B-155254, DEC. 8, 1964

B-155254, DEC. 8, 1964

TO STEPTOE AND JOHNSON, ATTORNEYS AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1964, PROTESTING AWARD OF A CONTRACT UNDER MARINE CORPS INVITATION FOR BIDS NO. 134-64, ON BEHALF OF THE STONE FILTER COMPANY, COLLEGE PARK,MARYLAND.

THE ABOVE INVITATION, ISSUED ON APRIL 21, 1964, INVITED BIDS ON 429 SKID MOUNTED FUEL MONITOR ASSEMBLIES ALONG WITH CERTAIN RELATED EQUIPMENT AND TECHNICAL DATA. STONE FILTER OFFERED TO SUPPLY THE REQUIRED ITEMS AT A TOTAL BID PRICE OF $188,004.12 AS CONTRASTED WITH THE BID FROM ALLAN U. BEVIER, INC., FOR $186,118.45. THERE WAS ATTACHED, HOWEVER, TO STONE'S BID AN ADDENDUM WHICH PROVIDED AS FOLLOWS:

TABLE

"REFERENCE: IFB NO. 134-64 FUEL MONITOR ASSEMBLY

DATED: 21 APRIL 1964

PURCHASE AUTHORIZATION: 33143

ADDENDUM:

STONE FILTER COMPANY, INC. DRAWING NO. 20147-MO,

DEPICTING THE SKID SPECIFIED IN THIS BID, IS ENCLOSED.

AS INDICATED ON THIS DRAWING, IT IS CONTEMPLATED THAT THIS

SKID BE CONSTRUCTED OF 3 INCH BY 3 INCH BY 1/4 INCH T ALUMINUM.

THIS SKID CAN BE CONSTRUCTED OF 3 INCH BY 3/8 INCH ALUMINUM

BAR WHICH WILL MEET THE PERFORMANCE SPECIFICATION, AND WHICH

WILL RESULT IN A COST SAVING OF $40.00 PER UNIT FOR A TOTAL

SAVING OVER 429 UNITS OF $17,160.00.

IT IS OUR RECOMMENDATION THAT THIS ALTERNATE CONSTRUCTION

BE CONSIDERED.'

IT IS YOUR POSITION THAT THE CONTRACTING OFFICER SHOULD HAVE CONSIDERED THE ABOVE OFFER TO SUPPLY 3 INCH BY 3/8 INCH ALUMINUM BAR SINCE THE PROPOSED ALTERNATE SKID MET PERFORMANCE SPECIFICATIONS.

EXAMINATION OF THE BID FORM DISCLOSES THAT THE INVITATION WAS DRAWN UTILIZING STANDARD FORM 30 (1957 EDITION) WHICH PROVIDES IN PARAGRAPH 1 (D) OF THE TERMS AND CONDITIONS THAT,"ALTERNATE BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION.' APPARENTLY, THE CONTRACTING OFFICER CONCLUDED THAT CONSIDERATION COULD NOT BE GIVEN TO THE OFFER WHICH APPEARED IN THE ADDENDUM IN VIEW OF THE EXPRESS PROHIBITION AGAINST "ALTERNATE BIDS.' FURTHER IT IS CONTENDED THAT EVEN IF THE CONTRACTING OFFICER SHOULD HAVE CONSIDERED THE OFFER TO PRODUCE SKIDS OUT OF 3 INCH BY 3/8 INCH ALUMINUM BAR, THAT THE OFFER WAS AMBIGUOUS IN THAT IT DID NOT CLEARLY STATE THAT THE BIDDER WAS REDUCING HIS BID BY THE AMOUNT OF THE ANTICIPATED SAVINGS. HAD AWARD BEEN MADE TO STONE FILTER IT COULD HAVE BEEN SUBSEQUENTLY ARGUED THAT STONE FILTER NEVER INTENDED TO PASS ALL, OR EVEN A PART, OF THE POSSIBLE COST SAVINGS OVER TO THE GOVERNMENT. CLARIFICATION WAS CONSIDERED INAPPROPRIATE AS IT WOULD HAVE PLACED THE BIDDER IN A POSITION TO ALTER HIS COMPETITIVE STANDING IN RELATION TO OTHER BIDDERS.

