B-161576, JUL 13, 1967

B-161576: Jul 13, 1967

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UNDER THE REQUIREMENT THE OMISSION WOULD NOT HAVE OBLIGATED THE BIDDER TO FURNISH THE DATA. ESQUIRE: THIS IS IN REFERENCE TO YOUR LETTER OF MAY 25. EACH OF THE DATA ITEMS WAS CROSS REFERENCED TO EXHIBIT A. THE FOLLOWING PROVISION WAS INSERTED AS FOLLOWS: "A SEPARATE PRICE FOR EACH DATA ITEM MUST BE SHOWN ABOVE IN ADDITION TO BLOCK 26 OF THE ATTACHED DD FORM 1423.". IT WAS NOTED THAT YOU HAD FAILED TO INCLUDE A SEPARATE UNIT PRICE FOR ITEMS 2 THROUGH 5. AS A RESULT YOU WERE DECLARED NONRESPONSIVE TO THE INVITATION. EVEN THOUGH YOU WERE OTHERWISE THE LOWEST BIDDER ON THE REQUIREMENT. 4 AND 5 WAS A MINOR INFORMALITY WHICH SHOULD HAVE BEEN WAIVED BY THE CONTRACTING OFFICER. IF IT WAS NOT IN FACT SO WAIVED BY THE ACT OF TAKING A PREAWARD SURVEY OF YOUR FACILITIES.

B-161576, JUL 13, 1967

PRECIS-UNAVAILABLE A LOW BIDDER WHO FAILED TO INSERT DATA PRICES FOR SEVERAL ITEMS AS REQUIRED BY THE ARMY INVITATION HAD HIS BID PROPERLY REJECTED AS NONRESPONSIVE. UNDER THE REQUIREMENT THE OMISSION WOULD NOT HAVE OBLIGATED THE BIDDER TO FURNISH THE DATA, THE OMISSION OF THE DATA PRICES MAY NOT BE TREATED AS A MINOR IRREGULARITY THAT CAN BE WAIVED, NOR MAY THE PREAWARD SURVEY CONDUCTED AT THE BIDDER'S PLANT BE REGARDED AS A WAIVER OF THE FAILURE TO SUBMIT DATA PRICES.

S. TEPFER AND SONS, INC., C/O EUGENE DREXLER, ESQUIRE:

THIS IS IN REFERENCE TO YOUR LETTER OF MAY 25, 1967, IN WHICH YOU PROTEST THE AWARD OF A CONTRACT MADE UNDER IFB DAAKO1-67-B-1306, ISSUED BY THE ARMY MOBILITY EQUIPMENT COMMAND, ST. LOUIS, MISSOURI, ON APRIL 7, 1967. THE IFB DETAILED A REQUIREMENT TO FURNISH 1,385 FLOODLIGHT SETS LISTED AS ITEM 1; 8 SUBLINE ITEMS OF COMPONENTS, LISTED AS ITEMS 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7 AND 1.8, PRICE TO BE INCLUDED IN THE PRICE OF ITEM 1; AND 4 LINE ITEMS OF DATA, LISTED ON PAGE 9 OF THE SCHEDULE AS ITEMS 2, 3, 4 AND 5. EACH OF THE DATA ITEMS WAS CROSS REFERENCED TO EXHIBIT A, AND TO DD FORM 1423 ATTACHED THERETO, AS FOLLOWS:

QUANTITY

ITEM (NUMBER OF UNIT NO. SUPPLIES OR SERVICES UNITS) UNIT PRICE AMOUNT

ADDITIONAL BIDDING INSTRUCTIONS, TERMS AND CONDITIONS OF THE INVITATION FOR BID (CONTINUED FROM REVERSE OF STANDARD FORM 33A)

