B-164480, JUN. 19, 1968

B-164480, JUN. 19, 1968

TO HOUSTON'S AMBULANCE AND TRANSPORTING SERVICE:

THIS IS IN REPLY TO YOUR PROTEST CONCERNING THE PROPOSED AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER SOLICITATION NO. 69-4, ISSUED BY THE VETERANS ADMINISTRATION CENTER, HAMPTON, VIRGINIA, FOR AMBULANCE AND HIRED CAR SERVICE FOR THE PERIOD JULY 1, 1968 THROUGH JUNE 30, 1969. YOUR PROTEST HAS BEEN FORWARDED BY THE CONTRACTING OFFICER FOR DECISION BY THIS OFFICE.

THE CONTRACTING OFFICER PROPOSES TO REJECT YOUR BID AS NONRESPONSIVE BECAUSE OF OBJECTIONABLE CONDITIONS INSERTED THEREIN BY YOU. FOR EXAMPLE, CONTRARY TO AN EXPRESS SPECIAL CONDITION IN THE INVITATION YOUR BID PROVIDES FOR AN ADDITIONAL FEE WHEN MORE THAN ONE PATIENT IS TO BE TRANSPORTED ON A SINGLE TRIP. YOUR BID ALSO INCLUDED A WAITING CHARGE NOT PROVIDED IN THE INVITATION, AND WITH REGARD TO DAY AND EVENING AMBULANCE SERVICE BEYOND THE CITY LIMITS YOU DID NOT BID IN THE MANNER REQUESTED.

IN YOUR LETTER OF MAY 22, 1968, YOU STATE THAT IN 1966 AND 1967 CONTRACTS WERE AWARDED TO YOUR COMPANY WITHOUT COMMENT EVEN THOUGH YOU SUBMITTED SIMILARLY QUALIFIED BIDS, AND THAT IN 1966 YOU WERE ADVISED THAT WRITTEN MODIFICATIONS WOULD BE PERMISSIBLE.

THE PROCEDURES APPLICABLE TO THE SUBMISSION AND OPENING OF BIDS AND AWARD OF CONTRACT WHICH ARE FOR CONSIDERATION HERE ARE STATED IN THE FEDERAL PROCUREMENT REGULATIONS (FPR) AS FOLLOWS:

"SEC. 1-2.301 RESPONSIVENESS OF BIDS.

"/A) TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED.

"/C) BIDS SHOULD BE FILLED OUT, EXECUTED, AND SUBMITTED IN ACCORDANCE WITH THE INSTRUCTIONS WHICH ARE CONTAINED IN THE INVITATION FOR BIDS. A BIDDER USES ITS OWN BID FORM OR A LETTER TO SUBMIT A BID, THE BID MAY BE CONSIDERED ONLY IF (1) THE BIDDER ACCEPTS ALL THE TERMS AND CONDITIONS OF THE INVITATION, AND (2) AWARD ON THE BID WOULD RESULT IN A BINDING CONTRACT, THE TERMS AND CONDITIONS OF WHICH DO NOT VARY FROM THE TERMS AND CONDITIONS OF THE INVITATION.

"SEC. 1-2.404-2 REJECTION OF INDIVIDUAL BIDS.

"/A) ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS, SUCH AS SPECIFICATIONS, DELIVERY SCHEDULE, OR PERMISSIBLE ALTERNATES THERETO, SHALL BE REJECTED AS NONRESPONSIVE.

"/B) ORDINARILY, A BID SHALL BE REJECTED WHERE THE BIDDER IMPOSES CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT SO AS TO GIVE HIM AN ADVANTAGE OVER OTHER BIDDERS. FOR EXAMPLE, BIDS SHALL BE REJECTED IN WHICH THE BIDDER:

"/5) LIMITS RIGHTS OF GOVERNMENT UNDER ANY CONTRACT CLAUSE. HOWEVER, A LOW BIDDER MAY BE REQUESTED TO DELETE OBJECTIONABLE CONDITIONS FROM HIS BID IF THESE CONDITIONS DO NOT GO TO THE SUBSTANCE, AS DISTINGUISHED FROM THE FORM OF THE BID. A CONDITION GOES TO THE SUBSTANCE OF A BID WHERE IT AFFECTS PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE ITEMS OFFERED.'

SINCE YOUR BID TAKES EXCEPTION TO THE ADVERTISED REQUIREMENTS AND SUCH EXCEPTIONS CLEARLY AFFECT PRICE, THE ABOVE REGULATIONS PROHIBITANY DELETION OF SUCH OBJECTIONABLE CONDITIONS AND REQUIRE THE REJECTION OF YOUR BID. SEE 36 COMP. GEN. 251. THE CONTRARY ADVICE GIVEN TO YOU IN 1966, IF APPLIED IN THE PRESENT PROCUREMENT, WOULD HAVE THE EFFECT OF OBLIGATING THE UNITED STATES IN DIRECT CONTRAVENTION OF THE MANDATORY LIMITATIONS OF THE REGULATIONS CITED AND WOULD BE CLEARLY CONTRARY TO THE PUBLIC INTEREST. WE ARE ADVISED THAT THE BASIS OF AWARD OF THE PRIOR CONTRACTS TO YOU WAS THAT IN BOTH INSTANCES YOUR BID WAS THE ONLY ONE RECEIVED, AND UNDER THESE CIRCUMSTANCES NEGOTIATION OF A CONTRACT IS PERMISSIBLE. SEE FPR 1-3.210 (A) (3).

IN HIS SUBMISSION TO THIS OFFICE THE CONTRACTING OFFICER STATES THAT THE ONLY OTHER BID RECEIVED FOR THIS PROCUREMENT IS RESPONSIVE TO THE INVITATION, IS NOT EXCESSIVE IN PRICE, AND THE BIDDER IS CONSIDERED TO BE CAPABLE OF SATISFACTORY PERFORMANCE. WHILE YOUR BID, IF EVALUATED ON THE BASIS SET FORTH IN THE INVITATION, WOULD OSTENSIBLY BE LOWER THAN THE OTHER BID RECEIVED, THE UNAUTHORIZED QUALIFICATIONS INSERTED BY YOU DESTROY THE VALIDITY OF THAT METHOD OF EVALUATION AS TO YOUR BID, SINCE IT DID NOT PROVIDE FOR CONSIDERATION OF CHARGES FOR WAITING TIME OR ADDITIONAL PATIENTS ON ANY TRIP. THE CONTRACTING OFFICER REPORTS THAT NUMEROUS TRIPS ARE MADE WITH MORE THAN ONE PATIENT AND HE THEREFORE BELIEVES THAT YOUR SERVICE WOULD IN FACT BE MORE COSTLY TO THE GOVERNMENT.

IN ANY EVENT YOUR BID MUST BE CONSIDERED AS NONRESPONSIVE, AND SINCE AWARD IS REQUIRED BY FPR 1-2.407-1 TO BE MADE TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER, YOUR PROTEST IS DENIED.