B-151250, JUN. 10, 1963

B-151250: Jun 10, 1963

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

MOSS AND FLAHERTY: REFERENCE IS MADE TO YOUR LETTER OF APRIL 2. THE PROCUREMENT WAS DIVIDED INTO A NON-SET-ASIDE PORTION AND A LABOR SURPLUS AREA SET ASIDE PORTION. ON PAGE 16 OF THE INVITATION BIDDERS WERE ADVISED AS FOLLOWS: "/D) THIS INVITATION FOR BID PRECLUDES THE USE OF GOVERNMENT-OWNED EQUIPMENT IN POSSESSION OF CONTRACTORS FOR WHICH RENTAL IS NOT BEING PAID. FAILURE TO FURNISH SUCH EVIDENCE WILL CONSTITUTE BASIS FOR REJECTION OF BID AS NON-RESPONSIVE. "/1) BIDDER WILL IN ALL CASES COMPLETE THE FOLLOWING APPLICABLE BLOCKS BELOW: "BIDDER DOES . IT IS REPORTED THAT A PREAWARD SURVEY OF MIDWEST STRUCTURAL. CONFIRMED THAT THE CORPORATION DID NOT HAVE SUCH AN AGREEMENT WITH THE GOVERNMENT.

B-151250, JUN. 10, 1963

TO VAN VALKENBURG, MOSS AND FLAHERTY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 2, 1963, WITH ENCLOSURE, PROTESTING ON BEHALF OF MIDWEST STRUCTURAL, INC., NORTH ST. PAUL, MINNESOTA, AGAINST THE ACTION OF THE U.S. ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA, IN REJECTING THE CORPORATION'S BID SUBMITTED IN RESPONSE TO INVITATION NO. IXXF-ORD-01-021-63-10233.

THE INVITATION REQUESTED BIDS FOR FURNISHING SPECIFIED QUANTITIES OF GUIDED MISSILE SHIPPING AND STORAGE CONTAINERS. THE PROCUREMENT WAS DIVIDED INTO A NON-SET-ASIDE PORTION AND A LABOR SURPLUS AREA SET ASIDE PORTION. ON PAGE 16 OF THE INVITATION BIDDERS WERE ADVISED AS FOLLOWS:

"/D) THIS INVITATION FOR BID PRECLUDES THE USE OF GOVERNMENT-OWNED EQUIPMENT IN POSSESSION OF CONTRACTORS FOR WHICH RENTAL IS NOT BEING PAID. BIDDERS CONTEMPLATING USE OF GOVERNMENT-OWNED EQUIPMENT SHALL FURNISH DOCUMENTARY EVIDENCE FOR PAYMENT OF FAIR RENTAL VALUE COMPUTED UNDER APPLICABLE REGULATIONS. FAILURE TO FURNISH SUCH EVIDENCE WILL CONSTITUTE BASIS FOR REJECTION OF BID AS NON-RESPONSIVE.

"/1) BIDDER WILL IN ALL CASES COMPLETE THE FOLLOWING APPLICABLE BLOCKS BELOW:

"BIDDER DOES , DOES NOT , CONTEMPLATE USE OF GOVERNMENT-OWNED EQUIPMENT.'

THE RECORD SHOWS THAT MIDWEST STRUCTURAL, INC., SUBMITTED THE LOWEST BID ON THE CONTAINERS. THE CORPORATION INDICATED ON PAGE 16 OF ITS BID THAT IT CONTEMPLATED THE USE OF GOVERNMENT-OWNED EQUIPMENT IN ITS POSSESSION IN PERFORMANCE OF THE CONTRACT BUT IT DID NOT FURNISH DOCUMENTARY EVIDENCE OF A LEASE OR CONTRACT WITH THE GOVERNMENT PROVIDING FOR PAYMENT OF A FAIR RENTAL VALUE FOR SUCH EQUIPMENT. IT IS REPORTED THAT A PREAWARD SURVEY OF MIDWEST STRUCTURAL, INC., BY THE CHICAGO PROCUREMENT DISTRICT, U.S. ARMY, CONFIRMED THAT THE CORPORATION DID NOT HAVE SUCH AN AGREEMENT WITH THE GOVERNMENT. IN VIEW OF THE FAILURE OF THE CORPORATION TO FURNISH THE EVIDENCE SPECIFIED, ITS BID WAS REJECTED AS NONRESPONSIVE IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 2-404.2 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION, PROVIDING FOR THE REJECTION OF A BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS. MARCH 15, 1963, AN AWARD ON THE NON-SET-ASIDE PORTION OF THE INVITATION WAS MADE TO RIDGWAY STEEL FABRICATORS.

