B-164345, OCT. 2, 1968

B-164345: Oct 2, 1968

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SECRETARY: REFERENCE IS MADE TO A LETTER DATED JULY 29. THE RECORD INDICATES THAT INVITATIONS WERE FURNISHED TO A TOTAL OF 175 PROSPECTIVE BIDDERS AND THAT BIDS WERE RECEIVED FROM 26 FIRMS. THE TWO LOW BIDS RECEIVED THEREUNDER WERE SUBMITTED IN RESPONSE TO ALTERNATE "B" BY UNISPEC. ENCLOSED WITH ITS BID AN UNDATED LETTER WHICH READ AS FOLLOWS: "WE HAVE THIS DATE REQUESTED THE DOCUMENTS NOT SENT TO US PRIOR BE SENT TO US IMMEDIATELY AND HEREWITH REQUEST THAT THE BID OPENING BE EXTENDED FOR A PERIOD OF SEVEN (7) DAYS TO ALLOW US TIME TO ANALYZE THESE DOCUMENTS UPON RECEIPT AND TO INCLUDE THE EFFECT OF THEM ON OUR BID.'. THE DOCUMENTS REFERENCED IN THE UNISPEC LETTER WERE FIVE PAGES OF DD FORM 1423 AND EXHIBIT "A.

B-164345, OCT. 2, 1968

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED JULY 29, 1968, WITH ATTACHMENTS, FROM THE DIRECTOR OF PROCUREMENT AND PRODUCTION, HEADQUARTERS UNITED STATES ARMY MATERIEL COMMAND, REPORTING ON THE PROTEST OF UNISPEC, DIVISION OF UNIVERSAL INSTRUMENT CORPORATION, UNDER INVITATION FOR BIDS NO. DAAB05-68- B-0203, ISSUED BY THE UNITED STATES ARMY ELECTRONICS COMMAND, PHILADELPHIA, PENNSYLVANIA. THE INVITATION, ISSUED FEBRUARY 20, 1968, SOLICITED BIDS FOR THE PURCHASE OF A QUANTITY OF AUDIO FREQUENCY AMPLIFIERS, AM-1780) ( (VRC, AND RELATED ITEMS, ON TWO ALTERNATE BASES. ALTERNATE "A" REQUESTED BIDS FOR A 1 - YEAR PROCUREMENT REQUIREMENT AND ALTERNATE "B" FOR PROSPECTIVE SECOND, THIRD AND FOURTH YEAR PROCUREMENT REQUIREMENTS.

THE RECORD INDICATES THAT INVITATIONS WERE FURNISHED TO A TOTAL OF 175 PROSPECTIVE BIDDERS AND THAT BIDS WERE RECEIVED FROM 26 FIRMS. THE TWO LOW BIDS RECEIVED THEREUNDER WERE SUBMITTED IN RESPONSE TO ALTERNATE "B" BY UNISPEC, IN THE AMOUNT OF $1,963,812.89, AND THE G.C. DEWEY CORPORATION, IN THE AMOUNT OF $2,051,002.82. UNISPEC, HOWEVER, ENCLOSED WITH ITS BID AN UNDATED LETTER WHICH READ AS FOLLOWS:

"WE HAVE THIS DATE REQUESTED THE DOCUMENTS NOT SENT TO US PRIOR BE SENT TO US IMMEDIATELY AND HEREWITH REQUEST THAT THE BID OPENING BE EXTENDED FOR A PERIOD OF SEVEN (7) DAYS TO ALLOW US TIME TO ANALYZE THESE DOCUMENTS UPON RECEIPT AND TO INCLUDE THE EFFECT OF THEM ON OUR BID.'