2. PREPRODUCTION SAMPLE OR INITIAL PRODUCTION ITEM REPORT AS DESCRIBED IN ITEM 1 OF EXHIBIT (A) (DD FORM 1423) 1 LOT

3 COMMERCIAL LITERATURE, PUBLICATION CLAUSE "B" AS DESCRIBED IN ITEM 1 OF EXHIBIT (A) (DD FORM 1423) 1 LOT

QUANTITY

ITEM (NUMBER OF UNIT NO. SUPPLIES OR SERVICES UNITS) UNIT PRICE AMOUNT

4 WEIGHT AND DIMENSIONAL DATA BOXED OR CRATED-ITEMS AS DESCRIBED IN ITEM 1 OF EXHIBIT (A) (DD FORM 1423) 1 LOT

5 PRODUCTION PROGRESS REPORTING (DD FORM 375) AS DESCRIBED IN ITEM 1 OF EXHIBIT "A" (DD FORM 1423) 1 LOT

FOLLOWING THE LISTING OF ITEMS 2 THROUGH 5, THE FOLLOWING PROVISION WAS INSERTED AS FOLLOWS:

"A SEPARATE PRICE FOR EACH DATA ITEM MUST BE SHOWN ABOVE IN ADDITION TO BLOCK 26 OF THE ATTACHED DD FORM 1423."

DD FORM 1423, ENTITLED CONTRACT DATA REQUIREMENTS LIST, PROVIDED A COMPLETE SCHEDULE OF THE DATA REQUIRED IN ITEMS 2 THROUGH 5, INCLUDING DELIVERY DATES FOR THE DATE AND A BLANK (BLOCK 26) FOR THE LISTING OF THE ESTIMATED DATA PRICE FOR THE ITEMS.

THE CONTRACTING OFFICER STATES THAT AT THE TIME OF BID OPENING ON APRIL 28, 1967, IT WAS NOTED THAT YOU HAD FAILED TO INCLUDE A SEPARATE UNIT PRICE FOR ITEMS 2 THROUGH 5, AND AS A RESULT YOU WERE DECLARED NONRESPONSIVE TO THE INVITATION, EVEN THOUGH YOU WERE OTHERWISE THE LOWEST BIDDER ON THE REQUIREMENT.

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

WE HAVE HELD THAT A PRICE OMISSION OF $1,000 SHOULD NOT BE TREATED AS TRIVIAL EVEN THOUGH IT APPEARED INSIGNIFICENT IN RELATION TO THE TOTAL COST OF BID DIFFERENCE AND EVEN THOUGH THE BIDDER WHO OMITTED THE REQUIRED ITEM PRICE WOULD STILL HAVE SUBMITTED THE LOWEST OFFER IF THE HIGHEST ASSUMED PRICE FOR THE ITEM WERE SUPPLIED. B-159725, DECEMBER 23, 1966; 44 COMP. GEN. 751. THESE DECISIONS ARE BASED ON THE PRINCIPLE THAT FAIRNESS TO ALL BIDDERS DEMANDS THAT BIDS MUST BE EVALUATED ON THE SAME BASIS FOR THE SAME ITEMS. THE MERE FACT THAT THE GOVERNMENT WOULD HAVE ACHIEVED MONETARY SAVINGS IN THESE CIRCUMSTANCES DOES NOT WARRANT DEVIATION FROM THESE CONSIDERATIONS SINCE IT IS MORE IN THE PUBLIC'S INTEREST TO MAINTAIN FAIRNESS IN COMPETITIVE BIDDING THAN TO REALIZE A PECUNIARY ADVANTAGE IN A PARTICULAR CASE. B-156539, JUNE 9, 1965.

