B-159616, SEP. 15, 1966

B-159616: Sep 15, 1966

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CRAKE AND IRWIN: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JULY 1 AND AUGUST 2. TWO BIDS WERE RECEIVED AND OPENED ON JUNE 20. ON THE FACE SHEET OF ITS BID PULLARO INSERTED THE FOLLOWING STATEMENT: "THIS BID IS QUALIFIED AS FOLLOWS: "SECTION 6.0. "BACKFILL MATERIAL" DELETE "5 PERCENT" LINE 4 AND INSERT "10 PERCENT" " IT IS REPORTED THAT THE QUALIFICATION IN THE BID OF PULLARO WAS DETERMINED BY THE CONTRACTING OFFICER TO BE OF MINOR SUBSTANCE AND IMPORTANCE AND. AN AWARD WAS MADE TO PULLARO ON JUNE 24. A "NOTICE TO PROCEED" WAS ISSUED TO PULLARO AND IT REQUIRED THE COMPANY TO COMMENCE WORK NOT LATER THAN JULY 5. YOU PROTEST AGAINST THE AWARD MADE TO PULLARO ON THE BASIS THAT THE COMPANY WAS ALLOWED AFTER THE BIDS WERE OPENED TO WITHDRAW ITS QUALIFICATION AND THAT IT THEN WAS AWARDED THE CONTRACT AT A PRICE LOWER THAN THE BID OF DON POLLOCK.

B-159616, SEP. 15, 1966

TO HILLYER, CRAKE AND IRWIN:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JULY 1 AND AUGUST 2, 1966, PROTESTING, ON BEHALF OF DON POLLACK EXCAVATING INCORPORATED, AGAINST THE AWARD OF CONTRACT NO. OSW 14-01-0001-1129 TO THE PULLARO CONTRACTING CO., PURSUANT TO AN INVITATION ISSUED BY THE OFFICE OF SALINE WATER, DEPARTMENT OF THE INTERIOR, ON JUNE 3, 1966, SPECIFICATION NO. 1129.

THE INVITATION REQUESTED BIDS FOR FURNISHING ALL LABOR, MATERIALS, AND EQUIPMENT NECESSARY FOR THE PERFORMANCE OF SITE PREPARATION WORK AND PLACEMENT OF BACKFILL, AS SPECIFIED BY THE SPECIFICATIONS, FOR THE SAN DIEGO SALINE WATER TEST FACILITY, SAN DIEGO, CALIFORNIA. PARAGRAPH 6.0,"BACKFILL MATERIAL," OF THE SPECIFICATIONS, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"THE BACKFILL SHALL BE A GRANULAR MATERIAL, FREE OF ALL STONES LARGER THAN FOUR (4) INCHES IN SIZE AND SHALL BE REASONABLY UNIFORMLY GRADED THROUGHOUT THE PARTICLE SIZE RANGE. OF THAT PORTION OF THE MATERIAL PASSING THE NO. 4 SIEVE, NOT MORE THAN 5 PERCENT SHALL PASS THE NO. 200 SIEVE.'

TWO BIDS WERE RECEIVED AND OPENED ON JUNE 20, 1966. PULLARO SUBMITTED THE LOWEST BID IN THE AMOUNT OF $67,000 AND DON POLLOCK SUBMITTED THE ONLY OTHER BID IN THE AMOUNT OF $68,566. ON THE FACE SHEET OF ITS BID PULLARO INSERTED THE FOLLOWING STATEMENT:

"THIS BID IS QUALIFIED AS FOLLOWS:

"SECTION 6.0, PAGE 49 OF THE SPECIFICATION NO. 1129,"BACKFILL MATERIAL" DELETE "5 PERCENT" LINE 4 AND INSERT "10 PERCENT" "

IT IS REPORTED THAT THE QUALIFICATION IN THE BID OF PULLARO WAS DETERMINED BY THE CONTRACTING OFFICER TO BE OF MINOR SUBSTANCE AND IMPORTANCE AND, THEREFORE, AN AWARD WAS MADE TO PULLARO ON JUNE 24, 1966. A "NOTICE TO PROCEED" WAS ISSUED TO PULLARO AND IT REQUIRED THE COMPANY TO COMMENCE WORK NOT LATER THAN JULY 5, 1966, AND TO COMPLETE THE JOB WITHIN 30 CALENDAR DAYS THEREAFTER. THE RECORD INDICATES THAT AS OF AUGUST 11, 1966, 95 PERCENT OF THE WORK HAD BEEN COMPLETED BY PULLARO.