THE DOCUMENTS REFERENCED IN THE UNISPEC LETTER WERE FIVE PAGES OF DD FORM 1423 AND EXHIBIT "A," WHICH HAD BEEN INADVERTENTLY OMITTED FROM THE 125 - PAGE BID PACKAGE FURNISHED TO UNISPEC BY THE PROCURING ACTIVITY. WE NOTE THAT THESE DOCUMENTS LIST DATA REQUIREMENTS THAT THE CONTRACTOR IS OBLIGATED TO FURNISH IN THE PERFORMANCE OF THE CONTRACT. HOWEVER, THE AGENCY REPORTS THAT ALL OF THE DATA LISTED ON THOSE DOCUMENTS IS INCLUDED ELSEWHERE IN THE INVITATION, THEREBY OBLIGATING THE CONTRACTOR TO SUPPLY THE DATA REGARDLESS OF THE PRESENCE OR ABSENCE OF THE DOCUMENTS. IN THIS REGARD, PARAGRAPH 2 407.5 (B), THEN IN EFFECT, OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), STATED THAT THE ESTIMATED PRICES INDICATED ON DD FORM 1423 SHALL NOT BE UTILIZED IN THE EVALUATION OF BIDS SUBMITTED THEREUNDER. SECTION "F" OF THE SPECIAL PROVISIONS ADVISED PROSPECTIVE BIDDERS, IN PART, THAT THE FAILURE OF THE GOVERNMENT TO LIST ANY DATA IN DD FORM 1423 OTHERWISE REQUIRED TO BE DELIVERED UNDER ANY CLAUSE OF THE INVITATION WOULD NOT RELIEVE THE CONTRACTOR OF HIS OBLIGATION UNDER SUCH OTHER CLAUSE. BY MEMORANDUM DATED APRIL 3, 1968, THE GENERAL COUNSEL AT THE PROCURING ACTIVITY ADVISED THE CONTRACTING OFFICER THAT THE DATA REQUIREMENTS LISTED ON DD FORM 1423 AND EXHIBIT "A" WERE FOR INFORMATIONAL PURPOSES ONLY AND THAT THOSE REQUIREMENTS WERE OBVIOUSLY CONSIDERED BY THE PROTESTING BIDDER IN PREPARING HIS BID SINCE HE QUOTED PRICES FOR ALL OF THE PROVISIONING DATA CITED ELSEWHERE IN HIS BID.

THE GENERAL COUNSEL AT THE PROCURING ACTIVITY, IN A SUBSEQUENT REPORT, DATED JUNE 27, 1968, STATED THAT THE UNISPEC LETTER SUBMITTED WITH ITS BID HAD THE EFFECT OF MAKING THE BID CONTINGENT UPON THE OCCURRENCE OF THREE THINGS, NAMELY, (A) THE EXTENSION OF THE BID OPENING FOR 7 DAYS; (B) TO ALLOW UNISPEC TO ANALYZE THE UNKNOWN CONTENTS OF THE MISSING DOCUMENTS; AND (C) TO INCLUDE THE EFFECT OF THE CONTENTS ON ITS BID. THE CONTRACTING OFFICER, THEREFORE, INDICATED THAT HE CONSIDERED UNISPEC'S BID AS BEING QUALIFIED BY THE STATEMENT QUOTED ABOVE, SINCE THE PHRASE "TO INCLUDE THE EFFECT * * * ON OUR BID," AS USED, MUST BE INTERPRETED TO ENCOMPASS THE FACTORS OF PRICE, QUANTITY AND DELIVERY WHICH ARE MATERIAL TO THIS PROCUREMENT. THE CONTRACTING OFFICER, HAVING DETERMINED THAT UNISPEC'S BID WAS QUALIFIED AND COULD NOT BE CORRECTED OR AMENDED WITHOUT PREJUDICE TO THE OTHER BIDDERS, REJECTED THE BID AS BEING NONRESPONSIVE IN ACCORDANCE WITH THE PROVISIONS OF ASPR 2-404.2 (D). THE CITED REGULATION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/D) ORDINARILY, A BID SHOULD BE REJECTED WHERE THE BIDDER ATTEMPTS TO IMPOSE CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT, SINCE TO ALLOW THE BIDDER TO IMPOSE SUCH CONDITIONS WOULD BE PREJUDICIAL TO OTHER BIDDERS. * * "SUBSEQUENTLY, ON APRIL 30, 1968, THE CONTRACT WAS AWARDED UNDER THE MULTI -YEAR PROCEDURE TO DEWEY AT THE INDICATED CONTRACT PRICE.

UNISPEC'S PROTEST IS APPARENTLY PREDICATED UPON THE ARGUMENT THAT THE FAILURE OF THE GOVERNMENT TO INCLUDE THE REFERENCED DOCUMENTS IN THE BID PACKAGE SUPPLIED TO UNISPEC RENDERED ANY BID SUBMITTED BY THAT FIRM IN RESPONSE TO THE INVITATION INELIGIBLE FOR AWARD SINCE, IF THAT BID WAS ACCEPTED, IT WOULD BE TO THE PREJUDICE OF OTHER BIDDERS WHO PROPERLY SUBMITTED THE REQUIRED FORMS. IN THE ALTERNATIVE, UNISPEC CONTENDS THAT, IF ITS BID WAS REJECTED FOR FAILURE TO INCLUDE THE FORMS IN ITS BID, ITS RIGHTS WOULD BE PREJUDICED BECAUSE THE CONTROL AND RESPONSIBILITY FOR FURNISHING THE COMPLETE BID PACKAGE TO PROSPECTIVE BIDDERS ARE SOLELY WITHIN THE PROVINCE OF THE GOVERNMENT. EITHER WAY, UNISPEC CONCLUDES, THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM WOULD BE JEOPARDIZED BY THE AWARD OF A CONTRACT TO ANY BIDDER IN THE DESCRIBED CIRCUMSTANCES.

