B-151440, JUNE 24, 1963, 42 COMP. GEN. 728

B-151440: Jun 24, 1963

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BIDDERS - QUALIFICATIONS - AS BID EVALUATION FACTOR A LOW BIDDER'S FAILURE TO SUBMIT A LIST OF EQUIPMENT WITH A BID FOR FURNISHING REFUSE COLLECTION AND DISPOSAL SERVICES IN RESPONSE TO AN INVITATION WHICH NOT ONLY PERMITTED DEVIATIONS FROM THE EQUIPMENT SPECIFICATION WHEN APPROVED BY THE CONTRACTING OFFICER BUT FURTHER SPECIFIED THAT THE BIDDER DID NOT HAVE TO ACTUALLY OWN THE EQUIPMENT AT THE TIME OF BID SUBMISSION IS A FAILURE TO SUBMIT DATA NECESSARY TO DETERMINE THE CAPABILITY OF THE BIDDER RATHER THAN THE RESPONSIVENESS OF THE BID. THE BID SHOULD NOT HAVE BEEN REJECTED WITHOUT FIRST AFFORDING THE BIDDER AN OPPORTUNITY TO FURNISH THE LIST AND. IF AFTER SUCH LIST IS FURNISHED THE BIDDER IS DETERMINED TO BE RESPONSIBLE.

B-151440, JUNE 24, 1963, 42 COMP. GEN. 728

BIDDERS - QUALIFICATIONS - AS BID EVALUATION FACTOR A LOW BIDDER'S FAILURE TO SUBMIT A LIST OF EQUIPMENT WITH A BID FOR FURNISHING REFUSE COLLECTION AND DISPOSAL SERVICES IN RESPONSE TO AN INVITATION WHICH NOT ONLY PERMITTED DEVIATIONS FROM THE EQUIPMENT SPECIFICATION WHEN APPROVED BY THE CONTRACTING OFFICER BUT FURTHER SPECIFIED THAT THE BIDDER DID NOT HAVE TO ACTUALLY OWN THE EQUIPMENT AT THE TIME OF BID SUBMISSION IS A FAILURE TO SUBMIT DATA NECESSARY TO DETERMINE THE CAPABILITY OF THE BIDDER RATHER THAN THE RESPONSIVENESS OF THE BID, AND, SINCE THE EQUIPMENT LIST REQUIREMENT COULD BE ACCOMPLISHED BY SUBMISSION AFTER BID OPENING, THE BID SHOULD NOT HAVE BEEN REJECTED WITHOUT FIRST AFFORDING THE BIDDER AN OPPORTUNITY TO FURNISH THE LIST AND, IF AFTER SUCH LIST IS FURNISHED THE BIDDER IS DETERMINED TO BE RESPONSIBLE, THE AWARD TO THE SECOND LOW BIDDER SHOULD BE CANCELED.

TO THE SECRETARY OF THE ARMY, JUNE 24, 1963:

WE HAVE A LETTER DATED MAY 24, 1963, FROM COLONEL ARTHUR H. WILLIAMS, JR., ASSISTANT DIRECTOR OF PROCUREMENT, OFFICE OF THE ASSISTANT SECRETARY, TRANSMITTING A REPORT AND RELATED DOCUMENTS ON THE PROTEST BY DELISA GARBAGE SERVICE AGAINST THE AWARD OF A CONTRACT TO DELORENZO WASTE CONTAINER SERVICE FOR TRASH REMOVAL AT FORT DIX, NEW JERSEY.

INVITATION FOR BIDS NO. AI-28-013-63-32 WAS ISSUED ON MARCH 7, 1963, TO A TOTAL OF 24 PROSPECTIVE BIDDERS. IT CALLED FOR FURNISHING ALL PLANT, LABOR, EQUIPMENT, SUPPLIES AND APPLIANCES AND PERFORMING OPERATIONS AND SERVICES NECESSARY TO FURNISH AN EFFICIENT REFUSE COLLECTION SERVICE THROUGHOUT FORT DIX FROM JULY 1, 1963, THROUGH JUNE 30, 1964.