YOU PROTEST AGAINST THE AWARD MADE TO PULLARO ON THE BASIS THAT THE COMPANY WAS ALLOWED AFTER THE BIDS WERE OPENED TO WITHDRAW ITS QUALIFICATION AND THAT IT THEN WAS AWARDED THE CONTRACT AT A PRICE LOWER THAN THE BID OF DON POLLOCK. YOU STATE THAT THE QUALIFICATION REPRESENTED A MATERIAL DEVIATION FROM THE SPECIFICATIONS AND THAT THE CONTRACTING OFFICER HAD NO AUTHORITY UNDER THE APPLICABLE PROCUREMENT REGULATION TO WAIVE SUCH EXCEPTION TO THE SPECIFICATIONS. YOU REQUEST THAT THE CONTRACT AWARDED TO PULLARO BE CANCELED AND THAT AN AWARD BE MADE TO DON POLLOCK.

IN SUPPORT OF THE ACTION TAKEN BY THE CONTRACTING OFFICER IN WAIVING THE EXCEPTION TO THE SPECIFICATIONS TAKEN BY PULLARO, THE ADMINISTRATIVE OFFICE ADVISED AS FOLLOWS:

"THE FILL MATERIAL AVAILABLE IN THE AREA WAS HIGHER THAN 5 PERCENT AND RAN 8-10 PERCENT IN FINES. THE MATERIAL PASSING THE NO. 200 SIEVE CONSISTS OF SILT AND CLAY. THE SILT WILL NOT EXPAND AND CONTRACT AS WILL CLAY WHICH IS UNSATISFACTORY AS A BACKFILL MATERIAL. HOWEVER, THE CLAY CONTENT IS VERY SMALL AND IS WITHIN THE 5 PERCENT LIMIT WITH THE BALANCE OF THE 10 PERCENT FINES AS SILT. BACKFILL MATERIAL WITHIN SUCH PERCENTAGES WILL ENABLE COMPLIANCE WITH THE COMPACTION REQUIREMENTS OF THE SPECIFICATION. ACCORDINGLY, THE PULLARO QUALIFICATION WAS DETERMINED TO BE OF MINOR SUBSTANCE AND IMPORTANCE.

"OUR SOILS ENGINEER, DAMES AND MOORE, HAVE TESTED THE SAMPLES OF MATERIAL AVAILABLE AND THEY STATE THAT 8-10 PERCENT SILT IS SUITABLE FOR THE PURPOSE INTENDED. * * * THIS MATTER WAS ALSO REVIEWED BY OUR ARCHITECT- ENGINEER CONTRACTOR, PIONEER SERVICE AND ENGINEERING COMPANY, WHO AGREED THAT UP TO 10 PERCENT SILT WAS SATISFACTORY FOR BACKFILL MATERIAL. SHOULD BE NOTED THAT BOTH PULLARO AND POLLOCK WERE GOING TO FURNISH THE BACK FULL MATERIAL FROM THE SAME SOURCE. PULLARO MERELY INDICATED A TOP LIMIT TO THE "5 PERCENT" STATED IN THE SPECIFICATION, WHICH WAS ONLY INTENDED AS AN ESTIMATE. SINCE POLLOCK WAS ALSO AWARE OF THE FINE CONTENT IN THE AVAILABLE BACKFILL MATERIAL AND BID WITH SUCH KNOWLEDGE, HE COULD NOT HAVE BEEN PREJUDICED BY THE AWARD.

"ON JUNE 22, 1966, THE PULLARO CONTRACTING COMPANY SENT A WIRE * * * REQUESTING REMOVAL OF QUALIFICATION RAISED RELATIVE TO THE SOIL CONTENT AND DETERMINATION ENUMERATED ABOVE. NO ADMINISTRATIVE ACTION WAS TAKEN RELATIVE TO THE TELEGRAM.'

IT THUS APPEARS THAT THE QUALIFICATION OR DEVIATION WAS NOT REMOVED BY PULLARO OR THE PROCUREMENT AGENCY AFTER BID OPENING BUT THAT SUCH QUALIFICATION OR DEVIATION WAS TREATED AS MINOR AND THEREFORE WAIVED.