THE CONTRACTING OFFICIALS HAVE STATED THAT UNISPEC WAS APPRISED PRIOR TO THE SCHEDULED BID OPENING TIME THAT A BID SUBMITTED WITHOUT DD FORM 1423 WOULD NOT BE UNRESPONSIVE TO THE TERMS AND CONDITIONS OF THE INVITATION SINCE ALL OF THE DATA REQUIREMENTS LISTED THEREIN WERE STATED ELSEWHERE IN THE INVITATION. INSOFAR AS IT APPEARS, IN THIS INSTANCE, THAT THE INFORMATION INCLUDED IN THE MISSING DOCUMENTS WAS STATED WITH NO GREATER OR LESSER CLARITY ELSEWHERE IN THE INVITATION, AND THAT THE BID SUBMITTED BY UNISPEC INDICATED THAT NO EXCEPTIONS WERE TAKEN THEREIN TO THE DATA REQUIREMENTS, WE ARE OF THE OPINION THAT A VALID CONTRACT AWARD COULD HAVE BEEN CONSUMMATED WITH UNISPEC REGARDLESS OF THE ABSENCE OF THE REFERENCED DOCUMENTS IN ITS BID WITHOUT PREJUDICE TO THE OTHER BIDDERS, UNLESS, OF COURSE, FOR SOME OTHER REASON ITS BID SHOULD BE DETERMINED TO BE NONRESPONSIVE. MOREOVER, WITH RESPECT TO UNISPEC'S APPARENT CONTENTION THAT THE AWARD TO DEWEY WAS INVALID BECAUSE OF THE MERE FAILURE OF THE PROCURING ACTIVITY TO PROVIDE UNISPEC WITH COPIES OF THE MISSING DOCUMENTS, IT IS WELL SETTLED THAT AN AWARD MADE AFTER ADEQUATE PRICE COMPETITION AS ENVISAGED BY THE ADVERTISING PROCEDURES PRESCRIBED BY 10 U.S.C. 2305 AND ASPR, SECTION II, IS NOT FOR CANCELLATION BECAUSE OF THE FAILURE TO FURNISH A PROSPECTIVE BIDDER WITH AN INVITATION. 34 COMP. GEN. 684. SEE, ALSO, B-149263, AUGUST 27, 1962, WHERE, UNDER SIMILAR CIRCUMSTANCES, WE HELD IF A PROTESTING BIDDER IS FURNISHED WITH AN INVITATION FOR BIDS, THAT INVITATION SHOULD BE COMPLETE AND PROPER AND, IF POSSIBLE, SUFFICIENT TIME SHOULD BE PERMITTED FOR THE EVALUATION OF THAT PORTION OF THE INVITATION SUPPLIED LATER; HOWEVER, ONCE A PROPER AWARD HAS BEEN MADE TO ANOTHER BIDDER, OUR OFFICE WILL NOT QUESTION THE ADMINISTRATIVE ACTIONS LEADING UP TO THAT AWARD FOR THE REASONS ENUMERATED ABOVE.

HOWEVER, SEPARATE AND APART THEREFROM IS THE QUESTION AS TO THE PROPRIETY OF THE REJECTION OF UNISPEC'S BID AS BEING NONRESPONSIVE TO THE INVITATION BY REASON OF THE INSERTION OF THE REFERENCED LETTER IN ITS BID.

THE DIRECTOR OF PROCUREMENT AND PRODUCTION, IN HIS LETTER OF JULY 29 CONCLUDED THAT, BASED UPON CONSIDERATION OF THE FACTS AND CIRCUMSTANCES SURROUNDING UNISPEC'S INTENTIONS REGARDING ITS SUBMISSION OF THE QUESTIONED STATEMENT, THE BID SHOULD NOT HAVE BEEN REJECTED. SPECIFICALLY, HE STATES THAT THE STATEMENT WAS MERELY A REQUEST FOR A 7 - DAY BID EXTENSION AND WAS SUBMITTED FOR THE SOLE PURPOSE OF EXPLAINING THE REASON FOR THE ABSENCE OF THE REFERENCED FORMS IN AN ATTEMPT TO RENDER THE BID RESPONSIVE WITHOUT THOSE FORMS.

