B-157454, NOV. 1, 1965, 45 COMP. GEN. 221

B-157454: Nov 1, 1965

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IS A BINDING CONTRACT OBLIGING THE CONTRACTOR TO FURNISH THE ITEM AS PART OF THE TOTAL BID PRICE. THE LOW BID EVIDENCING WITHOUT REFERENCE TO EXTRANEOUS AIDS OR EXPLANATION THAT A BID PRICE WAS NOT INTENDED TO BE APPLICABLE TO THE ITEM. SINCE YOU ARE THE ATTORNEYS OF RECORD. WE ARE ADDRESSING OUR DECISION TO YOU. THE INVITATION REQUESTED BIDS FROM ONLY THOSE FIRMS WHOSE TECHNICAL PROPOSALS WERE FINALLY ACCEPTED BY THE GOVERNMENT UNDER THE FIRST STEP OF THE PROCUREMENT ON CERTAIN COUNTERMEASURE GROUPS. BIDDERS WERE REQUESTED TO BID IN ACCORDANCE WITH EXHIBIT . THE INVITATION PROVIDED AS FOLLOWS: (A) ONLY ONE AWARD WILL BE MADE ON THE BASIS OF THIS INVITATION FOR BIDS COVERING ALL ITEMS DESCRIBED HEREIN.

B-157454, NOV. 1, 1965, 45 COMP. GEN. 221

BIDS - COMPETITIVE SYSTEM - TWO-STEP, ETC., PROCUREMENT - WAIVER OF BID DEVIATION A CONTRACT AWARDED UNDER AN INVITATION FOR BIDS AS THE SECOND STEP OF A TWO-STEP PROCUREMENT, A STEP RESTRICTED TO PRICE COMPETITION, THE TECHNICAL PROPOSALS HAVING BEEN ACCEPTED PURSUANT TO THE FIRST STEP OF THE PROCUREMENT, WHICH PROVIDED THAT THE OMISSION OF BID PRICES OR A SPECIFIC RESPONSE SUCH AS "NO CHARGE" OR "INCLUDED IN PRICE OF ITEMS" OPPOSITE EACH DATA ITEM MEANT THE ITEM WOULD BE FURNISHED AS PART OF THE CONTRACT CONSIDERATION, BUT THE LOW BIDDER ENTERED A "N/A" NOTATION IN THE PRICE COLUMN OF AN END ITEM, IS A BINDING CONTRACT OBLIGING THE CONTRACTOR TO FURNISH THE ITEM AS PART OF THE TOTAL BID PRICE, THE LOW BID EVIDENCING WITHOUT REFERENCE TO EXTRANEOUS AIDS OR EXPLANATION THAT A BID PRICE WAS NOT INTENDED TO BE APPLICABLE TO THE ITEM, AND, THEREFORE, THE IRREGULARITY OF THE "N/A" NOTATION, NEITHER AFFECTING PRICE, QUANTITY, OR QUALITY, NOR GIVING THE CONTRACTOR AN OPTION TO DETERMINE WHETHER OR NOT TO FURNISH THE DATA ITEM AS PART OF THE TOTAL BID PRICE, MAY BE WAIVED WITHOUT PREJUDICING THE COMPETITIVE RIGHTS OF OTHER BIDDERS.

TO SELLERS, CONNER AND CUNEO, NOVEMBER 1, 1965:

BY LETTER DATED AUGUST 12, 1965, AIRBORNE INSTRUMENTS LABORATORY, A DIVISION OF CUTLER-HAMMER, INC. (AIL), PROTESTED AGAINST THE AWARD OF A CONTRACT TO AIRCRAFT ARMAMENTS, INC. (AAI), UNDER INVITATION FOR BIDS NO. 65-920, ISSUED ON JULY 21, 1965, AS THE SECOND STEP OF A TWO STEP PROCUREMENT BY THE ROME AIR DEVELOPMENT CENTER, GRIFFISS AIR FORCE BASE, NEW YORK. SINCE YOU ARE THE ATTORNEYS OF RECORD, WE ARE ADDRESSING OUR DECISION TO YOU.

THE INVITATION REQUESTED BIDS FROM ONLY THOSE FIRMS WHOSE TECHNICAL PROPOSALS WERE FINALLY ACCEPTED BY THE GOVERNMENT UNDER THE FIRST STEP OF THE PROCUREMENT ON CERTAIN COUNTERMEASURE GROUPS, SPARE PARTS AND RELATED DATA. BIDDERS WERE REQUESTED TO BID IN ACCORDANCE WITH EXHIBIT ,A" CONTAINING A DESCRIPTION OF THE SUPPLIES AND SERVICES, DD FORM 1423 (CONTRACTOR DATA REQUIREMENT LIST), A MILITARY SPECIFICATION, AND THE BIDDER'S TECHNICAL PROPOSAL AS FINALLY ACCEPTED. THE INVITATION PROVIDED AS FOLLOWS:

(A) ONLY ONE AWARD WILL BE MADE ON THE BASIS OF THIS INVITATION FOR BIDS COVERING ALL ITEMS DESCRIBED HEREIN. AWARD WILL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE PROPOSAL IS MOST ADVANTAGEOUS TO THE GOVERNMENT PRICE AND OTHER FACTORS CONSIDERED.

