B-164435, AUG. 12, 1968

B-164435: Aug 12, 1968

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ON THE BASIS THAT METRO-TEL'S BID WAS NONRESPONSIVE FOR ITS FAILURE TO INDICATE A PRICE FOR ITEM 4AB. WERE AS FOLLOWS: METRO-TEL CORPORATION $109. 014.56 PAGE THREE OF THE SOLICITATION SCHEDULE PROVIDES IN PERTINENT PART AS FOLLOWS: (THE QUANTITY FOR ITEM 1 WAS INCREASED TO 76 BY AMENDMENT 001). WAS A MATERIAL OMISSION WHICH RENDERED ITS BID NONRESPONSIVE. THE PRICES FOR BOTH THESE ITEMS WERE TO BE INCLUDED IN THE PRICE OF ITEM 1. ALTHOUGH THERE WAS A LINE INCLUDED UNDER THE -AMOUNT - COLUMN OPPOSITE ITEM 4AB (THE LINE APPEARS TO SERVE NO PURPOSE) IT IS CLEAR THAT THERE WAS NO REQUIREMENT FOR THE INCLUSION OF A SEPARATE PRICE OR FOR ANY COMMENT OR NOTATION TO BE INCLUDED FOR ITEM 4AB. THIS IS SUPPORTED PARTIALLY BY THE FACT THERE IS NO DOLLAR SIGN IN FRONT OF THE LINE.

B-164435, AUG. 12, 1968

TO WACHTEL AND WIENER:

WE REFER TO THE MAY 27, 1968, TELEGRAM FROM SENTINEL ELECTRONICS, INCORPORATED, OF PHILADELPHIA, PENNSYLVANIA, PROTESTING THE AWARD TO METRO -TEL CORPORATION OF A CONTRACT TO PRODUCE 76 TELEGRAPH REPEATERS UNDER ADVERTISED SOLICITATION NO. N00039-68-B-0107, AS AMENDED, ISSUED MARCH 22, 1968, BY THE NAVAL ELECTRONIC SYSTEMS COMMAND, MUNITIONS BUILDING, WASHINGTON, D.C., ON THE BASIS THAT METRO-TEL'S BID WAS NONRESPONSIVE FOR ITS FAILURE TO INDICATE A PRICE FOR ITEM 4AB.

TWELVE BIDDERS RESPONDED TO THE SUBJECT SOLICITATION BY THE AMENDED BID OPENING DATE, MAY 22, 1968. OF THESE, THE TWO LOWEST OFFERS, AFTER TAKING INTO ACCOUNT PROMPT PAYMENT DISCOUNTS, WERE AS FOLLOWS:

METRO-TEL CORPORATION $109,649.00

SENTINEL ELECTRONICS, INCORPORATED $110,014.56

PAGE THREE OF THE SOLICITATION SCHEDULE PROVIDES IN PERTINENT PART AS FOLLOWS: (THE QUANTITY FOR ITEM 1 WAS INCREASED TO 76 BY AMENDMENT 001). "ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT

SECTION A - SUPPLIES AND/OR SERVICES AND PRICES 1

UNIVERSAL TELEGRAPH REGENERATIVE REPEATER,

SIMILAR TO AN/UGA-5 (COMPLETE WITH TWO (2)

TECHNICAL MANUALS TO BE GFE AFTER MANUSCRIPT

APPROVAL) ). OFFER A 75 EACH

$----- $----- UNIT

"ITEM NO. SUPPLIES/SERVICES QUANTITY

UNIT PRICE AMOUNT

OFFER B 75 EACH $----- $-----

2 EQUIPMENT REPAIR PARTS, TYPE III

SUPPORT 37 SET SEE NOTE A

3 MAINTENANCE REPAIR PARTS 1 LOT SEE NOTE B

4AA DATA REQUIREMENTS (SEE EXHIBIT

-A- FOR CONTRACT (

DATA REQUIREMENTS AND ATTACHMENT A, (NSP - NOT

PARAGRAPH (10) FOR PRICE GROUP (SEPARATELY PRICED -

(INCLUDED IN PRICE OF

INDICATORS) ). (PRICE TO BE

4AB MONTHLY PRODUCTION PROGRESS REPORT - (ITEM 1

DD-375 IN QUINTUPLICATE

MONTHLY ( -----

TOTAL AMOUNT EXCLUSIVE OF ITEM 3----------- $ "

THE PROTESTING BIDDER, SENTINEL ELECTRONICS, INSERTED THE PHRASE "NSP INCLUDED ITEM 1" IN RESPONSE TO ITEM 4AB. METRO-TEL INDICATED A UNIT PRICE AND AN EXTENDED PRICE IN THE APPROPRIATE COLUMNS OPPOSITE ITEM 1, OFFER B, BUT DID NOT OTHERWISE MAKE ANY NOTATIONS ON THIS PORTION OF THE PAGE. SENTINEL CONTENDS THAT METRO-TEL'S FAILURE TO INSERT SEPARATE PRICE INFORMATION REGARDING ITEM 4AB, WAS A MATERIAL OMISSION WHICH RENDERED ITS BID NONRESPONSIVE.

