B-162071, SEP. 25, 1967

B-162071, SEP. 25, 1967

BIDS - AMENDMENT, ETC. ACKNOWLEDGMENT BIDS - GOVERNMENT FACILITIES, ETC. DECISION TO DIRECTOR OF CONTRACTS, NAVAL SHIP SYSTEMS COMMAND CONCERNING RECONSIDERATION OF DECISION OF JULY 31, 1967, RE PROTEST OF GENERAL PRECISION, INC. SINCE IT IS NOT SHOWN THAT AMENDMENT INCLUDED WORK ALREADY REQUIRED BY INVITATION, FACT THAT LOW BIDDER DID NOT ACKNOWLEDGE AMENDMENT MAY BE WAIVED WITHOUT PREJUDICE TO ANY OTHER BIDDER. ALTHOUGH LOW BIDDER DID NOT FURNISH ALL INFORMATION CONCERNING USE OF GOVERNMENT FACILITIES, THE APPLICATION OF ALLOCABLE RENTAL CHARGES WHICH ARE READILY OBTAINABLE FROM GOVERNMENT RECORDS ELIMINATES ANY COMPETITIVE ADVANTAGE AND SINCE LOW BIDDER IS STILL LOW ON BASIS OF RENT CHARGE AWARD WOULD BE PROPER.

TO CAPTAIN DIGGLE:

REFERENCE IS MADE TO YOUR LETTER (N00024-67-B-0732, SER 00J-62) OF SEPTEMBER 12, 1967, FURNISHING A REPORT IN CONNECTION WITH THE REQUEST OF GENERAL PRECISION, INCORPORATED, FOR RECONSIDERATION OF OUR DECISION B- 162071 OF JULY 31, 1967, WHEREIN WE HELD THAT THE CORPORATION'S FAILURE TO TIMELY ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO THE INVITATION RENDERED ITS BID NONRESPONSIVE.

THE JULY 31 DECISION WAS BASED ON AN UNDERSTANDING THAT THE AMENDMENT INCREASED THE DOMESTIC EQUIPMENT CONTRACT TECHNICAL SERVICES REQUIRED IN ITEM 4 BY 10 MAN-DAYS. HOWEVER, IN THE REQUEST FOR RECONSIDERATION, GENERAL PRECISION CONTENDED, AND YOU CONFIRM, THAT THE AMENDMENT DID NOT ADD ANY ADDITIONAL WORK, BUT MERELY RESTATED OR REITERATED WORK ALREADY REQUIRED BY THE INVITATION FOR BIDS. IN THIS CONNECTION, YOU STATE THAT THE INVITATION REQUIRED THE CONTRACTOR TO PROVIDE A TOTAL OF NOT TO EXCEED 2 WEEKS OF INSTALLATION SUPPORT, ON SITE, FOR CONTRACTOR'S SUPERVISION OF INSTALLATION, AND THAT IT WAS ESTIMATED THAT THIS REQUIREMENT WOULD REQUIRE 10 ADDITIONAL MAN-DAYS OF EFFORT. HENCE, IT WAS CONSIDERED APPROPRIATE TO ADD BY AMENDMENT 10 MAN-DAYS TO THE NUMBER OF ESTIMATED MAN -DAYS SPECIFIED UNDER ITEM 4 TO BRING THE TOTAL SPECIFIED THEREIN INTO CONFORMITY WITH THE OVERALL MAN-DAYS OF DOMESTIC EQUIPMENT CONTRACT TECHNICAL SERVICES REQUIRED BY THE SPECIFICATIONS TO BE FURNISHED BY THE CONTRACTOR.

IT APPEARS NOW THAT THE WORK INCLUDED IN THE AMENDMENT WAS WORK ALREADY REQUIRED BY THE INVITATION. IF ANYTHING WAS CHANGED BY THE AMENDMENT, IT WAS THE AMOUNT OF MAN-DAYS THAT WOULD BE CONSIDERED IN THE EVALUATION OF BIDS TO ASCERTAIN THE LOW BIDDER. UNDER THE AMENDED OR UNAMENDED METHOD OF EVALUATION, GENERAL PRECISION IS THE LOW BIDDER BY A SUBSTANTIAL AMOUNT SO THAT NO OTHER BIDDER IS PREJUDICED IN THE CIRCUMSTANCES. IN VIEW OF THE FOREGOING, THE FAILURE TO ACKNOWLEDGE THE AMENDMENT MAY BE WAIVED AS AN INFORMALITY. SEE 41 COMP. GEN. 631 AND 40 ID. 321, 324.

IN VIEW OF THIS CONCLUSION, IT IS NECESSARY TO CONSIDER THE QUESTION AS TO WHETHER THE GENERAL PRECISION BID CAN BE CONSIDERED SINCE THE BID CONTAINS A STATEMENT THAT THE PRICE IS "BASED ON RECEIPT OF RENT FREE USE OF GOVERNMENT FACILITIES UNDER NAVY FACILITIES CONTRACT NOW 6508-U.'