TECHNICAL PROVISIONS 15 (TP-15) OF THE INVITATION PROVIDED, IN SUBSTANCE, THAT THE CONTRACTOR WOULD FURNISH ALL NECESSARY MECHANIZED CONTAINERS AND TRANSPORTING EQUIPMENT FOR ALL PICKUP POINTS DESIGNATED FOR MECHANIZED CONTAINER COLLECTION AND ALL TRANSPORTING EQUIPMENT REQUIRED TO REMOVE THE REFUSE FROM CONVENTIONAL CONTAINER PICKUP POINTS. TP-15 ALSO PROVIDED THAT THE CONTRACTOR WOULD FURNISH LOAD PACKERS ESPECIALLY DESIGNED FOR MECHANICAL HANDLING OF REFUSE CONTAINERS AND MECHANIZED CONTAINERS IN THE QUANTITY AND SIZE SPECIFIED IN PARAGRAPH TP-24B. TP-15 FURTHER STATED THAT DUMP TRUCKS OR OTHER FLAT BED VEHICLES COULD BE EMPLOYED FOR THE COLLECTION OF SALVABLE MATERIALS PROVIDING THAT THE SIDES AND ENDS OF THE BODY WERE BUILT UP AND THAT TARPAULINS WOULD BE USED TO COVER ALL LOADS. FINALLY, SUBPARAGRAPH D OF TP-15 CONTAINED THE FOLLOWING NOTICE:

THE ABOVE EQUIPMENT SPECIFICATIONS ARE FOR GUIDANCE PURPOSES. DEVIATIONS FROM THESE REQUIREMENTS WILL BE PERMITTED PROVIDED PROPOSED EQUIPMENT IS APPROVED BY THE CONTRACTING OFFICER BEFORE ANY WORK IS BEGUN OR ANY EQUIPMENT OR MATERIAL PURCHASED, CATALOGUE COSTS, DIAGRAMS OR PRINTS AS REQUIRED SHALL BE APPROVED BY THE CONTRACTING OFFICER.

TECHNICAL PROVISIONS 17 ENTITLED "EQUIPMENT LIST" PROVIDED AS FOLLOWS:

EACH BIDDER WILL SUBMIT WITH HIS BID THE NUMBER AND TYPE OF EQUIPMENT HE PROPOSES TO USE.

A. THE ABOVE REFERENCE LIST WILL INCLUDE THE FOLLOWING:

(1) NUMBER, SIZE AND DESCRIPTION OF MECHANIZED CONTAINERS TO BE USED FOR REFUSE COLLECTION.

(2) NUMBER, SIZE AND DESCRIPTION OF VEHICLES TO BE USED FOR REFUSE HAULING.

(3) NUMBER, SIZE AND DESCRIPTION AND VEHICLES TO BE USED FOR SALVABLE MATERIAL HAULING.

SUBPARAGRAPH B OF TP-24 SETS UP A COLLECTION SCHEDULE WHICH LISTS THE PICKUP FREQUENCY PER WEEK AT EACH PICKUP POINT FOR REFUSE COLLECTION SERVICE BY MECHANIZED CONTAINER COLLECTION. THIS SCHEDULE ALSO LISTS THE CUBIC YARD CONTAINER CAPACITY REQUIRED AT EACH PICKUP POINT.

SPECIAL PROVISION 3 ENTITLED "AWARDS" PROVIDES THAT:

AWARD OF CONTRACT WILL BE MADE TO THE RESPONSIBLE BIDDER WHOSE TOTAL BID IS THE LOWEST PROVIDING THE EQUIPMENT THE CONTRACTOR PROPOSES TO USE IS SATISFACTORY TO THE CONTRACTING OFFICER AND THE CONTRACTOR IS REGULARLY ENGAGED IN AND SPECIALIZES IN, REFUSE COLLECTION SERVICES OF THE CHARACTER REQUIRED BY THIS INVITATION FOR BIDS.

