B-151807, JULY 24, 1963, 43 COMP. GEN. 77

B-151807: Jul 24, 1963

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CONTRACTS - DURATION - OPTION TO EXTEND THE QUESTION OF WHETHER DATA AND INFORMATION REQUIRED TO BE SUBMITTED BY BIDDERS FOR GOVERNMENT CONTRACTS MEETS THE DATA FURNISHING REQUIREMENTS IN THE INVITATION IS A FACTUAL ONE PRIMARILY FOR DETERMINATION BY THE PROCURING AGENCY AND WHEN A GOOD-FAITH EXPLANATION IS GIVEN BY THE PROCURING AGENCY INDICATING THAT THE INFORMATION MEETS THE INVITATION REQUIREMENTS A CONTRARY CONCLUSION WILL NOT BE MADE. A REQUIREMENT IN AN INVITATION THAT THE BIDDER FURNISH WITH HIS BID A LIST OF EQUIPMENT TO BE USED IN PERFORMING THE CONTRACT WHICH INFORMATION DOES NOT LIMIT OR REDUCE HIS OBLIGATION TO PERFORM THE CONTRACT IS INFORMATION WHICH GOES TO THE RESPONSIBILITY OF THE BIDDER RATHER THAN TO THE RESPONSIVENESS OF THE BID AND.

B-151807, JULY 24, 1963, 43 COMP. GEN. 77

CONTRACTS - SPECIFICATIONS - DESCRIPTIVE DATA - ADMINISTRATIVE DETERMINATION. BIDDERS - QUALIFICATIONS - TIME FOR SUBMISSION OF EVIDENCE. BIDDERS - QUALIFICATIONS - TIME FOR SUBMISSION OF EVIDENCE. CONTRACTS - SPECIFICATIONS - CHANGES, REVISIONS, ETC. - ABSOLUTE, ETC., PROPRIETY. CONTRACTS - DURATION - OPTION TO EXTEND THE QUESTION OF WHETHER DATA AND INFORMATION REQUIRED TO BE SUBMITTED BY BIDDERS FOR GOVERNMENT CONTRACTS MEETS THE DATA FURNISHING REQUIREMENTS IN THE INVITATION IS A FACTUAL ONE PRIMARILY FOR DETERMINATION BY THE PROCURING AGENCY AND WHEN A GOOD-FAITH EXPLANATION IS GIVEN BY THE PROCURING AGENCY INDICATING THAT THE INFORMATION MEETS THE INVITATION REQUIREMENTS A CONTRARY CONCLUSION WILL NOT BE MADE. A REQUIREMENT IN AN INVITATION THAT THE BIDDER FURNISH WITH HIS BID A LIST OF EQUIPMENT TO BE USED IN PERFORMING THE CONTRACT WHICH INFORMATION DOES NOT LIMIT OR REDUCE HIS OBLIGATION TO PERFORM THE CONTRACT IS INFORMATION WHICH GOES TO THE RESPONSIBILITY OF THE BIDDER RATHER THAN TO THE RESPONSIVENESS OF THE BID AND, THEREFORE, SUCH INFORMATION MAY BE SUBMITTED AT ANY TIME BEFORE A DETERMINATION AS TO THAT FACTOR IS MADE, EVEN THOUGH THE INVITATION REQUIRES THAT THE EQUIPMENT DATA BE SUBMITTED WITH THE BID AND SPECIFIES THAT FAILURE TO COMPLY WILL RESULT IN REJECTION OF THE BID. THE RULE THAT DATA WHICH GOES TO THE RESPONSIBILITY OF THE BIDDER TO PERFORM RATHER THAN TO THE RESPONSIVENESS OF THE BID MAY BE SUBMITTED AT ANY TIME BEFORE A DETERMINATION OF RESPONSIBILITY IS MADE APPLIES WITH EVEN GREATER WEIGHT TO DATA TO BE FURNISHED BY THE LOWEST BIDDER AFTER OPENING SINCE ONLY IN UNUSUAL CIRCUMSTANCES, IF AT ALL, COULD SUCH DATA AFFECT THE RESPONSIVENESS OF THE BID. WHERE EVIDENCE INDICATES THAT THE LOW BIDDER SUBMITTED HIS BID ON THE BASIS OF A PARTICULAR SPECIFICATION DESIGNATED BY NUMBER IN THE INVITATION RATHER THAN ON A SPECIFICATION IDENTIFIED BY ANOTHER NUMBER WHICH HAD SUPERSEDED THE ONE IN THE INVITATION AND THAT THE CONTRACTING AGENCY HAD CONTINUED TO USE THE OLD SPECIFICATION UNDER CURRENT CONTRACTS, THE OLD SPECIFICATION IS CONSIDERED TO BE THE ONE ON WHICH BIDDERS WERE BIDDING AND ON WHICH THE CONTRACTING AGENCY WAS SOLICITING BIDS. UNDER A SERVICE CONTRACT CONTAINING AN OPTION PERMITTING AN EXTENTION FOR AN ADDITIONAL MONTH BEYOND THE SERVICE YEAR, AN AGREEMENT WITH THE CONTRACTOR, WHO IS THE PROTESTING SECOND LOW BIDDER UNDER A NEW INVITATION, TO CONTINUE TO FURNISH SERVICES ON A DAY-TO-DAY BASIS UNTIL THE PROTEST IS RESOLVED DOES NOT CONSTITUTE THE EXERCISE OF THE OPTION BUT IS MERELY A PROCEDURE AGREEABLE TO BOTH PARTIES TO FURNISH THE SERVICES PENDING A FINAL DETERMINATION OF THE PROTEST.