IN THIS REGARD, WE NOTE THAT ON THE MORNING OF MARCH 20, 1968, A REPRESENTATIVE OF UNISPEC CONTACTED THE INDIVIDUAL AT THE PROCUREMENT ACTIVITY DESIGNATED ON THE FACE PAGE OF THE INVITATION AS THE PERSON TO CALL FOR INFORMATION AND STATED, AT THE LEAST, THAT DD FORM 1423 WAS MISSING FROM ITS BID PACKAGE. IT APPEARS THAT AT THAT TIME THE PROTESTING BIDDER ORALLY REQUESTED A COPY OF THE MISSING DOCUMENT AND A 7 - DAY BID EXTENSION PERIOD TO REVIEW AND COMPLETE "THE REQUIRED BIDDERS ENTRIES ON THE 1423 FORMS.' THE UNISPEC REPRESENTATIVE WAS ADVISED AT THAT TIME THAT BOTH THE REQUEST FOR THE DOCUMENTS AND BID OPENING EXTENSION WOULD HAVE TO BE SUBMITTED IN WRITING. THE SAME INDIVIDUAL AT THE PROCURING ACTIVITY WAS NOTIFIED BY TELEPHONE ON THE AFTERNOON OF MARCH 20 BY THE UNISPEC REPRESENTATIVE THAT A TELEGRAM HAD BEEN SENT TO HIM AS FOLLOWS: "THE FOLLOWING EXHIBITS AND FORMS WERE NOT INCLUDED IN THE REFERENCED BID PACKAGE RECEIVED BY US ON MARCH 13 AND MARCH 15, 1968:

EXHIBIT A AND FIVE (5) PAGES DD FORM 1423 THEREFORE, WE WILL BE UNABLE TO SUBMIT THESE DOCUMENTS WITH OUR BID. WE HAVE THIS DATE REQUESTED THE DOCUMENTS NOT SENT TO US PRIOR BE SENT TO US IMMEDIATELY AND HEREWITH REQUEST THAT THE BID OPENING BE EXTENDED FOR A PERIOD OF SEVEN (7) DAYS TO ALLOW US TIME TO ANALYZE THESE DOCUMENTS UPON RECEIPT AND TO INCLUDE THE EFFECT OF THEM ON OUR BID.' UNISPEC WAS THEN ORALLY ADVISED THAT THE REQUEST FOR BID EXTENSION WOULD NOT BE GRANTED. SINCE THE AGENCY REPRESENTATIVE WAS ALSO UNABLE AT THAT TIME TO INDICATE TO UNISPEC THE EFFECT OF SUBMITTING A BID WITHOUT DD FORM 1423, UNISPEC STATED THAT A COPY OF THE REFERENCED TELEGRAM WOULD BE ENCLOSED WITH THE BID TO INFORM THE CONTRACTING OFFICER AT THE TIME OF BID OPENING OF THE REASONS FOR THE ABSENCE OF THE DOCUMENT AND, AT LEAST TO THAT EXTENT, AVOID A DETERMINATION OF NONRESPONSIVENESS. IT IS NOT CLEAR WHICH PARTY TO THE INSTANT CONTROVERSY INITIATED THE SUBMISSION OF THE LETTER WITH UNISPEC'S BID, BUT THE ADMINISTRATIVE REPORT OF JULY 29 INDICATES THAT THIS ACTION WAS APPARENTLY TAKEN AT THE SUGGESTION OF THE ACTIVITY REPRESENTATIVE.

ON THE MORNING OF BID OPENING, MARCH 21, APPROXIMATELY AN HOUR AND A HALF BEFORE THE SCHEDULED TIME, THE PROTESTING BIDDER WAS ORALLY INFORMED THAT A BID SUBMITTED WITHOUT THE DD FORM 1423'S WOULD NOT BE CONSIDERED NONRESPONSIVE. BIDS WERE OPENED AT 1:30 P.M. WITH THE RESULTS DESCRIBED ABOVE. IT APPEARS THAT THEREAFTER ON MARCH 26, 1968, THE DD FORM 1423'S WERE SUPPLIED TO UNISPEC AND THAT THEY WERE RETURNED TO THE ACTIVITY ON APRIL 21, APPROXIMATELY A MONTH LATER. THE PROTESTING BIDDER INDICATES IN HIS LETTER OF MAY 24 THAT HE HAD, TO THAT DATE AT LEAST, NEVER SEEN A COPY OF EXHIBIT "A" AND HAS NO KNOWLEDGE OF ITS CONTENTS.

