A BID IS RESPONSIVE IF IT COMPLIES WITH ALL MATERIAL OR ESSENTIAL PROVISIONS OF THE SOLICITATION. PRESTEX INC. V. UNITED STATES, 162 CT.CL. 620, 320 F.2D 367 (1963); 40 COMP.GEN. 432 (1961). IN THE INSTANT CASE, THE CONTRACTING OFFICER INTERPRETED THE LANGUAGE IN AID LIFE'S BID AS AN EXPLANATION OF WHY THERE WAS NO RENTAL CHARGE FOR THE EQUIPMENT AND NOT A BID FOR THE OXYGEN WHICH WAS TO BE SUPPLIED TO THE VA PATIENTS. THEREFORE, HE FOUND THE BID RESPONSIVE TO THE TERMS OF THE SOLICITATION AND AWARDED THE CONTRACT TO AID LIFE. WE DO NOT BELIEVE THAT THIS WAS A REASONABLE INTERPRETATION OF AID LIFE'S BID. AID LIFE CONDITIONED ITS BID BY PLACING THE COST OF THE OXYGEN IN THE SOLICITATION SINCE IT KNEW THAT THE SUPPLIER OF THE LINDE EQUIPMENT WOULD ALSO BE THE SUPPLIER OF THE OXYGEN. AID LIFE WAS, IN EFFECT, OFFERING TO PROVIDE THE EQUIPMENT WITHOUT COST IF IT RECEIVED THE INDICATED PRICE FOR THE OXYGEN. SINCE BIDDERS WERE CAUTIONED AGAINST SUBMITTING A PRICE FOR OXYGEN, IT IS OUR VIEW THAT AID LIFE'S BID WAS NONRESPONSIVE. ACCORDINGLY, THE PROTEST IS SUSTAINED.

IN VIEW OF THE FOREGOING CIRCUMSTANCES, WE RECOMMEND THAT THE CONTRACT WITH AID LIFE BE TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT AND THAT THE REMAINDER OF THE CONTRACT PERIOD BE RESOLICITED. WE ALSO RECOMMEND THAT FUTURE PROCUREMENTS OF THIS TYPE COMBINE THE PRICE FOR THE RENTAL OF THE EQUIPMENT WITH THE PRICE FOR SUPPLYING OXYGEN.

AS THE DECISION CONTAINS A RECOMMENDATION FOR CORRECTIVE ACTION TO BE TAKEN, IT HAS BEEN TRANSMITTED BY LETTERS OF TODAY TO THE CONGRESSIONAL COMMITTEES NAMED IN SECTION 236 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, 31 U.S.C. 1176 (1970), WHICH REQUIRES THE AGENCY TO SUBMIT TO THE NAMED COMMITTEES WITHIN PRESCRIBED TIMES WRITTEN STATEMENTS OF THE ACTION TAKEN ON THE RECOMMENDATION.

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