TO BURTON, HEFFELFINGER, MCCARTHY AND KENDRICK, JULY 24, 1963:

WE REFER TO YOUR LETTER OF JUNE 18, 1963, AND SUBSEQUENT CORRESPONDENCE PROTESTING ON BEHALF OF FUEL SERVICE OF ENTERPRISE, INC., AGAINST THE PROPOSED AWARD OF A CONTRACT TO THE LOW BIDDER UNDER INVITATION FOR BIDS NO. 01-044-63-42 ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, FORT RUCKER, ALABAMA, FOR REFUELING AND DEFUELING OF AIRCRAFT AT FORT RUCKER AND VICINITY FOR FISCAL YEAR 1964.

BIDS WERE OPENED ON MAY 29, 1963. THE LOW BID WAS FOUND TO BE THAT SUBMITTED BY THE PARKER OIL COMPANY AT $0.0088 PER GALLON OR A TOTAL ANNUAL PRICE, BASED ON THE ESTIMATED MONTHLY QUANTITY OF 1,800,000 GALLONS, OF $190,080. THE SECOND LOW BIDDER, FUEL SERVICE OF ENTERPRISE, INC., THE CURRENT CONTRACTOR, OFFERED TO PERFORM AT $0.0132 PER GALLON, FOR A TOTAL ANNUAL PRICE, BASED ON THE ESTIMATED QUANTITY, OF $285,120. THE CONTRACTING OFFICER HAS PROPOSED TO MAKE AWARD TO THE LOW BIDDER WHO, LIKE THE CURRENT CONTRACTOR, HAS SUCCESSFULLY PERFORMED THE SAME SERVICE IN PRIOR YEARS. AWARD HAS BEEN HELD UP PENDING RESOLUTION OF THE PROTEST BY OUR OFFICE. SERVICES ARE BEING PROVIDED IN THE INTERIM, BY MUTUAL AGREEMENT, ON A DAY-TO-DAY BASIS, BY THE INCUMBENT CONTRACTOR. THE CONTRACTOR'S CONTENTION THAT THE EXTENSION SHOULD HAVE BEEN FOR A FIXED PERIOD IS CONSIDERED LATER.

THE INVITATION AT SECTION II, PARAGRAPH A, REQUIRES THE SUBMISSION OF CERTAIN DATA WITH EACH BID, INCLUDING:

1. A LIST OF EQUIPMENT (REFUELERS, DEFUELERS AND OILERS) TO BE USED TO SATISFY TANK TRUCK CAPACITY REQUIREMENTS OF PARAGRAPH ENTITLED, "SERVICES.'

PARAGRAPH B OF THE SAME SECTION PROVIDES FOR THE SUBMISSION OF INFORMATION AFTER OPENING INCLUDING THE FOLLOWING:

DATA TO BE SUBMITTED AFTER BID OPENING:

1. WITHIN THREE (3) DAYS AFTER DATE OF BID OPENING, THE LOWEST BIDDER SHALL SUBMIT A STATEMENT OF HIS PLAN TO MAKE AVAILABLE THE EQUIPMENT TO BE USED UNDER THE CONTRACT. IF ANY OR ALL OF SUCH EQUIPMENT IS OWNED BY THE BIDDER, THE BIDDER SHALL SO STATE. IF ANY OR ALL OF SUCH EQUIPMENT IS TO BE PURCHASED, LEASED OR ACQUIRED BY OR THROUGH OTHER MEANS, THE BIDDER SHALL SO STATE AND SUPPORT SUCH STATEMENT WITH CERTIFIED TRUE COPIES OF THE APPLICABLE AGREEMENTS. IN ADDITION THERE SHALL ACCOMPANY THE AFOREMENTIONED PLAN, A LIST SHOWING (I) THE LOCATION OR PLACE OF MANUFACTURE OF THE EQUIPMENT AND (II) THE MODIFICATIONS THAT ARE NECESSARY TO ANY EXISTING EQUIPMENT TO MEET TECHNICAL REQUIREMENTS SET FORTH IN THE GENERAL DELIVERY PROVISIONS.

THE SECTION AT PARAGRAPH C ALSO STATES:

IMPORTANT NOTICE:

SUBMISSION OF THE REQUIRED DATA AS PRESCRIBED HEREIN IS OF UTMOST IMPORTANCE TO THE GOVERNMENT IN MAKING TIMELY EVALUATION OF BIDS. THUS, FAILURE TO MAKE TIMELY SUBMISSION OF ANY OF THE REQUIRED DATA MAY RESULT IN A DETERMINATION THAT A BID IS UNRESPONSIVE TO THE INVITATION FOR BIDS OR THAT THE BIDDER IS NOT A RESPONSIBLE SOURCE OF SUPPLY.