IN THAT CONNECTION, THE INVITATION PROVIDES WITH RESPECT TO THE USE OF GOVERNMENT FACILITIES AS FOLLOWS:

"THIS SOLICITATION DOES NOT AUTHORIZE THE USE, IN PERFORMING THE WORK OFFERED UNDER THIS SOLICITATION, OF ANY GOVERNMENT PROPERTY EXCEPT THOSE ITEMS, IF ANY, OF GOVERNMENT-FURNISHED PROPERTY SPECIFIED IN THIS SOLICITATION. IF THE OFFEROR REQUIRES THE USE, IN PERFORMING THE WORK OFFERED UNDER THIS SOLICITATION, OF ANY OTHER ITEMS OF GOVERNMENT PROPERTY IN THE OFFEROR'S POSSESSION OR OTHERWISE, UNDER A FACILITIES CONTRACT OR OTHER AGREEMENT INDEPENDENT OF THIS SOLICITATION, THEN THE OFFEROR SHALL SO STATE AND SUBMIT WITH HIS OFFER EVIDENCE OF HIS RIGHT TO USE SUCH GOVERNMENT PROPERTY ON THE WORK OFFERED UNDER THIS SOLICITATION. IF THE OFFEROR DOES NOT SO STATE IN HIS OFFER, THEN HIS OFFER SHALL BE REGARDED AS NOT REQUIRING THE USE OF ANY GOVERNMENT PROPERTY EXCEPT GOVERNMENT- FURNISHED PROPERTY, IF ANY, SPECIFIED IN THIS SOLICITATION.'

CONTRACT NOW 6508-U PROVIDES THAT GENERAL PRECISION IS AUTHORIZED TO USE THE FACILITIES IN THE PERFORMANCE OF PRIME CONTRACTS BETWEEN THE CONTRACTOR AND ANY AGENCY OF THE GOVERNMENT AND PROVIDES FOR PRIORITY IN THE USE OF THE FACILITIES ON WORK FIRST FOR THE BUREAU OF NAVAL WEAPONS, NOW THE NAVAL ORDNANCE SYSTEMS COMMAND, AND SECOND ON WORK FOR THE DEPARTMENT OF THE NAVY. THE CONTRACT PROVIDES FURTHER THAT THE CONTRACTOR SHALL SUBMIT WITH EACH BID ON A GOVERNMENT CONTRACT ON WHICH IT INTENDS TO USE THE FACILITIES A STATEMENT TO THAT EFFECT IDENTIFYING THE FACILITIES CONTRACT. ALSO, THE CONTRACTOR IS REQUIRED TO SUBMIT A STATEMENT THAT THE ESTIMATED ALLOCABLE CHARGE RELATED TO THE PARTICULAR CONTRACT HAS BEEN DETERMINED, THAT SUCH CHARGE, IN AN AMOUNT TO BE SPECIFIED, IS INCLUDED IN THE TOTAL AMOUNT OF THE BID AND THAT THE CONTRACT AWARDED TO THE CONTRACTOR MUST BE FOR THE TOTAL AMOUNT, INCLUSIVE OF SUCH CHARGE, IF THE FACILITIES ARE NOT AND WILL NOT BE AUTHORIZED TO BE USED ON A NO-CHARGE BASIS IN THE PERFORMANCE OF THE CONTRACT.

THE FACILITIES CONTRACT CITED BY GENERAL PRECISION AUTHORIZES THE COMPANY TO USE THE FACILITIES ON GOVERNMENT CONTRACTS. THUS, THE BIDDER HAS SUBMITTED WITH ITS BID EVIDENCE OF THE RIGHT TO USE THE GOVERNMENT EQUIPMENT ON THE WORK. HOWEVER, IT HAS NOT FURNISHED ALL OF THE INFORMATION REQUIRED BY THE FACILITIES CONTRACT. ALSO, THE INVITATION FOR BIDS PROVISION, QUOTED ABOVE, IS SILENT AS TO WHETHER RESPONSIVE BIDS CAN BE MADE ON A RENT-FREE BASIS. NEVERTHELESS, IN THE JULY 18 REQUEST FOR A DECISION, IT WAS STATED THAT THE EQUIPMENT IN THE FACILITIES CONTRACT IS REGULARLY INVENTORIED AND FROM SUCH INFORMATION AND FROM REPORTS MADE BY THE CONTRACTOR TO THE DEFENSE CONTRACT ADMINISTRATION SERVICES, THE RENTAL CHARGE ALLOCABLE TO THE INSTANT INVITATION--IN CONFORMANCE WITH THE FACILITIES CONTRACT AND ASPR--HAS BEEN DETERMINED TO BE $1,262.44. THIS REGARD, THE DIFFERENCE BETWEEN THE LOW BID AND THE NEXT BID IS ABOUT $17,000.

TO ELIMINATE THE COMPETITIVE ADVANTAGE THAT MIGHT ARISE FROM THE USE OF GOVERNMENT FACILITIES, THE PROCUREMENT REGULATIONS PROVIDE FOR CHARGING RENTAL ON THE FACILITIES OR UTILIZING RENTAL EQUIVALENTS IN EVALUATING PROPOSALS. SEE ASPR 13-501 AND 13-502.1. ALTHOUGH GENERAL PRECISION DID NOT FURNISH ALL THE REQUIRED INFORMATION WITH ITS BID, IT APPEARS THAT, BY APPLICATION OF ALLOCABLE RENTAL CHARGES OBTAINED FROM READILY AVAILABLE INFORMATION IN GOVERNMENT RECORDS (SEE ASPR 13 502), ANY COMPETITIVE ADVANTAGE ACCRUING TO GENERAL PRECISION HAS BEEN ELIMINATED WITH THE RESULT THAT ITS BID STILL REMAINS LOW. THEREFORE, IT APPEARS THAT THE INTERESTS OF OTHER BIDDERS WOULD NOT BE PREJUDICED IF GENERAL PRECISION'S LOW BID IS EVALUATED ON THE BASIS OF RENT-FREE USE OF FACILITIES COVERED BY CONTRACT NOW 6508-U.

IN THE CIRCUMSTANCES, THE BID OF GENERAL PRECISION MAY BE CONSIDERED FOR AWARD.

THE ENCLOSURES ACCOMPANYING THE SEPTEMBER 12 LETTER ARE RETURNED AS REQUESTED.