(B) THIS INVITATION FOR BIDS IS ISSUED PURSUANT TO TWO-STEP FORMAL ADVERTISING IN PART 5 OF SECTION II OF THE ARMED SERVICES PROCUREMENT REGULATIONS.

BIDS WILL BE ACCEPTED AND CONSIDERED ONLY FROM THOSE FIRMS WHO HAVE SUBMITTED ACCEPTABLE TECHNICAL PROPOSALS PURSUANT TO THE FIRST STEP OF SUCH PROCEDURES, AS INITIATED BY PURCHASE REQUEST NO. 65-920. ANY BIDDER WHO HAS SUBMITTED MULTIPLE TECHNICAL PROPOSALS IN THE FIRST STEP OF THIS TWO-STEP PROCUREMENT MAY SUBMIT A SEPARATE BID COVERING EACH TECHNICAL PROPOSAL WHICH HAS BEEN DETERMINED ACCEPTABLE BY THE GOVERNMENT. (MAR. 1963)

BID ITEM PRICING

BIDDERS ARE REQUIRED TO ENTER BID PRICES OPPOSITE EACH ITEM AND SUB ITEM. THE SUM OF THE BID PRICES FOR THESE ITEMS WILL BE THE PRICE TO BE CONSIDERED DETERMINING THE AWARD IN ACCORDANCE WITH PARAGRAPH NO. 8 (A) OF THE TERMS AND CONDITIONS OF THIS INVITATION.

DATA PRICING (JAN. 63):

A. BIDDERS ARE REQUESTED TO INSERT OPPOSITE THE DATA ITEMS THE PRICE OF SUCH DATA OR A SPECIFIC RESPONSE SUCH AS "NO CHARGE," "INCLUDED IN PRICE OF ITEMS --------.' IF A BIDDER FAILS TO PRICE OR ENTER SPECIFIC RESPONSE TO A DATA ITEM REQUIRED TO BE FURNISHED IT WILL BE CONSIDERED THAT THE DATA IS BEING FURNISHED AS PART OF THE CONTRACT CONSIDERATION.

UPON THE OPENING OF BIDS ON AUGUST 9, 1965, IT APPEARED THAT AAISUBMITTED THE LOWEST AGGREGATE BID, FOLLOWED BY THE BIDS SUBMITTED BY AIL, SYLVANIA ELECTRONICS SYSTEM AND ITT GILFILLEN, INC. HOWEVER, AIL PROTESTED AGAINST ANY AWARD TO AAI ON THE BASIS THAT IT HAD PLACED A NOTATION "N/A" IN THE AMOUNT (PRICE) COLUMN OF ITEM 2.27 COVERING THE FURNISHING OF CERTAIN DATA RELATED TO THE END ITEM OF THE PROCUREMENT. AIL CONTENDS THAT THE INSERTION OF SUCH NOTATION RENDERED THE LOW BID OF AAI NONRESPONSIVE TO THE REQUIREMENTS OF THE ABOVE QUOTED INVITATION PROVISIONS. IN SUPPORT THEREOF, AIL REFERS TO OUR DECISIONS B-150191 DATED MARCH 8, 1963, AND 42 COMP. GEN. 502.

THE RESPONSIVENESS OF THE AAI BID IS TO BE DETERMINED FROM THE BID ITSELF WITHOUT REFERENCE TO EXTRANEOUS AIDS OR EXPLANATIONS REGARDING THE BIDDER'S INTENTIONS. THE NOTATION "N/A," MEANING ,NOT APPLICABLE," WOULD APPEAR TO BE REASONABLY SUSCEPTIBLE OF TWO MEANINGS IN THIS CASE--- EITHER THAT A BID PRICE IS NOT APPLICABLE TO THE ITEM, OR THAT THE BID DOES NOT INCLUDE THE ITEM. WITHIN THE CONTEXT OF THE BID OF AAI, WE THINK IT IS EVIDENCE THAT "N/A" CAN HAVE BUT ONE EANING; NAMELY, THAT A BID PRICE IS NOT APPLICABLE TO THE ITEM.