YOU CONTEND, HOWEVER, THAT THE PRICES OF ITEMS 2 THROUGH 5 COULD NOT HAVE BEEN CONSIDERED SEPARATELY IN BID EVALUATION, AND THAT THE INVITATION DID NOT MAKE THE PRICING OF THESE ITEMS MANDATORY. YOU BASE THE FORMER OBSERVATION ON THE ASSUMED IDENTITY OF DATA PRICING INFORMATION REQUESTED IN ITEMS 2 THROUGH 5 AND THAT REQUIRED IN BLOCK 26 OF DD FORM 1423. HOWEVER, IT WOULD APPEAR THAT THE LATTER ARE ESTIMATED PRICES WHICH ARE NOT TO BE USED FOR BID EVALUATION PURPOSES "WITHOUT FURTHER ANALYSIS" BECAUSE OF THE VARIED METHODS CONTRACTORS MAY USE IN DETERMINIG THESE COSTS, AND PRESUMABLY SINCE BIDDERS HAVE THE OPTION TO INCREASE OR DECREASE THE AMOUNT ESTIMATED. SEE DEPARTMENT OF DEFENSE INSTRUCTION 5010.12, ENCLOSURE IN ITEMS 2 THROUGH 5 MIGHT REFLECT THE SAME COSTS DETAILED IN BLOCK 26 OF DD FORM 1423 FROM AN ACCOUNTING VIEWPOINT, IT APPEARS THAT THE PROVISIONS MUST BE VIEWED DIFFERENTLY FROM A LEGAL VIEWPOINT, SINCE THE EFFECT OF INSERTING PRICES OPPOSITE ITEMS 2 THROUGH 5 WOULD OBLIGATE THE CONTRACTOR TO FURNISH THE DATA AT THE LISTED PRICES, AND SUCH PRICES COULD THEREFORE BE USED FOR BID EVALUATION PURPOSES. THIS WERE NOT THE CASE ITEMS 2 THROUGH 5 WOULD BE SURPLUSAGE, MERELY REPEATING THE ESTIMATED PRICES LISTED IN BLOCK 26 WITHOUT ANY OTHER PURPOSE. AND THE PROVISION REQUIRING INSERTION OF DATA PRICES FOLLOWING ITEM 5 WOULD NOT BE GIVEN ANY MEANING AS A METHOD OF DENOTING A DIFFERENT USE OF THIS INFORMATION FROM THAT REQUIRED ON DD FORM 1423. IT IS WELL ESTABLISHED THAT AN INTERPRETATION WHICH GIVES REASONABLE MEANING TO ALL PARTS OF AN INSTRUMENT WILL BE PREFERRED TO ONE WHICH LEAVES PORTIONS OF IT SUPERFLUOUS. HOL-GAR MANUFACTURING CORP. V. UNITED STATES, 351 F. 2D 972 (1965): 4 WILLIATON CONTRACTS, N 619 AT 781 (3RD ED. 1961), CONSEQUENTLY, WE MUST CONSTRUE THE ABOVE REFERENCED PROVISION (ITEMS 2 THROUGH 5) AS INSERTED FOR PURPOSES OTHER THAN THOSE REQUIRING THE INSERTION OF PRICES IN DD FORM 1428. THE ONLY OTHER PURPOSE WHICH CAN REASONABLY BE SEEN UNDER THE CIRCUMSTANCES IS TO REQUIRE THE BIDDER TO BE LEGALLY OBLIGATED TO FURNISH THE DATA AT FIRM PRICES WHICH COULD ALSO BE USED FOR BID EVALUATION PURPOSES.

REFERRING TO YOUR CONTENTION THAT THE INSERTION OF DATA PRICES UNDER ITEMS 2 THROUGH 5 WAS NOT MANDATORY WE FELL TO SEE HOW THIS VIEW MAY BE MAINTAINED AS THE WORD "MUST" WAS USED IN THE PROVISION REQUIRING INSERTION OF PRICES FOLLOWING ITEMS 2 THROUGH 5. IN THIS CONNECTION 5 OF THE OTHER 6 BIDDERS SUBMITTED PRICES ON ITEMS 2 THROUGH 5, AN INDICATION THAT MOST BIDDERS ALSO VIEWED THE PROVISION AS MANDATORY. YOUR CITATION OF 41 COMP. GEN. 721 AS AUTHORITY FOR WAIVER OF YOUR FAILURE TO QUOTE A PRICE ON THESE ITEM WOULD THEREFORE SEEM TO BE INAPPROPRIATE, AS IN THAT CASE WE HELD THAT THE PRICING OF AN ITEM ON WHICH A BIDDER NEGLECTED TO BID WAS NOT COMPULSORY.

