B-160224, JAN. 25, 1967

B-160224: Jan 25, 1967

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INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 10. AWARD WAS MADE TO FLUID DYNAMICS. WAS DENIED BY THE CONTRACTING OFFICER BY LETTER OF OCTOBER 20. A DETERMINATION OF THE QUALIFICATIONS OF A PROSPECTIVE CONTRACTOR IS PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY. NEITHER OF WHICH IS INDICATED HERE. BIDS UNDER THE ABOVE IFB WERE OPENED OCTOBER 7. - 20 DAYS WAS OFFERED. YOUR BID WAS IN THE AMOUNT OF $186.840. 511.60 WAS ACCEPTED BY THE GOVERNMENT. YOU HAVE PROTESTED THIS AWARD ON THE GROUND THAT THE ACCEPTED BID WAS NONRESPONSIVE SINCE IT CONSTITUTED AN ALTERNATE BID BASED ON THE AWARD OF THE ABOVE RFP. YOU POINT OUT THAT YOUR COMPANY IS CURRENTLY PRODUCING THE SAME TYPE OF VALVE AND THAT YOUR PRICES COULD BE SIMILARLY REDUCED IF THE AWARD COULD BE TIED IN WITH YOUR CURRENT PRODUCTION RUN.

B-160224, JAN. 25, 1967

TO HYDROMATICS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 10, 1966, AND TO YOUR LETTERS OF OCTOBER 17, 1966, ADDRESSED TO THIS OFFICE AND TO THE PORTSMOUTH NAVAL SHIPYARD, CONCERNING YOUR PROTESTS IN CONNECTION WITH REQUEST FOR PROPOSALS (RFP) NO. N00102-67-R-0035 AND INVITATION FOR BIDS (IFB) NO. N00102-67-B-0018, ISSUED BY THE NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE.

EACH OF THE ABOVE PROCUREMENTS COVERED THE PURCHASE OF BALL VALVES AND SUPPORTING REPAIR PARTS FOR BALLISTIC MISSILE SUBMARINES. AWARD WAS MADE TO FLUID DYNAMICS, INC., UNDER THE CITED RFP ON SEPTEMBER 26, 1966. YOUR PROTEST OF THIS AWARD, QUESTIONING THE RESPONSIBILITY OF FLUID DYNAMICS AS A PROSPECTIVE CONTRACTOR, WAS DENIED BY THE CONTRACTING OFFICER BY LETTER OF OCTOBER 20, 1966, WHEREIN HE ADVISED YOU OF HIS DETERMINATION THAT THE RECIPIENT OF THE AWARD MET ALL OF THE STANDARDS OF RESPONSIBILITY AS SET FORTH IN PARAGRAPH 1-903 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). A DETERMINATION OF THE QUALIFICATIONS OF A PROSPECTIVE CONTRACTOR IS PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY, AND IN THE ABSENCE OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE DETERMINATION, NEITHER OF WHICH IS INDICATED HERE, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE JUDGMENT OF THE CONTRACTING OFFICER. 38 COMP. GEN. 131; 37 ID. 798; ID. 430, 435.

BIDS UNDER THE ABOVE IFB WERE OPENED OCTOBER 7, 1966. FLUID DYNAMICS SUBMITTED A BID OF $192,280, BASED ON A 30 DAY ACCEPTANCE PERIOD, AND A BID OF $186,511.60, BASED ON A 10 DAY ACCEPTANCE PERIOD. A PROMPT PAYMENT DISCOUNT OF ONE-HALF OF ONE PERCENT--- 20 DAYS WAS OFFERED, RESULTING IN A NET BID ON THE LATTER BASIS OF $185,579.04. YOUR BID WAS IN THE AMOUNT OF $186.840. ON OCTOBER 10, 1966, THE BID OF FLUID DYNAMICS IN THE AMOUNT OF $186,511.60 WAS ACCEPTED BY THE GOVERNMENT.

YOU HAVE PROTESTED THIS AWARD ON THE GROUND THAT THE ACCEPTED BID WAS NONRESPONSIVE SINCE IT CONSTITUTED AN ALTERNATE BID BASED ON THE AWARD OF THE ABOVE RFP, AND STIPULATED A 10 DAY ACCEPTANCE PERIOD. YOU POINT OUT THAT YOUR COMPANY IS CURRENTLY PRODUCING THE SAME TYPE OF VALVE AND THAT YOUR PRICES COULD BE SIMILARLY REDUCED IF THE AWARD COULD BE TIED IN WITH YOUR CURRENT PRODUCTION RUN.

PAGE 1 OF THE BID FORM, STANDARD FORM 33, DEC. 1964 EDITION, PROVIDES THAT BIDS SHALL REMAIN OPEN FOR ACCEPTANCE FOR A PERIOD OF 60 CALENDAR DAYS FROM THE DATE OF OPENING UNLESS A DIFFERENT PERIOD IS SPECIFIED BY THE BIDDER. CLAUSE NO. 6 OF THE ADDITIONAL TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDES THAT "BIDS OFFERING LESS THAN 5 DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE SET FOR OPENING OF BIDS WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.' BIDS WERE THEREFORE RESPONSIVE ON THIS SCORE IF THEY SPECIFIED AN ACCEPTANCE PERIOD OF 5 DAYS OR MORE.