UNDER TWO-STEP ADVERTISING PROCEDURES, BIDDERS WHOSE FIRST-STEP TECHNICAL PROPOSALS ARE FINALLY ACCEPTED BY THE GOVERNMENT ARE SOLELY ELIGIBLE TO BID IN COMPLIANCE WITH THEIR OWN TECHNICAL PROPOSALS AND RELATED GOVERNMENT SPECIFICATIONS. IN EFFECT, WHEN A TECHNICAL PROPOSAL IS FINALLY ACCEPTED BY THE GOVERNMENT, THE ONLY ELEMENT OF COMPETITION REMAINING OPEN IS THE SEALED PRICING SOLICITATION. THUS, THE SECOND STEP OF THIS PROCEDURE, AS CONTEMPLATED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-501, IS RESTRICTED TO PRICE COMPETITION BETWEEN THE ELIGIBLE OFFERORS WHO HAVE OBLIGATED THEMSELVES TO PERFORM IN ACCORDANCE WITH THEIR OWN TECHNICAL PROPOSALS AND RELATED GOVERNMENT SPECIFICATIONS.

IN THIS REGARD, WE NOTE THAT AAI REFERRED TO THE DATA COVERED BY ITEM 2.27 IN ITS ACCEPTED TECHNICAL PROPOSAL AND ADVISED THAT THE DATA WOULD BE APPROPRIATELY PREPARED FOR DELIVERY TO THE GOVERNMENT WITHIN A PRESCRIBED DELIVERY SCHEDULE. ALSO, AN EXAMINATION OF AAI'S BID REVEALS THAT IT DELETED THE "N/A" NOTATIONS FROM THE AMOUNT COLUMNS OF DATA ITEMS 2.10 AND 2.29, THEREBY INCLUDING THE COST OF THOSE ITEMS IN ITS TOTAL BID. THESE FACTS, TOGETHER WITH THE FACT THAT AAI BID "NO CHARGE" FOR DATA ITEMS 2.7, 2.12 AND 2.14, REASONABLY EVIDENCE AN INTENTION ON THE PART OF AAI TO FURNISH ITEM 2.27 DATA AS PART OF ITS TOTAL BID PRICE. MOREOVER, WE VIEW THE "N/A" NOTATION IN THE AMOUNT COLUMN OF ITEM 2.27, EVEN IF DELIBERATELY INSERTED, AS REASONABLY MEANING THAT NO BID PRICE IS APPLICABLE TO THE ITEM AND, UNDER THE INVITATION PROVISIONS QUOTED ABOVE, SUCH DATA ITEM WOULD BE REQUIRED TO BE FURNISHED AS PART OF THE TOTAL BID CONSIDERATION. WE, THEREFORE, ARE OF THE OPINION THAT THE NOTATION "N/A" IN ITEM 2.27 CONSTITUTED A MINOR IRREGULARITY NOT AFFECTING PRICE, QUANTITY OR QUALITY WHICH THE CONTRACTING OFFICER MAY, IN HIS DISCRETION, EITHER WAIVE OR CORRECT WITHOUT PREJUDICING THE COMPETITIVE RIGHTS OF THE OTHER BIDDERS. SEE ASPR 2-405; 40 COMP. GEN. 321; 41 ID. 721.

WE HELD IN PERTINENT PART IN 40 COMP. GEN. 321 AT 324 THAT:

WHETHER CERTAIN PROVISIONS OF AN INVITATION FOR BIDS ARE TO BE CONSIDERED MANDATORY OR DISCRETIONARY DEPENDS UPON THE MATERIALITY OF SUCH PROVISIONS AND WHETHER THEY WERE INSERTED FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT OR FOR THE PROTECTION OF THE RIGHTS OF BIDDERS. UNDER AN ADVERTISED PROCUREMENT ALL QUALIFIED BIDDERS MUST BE GIVEN AN EQUAL OPPORTUNITY TO SUBMIT BIDS WHICH ARE BASED UPON THE SAME SPECIFICATIONS, AND TO HAVE SUCH BIDS EVALUATED ON THE SAME BASIS. TO THE EXTENT THAT WAIVER OF THE PROVISIONS OF AN INVITATION FOR BIDS MIGHT RESULT IN FAILURE OF ONE OR MORE BIDDERS TO ATTAIN THE EQUAL OPPORTUNITY TO COMPETE ON A COMMON BASIS WITH OTHER BIDDERS, SUCH PROVISION MUST BE CONSIDERED MANDATORY. HOWEVER, THE CONCEPT OF FORMALLY ADVERTISED PROCUREMENT, INSOFAR AS IT RELATES TO THE SUBMISSION AND EVALUATION OF BIDS, GOES NO FURTHER THAN TO GUARANTEE EQUAL OPPORTUNITY TO COMPETE AND EQUAL TREATMENT IN THE EVALUATION OF BIDS. IT DOES NOT CONFER UPON BIDDERS ANY RIGHT TO INSIST UPON THE ENFORCEMENT OF PROVISIONS IN AN INVITATION, THE WAIVER OF WHICH WOULD NOT RESULT IN AN UNFAIR COMPETITIVE ADVANTAGE TO OTHER BIDDERS BY PERMITTING A METHOD OF CONTRACT PERFORMANCE DIFFERENT FROM THAT CONTEMPLATED BY THE INVITATION OR BY PERMITTING THE BID PRICE TO BE EVALUATED UPON A BASIS NOT COMMON TO ALL BIDS. SUCH PROVISIONS MUST THEREFORE BE CONSTRUED TO BE SOLELY FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT AND THEIR ENFORCEMENT OR WAIVER CAN HAVE NO EFFECT UPON THE RIGHTS OF BIDDERS TO WHICH THE RULES AND PRINCIPLES APPLICABLE TO FORMAL ADVERTISING ARE DIRECTED. TO THIS END, THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY HELD THAT WHERE DEVIATIONS FROM, OR FAILURE TO COMPLY WITH, THE PROVISIONS OF AN INVITATION DO NOT AFFECT THE BID PRICE UPON WHICH A CONTRACT WOULD BE BASED OR THE QUANTITY OR QUALITY OF THE WORK REQUIRED OF THE BIDDER IN THE EVENT HE IS AWARDED A CONTRACT, A FAILURE TO ENFORCE SUCH PROVISION WILL NOT INFRINGE UPON THE RIGHTS OF OTHER BIDDERS AND THE FAILURE OF A BIDDER TO COMPLY WITH THE PROVISION MAY BE CONSIDERED AS A MINOR DEVIATION WHICH CAN BE WAIVED AND THE BID CONSIDERED RESPONSIVE.

SINCE THE PRIMARY QUESTION FOR CONSIDERATION HERE IS WHETHER AAI WOULD BE LEGALLY OBLIGATED TO FURNISH ITEM 2.27 DATA AS PART OF ITS BID PRICE, WE MUST ALSO CONSIDER THE POSSIBILITY WHETHER AAI WOULD HAVE AN OPTION, BECAUSE OF ITS USE OF THE NOTATION "N/A," TO EITHER FURNISH ITEM 2.27 AT ITS TOTAL BID PRICE OR TO INSIST THAT SUCH ITEM WAS NOT SO INCLUDED IN THE TOTAL BID PRICE. WE BELIEVE THAT AAI HAS NO SUCH OPTION. UNDER THE CIRCUMSTANCES OUTLINED ABOVE, IT IS OUR VIEW THAT THE ONLY INTELLIGENT MEANING TO BE GIVEN AAI'S TECHNICAL PROPOSAL AND COMPETITIVE PRICE PROPOSAL IS THAT NO BID PRICE IS APPLICABLE TO ITEM 2.27. IT WOULD NECESSARILY FOLLOW THAT "N/A" MUST BE CONSIDERED AS A FAILURE TO PRICE THE ITEM WITHIN THE PURVIEW OF THE DATA PRICING CLAUSE QUOTED ABOVE. TO FIND THAT AAI HAD A CONTRARY INTENTION WOULD NOT ONLY BE INCONSISTENT WITH ITS BID PACKAGE, BUT ALSO WOULD COMPEL THE CONCLUSION THAT AFTER EXPENDING CONSIDERABLE TIME, MONEY AND EFFORT TO BECOME AN ELIGIBLE BIDDER UNDER THE SECOND STEP, AAI THEN DELIBERATELY INTENDED IN ITS BID TO DEVIATE FROM ITS ACCEPTED TECHNICAL PROPOSAL. SINCE IN OUR VIEW SUCH AN INTENTION IS NOT CLEARLY INDICATED, WE THINK THAT THAT CONCLUSION IS WHOLLY UNACCEPTABLE. WE, THEREFORE, ARE OF THE OPINION THAT IF A CONTRACT WERE TO BE AWARDED TO AAI AT ITS TOTAL BID PRICE, IT WOULD BE LEGALLY BOUND TO FURNISH ITEM 2.27 DATA AS PART OF THE CONSIDERATION. IN REACHING THIS CONCLUSION WE HAVE CONSIDERED THE OFFICE DECISIONS CITED BY AIL. BUT IN THOSE CASES THE BIDS SUBMITTED EVIDENCED A CLEAR INTENTION BY THE BIDDERS NOT TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THE INVITATION.

ACCORDINGLY, AND UPON REVIEW OF THE RECORD BEFORE US, WE FIND NO LEGAL BASIS TO QUESTION THE RESPONSIVENESS OF AAI'S BID. THEREFORE, YOUR PROTEST IS DENIED.