YOU FURTHER CONTEND THAT YOUR FAILURE TO QUOTE PRICES ON THESE ITEMS MAY STILL BE VIEWED AS A MINOR IRREGULARITY BECAUSE YOU WOULD HAVE BEEN OBLIGATED TO FURNISH THE DATA HAD YOU BEEN AWARDED THE THE CONTRACT. SUPPORT THIS CONTENTION YOU CITE SEVERAL PROVISIONS OF THE CONTRACT, WITH SPECIAL REFERENCE TO DD FORM 1428, WHICH PROVIDE FOR FURNISHING OF THE REQUIRED DATA BY THE SUCCESSFULL CONTRACTOR ACCORDING TO A STATED DELIVERY SCHEDULE. HOWEVER, THE PROVISIONS OF THE CONTRACT CITED BY YOU WOULD APPEAR TO BE SUBJECT TO A PROVISION STATED ON PAGE 1 OF THE IFB AS FOLLOWS:

"IN COMPLIANCE WITH THE ABOVE (REFERRING TO A LIST OF ALL PROVISIONS OF THE CONTRACT), THE UNDER SIGNED OFFERS AND AGREES, IF THIS BID BE ACCEPTED WITHIN CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE BIDDER FROM THE DATE OF OPENING, TO FURNISH ANY OR ALL OF THE ITEMS UPON WHICH PRICES ARE QUOTED, AT THE PRICE SET OPPOSITE EACH ITEM, DELIVERED AT THE DESIGNATED POINTS) WITHIN THE TIME SPECIFIED IN THE SCHEDULE."

IN VIEW OF THIS PROVISION THE OBLIGATION TO FURNISH THE DATA CONTAINED IN DD FORM 1423 SEEMS TO BE CONTINGENT UPON THE INSERTION OF PRICES AFTER ITEMS 2 THROUGH 5, AND YOUR FAILURE TO QUOTE PRICES ON ITEMS 2 THROUGH 5 THEREFORE RAISES SERIOUS DOUBT AS TO YOUR OBLIGATION TO FURNISH THE DATA UNDER THE PROVISIONS YOU CITE. THUS, IN A PREVIOUS CASE INVOLVING THE BIDDER'S FAILURE TO QUOTE DATA PRICES WE HELD THAT THE PRESENCE OF A SIMILAR CLAUSE CONDITIONED THE BIDDERS OBLIGATION TO FURNISH THE DATA. COMP. GEN. 412. WHILE DD FORM 1423 WAS NOT USED IN THAT INVITATION, STILL THERE WERE PROVISIONS IN THE INVITATION THAT WOULD HAVE OBLIGATED THE CONTRACTOR TO FURNISH THE DATA IN MUCH THE SAME WAY AS WOULD THE PROVISIONS YOU CITE IN TH PRESENT CASE.

ASSUMING, HOWEVER, THAT YOU WOULD HAVE BEEN UNCONDITIONALLY OBLIGATED TO FURNISH THE REQUIRED DATA BY OPERATION OF DD FORM 1423 NOTWITHSTANDING THE CLAUSE QUOTED ABOVE FORM PAGE 1 OF THE IFB, WE HAVE FURTHER DOUBT THAT YOU COULD BE REQUIRED TO FURNISH THE DATA AT THE PRICE YOU QUOTED FOR ITEM 1. IN DETERMINING WHETHER YOU ARE SO OBLIGATED WE ARE RESTRICTED TO EXAMINATION OF YOUR BID ITSELF. B 157121, DECEMBER 20, 1965; 45 COMP. GEN. 221. CONSEQUENTLY, WE MAY NOT CONSIDER STATEMENTS YOU MADE AT THE PREAWARD SURVEY IN CONNECTION WITH THE FURNISHING OF THE DATA AS PART OF THE TOTAL AND ITEM COST. UPON EXAMINATION OF YOUR BID WE FIND NO MARK OF ANY KIND AFTER THE ITEMS IN QUESTION TO INDICATE THAT THEY ARE INCLUDED IN THE END ITEM PRICE. ASSUMING THAT YOU COULD NOT HAVE BROKEN DOWN THESE DATA COSTS SEPARATELY, YOU STILL COULD HAVE INDICATED "NO CHARGE" AFTER THE ITEMS TO CONVEY THE MEANING THAT THEY WERE INCLUDED IN YOUR END ITEM COST, AS TWO OTHER BIDDERS DID. IN THIS CONNECTION THE GOVERNMENT EMPLOYEE WHO ABSTRACTED THE BIDS LISTED YOUR BID ON ITEMS 2 THROUGH 5 AS "NO PRICE INSERTED," WHICH WE THINK CAN BE THE ONLY POSSIBLE CONCLUSION DRAWN FROM EXAMINATION OF THE BLANKS.

