B-152305, SEP. 11, 1963

B-152305, SEP. 11, 1963

TO MR. CHARLES E. HUMBERGER:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 15, 1963, REQUESTING THE DETERMINATION OF THIS OFFICE ON WHETHER THE BID OF THE A. AND H. CONSTRUCTION COMPANY SHOULD BE CONSIDERED NONRESPONSIVE TO THE INVITATION TO BID ON PROJECT NO. SWR 33-4 FOR THE SURFACING OF ROADS AND PARKING AREAS AT PAINTED DESERT COMMUNITY, PETRIFIED FOREST NATIONAL PARK, ARIZONA.

TWO BIDS WERE RECEIVED AND, AT THE OPENING ON JULY 18, 1963, IT WAS ASCERTAINED THAT B.L. GUSTAFSON OF PHOENIX, ARIZONA, HAD BID $78,172.36 AND A. AND H. CONSTRUCTION COMPANY, INCORPORATED, HAD BID $76,034.57 FOR SCHEDULES I, II AND III. THE BID OF A. AND H. CONSTRUCTION COMPANY WAS FOUND TO BE NONRESPONSIVE AND AWARD WAS MADE TO B.L. GUSTAFSON ON JULY 26, 1963. A NOTICE TO PROCEED WITH THE WORK HAS BEEN ISSUED. A. AND H. CONSTRUCTION COMPANY HAS PROTESTED THE AWARD TO THE CONTRACTING OFFICER.

SECTION I OF THE SPECIFICATIONS ENTITLED "SURFACING OF ROADS" STATES AT "1-02 MATERIAL URCES," PARAGRAPH (A), THAT A STOCKPILE OF PLANT MIX AGGREGATE IS AVAILABLE AT A LOCATION TWO MILES NORTH OF THE PROJECT. FURTHER STATES:

"THE STOCKPILED AGGREGATE IS CRUSHED TO MEET THE FOLLOWING SPECIFICATIONS: PASSING 3/4 INCH SIEVE, 100 PERCENT; PASSING NO. 4 SIEVE, 0 PERCENT TO 15 PERCENT; PASSING NO. 200 SIEVE, 0 PERCENT TO 4 PERCENT. IN ORDER FOR THIS AGGREGATE TO MEET THE REQUIREMENTS FOR THIS PROJECT, ADDITIONAL FINE AGGREGATE SHALL BE ADDED AND BLENDED. IT SHALL BE THE CONTRACTOR'S RESPONSIBILITY TO OBTAIN FROM HIS OWN SOURCE OUTSIDE THE PARK BOUNDARY ALL NECESSARY FINE AGGREGATE, BINDER, ETC. REQUIRED TO COMBINE WITH THE EXISTING STOCKPILED MATERIAL TO MEET THE REQUIREMENTS OF THE PLANT MIX SPECIFICATION AS DESCRIBED UNDER ARTICLE 1-06.'

ARTICLE 1-06,"PLANT MIX SURFACE," STATES, INTER ALIA, THAT:

"IT IS ESTIMATED THAT THE SUPPLY OF STOCKPILED COARSE AGGREGATE IS ADEQUATE TO COMPLETE THE OB; HOWEVER, IF THE SUPPLY IS NOT ADEQUATE, THE CONTRACTOR SHALL SUPPLY ALL ADDITIONAL MATERIAL AT HIS OWN EXPENSE.'

ARTICLE 1-02, PARAGRAPH (B), PROVIDES THAT:

"THE CONTRACTOR SHALL PROVIDE HIS OWN SOURCE OF BASE COURSE FROM OUTSIDE THE PARK BOUNDARY.'

SPECIFICATION R-B-1, ENTITLED "CRUSHED STONE BASE COURSE," REQUIRES THAT THE GRADIENT FOR THE BASE COURSE MATERIAL SHALL MEET THE FOLLOWING SCREEN ANALYSIS: PASSING A ONE-INCH SIEVE, 100 PERCENT; PASSING A NO. 4 SIEVE, 30 PERCENT TO 60 PERCENT; PASSING A NO. 200 SIEVE, 0 PERCENT TO 10 PERCENT.

THE BID OF A. AND H. CONSTRUCTION COMPANY, INCORPORATED, ATTACHED THE FOLLOWING QUALIFICATIONS TO THE SPECIFICATIONS:

"1. QUALIFY THIS BID SUBJECT TO USING WHITE L20A HOT PLANT 1500 LB. BATCH.