BIDS WERE OPENED ON APRIL 8, 1963. THE ONLY BIDS RECEIVED WERE THOSE OF DELISA GARBAGE SERVICE AND DELORENZO PAPER STOCK, INC., T/A DELORENZO WASTE CONTAINER SERVICE. THE BID SUBMITTED BY DELISA WAS THE LOWER OF THE TWO AT A UNIT PRICE PER CAPITA PER MONTH OF $0.275 AND AN ESTIMATED COST FOR FISCAL YEAR 1964 OF $95,700. DELORENZO SUBMITTED A UNIT PRICE PER CAPITA PER MONTH OF $0.32 AND AN ESTIMATED COST OF $111,360 FOR THE FISCAL YEAR. PAGE 3 OF THE INVITATION CONTAINED A BLANK SPACE IN WHICH BIDDERS WERE TO LIST THE EQUIPMENT ITEMS TO BE USED. THE LIST CALLED FOR INFORMATION ENTRIES ON NUMBER OF UNITS, TYPE, MAKE, AGE, CAPACITY AND CONDITION. IN THE SPACE PROVIDED DELISA ENTERED THE FOLLOWING INFORMATION:

CHART

NO. OF

UNITS TYPE MAKEAGE CAPACITY CONDITION

WE WILL FURNISH ALL EQUIPMENT CALLED FOR IN THE SPECIAL PROVISION. ALL

EQUIPMENT FURNISHED, INCLUDING MECHANIZED CONTAINERS IN TRANSPORTING

EQUIPMENT, WILL COMPLY WITH THE SPECIAL PROVISIONS AND BE IN GOOD

CONDITION.

ONE GARWOOD LOAD G.M.C. 1955 16 CU. YDS. GOOD

PACKER

ONE OPEN BODY G.M.C. 1955 14 CU. YDS. GOOD

TRUCK

DUE TO THE FAILURE OF DELISA TO PROVIDE A COMPLETE LISTING OF ALL EQUIPMENT TO BE USED, AN OPINION WAS REQUESTED FROM THE STAFF JUDGE ADVOCATE AS TO THE RESPONSIVENESS OF THE BID TO THE TERMS OF THE INVITATION. ON APRIL 10, THE STAFF JUDGE ADVOCATE PROVIDED AN OPINION IN WHICH IT WAS STATED THAT THE DELISA BID DID NOT COMPLY WITH TP-17 BY ITS FAILURE TO COMPLETELY LIST THE EQUIPMENT ITEMS TO BE USED AND FURTHER STATED THAT WHERE AN INVITATION REQUIRES SUBMISSIONS OF SUCH DATA ANY FAILURE TO COMPLY MUST BE CONSIDERED MATERIAL AND NOT AN INFORMALITY WHICH MAY BE WAIVED CITING 40 COMP. GEN. 132, 135.

SINCE DELORENZO SUPPLIED A COMPLETE LIST OF EQUIPMENT TO BE USED ON THE WORK, AND IT WAS DETERMINED THAT ITS BID WAS RESPONSIVE, CONTRACT NO. DA- 28-013-AI-3443 WAS AWARDED TO THAT FIRM ON APRIL 17, 1963.

