B-151503, JUL. 1, 1963

B-151503, JUL. 1, 1963

TO CONSOLIDATED DIESEL ELECTRIC CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 10, 1963, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT BY THE ARMY CORPS OF ENGINEERS TO ANY BIDDER OTHER THAN YOUR CORPORATION PURSUANT TO INVITATION FOR BIDS NO. ENG-11-184-63-CF-383.

YOUR TELEGRAM STATED THAT THE TWO APPARENT LOW BIDDERS FAILED TO SUBMIT MATERIAL INFORMATION GOING TO THE SUBSTANCE OF THE BID, WHICH THE CONTRACTING OFFICER HAS NO AUTHORITY TO WAIVE AS A MERE INFORMALITY. EXPLANATION OF THIS ALLEGATION, WE NOTE FROM YOUR LETTER DATED MAY 15, 1963, ADDRESSED TO THE DEPARTMENT OF THE ARMY, WITH A COPY TO THIS OFFICE, THAT YOUR PRIMARY OBJECTION TO THE BID SUBMITTED BY THE LOW BIDDER IS THAT IT FAILED TO FURNISH IN AN ACCEPTABLE FORM SO-CALLED HIGH MORTALITY PARTS INFORMATION IN COMPLIANCE WITH PARAGRAPHS (B) AND (E) OF THE PROVISIONING PROCEDURE CLAUSE ON PAGE 7 OF THE INVITATION.

WE HAVE MADE A CAREFUL EXAMINATION OF THE RECORD NOW BEFORE THIS OFFICE, AND FOR THE PURPOSE OF ANALYZING THE SITUATION COMPLAINED OF WE MAKE THE FOLLOWING SUMMARY:

THE REFERRED-TO PARAGRAPH (B) ON PAGE 7 OF THE INVITATION READS AS FOLLOWS:

"THE BIDDER SHALL SUBMIT WITH HIS BID THREE COPIES OF THE HIGH MORTALITY PARTS LIST (HMPL) REFERRED TO IN PARAGRAPH 3.5 OF PP-CE-EE1B IN FORMAT AS MODIFIED BELOW. FAILURE TO SUBMIT THE HMPL COMPLETED AND PRICED WILL RENDER BID NON-RESPONSIVE. PARTS PRICES SUBMITTED BY BIDDERS PURSUANT TO THIS PARAGRAPH WILL NOT BE USED AS AN EVALUATION FACTOR FOR THE PURPOSE OF DETERMINING THE AWARD OF THE END ITEMS BEING PROCURED HEREUNDER.'

THE REFERENCE PARAGRAPH 3.5 OF PP-CE-EE1B PROVIDES:

"HIGH MORTALITY PARTS LIST-SUBMITTAL. WHEN THE INVITATIONS FOR BIDS (IFB) OR REQUESTS FOR PROPOSALS (RFP) AND CONTRACTS SPECIFY THAT A HIGH MORTALITY PARTS LIST IS REQUIRED, THE CONTRACTOR SHALL PREPARE AND SUBMIT A HIGH MORTALITY PARTS LIST (REFERENCE 4.1.2.) TO USAEMC, IN ACCORDANCE WITH 9.2 WITHIN 30 DAYS AFTER CONTRACT AWARD. WHEN SO REQUIRED, THE SUBMITTAL OF A HIGH MORTALITY PARTS LIST SHALL BE IN ADDITION TO THE SUBMITTAL OF PROVISIONING TECHNICAL DOCUMENTATION AS SET FORTH IN 3.6.'

PARAGRAPH (E) ON PAGE 7 OF THE INVITATION FURTHER PROVIDES:

"THE HMPL SHALL CONTAIN, AS A MINIMUM, ALL ITEMS LISTED IN THE DRAFT HIGH MORTALITY PARTS LIST INCLUDED HEREIN PLUS THE BIDDER'S RECOMMENDATIONS AS DESCRIBED IN PARAGRAPH 4.1.2 OF PP-CE-EE1B. FOR ITEMS ON THE DRAFT HMPL WHICH ARE NOT APPLICABLE TO THE EQUIPMENT THE BIDDER INTENDS TO FURNISH, THE BIDDER WILL SUBSTITUTE THEREFORE (SIC) THE LIKE FUNCTIONAL ITEM APPLICABLE TO SUCH EQUIPMENT.'