THE AUTHORITY OF THE PROCUREMENT AGENCY TO MAKE AN AWARD IN SITUATIONS SUCH AS HERE INVOLVED IS GOVERNED BY THE FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.301 (A); 1-2.404-2 (B) (5); AND 1 2.405 WHICH PROVIDE:

"1-2.301 RESPONSIVENESS OF BIDS.

(A) TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED.

"1-2.404-2 REJECTION OF INDIVIDUAL BIDS.

(B) ORDINARILY, A BID SHALL BE REJECTED WHERE THE BIDDER IMPOSES CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT SO AS TO GIVE HIM AN ADVANTAGE OVER OTHER BIDDERS. FOR EXAMPLE, BIDS SHALL BE REJECTED IN WHICH THE BIDDER:

"/5) LIMITS RIGHTS OF GOVERNMENT UNDER ANY CONTRACT CLAUSE. HOWEVER, A LOW BIDDER MAY BE REQUESTED TO DELETE OBJECTIONABLE CONDITIONS FROM HIS BID IF THESE CONDITIONS DO NOT GO TO THE SUBSTANCE, AS DISTINGUISHED FROM THE FORM OF THE BID. A CONDITION GOES TO THE SUBSTANCE OF A BID WHERE IT EFFECTS PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE ITEMS OFFERED.

"1-2.405 MINOR INFORMALITIES OR IRREGULARITIES IN BIDS.

A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM AND NOT OF SUBSTANCE OR PERTAINS TO SOME IMMATERIAL OR INCONSEQUENTIAL DEFECT OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION FOR BIDS, THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. THE DEFECT OR VARIATION IN THE BID IS IMMATERIAL AND INCONSEQUENTIAL WHEN ITS SIGNIFICANCE AS TO PRICE, QUANTITY, QUALITY, OR DELIVERY IS TRIVIAL OR NEGLIGIBLE WHEN CONTRASTED WITH THE TOTAL COST OR SCOPE OF THE SUPPLIES OR SERVICES BEING PROCURED. THE CONTRACTING OFFICER SHALL EITHER GIVE THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID OR WAIVE SUCH DEFICIENCY, WHICHEVER IS TO THE ADVANTAGE OF THE GOVERNMENT. * * *"

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 PROCUREMENT SO THAT WAIVER OF THE DEVIATION WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. SEE ALSO 38 COMP. GEN. 708. 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. SEE, FOR EXAMPLE, B 157177 DATED SEPTEMBER 28, 1965.

THE ADMINISTRATIVE OFFICE HAS ADVISED OUR OFFICE THAT IT IS OF THE OPINION THAT THE DEVIATION IN THE BID OF PULLARO DOES NOT MATERIALLY AFFECT THE PRICE, QUANTITY, QUALITY, OR PERFORMANCE OF THE WORK COVERED BY THE PROJECT. ALSO, IT IS REPORTED THAT IN VIEW OF THE FINE CONTENT IN THE AVAILABLE BACKFILL MATERIAL, THE CONTRACTING OFFICER WOULD HAVE FOUND IT NECESSARY TO RELAX THE 5-PERCENT LIMITATION SPECIFIED IN PARAGRAPH 6.0 OF THE SPECIFICATIONS SINCE IN PERFORMING THE WORK NO BIDDER WOULD HAVE BEEN ABLE TO KEEP WITHIN THE SPECIFIED PERCENTAGE.

WITH DUE REGARD FOR THE PROCUREMENT AGENCY'S COMPETENCY IN DETERMINING THE TECHNICAL RESPONSIVENESS OF BIDS, WE DO NOT FEEL THAT THE PRESENT RECORD ADEQUATELY SUPPORTS THE ADMINISTRATIVE DETERMINATION THAT THE DEVIATION IN THE PULLARO BID WAS IN FACT MINOR IN RELATION TO THE ADVERTISED SPECIFICATIONS. HOWEVER, IN VIEW OF THE ADVANCED STATE OF CONTRACT PERFORMANCE BY PULLARO AND SINCE WE ARE NOT NOW IN A POSITION TO SUPERIMPOSE OUR JUDGMENT FOR THAT OF THE PROCUREMENT AGENCY, NO PRESENT BASIS EXISTS FOR DISTURBING THE AWARD MADE TO PULLARO. YOUR PROTEST IS THEREFORE DENIED.