BY LETTER OF APRIL 30, 1963, TO US, WHICH ENCLOSED A LETTER OF THE SAME DATE TO YOU, DELISA PROTESTED THE AWARD CONTENDING, AMONG OTHER THINGS, THAT THE SPECIFICATIONS WERE SO DEFINITE IN SPELLING OUT THE EQUIPMENT NEEDED TO BID THE CONTRACT, THAT BY BIDDING THE CONTRACT UNDER BOND, THEY DID DESCRIBE AND LIST THEIR EQUIPMENT AS REQUIRED. THE FILE BEFORE US INDICATES THAT THE PROBABLE REASON WHY DELISA DID NOT SUBMIT A COMPLETE LIST OF EQUIPMENT WAS A BELIEF THAT AN ADDENDUM (WHICH WOULD HAVE LIBERALIZED THE CUBIC YARD REQUIREMENTS OF THE MECHANIZED CONTAINERS) WAS TO BE ISSUED MOMENTARILY. HOWEVER, THE VIEW WE TAKE OF THIS CASE DOES NOT REQUIRE AN INQUIRY INTO THE REASONS WHY DELISA FAILED TO FURNISH A COMPLETE LIST OF EQUIPMENT NEEDED. MOREOVER, ALTHOUGH THE QUESTION AS TO WHETHER DELISA'S BID AS SUBMITTED WAS COMPLETELY IN CONFORMANCE WITH THE INVITATION REQUIREMENTS IS NOT FREE FROM DOUBT, IN VIEW OF THE COMPLETE LISTING OF THE CONTAINERS IN TP-24B OF THE INVITATION AND DELISA'S CONTENTIONS WITH RESPECT THERETO, WE NEED NOT, AND DO NOT, BASE OUR CONCLUSIONS IN THIS CASE ON THE ISSUE OF CONFIRMABILITY OR RESPONSIVENESS. WE THINK THAT THE QUESTION INVOLVED HERE IS NOT WHETHER DELISA'S BID WAS RESPONSIVE TO THE TERMS OF THE INVITATION BUT WHETHER DELISA IS A RESPONSIBLE BIDDER. WE THINK THERE IS NO QUESTION BUT THAT THE EQUIPMENT LISTING REQUIREMENTS OF TP-17 ARE FOR THE PURPOSE OF DETERMINING WHETHER A PROSPECTIVE BIDDER WILL HAVE THE CAPACITY AND ABILITY TO PERFORM THE WORK DESCRIBED. THE CONTRACT IS ONE FOR THE FURNISHING OF REFUSE COLLECTION AND DISPOSAL SERVICES AND NOT FOR THE FURNISHING OF EQUIPMENT, EXCEPT AS AN INCIDENT TO PERFORMING THE SERVICES. THE EQUIPMENT LIST SUBMISSION REQUIREMENT WAS CLEARLY DESIGNED TO ENABLE THE CONTRACTING OFFICER TO DETERMINE IN ADVANCE OF AWARD WHETHER THE FIRM AWARDED THE CONTRACT WOULD BE ABLE TO PERFORM RESPONSIBLY. THIS CONCLUSION IS STRENGTHENED BY THE REPORT OF THE CONTRACTING OFFICER'S REPRESENTATIVE WHICH STATES THAT COMPLIANCE WITH PARAGRAPH TP-17 WAS DEEMED SUBSTANTIAL AND MATERIAL TO "ENABLE PROPER EVALUATION OF THE BIDDER'S CAPABILITY TO PERFORM, AND TO MAKE AWARD IN ACCORDANCE WITH SP-3 OF THE INVITATION * * *"