2. USING MATERIAL IN STOCKPILE FOR BOTH MINERAL AGGREGATE AND BASE COURSE BLENDED TO MEET SPECIFICATIONS, SUBJECT TO QUANTITY IN STOCKPILE.'

THE PROCUREMENT OFFICIALS DECLARED THE BID OF A. AND H. CONSTRUCTION COMPANY NONRESPONSIVE BECAUSE OF THE SECOND QUALIFICATION ON THE GROUNDS THAT THE STOCKPILE OF AGGREGATE WAS PREPARED FOR PLANT MIX SURFACING AND THAT ITS QUANTITY WOULD SUFFICE ONLY FOR THAT PURPOSE. "FURTHERMORE," YOUR REPORT STATES,"OPERATION OF THE PROJECT WOULD REQUIRE THAT MATERIALS FOR THE BASE COURSE WOULD HAVE TO BE OBTAINED AND PLACED PRIOR TO UNDERTAKING PREPARATION OF THE PLANT MIX.'

APPARENTLY PROTESTANT ESTIMATED THAT THE QUANTITY OF AGGREGATE IN THE STOCKPILE WOULD BE WHOLLY OR PARTIALLY SUFFICIENT FOR BOTH THE MINERAL AGGREGATE AND THE BASE COURSE. THIS EXPEDIENT ENABLED THE A. AND H. COMPANY TO SHAVE ONE THOUSAND DOLLARS FROM ITS PRICE. PROTESTANT CONTENDS THAT THE GOVERNMENT'S PRINCIPAL CONSIDERATION SHOULD BE THE ACCOMPLISHMENT OF THE WORK AT THE LOWEST POSSIBLE PRICE, THAT THE QUALIFICATION CONSTITUTES A MINOR INFORMALITY NOT GOING TO THE SUBSTANCE OF THE INVITATION WHICH MAY BE WAIVED, AND THAT IF THE QUALIFICATION HAD NOT BEEN PUT UPON THE BID, THE A. AND H. COMPANY'S BID WOULD STILL HAVE QUOTED THE LOWEST PRICE.

THE AWARD OF A PUBLIC CONTRACT UNDER THE SYSTEM OF FORMAL ADVERTISING MUST BE MADE "TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED * * *.' 41 U.S.C. 253. THIS STATUTORY REQUIREMENT IS SATISFIED ONLY WHEN ALL BIDDERS ARE ENABLED TO COMPETE FOR A CONTRACT ON AN EQUAL BASIS. WE HAVE SAID "THAT A CONTRACT AWARDED TO A SUCCESSFUL BIDDER MUST BE THE CONTRACT OFFERED TO ALL BIDDERS," AND THAT "WHERE ONE BIDDER CONDITIONS HIS OFFER WITH RIGHTS OR BENEFITS NOT EXTENDED TO ALL BIDDERS BY THE ADVERTISED CONDITIONS AND SPECIFICATIONS, IT IS CLEAR THAT A CONTRACT AWARDED UPON THE BASIS OF SUCH A BID WOULD NOT BE THE CONTRACT OFFERED TO ALL PROSPECTIVE CONTRACTORS.' 38 COMP. GEN. 508. ACCEPTANCE OF THE A. AND H. COMPANY BID COULD ONLY HAVE BEEN ACCOMPLISHED BY A WAIVER OF THE REQUIREMENT IN THE INVITATION SPECIFICATIONS THAT THE STOCKPILE BE USED ONLY FOR THE PLANT MIX AGGREGATE, AND SUCH WAIVER WOULD HAVE BEEN UNFAIR TO THE OTHER BIDDER WHO MIGHT HAVE BEEN ABLE TO REDUCE HIS PRICE HAD HE KNOWN OF THE RELAXATION OF THE REQUIREMENT. COMPARE 36 COMP. GEN. 251. A DEVIATION FROM THE SPECIFICATIONS WHICH AFFECTS THE PRICE OFFERED CANNOT BE DISMISSED AS A MINOR INFORMALITY. PRESTEX, INC. V. UNITED STATES, CT.CL. NO. 415-61, JULY 12, 1963.

THE BID OF THE A. AND H. COMPANY WAS PROPERLY DETERMINED TO BE NONRESPONSIVE AND THE AWARD TO B. L. GUSTAFSON SHOULD BE ALLOWED TO STAND.