YOU CONTEND, FIRST, THAT THE LOW BID SHOULD BE REJECTED BECAUSE THE LIST OF EQUIPMENT SUBMITTED WITH THE BID AS REQUIRED BY SECTION II, PARAGRAPH A, IS NOT ADEQUATE TO MEET THE REQUIREMENTS IMPOSED BY THE SCHEDULE. THE LIST INCLUDED WITH THE LOW BID ENUMERATES 23 ITEMS OF EQUIPMENT IN POSSESSION OF THE BIDDER AND STATES FURTHER:

PARKER OIL COMPANY REALIZES THIS MAY NOT BE SUFFICIENT EQUIPMENT TO ENSURE A MAXIMUM THIRTY (30) MINUTE TURN-AROUND TIME. WE HAVE MADE THE NECESSARY ARRANGEMENTS FOR MORE EQUIPMENT IF NEEDED UPON AWARD OF THIS CONTRACT.

WITH RESPECT TO THE ADEQUACY OF THE LISTED ITEMS OF EQUIPMENT TO MEET THE SUSTAINED DELIVERY RATE FOR EACH KIND OF FUEL USED AS PROVIDED AT SECTION I, PARAGRAPH 1, OF THE INVITATION, YOU STATE:

THE CONTRACTOR, FUEL SERVICE OF ENTERPRISE, INC., HAS PREPARED AND IS WILLING TO EXHIBIT A SCALE MAP COVERING THE FORT RUCKER AREA PROPER, AS WELL AS SUBSIDIARY OUTLYING BASES, ALL OF WHICH ARE REQUIRED TO BE SERVICED UNDER THE CONTRACT IN QUESTION. IT IS THE CONTENTION OF THE CONTRACTOR THAT THE PRESENT NUMBER OF TRUCKS OWNED BY THE APPARENT LOW BIDDER WOULD BE WHOLLY INADEQUATE TO ACCOMPLISH THIS MISSION. AS WAS POINTED OUT IN EARLIER CORRESPONDENCE, UNDER THE INCREASED REQUIREMENTS OF THE CONTRACT OF 1962-63, THE CONTRACTING OFFICER STATED IN THE IFB T,"CONTRACTOR WILL NEED APPROXIMATELY 21 REFUELING TRUCKS * * *.' THIS CONTRACT, HOWEVER, WITH ITS INCREASED REQUIREMENTS, CALLED FOR THE PUMPING OF 700,000 GALLONS WHEREAS IN THE 1963-64 IFB, PUMPING OF 1,800,000 IS REQUIRED BUT THE IFB OMITS ANY REFERENCE TO THE NUMBER OF TRUCKS REQUIRED. HOWEVER, THE CONTRACTOR HAS COMPUTED WHAT WOULD SEEM TO BE REASONABLE AS TO THE NUMBER OF TRUCKS WHICH WOULD BE REQUIRED. THE COMPTROLLER GENERAL'S ATTENTION IS RESPECTFULLY REFERRED TO PAGE 7 OF THE IFB IN WHICH THERE ARE LISTED THE AIR FIELDS TO BE SERVICED, THE HOURS OF OPERATION, THE ESTIMATED FREQUENCY OF SERVICE AND THE GRADES OF FUEL TO BE PUMPED. KNOWING THE TYPES OF AIRCRAFT TO BE SERVICED AT THE VARIOUS FIELDS, THE CONTRACTOR IS AWARE THAT IN THE CASE OF CAIRNS, HANCHEY, LONGSTREET AND TAC I, TRICRESYL PHOSPHATE (TCP) IS ALSO USED. THE CONTRACTOR HAS COMPUTED THE MINIMUM NUMBER OF TRUCKS WHICH WOULD BE REQUIRED TO SIMULTANEOUSLY SERVICE ALL THE FIELDS AND THE AIRCRAFT INVOLVED. WHILE IT IS RECOGNIZED THAT IT POSSIBLY WOULD BE RARE THAT ALL AIRCRAFT AT ALL OF THE STATED NUMBER OF FIELDS WOULD REQUIRE SERVICING AT ANY ONE TIME, NONETHELESS THE CONTRACT REQUIRES THAT A CONTRACTOR BE PREPARED SO TO DO IF CALLED UPON. FROM THIS, THE CONTRACTOR HAS DETERMINED THAT A MINIMUM NUMBER OF 28 FUELING TRUCKS WOULD BE REQUIRED TO ACCOMPLISH THE MISSION AS SET FORTH IN THE IFB.

WITH RESPECT TO THE SAME MATTER, THE REPORT FURNISHED BY THE DEPARTMENT OF THE ARMY INCLUDES FINDINGS BY THE CONTRACTING OFFICER IN PART AS FOLLOWS:

(1) FUEL SERVICE'S LETTER OF 26 JUNE 1963, SUPPLEMENTING ITS ORIGINAL PROTEST ALLEGES THAT PARKER OIL IS NON-RESPONSIVE BY REASON OF HAVING MADE A CONDITIONAL BID PROHIBITED BY AMENDMENT 2. PARKER OIL SUBMITTED WITH ITS BID, DATA IN LETTER FORMAT ON EQUIPMENT AND PERSONNEL AVAILABLE. INCLUDED IN THIS LETTER AS PARAGRAPH 5, PAGE 1 WAS A STATEMENT "PARKER OIL COMPANY REALIZES THAT THIS MANY NOT BE SUFFICIENT EQUIPMENT TO INSURE A MAXIMUM THIRTY (30) MINUTE TURN AROUND TIME. WE HAVE MADE THE NECESSARY ARRANGEMENTS FOR MORE EQUIPMENT IF NEEDED UPON AWARD OF THIS CONTRACT.' IN THE SENSE OF THE IFB, AS AMENDED, THIS STATEMENT DOES NOT MAKE PARKER OIL'S BID CONDITIONED OR NONRESPONSIVE.

