B-164234, JUL. 8, 1968

B-164234, JUL. 8, 1968

TO THE TRANE COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 3, 1968, IN WHICH YOU PROTESTED AN AWARD TO KECO INDUSTRIES, INC., CINCINNATI, OHIO, UNDER INVITATION FOR BIDS (IFB) DSA-700-68-B-2090 ISSUED ON JANUARY 24, 1968, BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO. AS ORIGINALLY ISSUED THE IFB REQUIRED FOUR SEPARATE ITEMS SET FORTH AS FOLLOWS:"ITEM NO. SUPPLIES/SERVICES

QUANTITY UNIT

1. MIPR. NO. FD2050-8-2902710 EA

DCSC CONTROL NO. 7310 F008

FSN 4120-945-2663

AIR CONDITIONER, TYPE A/E32C-17, IN

ACCORDANCE WITH MIL SPEC MIL-A-38269D,

DATED 17 APR 67, TITLED, AIR CONDITIONER,

A/E32C-17.

2. PRODUCTION DRAWINGS, IN ACCORDANCE 1 LOT

WITH EXHIBIT -A-, FORM 1423 AND

CLAUSE 2.122.

3. DESCRIPTIVE IDENTIFICATION DATA, IN 1 LOT

ACCORDANCE WITH EXHIBIT -B-, AFLC FORMS.

4. TECHNICAL DATA REQUIREMENTS IN 1 LOT

ACCORDANCE WITH EXHIBIT -C-, AFPI

71-531 (10).' AFTER THE IFB WAS ISSUED THE PROCURING ACTIVITY DETERMINED THAT THE DATA REQUIREMENTS LISTED IN ITEMS 3 AND 4 OF THE INVITATION DUPLICATED THE DATA DEMANDED IN EXHIBIT "A" , FORM 1423, AND THAT THERE WAS NO NEED FOR THE PRODUCTION DRAWINGS SET FORTH IN ITEM 2. CONSEQUENTLY, AMENDMENT 0001, DATED FEBRUARY 13, 1968, QUOTED IN PART AS FOLLOWS, WAS ISSUED TO DELETE ITEM 2: "TIME FOR SUBMISSION OF OFFERS IS EXTENDED UNTIL 10:30 A.M. EST, 01 MARCH 1968. ITEM 2, PRODUCTION DRAWINGS, ARE HEREBY CANCELLED.'

WHEN BIDS WERE OPENED KECO INDUSTRIES, INC., WAS DETERMINED TO BE THE LOWEST RESPONSIVE BIDDER, AND THEREFORE, CONTRACT NO. DSA-700-68-C 9213 WAS AWARDED TO THE COMPANY FOR ITEMS 1, 3 AND 4 ON MARCH 22, 1968. AFTER YOU PROTESTED THIS AWARD TO OUR OFFICE THE PROCURING ACTIVITY REVIEWED THE DATA CLAUSES AND DETERMINED THAT FIVE SUB-ITEMS OF DATA LISTED ON FORM 1423 (ITEM 2) WERE NOT INCLUDED IN THE AWARD TO KECO UNDER ITEMS 3 AND 4 OF THE CONTRACT. THE PROCURING ACTIVITY PROPOSES TO REMEDY THIS DEFICIENCY BY AMENDINGKECO'S CURRENT CONTRACT TO INCLUDE THE MISSING ITEMS AT NO ADDITIONAL CHARGE TO THE GOVERNMENT.

YOU MAINTAIN THAT AMENDMENT 0001 DID NOT EFFECTIVELY CANCEL ITEM 2 FOR PRICING PURPOSES, AND THEREFORE, AN AWARD TO KECO BASED ONLY ON ITEMS 1, 3 AND 4 WAS IMPROPER. YOU ALSO CONTEND THAT THERE WERE AMBIGUITIES IN KECO'S BID.