WITH YOUR LETTER OF APRIL 2, 1963, YOU SUBMITTED A COPY OF A TELEGRAM DATED MARCH 27, 1963, WHICH YOU HAD SENT TO THE U.S. ARMY MISSILE COMMAND. IN THE TELEGRAM YOU OBJECTED TO THE AWARD OF THE NON SET-ASIDE PORTION OF THE INVITATION TO ANOTHER BIDDER ON THE GROUND THAT MIDWEST STRUCTURAL, INC., WAS THE LOWEST REPUTABLE BIDDER ON THE CONTAINERS. YOU STATED THAT THE CORPORATION HAS HERETOFORE SATISFACTORILY MANUFACTURED THE REQUIRED CONTAINER; THAT THE CORPORATION HAS RECEIVED A CERTIFICATE OF PROFICIENCY FROM THE SMALL BUSINESS ADMINISTRATION; AND THAT THE AWARD TO THE HIGHEST BIDDER MEANS AN UNNECESSARY EXPENSE OF $40,000 TO THE GOVERNMENT. IT APPEARS THAT YOUR LETTER OF APRIL 2, 1963, TO OUR OFFICE, WAS DRAFTED PRIOR TO THE RECEIPT BY YOU OF A TELEGRAM DATED MARCH 29, 1963, FROM THE U.S. ARMY MISSILE COMMAND. IN THAT TELEGRAM YOU WERE ADVISED THAT THE RESPONSIBILITY OF MIDWEST STRUCTURAL, INC., IS NOT A FACTOR IN THIS CASE; THAT THE INVITATION PRECLUDES THE USE OF GOVERNMENT- OWNED EQUIPMENT IN POSSESSION OF CONTRACTORS FOR WHICH RENTAL IS NOT BEING PAID; AND THAT THE CORPORATION'S BID WAS REJECTED BECAUSE OF ITS FAILURE TO FURNISH WITH ITS BID DOCUMENTARY EVIDENCE OF A LEASE OR CONTRACT WITH THE GOVERNMENT PROVIDING FOR PAYMENT OF FAIR RENTAL FOR THE GOVERNMENT- OWNED EQUIPMENT IN ITS POSSESSION WHICH IT CONTEMPLATED USING IN PERFORMANCE OF THE CONTRACT.

PARAGRAPH 2-201 (A) (XIV) OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES AS FOLLOWS:

"/A) FOR SUPPLY AND SERVICE CONTRACTS, INCLUDING CONSTRUCTION, INVITATION FOR BIDS SHALL CONTAIN THE FOLLOWING INFORMATION IF APPLICABLE TO THE PROCUREMENT INVOLVED.

"/XIV) A PROVISION THAT IF THE BIDDER PLANS TO USE, IN PERFORMING THE WORK BID UPON ANY ITEMS OF GOVERNMENT PROPERTY IN THE BIDDER'S POSSESSION UNDER A FACILITIES CONTRACT OR OTHER AGREEMENT INDEPENDENT OF THE INVITATION FOR BIDS, THE BIDDER SHALL SO STATE IN THE BID AND, UPON REQUEST OF THE CONTRACTING OFFICER, SUBMIT EVIDENCE THAT A FACILITIES CONTRACT OR OTHER SEPARATE AGREEMENT AUTHORIZES THE BIDDER TO USE EACH ITEM OF SUCH GOVERNMENT PROPERTY FOR PERFORMING THE WORK BID UPON.'

THE INVITATION CLEARLY PROVIDED FOR THE SUBMISSION WITH THE BID OF CERTAIN DOCUMENTARY EVIDENCE BY THE BIDDER IF HE CONTEMPLATED USING GOVERNMENT-OWNED EQUIPMENT IN HIS POSSESSION IN PERFORMANCE OF THE CONTRACT. UNDER THE PROVISIONS OF 10 U.S.C. 2305, WHICH IS A BASIC AUTHORITY FOR AGENTS OF THE GOVERNMENT TO ENTER INTO CONTRACTS, BIDS ARE REQUIRED TO CONFORM TO THE TERMS OF THE ADVERTISED INVITATION TO BE ELIGIBLE FOR AWARD. PURSUANT THERETO PARAGRAPH 2-404.2 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES FOR THE REJECTION OF A BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS. A BIDDER MAY NOT BE PERMITTED TO ADD TO OR MODIFY ITS BID AFTER THE OPENING TO MAKE THE BID COMPLY WITH THE REQUIREMENTS OF THE INVITATION, AND IT DOES NOT MATTER WHETHER THE FAILURE TO COMPLY WAS DUE TO INADVERTENCE, MISTAKE, OR OTHERWISE. SEE 38 COMP. GEN. 819 AND 40 ID. 432.

SINCE MIDWEST STRUCTURAL, INC., DID NOT SUBMIT WITH ITS BID THE DOCUMENTARY EVIDENCE REQUIRED BY THE INVITATION, ITS BID WAS NOT RESPONSIVE AS SPECIFICALLY PROVIDED IN THE INVITATION. THE SUBMISSION OF THE DOCUMENTARY EVIDENCE HAVING BEEN MADE MANDATORY THERE WOULD BE NO AUTHORITY FOR THE CONTRACTING OFFICER TO SUBSEQUENTLY WAIVE IT. SEE 36 COMP. GEN. 376.

FOR THE FOREGOING REASONS, WE MUST CONCUR WITH THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY IN REJECTING THE CORPORATION'S BID AS NOT BEING RESPONSIVE TO THE INVITATION.