(2) THE IFB REQUIRES THE CONTRACTOR TO HAVE SUFFICIENT REFUELER EQUIPMENT CAPABLE OF MEETING A SPECIFIED DELIVERY RATE. PAST EXPERIENCE IN HANDLING THIS TYPE OF CONTRACT MIGHT WELL BE OF VALUE IN PREPARING A BID ON THIS TYPE OF PROCUREMENT ACTION. HOWEVER, EXPERIENCE DEVELOPED AT OTHER MILITARY INSTALLATIONS, ARMY, NAVY AND AIR FORCE WOULD NOT BE DIRECTLY COMPARABLE TO REQUIREMENTS AT FORT RUCKER BECAUSE OF DIFFERENCES IN MISSION, AIRCRAFT TYPES, ACCESSIBILITY, FUEL CAPACITY AND CONSUMPTION. THE IFB FURNISHES INFORMATION NECESSARY TO EVALUATE THE PROPOSED CONTRACT'S REQUIREMENTS IN TERMS OF APPROXIMATE NUMBERS AND TYPES OF AIRCRAFT; THEIR LOCATIONS; ESTIMATED HOURS AND TYPES OF FUEL REQUIRED AT EACH LOCATION; AND ADDITIONAL AIRFIELDS AT WHICH EMERGENCY AND NON SCHEDULED FUEL REQUIREMENTS MAY BE EXPRESSED. BOTH PARKER OIL COMPANY AND FUEL SERVICE, INCORPORATED, HAVE HAD SIMILAR CONTRACTS AT FORT RUCKER IN PREVIOUS YEARS, FUEL SERVICE, INC., FOR THE PAST YEAR, PARKER OIL COMPANY FOR THE THREE PREVIOUS FISCAL YEARS.

(3) THE IFB FOR THE PROPOSED FY 64 CONTRACT DID NOT SPECIFY NUMBERS OF VEHICLES AND EQUIPMENT TO BE FURNISHED AS WAS DONE IN PAST YEARS. IT DOES REQUIRE SUFFICIENT EQUIPMENT TO MEET REFUELER REQUIREMENTS, LEAVING QUANTITIES TO THE CONTRACTOR'S MANAGERIAL AND TECHNICAL COMPETENCE. COMPARISON OF REFUELING SERVICES REQUIRED AT FORT RUCKER TO GUIDES SET FORTH FOR AN ARMY AVIATION COMPANY IN THE DEPARTMENT OF THE ARMY FIELD MANUAL, 101-10, IS NOT VALID. FM 101-10 IS DESIGNED FOR LOGISTICS PLANNING IN A COMBAT THEATER OF OPERATIONS UNDER A SITUATION OF HIGHLY MOBILE AND WIDELY DISPERSED OPERATIONS, WHEREAS FORT RUCKER IS A PERMANENT INSTALLATION WITH A TRAINING MISSION OPERATING UNDER PEACETIME CONDITIONS. AT FORT RUCKER STORAGE TANKS ARE EASILY ACCESSIBLE PERMITTING SEVERAL TURN-AROUNDS OF EACH REFUELER TRUCK DURING A SINGLE DAY'S OPERATION. I CONSIDER THE NINETEEN (19) REFUELING VEHICLES, TOGETHER WITH THE CAPABILITY TO ACQUIRE MORE IF NEEDED AS PROPOSED BY PARKER OIL, SUFFICIENT TO SATISFACTORILY PERFORM THE REQUIREMENTS OF THIS CONTRACT.

5. NOT REQUIRED IN THE IFB BUT CERTAINLY TO BE CONSIDERED IN EVALUATING PERFORMANCE CAPABILITY AND FLEXIBILITY IS ADDITIONAL EQUIPMENT MOUNTED IN SEVERAL OF PARKER OIL COMPANY'S VEHICLES. THIRTEEN (13) OF HIS NINETEEN (19) REFUELER TRUCKS HAVE RADIOS MOUNTED IN THEM PERMITTING DISPATCH ON CALL BY RADIO RATHER THAN RETURN TO A CENTRAL CONTROL POINT FOR ROUTING AND RE-ROUTING. ADDITIONALLY, SIX OF PARKER OIL'S TRUCKS ARE EQUIPPED WITH BOOMS, FOUR WITH SINGLE BOOMS AND TWO WITH TWIN BOOMS, MAKING LOADING MORE EXPEDITIOUS THAN A MANUAL REEL-OUT AND REEL-IN HOSES PROCESS.

BASED ON THE FOREGOING, THE CONTRACTOR OFFICER HAS CONCLUDED THAT THE PARKER OIL COMPANY HAS SUFFICIENT EQUIPMENT AND THE ABILITY TO ACQUIRE MORE AS NECESSARY TO MEET THE CONTRACT REQUIREMENT.