AND THE REFERENCED PARAGRAPH 4.1.2 IN THIS SECTION READS:

"HIGH MORTALITY PARTS LIST (HMPL). THE HMPL IS A PARTS LISTING IN TABULAR FORM (SEE FORMAT, FIGURES 1 AND 2), ENUMERATING THE ASSEMBLIES, COMPONENTS, REPAIR PARTS KITS AND REPAIR PARTS FOR ONE YEARS SUPPORT, AND MAINTENANCE TOOLS WHICH THE CONTRACTOR DEEMS NECESSARY TO SUPPORT ALL ITEMS OF EQUIPMENT BEING SUPPLIED UNDER THE CONTRACT. THE HMPL IS FURNISHED WITH THE SUPPORTING DOCUMENTATION PRESCRIBED IN 4.3.'

IT IS ADMINISTRATIVELY REPORTED, AND THE RECORD BEFORE US SUPPORTS THE FACT THAT THE LOW BIDDER, BRIELLE MARINE AND INDUSTRIAL EQUIPMENT CO., FURNISHED THE INFORMATION ON THE ENGINE ASSEMBLY WHICH WAS THE ONLY ITEM CONTAINED IN THE DRAFT HIGH MORTALITY PARTS LIST IN ACCORDANCE WITH THE PRESCRIBED FORMAT. IT MADE NO SUBSTITUTIONS IN THE DRAFT LISTINGS, AND COMPLETED AND PRICED THE ITEM AS SET FORTH THEREIN. IT WAS ADMINISTRATIVELY CONCLUDED, THEREFORE, THAT WITH RESPECT TO THIS PHASE OF THE MATTER THE BIDDER HAD COMPLIED WITH THE MINIMUM REQUIREMENTS SET FORTH IN PARAGRAPH (3), AND WAS CONSIDERED RESPONSIVE TO THE TERMS OF THAT CLAUSE AS WELL AS TO THE SPECIFICATION REQUIREMENTS AND ALL TERMS AND CONDITIONS OF THE INVITATION. BASED UPON OUR REVIEW OF THE RECORD, WE MUST CONCUR IN THIS CONCLUSION.

YOU ALSO CONTEND THAT THE DRAFT HIGH MORTALITY PARTS LIST WAS INTENDED AS A SAMPLE OF THE FORMAT RATHER THAN AS A COMPLETED DOCUMENT WHICH ELIMINATED THE NECESSITY FOR THE BIDDER'S RECOMMENDATIONS AS DEFINED IN PARAGRAPH 4.1.2 OF PP-CE-EE1B. OUR REVIEW OF THE CASE FAILS TO DISCLOSE ANY EVIDENCE IN SUPPORT OF THIS CONTENTION. THE DRAFT HIGH MORTALITY PARTS LIST DOES NOT ELIMINATE ANY OF THE REQUIREMENTS IN THE PP-CE-EE1B PROVISION, BUT IS, WE ARE INFORMED, THE GOVERNMENT'S CONCEPT OF THE REQUIREMENTS OF THAT PROVISION. IN THE "PROVISIONING PROCEDURE" CLAUSE ON PAGE 7 OF THE INVITATION, THE BIDDER IS GIVEN THE OPPORTUNITY TO TAKE ISSUE WITH THIS CONCEPT BY SUBSTITUTING LIKE FUNCTIONAL ITEMS IF IN HIS OPINION THE LISTED PART IS NOT APPLICABLE TO THE UNIT HE PROPOSES TO FURNISH AND TO MAKE RECOMMENDATIONS FOR ADDITIONAL PARTS IN THE EVENT HE FEELS THEY ARE NECESSARY. IT WOULD APPEAR, THEREFORE, THAT THE PROCEDURE SPECIFIED IN THE INVITATION IS AN ATTEMPT TO SPEED UP THE SUBMISSION OF THE INITIAL INFORMATION ON HIGH MORTALITY PARTS FOR THE GOVERNMENT'S BENEFIT; AND THE GENERAL PROCEDURES RELATING TO REVIEW AND APPROVAL OR REJECTION OF PARTS LISTS SPECIFIED IN PARAGRAPH 3.6.5 OF PP-CE-331B ARE NOT AFFECTED BY THE TERMS OF THE INVITATION. UNDER THIS PARAGRAPH, ANY REQUIREMENT THAT A LIST BE REVISED WOULD HAVE TO BE MADE AFTER AWARD; AND, SUCH BEING THE CASE, AN INCOMPLETE LIST SUCH AS WOULD RESULT FROM FAILURE TO COMPLETE THE FORM IN THE INVITATION WOULD NOT NECESSARILY RESULT IN ANY GREATER DELAY THAN A COMPLETED BUT UNACCEPTABLE LIST.

