B-147668, DEC. 7, 1961

B-147668: Dec 7, 1961

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INC.: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 21. YOUR LETTER STATES THAT YOU HAVE BEEN ADVISED TO TRANSMIT THESE QUERIES TO THIS OFFICE FOR RESOLUTION. THAT THERE IS CONSIDERABLE DOUBT ON YOUR PART ON HOW TO SUBMIT YOUR BID WITHOUT ITS BEING NONRESPONSIVE AND THAT YOU ARE THEREFORE REQUESTING CLARIFICATION OF THE FOLLOWING SITUATIONS "WHICH COULD ARISE" ON THIS INVITATION FOR BIDS: "1. FINDS THAT THE GOVERNMENT COULD OBTAIN THE EQUIPMENT AT A LOWER PRICE IF PROCURED FROM THE BIDDER WHO APPARENTLY WAS ELIGIBLE FOR ONLY THE NON-SET-ASIDE PORTION. SHOWS THAT THE TOTAL CONTRACT PRICE IS LOWER IF PROCURED FROM THIS BIDDER. IT IS APPARENT THAT THE QUESTIONS YOU HAVE SUBMITTED ARE ENTIRELY HYPOTHETICAL IN NATURE.

B-147668, DEC. 7, 1961

TO AMERICAN AIR FILTER COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 21, 1961, RECEIVED IN THIS OFFICE ON NOVEMBER 27, 1961, SUBMITTING THREE QUESTIONS FOR CLARIFICATION IN CONNECTION WITH THE LABOR SURPLUS AREA CLAUSE IN INVITATION FOR BIDS NO. ENG-11-184-62-CF-226 ISSUED OCTOBER 24, 1961, BY THE UNITED STATES ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO, ILLINOIS.

YOUR LETTER STATES THAT YOU HAVE BEEN ADVISED TO TRANSMIT THESE QUERIES TO THIS OFFICE FOR RESOLUTION; THAT THERE IS CONSIDERABLE DOUBT ON YOUR PART ON HOW TO SUBMIT YOUR BID WITHOUT ITS BEING NONRESPONSIVE AND THAT YOU ARE THEREFORE REQUESTING CLARIFICATION OF THE FOLLOWING SITUATIONS "WHICH COULD ARISE" ON THIS INVITATION FOR BIDS:

"1. A CONTRACTOR IN A "C" LABOR AREA CLASSIFICATION PROPOSES TO FURNISH THE TOTAL QUANTITY OF THE IFB INSTEAD OF JUST THE NON-SET-ASIDE QUANTITY, AND STATES SAME ON APPROPRIATE PAGE OF IFB. DOES THIS MAKE HIS BID NONRESPONSIVE?

"2. A CONTRACTOR APPARENTLY UNABLE TO BID ON THE SET-ASIDE PORTION, DUE TO HIS LABOR SURPLUS AREA CLASSIFICATION, SUBMITS A TOKEN BID ON THE SET- ASIDE PORTION IN HIS LETTER OF TRANSMITTAL. DOES THIS MAKE HIS BID NONRESPONSIVE?

"3. THE CONTRACTING OFFICER, AFTER EVALUATING THE BIDS AND NEGOTIATING WITH ELIGIBLE BIDDERS ON THE SET-ASIDE PORTION, FINDS THAT THE GOVERNMENT COULD OBTAIN THE EQUIPMENT AT A LOWER PRICE IF PROCURED FROM THE BIDDER WHO APPARENTLY WAS ELIGIBLE FOR ONLY THE NON-SET-ASIDE PORTION, EVEN THOUGH THE UNIT PRICE ON THE SET-ASIDE PORTION HAS BEEN NEGOTIATED DOWNWARD TO BE EQUAL WITH THE UNIT PRICE OF THE NON-SET ASIDE PORTION. THE TOKEN BID ON THE TOTAL QUANTITY SUBMITTED BY THE BIDDER APPARENTLY INELIGIBLE FOR THE SET-ASIDE PORTION, SHOWS THAT THE TOTAL CONTRACT PRICE IS LOWER IF PROCURED FROM THIS BIDDER. UNDER THESE CIRCUMSTANCES, CAN THE CONTRACTING OFFICER MAKE ONE AWARD FOR THE TOTAL QUANTITY TO THE BIDDER APPARENTLY INELIGIBLE FOR THE SET ASIDE QUANTITY?

YOUR LETTER DOES NOT CONTAIN SUFFICIENT INFORMATION REGARDING THE PERTINENT PROVISIONS OF THE SUBJECT INVITATION FOR BIDS OR THE COMPLETE CIRCUMSTANCES SURROUNDING THE SITUATIONS YOU DESCRIBE TO ENABLE THIS OFFICE TO ANSWER THE QUESTIONS POSED. MOREOVER, IT IS APPARENT THAT THE QUESTIONS YOU HAVE SUBMITTED ARE ENTIRELY HYPOTHETICAL IN NATURE. THE JURISDICTION OF THIS OFFICE IS SUCH THAT WE WOULD NOT BE WARRANTED IN FURNISHING AN AUTHORITATIVE OPINION IN RESPONSE TO A PRIVATE INQUIRY CONCERNING HYPOTHETICAL QUESTIONS WHICH MAY, OR MAY NOT, ARISE DEPENDING ON THE PARTICULAR COURSE OF ACTION THAT MIGHT BE TAKEN BY A PROSPECTIVE BIDDER IN CONNECTION WITH THE SUBMISSION OF A BID. HOWEVER, ENCLOSED FOR YOUR INFORMATION, ARE COPIES OF A FEW OF OUR DECISIONS WHICH DEAL TO SOME EXTENT GENERALLY WITH THE QUESTIONS YOU HAVE RAISED. SEE, ALSO, THE PROVISIONS OF PARTS 7 AND 8, SECTION 1, OF THE ARMED SERVICES PROCUREMENT REGULATION.