IN OUR DECISION OF APRIL 20, 1954, 33 COMP. GEN. 499, CONSIDERATION WAS GIVEN TO THE ACCEPTABILITY OF A BID WHICH OFFERED ONE ITEM MEETING THE SPECIFICATIONS AND ANOTHER WHICH DID NOT, THE DOUBT AS TO THE PROPRIETY OF ACCEPTING THE BID HAVING ARISEN BECAUSE OF A PROVISION IN THE INVITATION (STANDARD FORM 33 (NOV. 1949 EDITION) ( THAT "ALTERNATE BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED IN THE SCHEDULE.' IN THE CITED DECISION WE MADE THE FOLLOWING STATEMENT:

"AS COMMONLY UNDERSTOOD, THE PROHIBITION AGAINST "ALTERNATE" BIDS IN STANDARD FORM 33 FORBIDS CONSIDERATION OF BIDS WHICH OFFER SOMETHING OTHER THAN THAT WHICH IS CALLED FOR BY THE SPECIFICATIONS. IN THIS SENSE THE WORD "ALTERNATE" MEANS "ALTERNATIVE," THAT IS, OFFERING A CHOICE OF TWO OR MORE THINGS, ONE BEING THE THING ASKED FOR AND THE ALTERNATIVE BEING SOMETHING DIFFERENT. SO CONSIDERED, ANY BID WHICH OFFERS TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS IS NOT AN ALTERNATIVE THERETO.'

THAT THIS IS THE PROPER APPROACH TO THE QUESTION OF WHETHER AN ADDITIONAL BID SHOULD BE CONSIDERED AN ALTERNATE WHICH MAY NOT BE ACCEPTED, IS SUPPORTED BY THE LANGUAGE OF THE PRESENT INVITATION, AS SET FORTH IN PARAGRAPH 1 (D) OF STANDARD FORM 33-A, DECEMBER 1964 EDITION, TITLED ,BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS (SUPPLY CONTRACT).' THIS PARAGRAPH, WHICH APPARENTLY IS INTENDED TO COVER THE SAME GROUND AS THE ABOVE PROHIBITION AGAINST ALTERNATE BIDS IN THE NOVEMBER 1949 EDITION OF STANDARD FORM 33, PROVIDES THAT "BIDS WHICH OFFER SUPPLIES OR SERVICES OTHER THAN THOSE SPECIFIED WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION FOR BIDS.'

NO OBJECTION HAS BEEN RAISED THAT THE ITEMS BEING FURNISHED BY FLUID DYNAMICS ARE OTHER THAN AS SPECIFIED AND, AS INDICATED ABOVE, LIMITING THE ACCEPTANCE OF THE BID TO A PERIOD OF 10 DAYS DOES NOT, OF ITSELF, MAKE THE BID NONRESPONSIVE. THE ONLY QUESTION WOULD THEREFORE APPEAR TO BE WHETHER THERE IS ANY OTHER LEGAL OBJECTION TO OFFERING A LOWER BID PRICE BASED ON A SHORTER ACCEPTANCE PERIOD. WE CAN FIND NONE.

WITH REFERENCE TO YOUR CONTENTION THAT THE LOWER BID OF FLUID DYNAMICS WAS NONRESPONSIVE BECAUSE IT WAS BASED ON AN AWARD UNDER THE ABOVE RFP, THE BID WAS NOT CONDITIONED UPON ACCEPTANCE OF FLUID DYNAMICS' PRIOR PROPOSAL, SINCE AWARD UNDER THE RFP HAD ALREADY BEEN MADE WHEN THE SECOND BID WAS SUBMITTED. THAT PRODUCTION UNDER BOTH CONTRACTS COULD BE TIED TOGETHER IF THE SECOND AWARD WAS RECEIVED WITH SUFFICIENT PROMPTNESS WOULD THEREFORE APPEAR TO HAVE BEEN MERELY A FORTUITOUS CIRCUMSTANCE. YOU STATE THAT YOUR PRICES COULD HAVE BEEN SIMILARLY REDUCED, AND IF YOU HAD SUBMITTED A LOWER RESPONSIVE BID BASED ON A SHORTER ACCEPTANCE PERIOD, IT MUST BE ASSUMED IT WOULD HAVE RECEIVED CONSIDERATION. WHILE FLUID DYNAMICS RECOGNIZED THE ADVANTAGE THAT COULD ACCRUE FROM AN EARLY ACCEPTANCE, THERE WAS NO OBLIGATION ON THE GOVERNMENT TO CALL THIS TO THE ATTENTION OF BIDDERS WHO MIGHT ALREADY BE PRODUCING THE SAME ITEMS.

FOR THE REASONS STATED, WE MUST CONCLUDE THAT THE LOW BID OF FLUID DYNAMICS, BASED ON A TEN DAY ACCEPTANCE PERIOD, WAS FULLY RESPONSIVE TO THE TERMS OF THE INVITATION AND THAT ITS ACCEPTANCE CONSUMMATED A VALID CONTRACT. WE THEREFORE WOULD NOT BE JUSTIFIED IN DISTURBING THE AWARD AS MADE, AND YOUR PROTEST MUST BE DENIED.