WE BELIEVE AMENDMENT 0001, CITED ABOVE, CANCELLED ITEM 2 OF THE INSTANT IFB FOR BID EVALUATION PURPOSES, EVEN THOUGH YOU INSIST THAT IT MERELY DELETED THE WORDS "PRODUCTION DRAWINGS.' EVEN IF WE SHOULD ACCEPT YOUR INTERPRETATION, THE AMENDMENT WOULD STILL HAVE EFFECTIVELY CANCELLED ITEM 2, SINCE WITHOUT THE WORDS "PRODUCTION DRAWINGS" THE PROVISION IS RENDERED MEANINGLESS FOR PRICING PURPOSES. ACCORDINGLY, WE ARE UNABLE TO QUESTION THE PROCURING ACTIVITY'S DETERMINATION THAT KECO WAS THE LOWEST BIDDER UNDER THE AMENDED INVITATION. IN ADDITION, IT IS REPORTED BY THE CONTRACTING AGENCY THAT WHILE DD FORM 1423, SEQUENCE NUMBERS 2, 7, 9, 10 AND 11 WAS OMITTED FROM THE CONTRACT, KECO HAD RETURNED WITH ITS BID A FORM 1423 IN WHICH IT HAD INSERTED NO CHARGE FOR SEQUENCES 7, 9, 10 AND 11, AND $412.50 FOR SEQUENCE 2. INCLUSION OF THIS IN THE BID EVALUATION WOULD STILL HAVE LEFT KECO THE LOWEST BIDDER.

THE ONLY QUESTION WE NOW PERCEIVE IS THE PROPRIETY OF ISSUING A CHANGE ORDER TO KECO TO FURNISH THE MISSING DATA ITEMS AT NO COST TO THE GOVERNMENT. THE PROPRIETY OF ISSUING CHANGE ORDERS UNDER EXISTING CONTRACTS HAS BEEN CONSIDERED BY OUR OFFICE ON SEVERAL OCCASIONS. GENERAL, AN EXISTING CONTRACT MAY NOT BE EXPANDED SO AS TO INCLUDE ADDITIONAL WORK OF ANY CONSIDERABLE MAGNITUDE, UNLESS IT CLEARLY APPEARS THAT THE ADDITIONAL WORK WAS NOT IN CONTEMPLATION AT THE TIME OF THE ORIGINAL CONTRACTING AND IS SUCH AN INSEPARABLE PART OF THE WORK ORIGINALLY CONTRACTED FOR AS TO RENDER IT REASONABLY IMPOSSIBLE OF PERFORMANCE BY OTHER THAN THE ORIGINAL CONTRACTOR. 39 COMP. GEN. 566; 30 COMP. GEN. 34. AT THE TIME OF AWARD UNDER THE SUBJECT IFB THE PROCURING ACTIVITY BELIEVED THAT ALL DATA WOULD BE PROCURED BY MAKING AN AWARD TO KECO UNDER ITEMS 3 AND 4 OF THE IFB; ADDITIONALLY, WE NOTE THAT THE PROPOSED CHANGE IS MINOR IN SCOPE AND AN INTEGRAL PART OF THE EXISTING CONTRACT, AND THAT THE CHARGE INDICATED FOR THE ITEMS COVERED THEREBY IN KECO'S BID DOCUMENTS WOULD NOT HAVE AFFECTED KECO'S STANDING AS LOW BIDDER. WE CANNOT, THEREFORE, CONSIDER THE PROPOSED MODIFICATION IMPROPER.

THE AMBIGUITIES WHICH YOU HAVE ALLEGED ARE PRESENT IN KECO'S BID APPARENTLY ARE CONCERNED WITH WHETHER ITEM 3, CITED ABOVE, INCORPORATED ALL THE DATA REQUIREMENTS LISTED IN EXHIBIT "B" . IT APPEARS THAT THE MOST REASONABLE INTERPRETATION OF THE REQUIREMENTS OF ITEM 3 IS THAT ALL OF THE AFLC FORMS REPRODUCED IN EXHIBIT "B" WERE REQUIRED, AND EXHIBIT "B" AS INCORPORATED IN THE SCHEDULE ON PAGE 13 INCLUDES ALL PAGES OF THE EXHIBIT, NUMBERED IN SEQUENCE, WITH EACH PAGE BEARING THE IFB NUMBER.

YOU ALSO MAINTAIN THAT THE GOVERNMENT WOULD OBTAIN QUICKER DELIVERY IF IT HAD MADE AN AWARD TO YOUR COMPANY; HOWEVER, IT WOULD HAVE BEEN IMPROPER TO REJECT KECO'S BID BECAUSE OF THE LONGER DELIVERY SCHEDULE IT PROPOSED SINCE ITS DELIVERY TIME CONFORMED TO THE REQUIREMENTS OF THE IFB.