B-151374, OCT. 15, 1963

B-151374: Oct 15, 1963

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WIENER AND SCHLEZINGER: FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF POPE TECHNICAL SERVICES CORPORATION (POPE) AGAINST THE AWARD MADE TO MANAGEMENT AND TECHNICAL SERVICE COMPANY (M AND T) UNDER INVITATION FOR BIDS NO. BIDS WERE REQUIRED ON 44 LINE ITEMS OF WORK. AFTER THE ISSUANCE OF THE INVITATION A LETTER WAS SENT TO ALL FIRMS WHICH HAD BEEN FURNISHED BID SETS REQUESTING SUCH POTENTIAL BIDDERS TO REVIEW THE WORK STATEMENT AND TO SUBMIT ANY QUESTION AND/OR RECOMMENDATIONS TO THE CONTRACTING OFFICER PRIOR TO THE PRE-BID CONFERENCE. IT IS REPORTED THAT AT THE CONFERENCE VARIOUS GOVERNMENT PERSONNEL REVIEWED THE INVITATION AND WORK STATEMENT REQUIREMENTS AND ANSWERED ALL QUESTIONS PRESENTED.

B-151374, OCT. 15, 1963

TO WACHTEL, WIENER AND SCHLEZINGER:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF POPE TECHNICAL SERVICES CORPORATION (POPE) AGAINST THE AWARD MADE TO MANAGEMENT AND TECHNICAL SERVICE COMPANY (M AND T) UNDER INVITATION FOR BIDS NO. DSA-9-63 -432 ISSUED BY THE DEFENSE ELECTRONICS SUPPLY CENTER (DESC), DAYTON, OHIO.

THE INVITATION ISSUED ON MARCH 16, 1963, REQUESTED BIDS ON SERVICES AND MATERIALS NECESSARY TO ACCOMPLISH AN INTERCHANGEABILITY AND SUBSTITUTION (ITEM GROWTH AND REDUCTION CONTROL) PROGRAM IN CONNECTION WITH FEDERAL SUPPLY CLASS 5905 (RESISTORS). BIDS WERE REQUIRED ON 44 LINE ITEMS OF WORK, EACH BEARING AN ITEM NUMBER CORRESPONDING TO THE APPLICABLE PARAGRAPH OF THE WORK STATEMENT ATTACHED TO THE INVITATION. THE INVITATION SET FORTH ESTIMATED QUANTITIES FOR WORK ITEM AND PROVIDED FOR THE AWARD OF A REQUIREMENTS TYPE CONTRACT FOR ALL WORK "OVER AND ABOVE" THE QUANTITIES WHICH THE DEFENSE ELECTRONICS SUPPLY CENTER MIGHT ACCOMPLISH WITHIN ITS OWN CAPABILITIES.

THE INVITATION ADVISED PROSPECTIVE BIDDERS THAT A PRE-BID CONFERENCE WOULD BE HELD AT THE DEFENSE ELECTRONICS SUPPLY CENTER ON MARCH 26, 1963 FOR THOSE INTERESTED IN OBTAINING ADDITIONAL INFORMATION CONCERNING THE PROCUREMENT OR IN DISCUSSING THE TECHNICAL ASPECTS THEREOF. ALSO, AFTER THE ISSUANCE OF THE INVITATION A LETTER WAS SENT TO ALL FIRMS WHICH HAD BEEN FURNISHED BID SETS REQUESTING SUCH POTENTIAL BIDDERS TO REVIEW THE WORK STATEMENT AND TO SUBMIT ANY QUESTION AND/OR RECOMMENDATIONS TO THE CONTRACTING OFFICER PRIOR TO THE PRE-BID CONFERENCE. IT IS REPORTED THAT AT THE CONFERENCE VARIOUS GOVERNMENT PERSONNEL REVIEWED THE INVITATION AND WORK STATEMENT REQUIREMENTS AND ANSWERED ALL QUESTIONS PRESENTED.

POPE WAS REPRESENTED AT THE CONFERENCE BY TWO EMPLOYEES FROM ARCS RESEARCH AND DEVELOPMENT CORPORATION (ARCS), WHICH ACCORDING TO THE BID SUBMITTED BY POPE WOULD HAVE PERFORMED APPROXIMATELY 85 PERCENT OF THE WORK UNDER A SUBCONTRACT IF POPE HAD RECEIVED THE AWARD FOR THE PROCUREMENT. NEITHER POPE NOR ARCS SUBMITTED ANY SUGGESTIONS PRIOR TO THE CONFERENCE AND ARCS REPRESENTATIVES PRESENT AT THE PRE-BID CONFERENCE DID NOT QUESTION THE WORK STATEMENT OTHER THAN TO ASK ABOUT TOTAL QUANTITIES. NONE OF THE REPRESENTATIVES AT THE CONFERENCE QUESTIONED THE REQUIREMENTS AND APPARENTLY UNDERSTOOD THE PROGRAM OUTLINED IN THE INVITATION AND WORK STATEMENT.