MOREOVER, WE DO NOT THINK THAT THE HOLDING IN 40 COMP. GEN. 132, CITED AS CONTROLLING IN THE STAFF JUDGE ADVOCATE OPINION, IS APPLICABLE TO THE FACTS OF THE INSTANT CASE. IN 40 COMP. GEN. 132, BIDS WERE REQUESTED FOR THE CONSTRUCTION OF A CLOSED CIRCUIT TELEVISION SYSTEM AT NASA WALLOPS STATION, WALLOPS ISLAND, VIRGINIA. BIDDERS WERE REQUIRED BY THE TERMS OF THE INVITATION TO SUBMIT CERTAIN DATA TO BE USED FOR EVALUATION OF BIDS AND BIDDERS WERE CAUTIONED THAT THE REQUIREMENT FOR SUBMISSION OF THE DATA SHOULD BE STRICTLY COMPLIED WITH SINCE FAILURE TO DO SO ,MAY BE CAUSE FOR REJECTION OF THE BID.' DATA WAS REQUESTED AS TO: (1) OVERALL SYSTEM LAYOUT INCLUDING ALL TECHNICAL DATA TO SUPPORT THE PROPOSED DESIGN; (2) NAMES AND ADDRESSES OF ALL SUBCONTRACTORS; AND (3) A COMPLETE LIST OF EACH SYSTEM UNIT (AMPLIFIER, CAMERA, CAMERA CONTROL UNIT, ETC.) BY MANUFACTURER AND TYPE NUMBER TOGETHER WITH MANUFACTURER'S DESCRIPTIVE TECHNICAL LITERATURE, AND ANY OTHER TECHNICAL DATA NECESSARY TO ESTABLISH THAT THE UNIT WOULD SATISFY THE SPECIFIED UNIT AND/OR SYSTEM PERFORMANCE. THE PROTESTING BIDDER, WHOSE BID HAD BEEN REJECTED, PROPOSED TO EMPLOY IN ITS UNIT CERTAIN MICROWAVE EQUIPMENT WHICH, IT WAS CONCEDED, FAILED TO PROVIDE THE VIDEO FREQUENCY RESPONSES REQUIRED BY THE SPECIFICATIONS WITHOUT THE USE OF EQUALIZING AMPLIFIERS. HOWEVER, THE PROTESTING BIDDER FAILED TO LIST THE EQUALIZING AMPLIFIERS IN THE DESCRIPTIVE DATA SUBMITTED AND THE CONTRACTING OFFICER REJECTED THE BID AS NONRESPONSIVE. IN DENYING THE PROTEST, WE NOTED THAT THE INVITATION REQUIRED THE SUBMISSION OF TECHNICAL DATA NECESSARY TO ESTABLISH THAT THE UNIT WOULD PROVIDE THE REQUIRED PERFORMANCE. WHILE IT WAS CONCEDED THAT ALL MICROWAVE SYSTEMS REQUIRED SOME KIND OF EQUALIZING AMPLIFIERS, IT WAS NOTED THAT NOT ALL EQUALIZING AMPLIFIERS HAD THE SAME PERFORMANCE CAPABILITY AND DETAILED INFORMATION WITH RESPECT TO SUCH AMPLIFIERS WOULD BE REQUIRED IN ORDER TO DETERMINE WHETHER THE SPECIFICATIONS COULD BE SATISFIED BY THE PROPOSED UNIT. SHOULD BE POINTED OUT THAT THE DECISION EXPRESSLY DISTINGUISHED THE SITUATION WHERE THE REQUIRED DATA WAS NEEDED FOR THE PURPOSE OF DETERMINING A BIDDER'S RESPONSIBILITY. SPECIFICALLY, WE STATED AT PAGE 134 THAT:

YOU NEXT POINT OUT THAT THE DATA ARE REQUIRED TO BE SUBMITTED UNDER NOTE B FOR "EVALUATION" OF THE BID. YOU CONCLUDE FROM THIS PROVISION THAT THE DATA DO NOT FORM AN INTEGRAL PART OF THE BID BUT SHOULD BE REGARDED ONLY AS AIDS TO DETERMINE THAT THE SPECIFICATIONS WILL BE COMPLIED WITH. YOU STATE THAT THE SITUATION IS CONTROLLED BY OUR REASONING IN B-132399, AUGUST 28, 1957 (37 COMP. GEN. 143), WHICH YOU CONTEND SUPPORTS YOUR POSITION. IN THE CITED CASE THE DATA WERE BY THE SPECIFIC LANGUAGE OF THE INVITATION NOT A PART OF THE BID. WE HELD, THEREFORE, THAT SUCH DATA WERE REQUIRED FOR DETERMINATION OF THE BIDDER'S RESPONSIBILITY, RATHER THAN THE BID'S RESPONSIVENESS, AND THAT RESPONSIBILITY UNLIKE RESPONSIVENESS COULD BE BASED ON DATA SUBMITTED AFTER BID OPENING. IN THE WALLOPS ISLAND PROCUREMENT THE DATA ARE SPECIFICALLY REQUIRED FOR EVALUATION OF BIDS.

