B-147038, SEP. 7, 1961

B-147038: Sep 7, 1961

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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23. HAVE PRESENTED TO YOU THEIR PROTEST AGAINST THE ACCEPTANCE OF ANY OF SEVEN OF THE BIDS RECEIVED. BY ADDENDUM NO. 1 THE PREVIOUS SPECIFICATIONS WERE AMENDED TO INCLUDE SEVEN ALTERNATES CONSISTING OF 10 DIFFERENT ITEMS OF MODIFICATIONS IN CONSTRUCTION OR EQUIPMENT WHICH. IT IS CONTENDED BY THE TWO PROTESTING BIDDERS THAT SUCH AN OMISSION RENDERS THAT BID INCOMPLETE OR QUALIFIED AND. AS TO THE ITEM (ALTERNATE 5B OF ADDENDUM NO. 1) FOR WHICH NO PRICE WAS QUOTED BY THE VENNERI COMPANY. BIDDERS MUST QUOTE ON ALL ITEMS AND THEY ARE WARNED THAT FAILURE TO DO SO MAY DISQUALIFY THE D.'. IT IS STATED THAT NONE OF THE BIDS CONTAINED ANY QUALIFICATIONS.

B-147038, SEP. 7, 1961

TO MR. GORDON H. TYLER, CONTRACTING OFFICER, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23, 1961, WITH ENCLOSURES, SUBMITTING FOR OUR CONSIDERATION AND DECISION THE QUESTION WHETHER THE PROPOSAL OF ARTHUR VENNERI COMPANY, 1225 K STREET, N.W., WASHINGTON, D.C., MAY BE CONSIDERED IN THE EVALUATION OF BIDS AND IN THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. S-384. TWO OTHER BIDDERS, NAMELY DORSET CONTRACTING COMPANY, INCORPORATED, AND COE CONSTRUCTION, INCORPORATED, HAVE PRESENTED TO YOU THEIR PROTEST AGAINST THE ACCEPTANCE OF ANY OF SEVEN OF THE BIDS RECEIVED, INCLUDING THE VENNERI COMPANY OFFER, BASED UPON THE CONTENTIONS THAT THOSE PROPOSALS CONTAINED DEVIATIONS OR DEFICIENCIES WHICH RENDERED THEIR BIDS NONRESPONSIVE.

THE SUBJECT INVITATION SOUGHT PROPOSALS FOR THE CONSTRUCTION OF SATELLITE SYSTEMS BUILDING NO. 8. BY ADDENDUM NO. 1 THE PREVIOUS SPECIFICATIONS WERE AMENDED TO INCLUDE SEVEN ALTERNATES CONSISTING OF 10 DIFFERENT ITEMS OF MODIFICATIONS IN CONSTRUCTION OR EQUIPMENT WHICH, IF FOUND DESIRABLE, MIGHT BE INCORPORATED IN THE SPECIFICATIONS. EACH ALTERNATE PROVIDES THAT THE BIDDER SHALL STATE IN HIS PROPOSAL THE INCREASE OR DECREASE IN COST TO THE GOVERNMENT IN THE EVENT THE ALTERNATE WORK, EQUIPMENT OR MATERIAL COVERED THEREBY SHOULD BE MADE A PART OF THE FINAL CONTRACT. EXAMINATION OF THE ABSTRACT OF BIDS DISCLOSES THAT SEVEN FIRMS FAILED TO QUOTE A PRICE ON ONE OR MORE OF THE 10 ALTERNATE ITEMS, THE VENNERI COMPANY HAVING OMITTED A QUOTATION FOR ALTERNATE NO. 5B (ITEM NO. 8 OF THE ABSTRACT). IN VIEW OF THE MANDATORY LANGUAGE CONTAINED IN EACH ALTERNATE TO THE EFFECT THAT THE BIDDER SHALL STATE THE AMOUNT OF THE INCREASE OR DECREASE IN HIS PROPOSAL FOR THE VARIOUS ADDITIONS, IT IS CONTENDED BY THE TWO PROTESTING BIDDERS THAT SUCH AN OMISSION RENDERS THAT BID INCOMPLETE OR QUALIFIED AND, THEREFORE, UNRESPONSIVE.