IT HAS LONG BEEN RECOGNIZED THAT THE FACTUAL DETERMINATION AS TO WHETHER THAT WHICH IS OFFERED BY THE BIDDER CONFORMS TO THE SPECIFICATION IS TO BE DECIDED PRIMARILY BY THE CONTRACTING AGENCY. 17 COMP. GEN. 554, 557. WHILE THE RULE HAS REFERENCE TO THE END PRODUCT WE SEE NO REASON WHY IT IS NOT ALSO FOR APPLICATION WITH RESPECT TO DATA SUBMITTED PURSUANT TO THE TERMS OF THE INVITATION. THEREFORE, AND IN VIEW OF THE APPARENT BONA FIDES OF THE DEPARTMENT'S EXPLANATION WE WOULD NOT BE DISPOSED TO CONCLUDE THAT THE LIST OF EQUIPMENT FURNISHED BY THE LOW BIDDER DOES NOT MEET THE DATA FURNISHING REQUIREMENTS OF THE INVITATION.

HOWEVER, EVEN ASSUMING THAT THE EQUIPMENT LISTED IN FACT DID NOT MEET THE DATA FURNISHING REQUIREMENT OF THE INVITATION, WE DO NOT BELIEVE THAT IF AWARDED THE CONTRACT THE PARKER COMPANY'S OBLIGATION TO PERFORM THE SERVICES SCHEDULED WOULD THEREBY BE IN ANY WAY LIMITED OR REDUCED. THE INFORMATION TO BE FURNISHED GOES, THEREFORE, NOT TO THE MATTER OF RESPONSIVENESS, THE WORK TO BE PERFORMED, BUT TO RESPONSIBILITY, THE ABILITY TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS. INFORMATION CONCERNING RESPONSIBILITY MAY BE SUBMITTED AT ANY TIME BEFORE A DETERMINATION AS TO THAT FACTOR IS MADE EVEN WHERE, AS HERE, THE INVITATION REQUIRES THAT DATA WITH RESPECT THERETO MUST BE SUBMITTED WITH THE BID AND WARNS THAT FAILURE TO COMPLY MAY RESULT IN REJECTION. COMP. GEN. 655.

WHAT WE HAVE SAID ABOVE WITH RESPECT TO THE DATA REQUIRED TO BE FURNISHED WITH THE BID APPLIES A FORTIORI TO DATA REQUIRED TO BE FURNISHED BY THE LOWEST BIDDER WITHIN 3 DAYS AFTER BID OPENING SINCE ONLY IN THE MOST UNUSUAL CIRCUMSTANCES, IF AT ALL, COULD DATA WHICH IS FURNISHED AFTER BID OPENING AFFECT THE RESPONSIVENESS OF THE BID.

YOU ALSO QUESTION THE CAPABILITY OF THE LOW BIDDER TO PERFORM WITH RESPECT TO CERTAIN ADDITIONAL MATTERS AS FOLLOWS:

UNDER THE PERTINENT PROVISIONS OF THE TM 10-1107, LABORATORY TESTS ARE REQUIRED TO BE MADE OF THE FUEL TO BE PUMPED IN THOSE INSTANCES "WHEN A FILTER/SEPARATOR IS INITIALLY PLACED IN SERVICE AND EACH THREE MONTHS THEREAFTER.' 16A (3) THE CONTRACTING OFFICER IN THE PRESENT INSTANCE KNEW, OR SHOULD IN THE EXERCISE OF REASONABLE DILIGENCE HAVE KNOWN, THAT THE TRUCKS INTENDED TO BE USED IN THE PRESENT CONTRACT HAD NOT BEEN USED BY THE APPARENT LOW BIDDER FOR APPROXIMATELY ONE YEAR. HOWEVER, NO TEST WAS MADE NOR HAS ONE BEEN MADE BY A LABORATORY AS LATE AS SUNDAY, 30 JUNE 1963.

WITH RESPECT TO THE READINESS OF THE PARKER FIRM TO PERFORM UPON AWARD, THE CONTRACTING OFFICER IN HIS FINDINGS STATES:

A. ON 3 JUNE 1963, THE CONTRACTING OFFICER'S REPRESENTATIVE CONDUCTED A VISUAL INSPECTION OF THE VEHICLES PROPOSED FOR USE IN THIS CONTRACT, FINDING THAT THEY WERE AVAILABLE, AND IN STORAGE, (INCL NO. 1).

B. REGISTRATIONS OF VEHICLES AND DRIVERS FOR SAFETY PURPOSES WERE COMPLETED ON 18 JUNE 1963, (INCL NO. 2).

C. ON 20 JUNE 1963, INTERIOR COATING WAS COMPLETED ON PARKER OIL'S TRUCKS, A FULL TWO MONTHS IN ADVANCE OF THE REQUIRED DATE, (INCL NO. 3).

D. ON 28 JUNE 1963, TESTS WERE TAKEN ON THE EFFECTIVENESS OF FILTRATION, BY PUMPING AND SAMPLING FUEL FROM PARKER OIL'S EQUIPMENT. THE TEST RESULTS MET THE SPECIFICATIONS REFERENCED IN THE IFB (PAGE 11, SECTION III, PARA D1) (INCL NO. 4).