WE HAVE HELD THAT A LETTER SUBMITTED WITH A BID, WHICH CLEARLY MAKES REFERENCE TO, OR DISCUSSES, THE BID TRANSMITTED THEREWITH, SUBJECTS THE BID TO A RISK THAT IT WILL BE DETERMINED TO BE NONRESPONSIVE. ANY SUCH LETTER, OF COURSE, MUST BE GIVEN A REASONABLE INTERPRETATION AND APPLICATION IN ORDER TO JUSTIFY A REJECTION ON THE GROUNDS THAT IT IS NOT RESPONSIVE. 46 COMP. GEN. 368; B-159691, MARCH 6, 1967.

IT IS FUNDAMENTAL THAT THE STATUTE GOVERNING PROCUREMENT BY FORMAL ADVERTISING CONTEMPLATES THE SUBMISSION OF BIDS WHICH ARE FIRM AND DEFINITE IN RESPECT TO THE PRICE TO BE PAID FOR THE PROCUREMENT BY THE GOVERNMENT. WE HAVE CONSISTENTLY HELD THAT BIDS SO QUALIFIED AS TO RENDER THE CONTRACT PRICE INDEFINITE ARE FOR REJECTION FOR UNCERTAINTY. 162201, OCTOBER 4, 1967. MOREOVER, WHERE TWO POSSIBLE MEANINGS CAN BE REACHED FROM THE TERMS OF A BID, WE HAVE HELD THAT A BIDDER SHOULD NOT BE ALLOWED TO EXPLAIN HIS MEANING WHEN HE IS IN A POSITION THEREBY TO PREJUDICE OTHER BIDDERS OR TO AFFECT THE RESPONSIVENESS OF HIS OWN BID. 40 COMP. GEN. 393. TO ALLOW HIM TO DO SO MIGHT RESULT IN HIS BEING AWARDED A CONTRACT, WHEREAS, IF HE REFUSES TO EXPLAIN HIS BID IN A CASE WHERE HE FELT THAT HIS BID WAS IMPROVIDENT, THE GOVERNMENT COULD NOT INSIST ON PERFORMANCE IN ACCORDANCE WITH SPECIFICATIONS. B-151716, JULY 31, 1963.

THE INTERPRETATION OF LANGUAGE CHOSEN BY A BIDDER AND INCLUDED IN HIS BID MUST BE BASED UPON THE REASONABLE MEANING OF ALL OF THE MATERIAL AND INFORMATION SUBMITTED WITH THAT BID, AND ANY INTENTION NOT CLEARLY COMMUNICATED BY THE BID AND ACCOMPANYING PAPERS IS NOT PROPER FOR CONSIDERATION IN A DETERMINATION OF RESPONSIVENESS. B 160567, FEBRUARY 8, 1967.

WE ARE OF THE OPINION IN THIS INSTANCE THAT THE ONLY REASONABLE INTERPRETATION OF THE LANGUAGE SELECTED BY UNISPEC IN THE LETTER ACCOMPANYING ITS BID IS THAT IT WAS CONDITIONING ITS BID PRICE UPON THE RESULT OF ITS ANALYSIS OF THE MISSING DOCUMENTS. MOREOVER, THE DETERMINATION OF THE EFFECT OF THAT INFORMATION WAS UNILATERALLY RESERVED TO UNISPEC SO THAT AFTER BID OPENING, WITHOUT DISPUTE OR CHALLENGE, THAT BIDDER COULD VARY ITS BID PRICE. OF COURSE, IN THE ALTERNATIVE, UNISPEC HAD THE RIGHT TO REMOVE ITSELF FROM COMPETITION BY ALLEGING THAT ITS OWN BID PRICE WAS NOT FIRM SHOULD IT BE DETERMINED THAT IT HAD MADE AN IMPROVIDENT OFFER. THEREFORE, IN THE CIRCUMSTANCES DESCRIBED ABOVE, WE ARE OF THE OPINION THAT UNISPEC'S BID WAS PROPERLY REJECTED AS BEING NONRESPONSIVE FOR FAILURE TO OFFER A FIRM BID PRICE, AND THAT NO LEGAL BASIS EXISTS FOR QUESTIONING THE AWARD TO DEWEY. ACCORDINGLY, FOR THESE REASONS, UNISPEC'S PROTEST IS DENIED.