AS TO THE ITEM (ALTERNATE 5B OF ADDENDUM NO. 1) FOR WHICH NO PRICE WAS QUOTED BY THE VENNERI COMPANY, YOU STATE THAT SUCH ADDITIVE HAS BEEN ELIMINATED FROM THE PLANS AND THAT IN LIEU THEREOF ITEM NO. 9 OF THE ABSTRACT HAS BEEN SELECTED AS PREFERABLE TO MEET THE FUTURE NEEDS OF THE GOVERNMENT. IN THAT CONNECTION PARAGRAPH 5 (B) OF THE INSTRUCTION TO BIDDERS PROVIDES THAT ,BIDDERS MUST QUOTE ON ALL ITEMS AND THEY ARE WARNED THAT FAILURE TO DO SO MAY DISQUALIFY THE D.' PARAGRAPH 11 (C) THEREOF FURTHER PROVIDES THAT THE GOVERNMENT "RESERVES THE RIGHT TO ACCEPT OR REJECT ANY OR ALL ITEMS OF ANY BID, UNLESS THE BIDDER QUALIFIES SUCH BID BY SPECIFIC ITATION.' IT IS STATED THAT NONE OF THE BIDS CONTAINED ANY QUALIFICATIONS.

THE BASIC OBJECTIVE OF THIS PROCUREMENT IS TO OBTAIN THE MOST ADVANTAGEOUS PRICE FOR THE CONSTRUCTION OF THE DESIRED BUILDING OF FIVE FLOORS, WITH AN OPTION UNDER ALTERNATE NO. 1 TO ADD A SIXTH FLOOR. THE REMAINING ALTERNATE ITEMS CONSIST PRIMARILY OF CERTAIN CHANGES IN CONSTRUCTION OR EQUIPMENT. THE ALTERNATE (NO. 5) HERE INVOLVED, FOR EXAMPLE, COVERS ONE TYPE OF WALL OR PARTITION WHICH MIGHT BE CHOSEN BY YOUR AGENCY TO BE INCLUDED IN ERECTION OF THE BUILDING. THE VENNERI BID OMITTED ONE OF THE THREE MUTUALLY EXCLUSIVE PARTITION ALTERNATES (ITEM NO. 8 OF THE ABSTRACT), AND YOU STATE THAT SUCH ITEM HAS BEEN DELETED FROM THOSE ALTERNATES ULTIMATELY SELECTED TO BE MADE A PART OF THE PROJECT. WOULD APPEAR TO BE INCOMPATIBLE WITH GOOD BUSINESS PRACTICE TO DISREGARD AN OTHERWISE LOW BID ON A BASIC PROJECT MERELY BECAUSE THE OFFER FAILED TO QUOTE A PRICE ON AN OPTIONAL ITEM OF THE INVITATION WHICH HAS BEEN ELIMINATED FROM THE CONTEMPLATED WORK THROUGH THE SELECTION OF A MORE DESIRABLE TYPE OF PARTITION. TO REJECT THE VENNERI BID, AS WELL AS THE OTHER OFFERS, ON SUCH A PREMISE, OBVIOUSLY WOULD RESULT IN A SUBSTANTIAL INCREASE IN THE TOTAL COST TO THE GOVERNMENT, AND WOULD BE, IN OUR OPINION, COMPLETELY UNREALISTIC. AS A CONSEQUENCE OF SUCH PROCEEDING THE INCONGRUOUS EFFECT WOULD REQUIRE THE AWARDING OF A CONTRACT TO A HIGHER BIDDER SOLELY BECAUSE HE QUOTED A PRICE ON A PHASE OF THE WORK WHICH IS NOT TO BE PERFORMED IN CONJUNCTION WITH THE PROJECT.

OF COURSE A BIDDER ASSUMES THE RISK OF HAVING HIS OFFER REJECTED AS NONRESPONSIVE IF A QUOTATION IS OMITTED ON AN ITEM ULTIMATELY INCLUDED IN THE CONTRACT WORK. HOWEVER, WE BELIEVE THAT THE RIGHT RESERVED BY THE GOVERNMENT UNDER PARAGRAPH 11 OF THE INSTRUCTIONS AND THE PERMISSIVE CHARACTER OF THE LANGUAGE OF PARAGRAPH 5 THEREOF CONSTITUTE AMPLE JUSTIFICATION FOR CONSIDERING ALL OF THE PROPOSALS WHICH CONTAIN QUOTATIONS ON THOSE ALTERNATE ITEMS SET FORTH IN ADDENDUM NO. 1 WHICH NOW HAVE BEEN SELECTED FOR INCLUSION IN THE PROJECT.

ACCORDINGLY THE PROTESTS RAISED BY THE ABOVE-NAMED BIDDERS SHOULD BE DISREGARDED, AND THE OFFER OF ARTHUR VENNERI COMPANY SHOULD BE CONSIDERED IN THE EVALUATION OF THE BIDS RECEIVED.