SIX BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND WERE OPENED ON APRIL 10, 1963 AS SCHEDULED. THE LOW BID WAS SUBMITTED BY M AND T COMPANY. POPE'S BID WAS THIRD LOW. DUE TO THE DIFFERENCE BETWEEN THE BID PRICES OFFERED BY M AND T AND THE PRICES OF OTHER BIDDERS AS WELL AS THE GOVERNMENT'S COST ESTIMATE, THE CONTRACTING OFFICER CONTACTED M AND T BY TELEPHONE AND BY LETTER OF APRIL 11, 1963, M AND T WAS ADVISED OF THE PRICES RECEIVED AND THAT THE GOVERNMENT SUSPECTED THAT A MISTAKE MIGHT HAVE BEEN MADE IN ITS BID. AREAS WERE SUGGESTED AS POSSIBILITIES WHERE THE MISTAKE MIGHT HAVE OCCURRED. THE COMPANY WAS REQUESTED TO REVIEW ITS BID PRICES AND TO CONFIRM THE BID IN WRITING IF IT WAS THE BID ACTUALLY INTENDED. BY LETTER DATED APRIL 12, 1963, M AND T CONFIRMED ITS BID AND STATED THAT THE COST FIGURES HAD BEEN REVIEWED AND FOUND TO BE CORRECT.

ON APRIL 12, 1963 A GOVERNMENT PRE-AWARD SURVEY TEAM CONSISTING OF TECHNICAL AND ADMINISTRATIVE PERSONNEL VISITED THE FACILITIES OF M AND T IN PHILADELPHIA, PENNSYLVANIA, FOR THE PURPOSE OF DETERMINING WHETHER IT MET THE NECESSARY STANDARDS FOR A "RESPONSIBLE" PROSPECTIVE CONTRACTOR. DURING THE SURVEY THE FIRM'S FINANCIAL, ADMINISTRATIVE AND TECHNICAL ABILITY TO PERFORM WERE INVESTIGATED AND EVALUATED. IT WAS LEARNED THAT M AND T HAD PREVIOUSLY PERFORMED ITEM SIMPLIFICATION STUDIES FOR FEDERAL SUPPLY CLASSES 5955, 5905, AND 5910 UNDER A CONTRACT FOR THE UNITED STATES ARMY SIGNAL MATERIEL SUPPORT AGENCY, FORT MONMOUTH, NEW JERSEY. OFFICIALS AT FORT MONMOUTH CONFIRMED THAT THE WORK PERFORMED UNDER THIS CONTRACT HAD BEEN SATISFACTORY. BASED ON ALL FACTORS IT WAS DETERMINED THAT M AND T HAD THE NECESSARY QUALIFICATIONS TO PERFORM THE PROPOSED CONTRACT AND THE AWARD WAS MADE TO M AND T ON APRIL 16, 1963.

THE RECORD SHOWS THAT THE FIRST INDICATION THAT POPE WAS DISSATISFIED WITH THE WORK STATEMENT WAS MADE IN TELEPHONE CONVERSATIONS OF APRIL 17 AND 23, 1963, WITH REPRESENTATIVES OF ARCS. BY TELEGRAM OF APRIL 24 AND LETTER OF APRIL 25, 1963 A FORMAL PROTEST ON BEHALF OF POPE WAS MADE AGAINST THE AWARD MADE TO M AND T. THE PROTEST IS PREDICATED ON THE FOLLOWING GROUNDS:

1. THE BID SUBMITTED BY M AND T WAS UNRESPONSIVE IN THAT THE BIDDER FAILED TO SUBMIT WITH ITS BID ALL OF THE INFORMATION AND DATA REQUESTED THEREIN.

2. THE INVITATION, WORK STATEMENT AND SPECIFICATIONS INCORPORATED THEREIN WERE SO VAGUE, INDEFINITE, UNCERTAIN AND CONFLICTING AS TO MAKE IT IMPOSSIBLE TO DETERMINE (A) WHAT SERVICES WERE BEING PROCURED, (B) WHETHER EACH BIDDER WAS OFFERING TO FURNISH IDENTICAL AND/OR SIMILAR SERVICES, OR (C) WHAT CRITERIA AND STANDARDS WOULD BE USED TO MEASURE THE QUANTITY AND QUALITY OF THE SERVICES TO BE PERFORMED.