YOU CITE THE FOLLOWING PROVISION LISTED ON PAGE 7 OF THE IFB TO SHOW THAT THE DATA PRICES WERE INCLUDED IN THE OVERALL PRICE FOR THE END ITEM; "ANY AWARD HEREUNDER WILL BE MADE TO A SINGLE OFFEROR; MULTIPLE AWARDS WILL NOT BE MADE." IT IS YOUR CONTENTION THAT THIS STATEMENT MEANS THERE WILL BE A SINGLE AWARD FOR THE END ITEM, WHICH WOULD INCLUDE THE PRICES FOR THE DATA ITEMS. HOWEVER, SUCH A VIEW WOULD RENDER ITEMS 2 THROUGH 5 MEANINGLESS, BECAUSE THEIR INSERTION IN THE INVITATION WOULD MERELY REPEAT THE DATA ITEMS ALREADY INCLUDED AS PART OF THE TOTAL COST OF ITEM 1. RATHER, TO GIVE ITEMS 2 THROUGH 5 SIGNIFICANCE WE MUST CONCLUDE THEY WERE NOT INTENDED TO BE INCLUDED IN THE END ITEM PRICE UNLESS SPECIFICALLY INDICATED BY THE BID, AND THAT ANY AWARD MADE UNDER THE INVITATION WOULD BE FOR ALL FIVE ITEMS, AND AT A PRICE REPRESENTING THE TOTAL OF THE PRICES QUOTED ON EACH ITEM.

FINALLY, YOU CONTEND THAT THE CONTRACTING OFFICER MUST HAVE WAIVED THE DATA PRICE OMISSION AS A MINOR IRREGULARITY, SINCE A PREAWARD SURVEY WAS PERFORMED BY THE GOVERNMENT AT YOUR FACILITIES, AND ASPR 1 305 PROVIDES THAT SUCH A SURVEY SHALL BE REQUESTED ONLY WITH RESPECT TO A "PROSPECTIVE CONTRACTOR." WHILE THE REGULATION DOES SO PROVIDE, IT DOES NOT RESTRICT SUCH SURVEYS TO A SINGLE PROSPECTIVE CONTRACTOR. IN VIEW THEREOF, AND SINCE WE ARE ADVISED THAT THE PROCUREMENT WAS CONSIDERED URGENT AND THE PREAWARD SURVEYS WERE THEREFORE CONDUCTED ON SEVERAL BIDDERS PENDING A DETERMINATION AS TO WHICH BID SHOULD BE ACCEPTED, WE CANNOT AGREE THAT THE CONDUCT OF A SURVEY ON YOUR FACILITIES OPERATED AS A WAIVER OF THE DEFECT IN YOUR BID.

UNDER THE CIRCUMSTANCES, WE ARE UNABLE TO CONCLUDE THAT ACCEPTANCE OF YOUR BID WOULD HAVE OBLIGATED YOU TO SUPPLY THE DATA LISTED UNDER ITEMS 2 THROUGH 5 AT THE PRICE YOU BID FOR ITEM 1. IT FOLLOWS THAT YOUR FAILURE TO QUOTE PRICES ON ITEMS 2 THROUGH 5 MAY NOT BE VIEWED AS A MINOR IRREGULARITY WHICH COULD PROPERLY BE WAIVED BY THE CONTRACTING OFFICER.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.