WE HAVE CONSISTENTLY HELD THAT WHERE THE REQUIREMENT FOR THE SUBMISSION OF DESCRIPTIVE LITERATURE OR DATA IS FOR THE PURPOSE OF DETERMINING THE CAPABILITY (RESPONSIBILITY) OF THE BIDDER RATHER THAN THE RESPONSIVENESS OF THE BID, THE FAILURE OF THE BIDDER TO SUBMIT SUCH DATA IS NOT FATAL TO CONSIDERATION OF THE NONCONFORMING BID AND THE DATA MAY BE PROVIDED SUBSEQUENT TO BID OPENING. 39 COMP. GEN. 247; ID. 881. THE RESULT IS THE SAME EVEN IN CASES WHERE BIDDERS ARE WARNED THAT FAILURE TO CONFORM TO DATA SUBMISSION REQUIREMENTS MAY RESULT IN REJECTION OF THEIR BIDS. COMP. GEN. 655. IN THIS CONNECTION, WE NOTE THAT THE PRESENT INVITATION DID NOT CONTAIN ANY NOTICE AS TO THE CONSEQUENCES OF A BIDDER'S FAILURE TO SUBMIT AN EQUIPMENT LIST OR OF THE SUBMISSION OF AN INCOMPLETE LIST.

IT WILL BE RECALLED THAT TP-15D STATES THAT THE EQUIPMENT SPECIFICATIONS WERE FOR "GUIDANCE PURPOSES" AND THAT DEVIATIONS FROM THE SPECIFICATION REQUIREMENTS WOULD BE PERMITTED IF THE CONTRACTOR'S PROPOSED EQUIPMENT WAS APPROVED BY THE CONTRACTING OFFICER "BEFORE ANY WORK WAS BEGUN OR ANY EQUIPMENT OR MATERIAL PURCHASED * * *.' THESE PROVISIONS, WHEN ADDED TO THE FACT THAT THERE WAS NO REQUIREMENT THAT BIDDERS ACTUALLY OWN THE NECESSARY EQUIPMENT AT THE TIME OF BID SUBMISSION, WOULD INDICATE THAT THE OBJECTIVE TO BE SERVED BY SUBMISSION OF THE EQUIPMENT LIST COULD JUST AS APPROPRIATELY BE ACCOMPLISHED BY SUBMISSION OF THE LIST AFTER BID OPENING AS BEFORE SUCH OPENING.

ON THE BASIS OF THE ABOVE ANALYSIS WE THINK THAT IT WAS IMPROPER TO REJECT DELISA'S BID WITHOUT FIRST AFFORDING THAT FIRM AN OPPORTUNITY TO FURNISH A COMPLETE LIST OF EQUIPMENT. THE REASON FOR THE OUTRIGHT REJECTION OF DELISA'S BID IS DIFFICULT TO UNDERSTAND IN VIEW OF THE POSITION OF THE CONTRACTING OFFICER'S REPRESENTATIVE WHO STATES IN HIS REPORT THAT "THE RESPONSIBILITY OF THE LOW BIDDER AND OF THE CONTRACTOR HAVE NOT BEEN DISCUSSED BECAUSE THE WRITER IS OF THE OPINION THAT EACH BY VIRTUE OF ITS PERFORMANCE AT THIS INSTALLATION, IS COMPLETELY RESPONSIBLE.' IF THIS STATEMENT IS ACCURATE, IT WOULD APPEAR THAT THERE IS NOT ONLY CONSIDERABLE CONFUSION AND UNCERTAINTY AS TO THE PURPOSE OF THE EQUIPMENT LIST SUBMISSION REQUIREMENT BUT, INDEED, EVEN AS TO THE NECESSITY FOR SUCH LIST. THEREFORE, IT IS OUR OPINION THAT THE PURCHASING ACTIVITY SHOULD MAKE A DEFINITIVE DETERMINATION AS TO THE RESPONSIBILITY OF DELISA AND, IF SUCH DETERMINATION IS IN THE AFFIRMATIVE, THE PRESENT CONTRACT WITH DELORENZO SHOULD BE CANCELED AND AWARD, IF OTHERWISE PROPER, MADE TO DELISA AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER AS REQUIRED BY THE LAW GOVERNING FORMAL ADVERTISED BIDDING.