3. THE INVITATION, WORK STATEMENT AND SPECIFICATIONS AS DRAWN REQUIRE SERVICES WHICH ARE IMPOSSIBLE TO PERFORM.

THE FIRST GROUND OF THE PROTEST IS THAT THE BID OF M AND T WAS UNRESPONSIVE BECAUSE IT DID NOT CONTAIN CERTAIN "EXPERIENCE" INFORMATION AND DATA REQUESTED BY THE INVITATION. IN THIS CONNECTION, PARAGRAPH VIII OF THE SPECIAL PROVISIONS OF THE INVITATION PROVIDED, IN PART, AS FOLLOWS:

"THE GOVERNMENT DESIRES THE CONTRACTOR TO HAVE EXPERIENCE WITH THE DOD FEDERAL CATALOGING SYSTEM.

"TO FACILITATE THE GOVERNMENT IN DETERMINING THE CAPABILITIES OF THE CONTRACTOR, THE BIDDER SHOULD PROVIDE TO THE CONTRACTING OFFICER WITH THEIR BID, THE FOLLOWING INFORMATION CONCERNING THEIR EXPERIENCE IN THIS TYPE OF WORK.

"IF THE BIDDER DOES NOT HAVE PREVIOUS EXPERIENCE IN THIS AREA HE SHOULD SO STATE.

"NOTE: THIS INFORMATION WILL NOT BE CONSIDERED IN THE EVALUATION OF THE BIDS, HOWEVER THIS WILL BE CONSIDERED IN THE DETERMINATION OF THE BIDDERS CAPABILITY TO PERFORM.'

IT IS CONTENDED THAT SINCE PARAGRAPH 1/B) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS (ON THE REVERSE SIDE OF STANDARD FORM 30) STATES THAT "EACH BIDDER SHALL FURNISH THE INFORMATION REQUIRED BY THE BID FORM," THIS HAS THE EFFECT OF MAKING COMPLIANCE WITH SPECIAL PROVISIONS VIII,"EXPERIENCE," A MANDATORY REQUIREMENT, AND THAT THE FAILURE OF M AND T TO FURNISH SUCH INFORMATION WITH ITS BID REQUIRED ITS REJECTION AS UNRESPONSIVE. IN SUPPORT THEREOF, YOU CITE 36 COMP. GEN. 415; 37 ID; 645, 39 ID; 247. NONE OF THESE CASES IS CONSIDERED AS SUPPORTING YOUR CONTENTION, SINCE THEY ALL INVOLVE SITUATIONS WHEREIN THE REQUIRED INFORMATION RELATED TO THE RESPONSIVENESS OF THE BID; THAT IS THE INFORMATION HAD REFERENCE TO WHAT WAS BEING OFFERED UNDER THE BID AND WAS TO BE USED IN THE EVALUATION OF THE BID. SPECIAL PROVISION VIII OF THE INSTANT INVITATION INDICATES BY ITS TITLE,"EXPERIENCE," THAT IT RELATES TO THE BIDDER'S CAPABILITY TO PERFORM AND IT WAS SPECIFICALLY PROVIDED THAT THE INFORMATION WOULD NOT BE CONSIDERED IN THE EVALUATION OF THE BID. CONSISTENTLY HAS BEEN HELD THAT WHERE INFORMATION IS DESIRED FOR THE PURPOSE OF DETERMINING THE CAPABILITY OF THE BIDDER TO PERFORM (RESPONSIBILITY), THE FAILURE TO FURNISH SUCH INFORMATION WITH THE BID MAY BE WAIVED AS A MINOR INFORMALITY. 37 COMP. GEN. 143, 39 ID. 655; ID. 881, 40 ID. 132; 41 ID. 555 AND B-150373 DATED MARCH 7, 1963. ACCORDINGLY, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION THAT THE FAILURE OF M AND T TO FURNISH WITH ITS BID INFORMATION WHICH RELATED TO "EXPERIENCE" DID NOT RENDER ITS BID UNRESPONSIVE.

THE SECOND AND THIRD GROUNDS OF YOUR PROTEST RELATE TO THE ADEQUACY OF THE INVITATION, WORK STATEMENT AND SPECIFICATIONS FOR COMPETITIVE BIDDING PURPOSES. IN THIS CONNECTION, IT HAS BEEN HELD THAT FULL AND FREE COMPETITION REQUIRED BY STATUTE CAN ONLY BE OBTAINED WHERE THE INVITATION AND THE SPECIFICATIONS ARE SUFFICIENTLY DEFINITE TO PERMIT THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS. 38 COMP. GEN. 190, 39 ID. 570.