CONTRARY TO THE CONCLUSION REACHED BY THE CONTRACTING OFFICER, SUBMISSION OF AN ALTERNATE BID DOES NOT REQUIRE REJECTION IF THE BID BE OTHERWISE RESPONSIVE TO THE INVITATION. B-150459, MARCH 6, 1963. THE PROHIBITION AGAINST "ALTERNATE" BIDS ONLY FORBIDS CONSIDERATION OF THOSE BIDS WHICH OFFER SOMETHING OTHER THAN THAT WHICH IS CALLED FOR BY THE SPECIFICATIONS. THUS IF ONE OFFERS TO FURNISH ANY ONE OF SEVERAL ITEMS IN THE ALTERNATIVE AT DIFFERENT PRICES, THOSE PROPOSALS WHICH OFFERED MATERIAL MEETING SPECIFICATIONS WOULD BE RESPONSIVE, THE LOWEST OF WHICH COULD PROPERLY BE ACCEPTED. CONVERSELY, IF ONE OF THE PROPOSALS DID NOT MEET SPECIFICATIONS, THAT PROPOSAL WOULD BE AN "ALTERNATE" PROPOSAL AND NOT PROPER FOR CONSIDERATION. SEE 33 COMP. GEN. 499. IT SHOULD BE NOTED HOWEVER THAT MAKING AN "ALTERNATE" BID DOES NOT IPSO FACTO PRECLUDE CONSIDERATION OF THOSE OTHER PROPOSALS SUBMITTED IN THE SAME BID WHICH CONFORM TO THE SPECIFICATIONS.

WHILE WE RECOGNIZE THAT STONE MAY HAVE INTENDED TO REDUCE HIS BID BY AN AMOUNT EQUAL TO THE ANTICIPATED SAVINGS, WE THINK THAT THE LANGUAGE USED, AT THE VERY LEASE, MAY BE SAID TO HAVE CREATED AN AMBIGUITY. IN THE PAST WE HAVE STATED THAT WHERE EACH OF TWO POSSIBLE MEANINGS CAN BE REACHED FROM THE TERMS OF THE BID, THE BIDDER SHOULD NOT BE ALLOWED TO EXPLAIN WHAT HE INTENDED IF HE WOULD THEN BE IN A POSITION TO PREJUDICE OTHER BIDDERS. SEE B-152808, JANUARY 2, 1964. ALTHOUGH THERE MAY BE AN IMMEDIATE ADVANTAGE GAINED BY A LOWER PRICE IN THE PARTICULAR PROCUREMENT, OVERALL, SUCH ACTION WOULD SERVE TO UNDERMINE THE INTEGRITY OF THE BIDDING SYSTEM. SEE 40 COMP. GEN. 393, 397.

ON THE FRONT COVER PAGE OF HIS BID, THE SUCCESSFUL BIDDER REPRESENTED THAT HE IS A MANUFACTURER AS OPPOSED TO A REGULAR DEALER OF THE SUPPLIES AND THAT ALL SUPPLIES FURNISHED WILL BE MANUFACTURED OR PRODUCED BY SMALL BUSINESS. IN AN ANALOGOUS SITUATION, B-140904, DECEMBER 11, 1959, WE STATED:

"THE QUESTION AS TO WHAT CONSTITUTES THE "MANUFACTURE" OF AN ITEM IS BY NO MEANS EASY TO DETERMINE. IN EARLY TIMES THE WORD "MANUFACTURE" WAS GENERALLY RELATED TO THE PRODUCTION OF AN ARTICLE DIRECTLY FROM RAW MATERIALS BUT IT HAS NOW BEEN HELD THAT EVEN THE MERE ASSEMBLY OF PARTS PREVIOUSLY MANUFACTURED MAY BE REGARDED AS A MANUFACTURE OF THE COMPLETE ARTICLE. SEE 55 CORPUS JURIS SECUNDUM, PAGES 680, 685.'

THEREFORE, EVEN IF IT BE CONCEDED THAT THE CONTRACTOR MAY PURCHASE THE BASIC ASSEMBLY FROM OTHER THAN A SMALL BUSINESS CONCERN, WE BELIEVE HE COULD STILL BE CONSIDERED FOR AWARD. SEE B-148155, MAY 17, 1962; B 148260, MAY 8, 1962.

UNDER THE CIRCUMSTANCES HERE PRESENT, WE WOULD NOT BE WARRANTED IN CONCLUDING THAT THE AWARD WAS IMPROPER OR CONTRARY TO REGULATIONS. YOUR PROTEST IS THEREFORE DENIED.