A REPORT OF JULY 23, 1968, FROM THE DIRECTOR OF CONTRACTS, NAVAL ELECTRONIC SYSTEMS COMMAND, DEPARTMENT OF THE NAVY, WASHINGTON, D.C., (CODE SER 108-00C) STATES THAT: "* * * AS NOTED IN THE BRACKETS OPPOSITE ITEMS 4AA AND 4AB, THE PRICES FOR BOTH THESE ITEMS WERE TO BE INCLUDED IN THE PRICE OF ITEM 1. ALTHOUGH THERE WAS A LINE INCLUDED UNDER THE -AMOUNT - COLUMN OPPOSITE ITEM 4AB (THE LINE APPEARS TO SERVE NO PURPOSE) IT IS CLEAR THAT THERE WAS NO REQUIREMENT FOR THE INCLUSION OF A SEPARATE PRICE OR FOR ANY COMMENT OR NOTATION TO BE INCLUDED FOR ITEM 4AB. THIS IS SUPPORTED PARTIALLY BY THE FACT THERE IS NO DOLLAR SIGN IN FRONT OF THE LINE. METRO-TEL IN LEAVING SUCH LINE BLANK WAS SIMPLY FOLLOWING THE INSTRUCTIONS INDICATING THAT THE PRICE FOR ITEMS 4AA AND 4AB WAS TO BE INCLUDED IN THE PRICE OF ITEM 1. * * *"

THE REPORT CONCLUDES THAT THE AWARD OF A CONTRACT TO METRO-TEL ON JUNE 28, 1968, WAS THEREFORE PROPER.

THE QUESTION HERE IS WHETHER THE WORDING AND THE FORMAT OF PAGE THREE OF THE SOLICITATION SCHEDULE SHOULD BE READ AS REQUIRING THE INSERTION OF SEPARATE PRICE INFORMATION FOR ITEM 4AB.

WHILE THE ACTIONS OF OTHER BIDDERS ARE NOT CONCLUSIVE PROOF OF HOW A BID INVITATION SHOULD BE INTERPRETED, IT SHOULD BE NOTED THAT OF THE TWELVE PROSPECTIVE CONTRACTORS WHO RESPONDED IN THIS CASE, FOUR MADE A SEPARATE RESPONSE TO ITEM 4AB, EITHER BY THE INSERTION OF A PRICE OR BY WORDS TO THE EFFECT THAT ITS PRICE WAS INCLUDED ELSEWHERE, WHILE EIGHT MADE NO SEPARATE RESPONSE TO THE ITEM. THIS WOULD INDICATE THAT MOST OF THE BIDDERS DID NOT INTERPRET ITEM 4AB AS REQUIRING A SEPARATE RESPONSE.

WE ARE AWARE OF THE FACT THAT A POTENTIAL BIDDER, IN THE EXERCISE OF DUE CAUTION, MIGHT WELL ACT AS SENTINEL DID, IN AN EFFORT TO AVOID EVEN THE REMOTE POSSIBILITY OF BID REJECTION. HOWEVER, AFTER A CLOSE INSPECTION OF THE WORDING AND FORMAT OF THE DISPUTED PAGE, WE ARE OF THE OPINION THAT THE INVITATION CANNOT REASONABLY BE CONSTRUED TO REQUIRE THE INSERTION OF SEPARATE PRICING INFORMATION FOR ITEM 4AB. WE CALL YOUR PARTICULAR ATTENTION TO THE VERTICAL LINE OF SIX PARENTHESES IN THE UNIT PRICE COLUMN OPPOSITE ITEMS 4AA AND 4AB. WE INTERPRET THESE AS SIGNIFYING THAT THE PHRASE TO THEIR RIGHT, "NSP- NOT SEPARATELY PRICED - PRICE TO BE INCLUDED IN PRICE OF ITEM 1" , IS APPLICABLE TO THE ITEMS WHICH ARE ON THE SAME HORIZONTAL LINES AS THE SIX PARENTHESES, THAT IS, ITEMS 4AA AND 4AB.

THEREFORE, METRO-TEL WAS NOT REQUIRED TO SUBMIT SEPARATE PRICING INFORMATION FOR ITEM 4AB IN ORDER TO BE CONSIDERED RESPONSIVE TO THE PRICING PROVISIONS CONTAINED ON PAGE THREE OF THE SUBJECT SOLICITATION SCHEDULE. ACCORDINGLY, YOUR PROTEST IS DENIED.