YOU ALLEGE THAT SPECIFICATIONS HERE INVOLVED ARE SO VAGUE, INDEFINITE, UNCERTAIN AND CONFLICTING AS TO MAKE IT IMPOSSIBLE TO DETERMINE WHAT SERVICES ARE REQUIRED. YOUR ALLEGATIONS IN THESE RESPECTS ARE DENIED IN REPORTS FROM THE ADMINISTRATIVE OFFICE. COPIES OF THESE REPORTS HAVE BEEN FURNISHED YOU AND, THEREFORE, THERE IS NO NEED TO GO INTO THEM HERE.

THE RECORD DISCLOSES THAT ARCS RECENTLY COMPLETED A SIMILAR PROGRAM TO THAT HERE INVOLVED UNDER THE DIRECTION OF THE DEFENSE ELECTRONICS SUPPLY CENTER PURSUANT TO A NEGOTIATED CONTRACT. APPARENTLY, THIS WAS ONE OF THE FIRST ATTEMPTS TO OBTAIN INTERCHANGEABILITY AND SUBSTITUTION SERVICES PURSUANT TO FORMAL ADVERTISING PROCEDURES.

IN SUBSTANCE, IT APPEARS TO BE YOUR CONTENTION THAT SERVICES REQUIRED ARE PRACTICALLY IMPOSSIBLE TO SET FORTH IN THE DETAIL AND CLARITY REQUIRED UNDER FORMAL ADVERTISING PROCEDURES AND THAT SUCH SERVICES SHOULD BE OBTAINED UNDER NEGOTIATION PROCEDURES.

THE ADMINISTRATIVE OFFICIALS MAINTAIN THAT THE INVITATION, WORK STATEMENT, AND SPECIFICATIONS SET FORTH THE MINIMUM NEEDS OF THE GOVERNMENT IN SUFFICIENTLY DEFINITE TERMS THAT ALL BIDDERS WERE BIDDING ON A COMMON BASIS. IN VIEW OF THE DETAIL AND THE TECHNICAL NATURE OF THE WORK INVOLVED, WE ARE NOT ABLE TO CONCLUDE THAT THE ADMINISTRATIVE DETERMINATION IS CLEARLY ERRONEOUS. HOWEVER, IT IS OUR OPINION, BASED ON THE EVIDENCE SUBMITTED, THAT THE WORK STATEMENT AND SPECIFICATIONS ARE NOT AS COMPLETE OR FREE FROM AMBIGUITY AS COULD BE DESIRED.

SO FAR AS POPE IS CONCERNED, IT IS SIGNIFICANT THAT UPON THE ISSUANCE OF THE INVITATION, PROSPECTIVE BIDDERS WERE REQUESTED TO REVIEW THE WORK STATEMENT AND SPECIFICATIONS, AND TO SUBMIT ANY QUESTIONS OR RECOMMENDATIONS TO THE CONTRACTING OFFICER PRIOR TO THE SCHEDULED PRE-BID CONFERENCE. AT THE PRE-BID CONFERENCE, GOVERNMENT PERSONNEL REVIEWED THE INVITATION AND WORK STATEMENT REQUIREMENTS AND ANSWERED ALL QUESTIONS PRESENTED. POPE WAS REPRESENTED AT THE PRE-BID CONFERENCE BY TWO REPRESENTATIVES OF ARCS AND THEY DID NOT QUESTION OR REQUEST AN EXPLANATION OF THE REQUIREMENTS OF THE WORK STATEMENT. IT MAY WELL BE THAT ARCS (POPE) DID NOT DESIRE TO QUESTION THE STATED REQUIREMENTS AT THE TIME FOR BUSINESS REASONS, BUT HAVING FAILED TO DO SO THEY ARE NOT IN A GOOD POSITION TO PROTEST THE REQUIREMENTS LATER, AND AFTER SUBMITTING AN UNQUALIFIED BID IN RESPONSE THERETO.

THE M AND T COMPANY IS EXPERIENCED IN THE TYPE OF WORK INVOLVED. IT HAS ALSO STATED, BOTH BEFORE AND AFTER BID OPENING, THAT IT INTERPRETS THE INVITATION REQUIREMENTS IN ACCORDANCE WITH THE STATED NEEDS OF THE GOVERNMENT.

FOR THE FOREGOING REASONS WE DO NOT FIND SUFFICIENT BASIS FOR HOLDING THAT THE INVITATION WAS SO INDEFINITE AS TO RENDER IT LEGALLY DEFECTIVE OR TO QUESTION THE ADMINISTRATIVE ACTION TAKEN WITH RESPECT THERETO. ACCORDINGLY, YOUR PROTEST IS DENIED.