FINALLY--- AND THIS WE REGARD AS THE MOST SIGNIFICANT POINT OF THE PROTEST--- IT IS URGED THAT, WHILE THE LOW BIDDER BASED HIS BID ON THE USE OF FILTER/SEPARATORS CONFORMING TO SPECIFICATION MIL-F-8508 AND MODIFICATIONS IDENTIFIED BY THE SAME NUMBER WITH LETTER OR NUMBER SUFFIXES, THE PROTESTING BIDDER SUBMITTED HIS BID--- UPON A PROPER INTERPRETATION OF THE LANGUAGE OF THE INVITATION--- IN CONTEMPLATION OF SPECIFICATION MIL-F-8901 ISSUED FEBRUARY 14, 1961. THE LATTER SPECIFICATION, WHICH IMPOSES A MORE STRINGENT REQUIREMENT, BEARS ON ITS FACE LEGENDS TO THE EFFECT THAT IT SUPERSEDES MIL-F-8508, OCTOBER 23, 1956, AND THAT ITS USE IS MANDATORY ON THE DEPARTMENT OF THE ARMY. SPECIFICALLY, YOU STATE--- FINALLY, THE ATTENTION OF THE COMPTROLLER GENERAL IS RESPECTFULLY DIRECTED TO PAGE 9 OF THE IFB, PARAGRAPH 4, IN WHICH IT PROVIDES THAT FULL COMPLIANCE MUST BE MADE WITH TM 10-1101, TM 10 -1102 AND TM 10-1107, AND SEVERAL OTHERS, TOGETHER WITH ALL CHANGES TO THESE PUBLICATIONS. REFERENCE TO CHANGE 3 OF 10-1107 ON PAGE 9, SECTION 21 INDICATES THAT THE APPROPRIATE TECHNICAL MANUAL HAVING TO DO WITH FILTER/SEPARATORS IS MIL-F-8901. REFERENCE TO MIL-F 8901 SHOWS THAT IT SUPERSEDES MIL-F-8508,DATED OCTOBER, 1956, AND THE SUPERSEDING MILITARY SPECIFICATION IS UNDER DATE OF 14 FEBRUARY 1961. HOWEVER, THE IFB ON PAGE 11 STILL REFERS TO MIL-F-8508A, BUT DOES REFER TO THE REQUIREMENT FOR COMPLIANCE WITH, "LATEST REVISIONS THERETO.' THE CONTRACTOR, FUEL SERVICE OF ENTERPRISE, INC., KNOWS AS A MATTER OF FACT THAT THE APPARENT LOW BIDDER, PARKER OIL COMPANY, DID NOT, AT THE TIME OF THE OPENING OF THE BIDS ON 29 MAY 1963, COMPLY WITH THIS REQUIREMENT AND HAS NOT COMPLIED SINCE THAT TIME. FURTHERMORE, PARKER OIL COMPANY DID NOT, WITHIN THREE DAYS AFTER THE OPENING OF THE BIDS, MAKE ANY STATEMENT IN WRITING TO THE CONTRACTING OFFICER WHICH INCLUDED, AMONG OTHER THINGS, HIS PLAN SHOWING THE MODIFICATIONS THAT ARE NECESSARY TO ANY EXISTING EQUIPMENT TO MEET THE TECHNICAL REQUIREMENTS SET FORTH IN THE GENERAL DELIVERY PROVISIONS. FUEL SERVICE OF ENTERPRISE WAS AWARE OF THE MORE RECENT CHANGE IN THE TECHNICAL MANUALS AFFECTING FILTER/SEPARATORS AND REFLECTED THE COST OF MAKING SUCH CHANGES IN ITS BID WHEN IT SUBMITTED IT TO THE CONTRACTING OFFICER. ALSO PREPARED AND PLANNED TO SUBMIT TO THE CONTRACTING OFFICER, IF IT WERE FOUND TO BE THE LOW BIDDER, A LETTER AS REQUIRED BY THE IFB IN WHICH IT STATED ITS PLAN TO CORRECT THE FILTERS TO COMPLY WITH THE PROVISIONS OF TM 10-1107 CHANGE 3 AND MIL-F-8901. A COPY OF THE LETTER IS ENCLOSED.

THE INVITATION PROVIDES ON PAGE 11, SECTION III, PARAGRAPH D1, THAT ALL REFUELING VEHICLES SHALL BE EQUIPPED WITH FILTER/SEPARATORS CONFORMING TO SPECIFICATION MIL-F-8508A "AND LATEST REVISIONS THERETO.' THE ADMINISTRATIVE REPORT INDICATES THAT THE CONTRACTING OFFICER AND THE LOW BIDDER CONTEMPLATED THAT THE FILTER/SEPARATORS EMPLOYED BY THE CONTRACTOR WOULD CONFORM TO MIL-F-8508A. IN FACT, THE CONTRACTING AGENCY WAS ADVISED AS LATE AS JUNE 10, 1963, BY THE PETROLEUM LIAISON DIVISION, FORT WORTH ARMY DEPOT, THAT FILTER/SEPARATORS SHOULD BE TESTED ON THE BASIS OF THE CRITERIA CONTAINED IN THE OLDER SPECIFICATION. TESTS PERFORMED ON PARKER'S EQUIPMENT FOLLOWED THE CITED INSTRUCTION.

THE DIFFERENCE BETWEEN THE COST OF MEETING THE OLD SPECIFICATION AS COMPARED TO THE NEW IS SIGNIFICANT. IT HAS BEEN ESTIMATED THAT THE COST TO THE LOW BIDDER OF CONVERTING HIS EQUIPMENT FROM THE OLD SPECIFICATION TO THE NEW WOULD BE APPROXIMATELY $7,500 AND THE COST FOR MAKING THE SAME CONVERSION ON THE PROTESTING BIDDER'S EQUIPMENT USING HIS OWN SHOPS WOULD BE ABOUT $18,000.

