B-159176, JUL. 14, 1966

B-159176: Jul 14, 1966

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TO LONG LIFE RUBBER PRODUCTS COMPANY: REFERENCE IS MADE TO YOUR LETTER OF MAY 11. IN PERTINENT PART AS FOLLOWS: "WE HAVE BASED OUR PROTEST ON THE FACT THAT ACE LITE STEP CO. SUBMITTED PRICES IN A MANNER WHICH WAS IN DIRECT VIOLATION TO THE INSTRUCTIONS. THE ITEM DESCRIPTION IS AS FOLLOWS: "MATTING. THE FOLLOWING TABLE IS A COMPARISON OF BOTH BIDS ON THE SEVERAL ITEMS IN QUESTION. ITS BID WAS STILL LOW IN THE AGGREGATE AS TO ALL ITEMS BID UPON. THE ESSENTIAL DETERMINATION TO BE MADE IN BID DEVIATION CASES IS WHETHER THE DEVIATION GOES TO THE SUBSTANCE OF THE BID SO AS TO AFFECT EITHER THE PRICE. YOUR BID WOULD HAVE BEEN THE LOWER OF THE TWO. IT IS REASONABLE TO ASSUME THAT IN OFFERING ONE PRICE FOR ALL COLORS.

B-159176, JUL. 14, 1966

TO LONG LIFE RUBBER PRODUCTS COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1966, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AWARD OF A CONTRACT FOR ITEMS NOS. 31-47 THROUGH 31-56 OF INVITATION FOR BIDS NO. FPNFH-Y-27303-A-1-14-66 TO ACE LITE STEP COMPANY, INC. THE LETTER STATES, IN PERTINENT PART AS FOLLOWS:

"WE HAVE BASED OUR PROTEST ON THE FACT THAT ACE LITE STEP CO. SUBMITTED PRICES IN A MANNER WHICH WAS IN DIRECT VIOLATION TO THE INSTRUCTIONS; THE INTENT; THE PURPOSE AND THE MEANING OF THE INVITATION FOR BID. THEIR DEVIATIONS FROM THE SPECIFIC INSTRUCTIONS OF THE BID INVITATION HAS RENDERED THEIR BID NONRESPONSIVE AND AS A NONRESPONSIVE BID, IT CANNOT BE CONSIDERED FOR AN ARD.'

THE ITEM DESCRIPTION IS AS FOLLOWS:

"MATTING; TYPE I; RUBBER, SPONGE BASE, SYNTHETIC OR RECLAIMED CORRUGATED RUBBER TOP, IN ACCORDANCE WITH PURCHASE DESCRIPTION ZZ-3 23B AS SET FORTH ON PAGES 56 AND 57 HEREOF. TO BE FURNISHED IN LENGTHS AS SPECIFIED IN THE PURCHASE ORDER. MUST BE MADE AVAILABLE, AT NO ADDITIONAL COST TO THE GOVERNMENT, IN AT LEAST BLACK AND THREE OTHER COLORS. * * *"

IN RESPONSE TO THE INVITATION, YOU SUBMITTED BIDS AT A LINEAR YARD PRICE FOR EACH WIDTH ON BLACK AND THREE OTHER COLORS OF MATTING. HOWEVER, WHILE ACE BID A LINEAR YARD PRICE FOR BLACK ONLY, IT TYPED A NOTATION ACROSS THE FACE OF THE BID FORM WHICH READ:"ADD 10 CENTS PER SQUARE FOOT FOR COLORS OTHER THAN BLACK.'

THE FOLLOWING TABLE IS A COMPARISON OF BOTH BIDS ON THE SEVERAL ITEMS IN QUESTION. IT CAN READILY BE SEEN THAT AFTER APPLYING THE 10 CENT DIFFERENTIAL SET FORTH IN THE ACE BID, ITS BID WAS STILL LOW IN THE AGGREGATE AS TO ALL ITEMS BID UPON.

CHART WIDTH LONG LIFE ACE LITE ACE LITE INCHES BID PRICE BID PRICE 10 CENTS PER ----- PER LIN. YD.PER LIN. YD. SQ. FT.

------------ ------------ COLORS OTHER

THAN BLACK

PLUS

18 $ 4.08 $ 3.60 ?45 EQUALS $ 4.05

24 5.40 4.80 .60 EQUALS 5.40

36 8.25 7.20 .90 EQUALS 8.10

48 10.98 9.60 1.20 EQUALS 10.80

72 16.50 14.40 1.80 EQUALS 16.20

AS STATED IN OUR DECISION CITED AT 30 COMP. GEN. 179, THE ESSENTIAL DETERMINATION TO BE MADE IN BID DEVIATION CASES IS WHETHER THE DEVIATION GOES TO THE SUBSTANCE OF THE BID SO AS TO AFFECT EITHER THE PRICE, QUANTITY, OR QUALITY OF THE ARTICLES OFFERED SO THAT WAIVER OF THE DEVIATION WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. SEE ALSO 38 COMP. GEN. 709. THIS OFFICE HAS CONSISTENTLY HELD THAT SUCH DEVIATIONS MAY BE WAIVED PROVIDED THEY DO NOT GO TO THE SUBSTANCE OF THE BID OR WORK AN INJUSTICE TO OTHER BIDDERS.

IN SUPPORT OF YOUR POSITION YOU CONTEND THAT HAD YOU SUBMITTED TWO SEPARATE BID PRICES FOR THE BLACK AND COLORED MATTING, AS DID ACE, YOUR BID WOULD HAVE BEEN THE LOWER OF THE TWO. HOWEVER, IT IS REASONABLE TO ASSUME THAT IN OFFERING ONE PRICE FOR ALL COLORS, YOU USED SOME SIMILAR METHOD OF AVERAGING THE COSTS OF THE BASIC BLACK MATTING WITH THE MORE EXPENSIVE COLORED MATTING. THE FACT THAT YOU FELT IT NECESSARY TO RAISE THE COMBINED PRICE TO COVER AN ANTICIPATED INCREASE IN THE PURCHASE OF COLORED MATTING WAS A DECISION SOLELY WITHIN YOUR SOUND BUSINESS DISCRETION, AND WE DO NOT FEEL THAT YOUR AFTER-THE-FACT ALLEGATION IS SUFFICIENT TO RAISE A PRESUMPTION OF PREJUDICE. NOTWITHSTANDING THE FACT THAT THE ACE BID AVOIDED THE RISK OF INCREASED COLOR PURCHASES, WHICH YOU ASSUMED, AND WAS THEREFORE CONTRARY TO THE BID ASKED FOR, WE CAN SEE NO PREJUDICE IN THIS CASE BECAUSE IT WAS STILL THE LOWEST BID RECEIVED. WHILE IT IS TRUE THAT THE GOVERNMENT STIPULATED A SINGLE PRICE FOR BOTH BLACK AND COLORED MATTING IT IS NO LESS TRUE THAT THE GOVERNMENT'S PRIMARY CONCERN ON THIS PHASE OF THE PROCUREMENT WAS TO OBTAIN THE BEST POSSIBLE PRICE.

ACCORDINGLY, UPON CONSIDERATION OF ALL THE FACTS AND CIRCUMSTANCES IN THIS CASE, WE BELIEVE THAT NO SUBSTANTIAL LEGAL BASES EXIST TO QUESTION THE AWARD MADE TO ACE LITE STEP COMPANY, INC.

PURSUANT TO YOUR REQUEST, WE HEREWITH RETURN AN INVOICE WHICH YOU SUBMITTED AS PART OF YOUR PROTEST.