WITH RESPECT TO YOUR OBJECTION TO THE ABSENCE OF RECOMMENDATIONS AS DESCRIBED IN PARAGRAPH 4.1.2 OF PP-CE-EE1B, WE OBSERVE THAT BY LETTER DATED MAY 8, 1963, ADDRESSED TO YOUR CORPORATION BY THE ADMINISTRATIVE AGENCY, YOU WERE INFORMED THAT THE "ABSENCE OF RECOMMENDATIONS OVER AND ABOVE THE ITEMS CONTAINED IN THE DRAFT HIGH MORTALITY PARTS LIST ON PAGE 8 OF THE INVITATION WILL NOT, THEREFORE, RENDER THE BIDS IN QUESTION NON- RESPONSIVE AS THOSE BIDDERS OBVIOUSLY DO NOT DEEM ADDITIONAL SUPPORT ITEMS NECESSARY TO COMPLETE UNIT TO BE FURNISHED.'

AS POINTED OUT ABOVE, PARAGRAPH (E) OF THE PROVISIONING PROCEDURE APPEARING ON PAGE 7 OF THE INVITATION PROVIDED THAT THE HIGH MORTALITY PARTS LIST SHALL CONTAIN, AS A MINIMUM, ALL ITEMS LISTED IN THE DRAFT HIGH MORTALITY PARTS LIST INCLUDED THEREIN, PLUS THE BIDDERS' RECOMMENDATIONS AS DESCRIBED IN PARAGRAPH 4.1.2 OF PP-CE-EE1B. WE CANNOT READ THIS AS A REQUIREMENT THAT A RECOMMENDATION BE MADE CONCERNING ADDITIONAL PARTS UNLESS THE BIDDER CONSIDERED ADDITIONAL PARTS NECESSARY. AND, IN THIS CONNECTION, IT MAY BE STATED THAT THE LOW BIDDER EXPRESSLY ADVISED THE AGENCY THAT IT DID NOT FEEL ADDITIONAL SUPPORT ITEMS WERE NECESSARY. IS MANIFEST THAT THE ABSENCE OF RECOMMENDATIONS OVER AND ABOVE THE ITEM CONTAINED IN THE DRAFT HIGH MORTALITY PARTS LIST IS NOT CONSIDERED AN OMISSION, BUT AN INDICATION THAT THE BIDDER CONSIDERS SUCH LISTING AS BEING ADEQUATE. FURTHERMORE, PARAGRAPH 4.1.2 OF PP-CE-EE1B CLEARLY STATES THAT THE HIGH MORTALITY PARTS LIST IS A PARTS LISTING WHICH THE CONTRACTOR DEEMS NECESSARY TO SUPPORT ALL ITEMS OF EQUIPMENT BEING SUPPLIED UNDER THE CONTRACT; AND, AS INDICATED ABOVE, UNDER PARAGRAPH (E) ON PAGE 7 OF THE INVITATION, SUCH INFORMATION IS LEFT TO THE BIDDER'S JUDGMENT AS APPLICABLE TO THE ITEM HE PROPOSES TO FURNISH.

IN THE CIRCUMSTANCES, THEREFORE, WE MUST CONCLUDE THAT THE TERMS OF THE INVITATION WERE COMPLIED WITH AND, ACCORDINGLY, YOUR PROTEST MUST BE DENIED.