EVIDENCE SUBMITTED ON BEHALF OF THE PROTESTING BIDDER IN THE LETTER QUOTED ABOVE AND SUBSEQUENTLY SUPPORTS HIS POSITION THAT HE WAS AWARE OF THE EXISTENCE OF THE NEW SPECIFICATION WELL BEFORE THE INVITATION IN QUESTION WAS ISSUED. THE PROTESTING BIDDER CONTENDS THAT HE SUBMITTED HIS BID IN CONTEMPLATION OF MEETING IT. IN THIS CONNECTION, HOWEVER, WE DEEM IT PERTINENT TO POINT OUT THE FOLLOWING STATEMENT IN A LETTER OF JUNE 20, 1963--- SOME THREE WEEKS AFTER BID OPENING--- FROM THE PROTESTING BIDDER TO THE CONTRACTING OFFICER.

IN ADDITION TO THIS, SECTION III D (1) OF IFB, AND SECTION 2 AND 3 OF TM 10-1101, SECTION 4 OF TB QM 11-1, SECTION II OF CIRCULAR 700-2, SECTION 4 OF THIRD ARMY MANUAL 3A-M-69, AND LATEST REVISIONS THERETO REQUIRES THAT ALL REFUELING TRUCKS BE EQUIPPED WITH FILTER/SEPARATOR, SPECIFICATION MIL- F-8508A, AND THAT FILTER ELEMENTS IN THESE FILTERS BE CHANGED AT LEAST ONCE EVERY 18 MONTHS.

ALSO, IT IS UNDERSTOOD THAT THE SERVICES PERFORMED FROM JULY 1, 1962, TO THE PRESENT TIME, UNDER CONTRACT WITH FUEL SERVICE, HAVE BEEN ON THE BASIS OF COMPLIANCE WITH MIL-F-8508A EVEN THOUGH MIL-F-8901 WAS ISSUED IN FEBRUARY 1961. UPON CAREFUL CONSIDERATION OF ALL OF THE EVIDENCE PRESENTED ON THIS POINT, WE BELIEVE THAT IT IS REASONABLE TO CONCLUDE THAT THE FUEL SERVICE BID WAS SUBMITTED WITH THE UNDERSTANDING THATMIL-F-8508 NOT MIL-F-8901 WOULD APPLY. IN VIEW OF THE FOREGOING, WE FURTHER CONCLUDE THAT ALL BIDDERS IN CONTENTION WERE BIDDING ON THE SAME BASIS, AND THAT THIS WAS ALSO THE BASIS UPON WHICH THE CONTRACTING AGENCY INTENDED TO SOLICIT BIDS.

EVEN IF IT IS ASSUMED THAT THE FUEL SERVICE BID WAS SUBMITTED ON THE BASIS THAT THE INVITATION AND RELATED DOCUMENTS REQUIRED CONFORMITY WITH MIL-F-8901, NO BASIS WOULD BE PRESENTED FOR QUESTIONING ACCEPTANCE OF THE LOW BID ADMITTEDLY SUBMITTED WITH THE UNDERSTANDING THAT CONFORMITY WITH THE EARLIER SPECIFICATION ONLY WAS REQUIRED UNLESS THE INVITATION COULD PROPERLY BE INTERPRETED TO REQUIRE MIL-F-8901. WE THINK THAT A SOUND ARGUMENT MAY BE MADE IN SUPPORT OF THE PROPOSITION THAT THE PHRASE "LATEST REVISIONS THERETO" IS LIMITED TO SUBSEQUENT ISSUANCES CARRYING THE SAME NUMERICAL IDENTIFICATION WITH THE ADDITION OF LETTER OR NUMBER SUFFIXES. UNDER THAT INTERPRETATION THERE WOULD BE NO BASIS FOR REGARDING A SUPERSEDING SPECIFICATION AS A ,REVISION.' HOWEVER, IN VIEW OF OUR CONCLUSION AS TO THE BASIS UPON WHICH THE FUEL SERVICE BID WAS SUBMITTED, WE DO NOT DEEM IT NECESSARY TO ATTEMPT TO DECIDE THIS ISSUE, SINCE EVEN CONCEDING THAT THE INVITATION DID NOT PROPERLY EXPRESS THE GOVERNMENT'S REQUIREMENTS, A VALID AWARD COULD RESULT SO LONG AS THE CONTENDING BIDDERS BID ON THE REAL REQUIREMENT. SEE B-147370, MARCH 28, 1962.

A QUESTION HAS ALSO BEEN RAISED AS TO WHETHER THE PROCURING AGENCY MAY SPECIFY THE USE OF MIL-F-8508 IN LIGHT OF THE LEGENDS APPEARING ON THE FACE OF THE NEW SPECIFICATION AND IN VIEW OF THE PROVISIONS OF SECTIONS 1- 105 AND 1-1202 OF ASPR. OUR INVESTIGATION DISCLOSES THAT THE WAIVER OF A NEW SPECIFICATION IN A GIVEN CIRCUMSTANCE IN FAVOR OF AN OLDER ONE BY A PROCEDURE SIMILAR TO THAT EMPLOYED HERE IS NOT UNUSUAL AND HAS GENERALLY BEEEN REGARDED AS VALID. IN ANY CASE, WE DO NOT BELIEVE THAT THE VALIDITY OF A PROCUREMENT MAY BE ATTACKED ON THE BASIS THAT THE WAIVER OF A SPECIFICATION--- AND CERTAINLY SUCH WAIVERS MAY BE AUTHORIZED--- DID NOT CONFORM TO THE PRESCRIBED ADMINISTRATIVE PROCEDURE. SEE B-150713, MARCH 26, 1963 (42 COMP. GEN. 523); B-131030, APRIL 29, 1957.

IN SUMMARY, WE CONCLUDE THAT THERE HAS BEEN PRESENTED NO SUFFICIENT BASIS TO JUSTIFY A DETERMINATION THAT THE LOW BID IS NOT RESPONSIVE TO THE TERMS OF THE INVITATION. FURTHER, IN CONSIDERATION OF THE APPARENT REASONABLENESS OF THE CONTRACTING OFFICER'S FINDINGS QUOTED IN PART ABOVE IN WHICH HE CONCLUDES THAT PARKER IS RESPONSIBLE AND IN VIEW OF THE PRIMARY ROLE OF THE CONTRACTING AGENCY IN SUCH DETERMINATION, WE FIND NO BASIS TO QUESTION THE FINDING OF RESPONSIBILITY. SEE 39 COMP. GEN. 468, 472.

FINALLY YOU POINT OUT THAT BY AGREEMENT OF THE PARTIES, FUEL SERVICE HAS BEEN PERFORMING ON A DAY-TO-DAY BASIS SINCE EXPIRATION OF THE PRIOR YEAR'S CONTRACT. YOU NOTE THAT THE CONTRACT FOR THE LAST YEAR CONTAINS A PROVISION UNDER WHICH THE CONTRACTOR GIVES THE GOVERNMENT AN OPTION TO EXTEND THE CONTRACT FOR AN ADDITIONAL MONTH. YOU CONTEND THAT IN REQUESTING FUEL SERVICE TO HOLD OVER, THE GOVERNMENT WAS IN EFFECT EXERCISING THE OPTION. IN ADDITION, YOU POINT OUT THAT ASPR 1 1503 (C) STATES THAT GENERALLY OPTIONS WILL PROVIDE FOR A DEFINITE ADDITIONAL PERIOD OF PERFORMANCE AND WILL NOT PERMIT THE GOVERNMENT TO CALL FOR LESS THAN SUCH ADDITIONAL PERIOD. YOU CONTEND ON THE BASIS OF THE FOREGOING THAT THE GOVERNMENT IS OBLIGATED TO AGREE TO EXTEND FOR A PERIOD OF NOT LESS THAN 1 MONTH.

THE CITED PROVISION OF THE CONTRACT PERMITS THE GOVERNMENT UNILATERALLY TO REQUIRE PERFORMANCE BY THE CONTRACTOR DURING THE OPTION. THE ASPR PROVISION ESTABLISHES A GENERAL RULE GOVERNING OPTION PROVISIONS IN CONTRACTS. WE THINK IT APPROPRIATE TO NOTE IN THIS INSTANCE THAT THE BILATERAL AGREEMENT UNDER WHICH THE CONTRACTOR HAS CARRIED OVER ON A DAY- TO-DAY BASIS DOES NOT IN ANY SENSE CONSTITUTE THE EXERCISE OF AN OPTION. RATHER, IT REPRESENTS A MODUS VIVENDI AGREEABLE TO BOTH PARTIES TO PERMIT A FINAL DETERMINATION OF YOUR PROTEST PRIOR TO AWARD. IN ADDITION TO THE INTEREST OF THE CONTRACTOR, THE INTERESTS OF THE LOW BIDDER AND OF THE GOVERNMENT ARE PROPERLY FOR CONSIDERATION ALSO. IF THE CONTRACT OPTION HAD BEEN EXERCISED, A FINDING IN FAVOR OF THE ACCEPTABILITY OF THE LOW BID AT ANY TIME SIGNIFICANTLY IN ADVANCE OF THE EXPIRATION OF THE OPTION PERIOD WOULD HAVE LEFT THE GOVERNMENT IN A POSITION OF PAYING A SIGNIFICANTLY HIGHER PRICE THAN WAS OBTAINABLE UNDER THE LOW BID (AND, INCIDENTALLY, UNDER THE SECOND LOW BID) WHEN THERE WAS NO BAR TO AWARD TO THE LOW BIDDER; AND THE PERIOD OF PERFORMANCE BY THE LOW BIDDER WOULD HAVE BEEN REDUCED TO SOMETHING SIGNIFICANTLY LESS THAN THAT CONTEMPLATED IN THE INVITATION ON THE BASIS OF WHICH HE PRESUMABLY CALCULATED THE PRICE OFFERED. THEREFORE, WE FIND NO REASON FOR TAKING EXCEPTION TO THE DAY-TO- DAY CONTINUATION OF SERVICE AGREED TO BY THE PROTEST.

IN ACCORDANCE WITH THE FOREGOING, WE CONCLUDE THAT AWARD MAY PROPERLY BE MADE TO THE LOW BIDDER.