B-164610, JUL. 22, 1968

B-164610: Jul 22, 1968

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INC.: REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF JUNE 18. YOU HAVE PROTESTED AGAINST THE REJECTION OF YOUR BID AS NONRESPONSIVE IN THE BELIEF THAT THE ONLY REASON FOR SUCH REJECTION WAS BASED ON YOUR PROPOSED USE OF STATION WAGONS MODIFIED TO FIT THE AMBULANCE REQUIREMENTS OF THE INVITATION. IT IS REPORTED BY THE ADMINISTRATIVE OFFICE THAT AFTER REVIEWING THE BIDS SUBMITTED FOR THIS PROCUREMENT. IT WAS FOUND THAT YOU HAD SUBMITTED ONLY PART OF THE INVITATION (PAGES 1. WE HAVE NOTED THAT THE INVITATION PAGES OMITTED FROM YOUR BID CONTAINED SPECIAL CONDITIONS CONCERNING. WHILE THE OMISSION OF THE PAGES CONTAINING THESE PROVISIONS FROM YOUR BID MAY HAVE BEEN INADVERTENT. THESE OMITTED PROVISIONS ARE "SUBSTANTIVE" IN THAT THEY IMPOSE MATERIAL OBLIGATIONS ON PROSPECTIVE CONTRACTORS.

B-164610, JUL. 22, 1968

TO GREEN BAY AMBULANCE SERVICE, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF JUNE 18, 1968, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. 69 5, ISSUED BY THE VETERANS ADMINISTRATION CENTER, WOOD, WISCONSIN, ON JUNE 3, 1968.

THE SUBJECT INVITATION SOLICITED BIDS FOR FURNISHING AMBULANCE SERVICE BETWEEN THE VETERANS ADMINISTRATION CENTER, WOOD, WISCONSIN, AND VARIOUS LOCATIONS IN THE STATE OF WISCONSIN FOR THE PERIOD JULY 1, 1968, THROUGH JUNE 30, 1969. YOUR FIRM SUBMITTED THE LOW BID ON ITEM 2 OF THE INVITATION COVERING AREA NO. 2 (CITY OF GREEN BAY AND VICINITY), AND FOR OXYGEN SERVICE UNDER ITEM 4. YOU HAVE PROTESTED AGAINST THE REJECTION OF YOUR BID AS NONRESPONSIVE IN THE BELIEF THAT THE ONLY REASON FOR SUCH REJECTION WAS BASED ON YOUR PROPOSED USE OF STATION WAGONS MODIFIED TO FIT THE AMBULANCE REQUIREMENTS OF THE INVITATION.

IN THE FIRST INSTANCE, IT IS REPORTED BY THE ADMINISTRATIVE OFFICE THAT AFTER REVIEWING THE BIDS SUBMITTED FOR THIS PROCUREMENT, IT WAS FOUND THAT YOU HAD SUBMITTED ONLY PART OF THE INVITATION (PAGES 1, 2, 5, AND 6) AS YOUR BID. SINCE THE OMITTED PAGES OF THE INVITATION (PAGES 7 THROUGH 11) CONTAINED SUBSTANTIVE CONTRACT PROVISIONS, THE CONTRACTING OFFICER REJECTED YOUR BID AS NONRESPONSIVE. IN THIS CONNECTION, WE HAVE NOTED THAT THE INVITATION PAGES OMITTED FROM YOUR BID CONTAINED SPECIAL CONDITIONS CONCERNING, AMONG OTHER THINGS, ATTENDANTS, VEHICLE STANDARDS, AMBULANCE EQUIPMENT REQUIRED, NUMBER OF PATIENTS FOR TRANSPORT, RATE COMPUTATION (DAY OR NIGHT), TOLL CHARGE REIMBURSEMENT, AND INDEMNIFICATION AND INSURANCE PROVISIONS. ALSO, THE OMITTED PAGES RELATED TO OBLIGATIONS UNDER THE SERVICE CONTRACT ACT OF 1965 AND TO THE INCORPORATION BY REFERENCE OF THE CONTRACT CONDITIONS AND GENERAL PROVISIONS SUPPLEMENTING STANDARD FORM 32 (SUPPLY CONTRACT).

WHILE THE OMISSION OF THE PAGES CONTAINING THESE PROVISIONS FROM YOUR BID MAY HAVE BEEN INADVERTENT, THESE OMITTED PROVISIONS ARE "SUBSTANTIVE" IN THAT THEY IMPOSE MATERIAL OBLIGATIONS ON PROSPECTIVE CONTRACTORS. WE HAVE HELD THAT A BIDDER WOULD NOT BE OBLIGATED TO COMPLY WITH ANY PROVISIONS WHICH THE INVITATION STATED WERE ATTACHED BUT WHICH, IN FACT, WERE NOT ATTACHED WHEN THE BID WAS SUBMITTED. SEE 42 COMP. GEN. 502, WHEREIN IT WAS HELD THAT WHILE PORTIONS OF THE CONTRACT INCORPORATED BY REFERENCE IN THE INVITATION WOULD BE BINDING ON BIDDERS WHO FAILED TO TAKE EXCEPTION TO THEM, SPECIAL PROVISIONS ATTACHED TO THE INVITATION WOULD NOT BE BINDING UNLESS SUBMITTED WITH THE BID, THE LANGUAGE ON THE FIRST SIGNED PAGE ONLY BINDING THE BIDDER TO ABIDE BY THOSE SCHEDULES AND PROVISIONS ATTACHED TO THE BID WHEN IT IS SUBMITTED, NOT THOSE WHICH WERE ORIGINALLY INCLUDED WITH THE INVITATION BUT WHICH WERE REMOVED BY THE BIDDER BEFORE SUBMISSION OF THE BID. THE CITED CASE STATES:

"* * * THE DETERMINING FACTOR IS NOT WHETHER THE BIDDER INTENDS TO BE BOUND, IT IS WHETHER THIS INTENTION IS APPARENT FROM THE BID AS SUBMITTED. IN THE PRESENT SITUATION, A BIDDER COULD TAKE THE POSITION THAT HE WAS BOUND ONLY BY THE SPECIAL PROVISIONS ACTUALLY ATTACHED TO THE BID -- A CONTENTION WHICH IF MADE WOULD APPEAR TO BE LEGALLY SOUND. * *

IN VIEW THEREOF, WE WOULD NOT BE WARRANTED IN QUESTIONING THE ADMINISTRATIVE ACTION IN REJECTING YOUR BID AS NONRESPONSIVE FOR FAILURE TO RETURN SUBSTANTIVE PORTIONS OF THE INVITATION WITH YOUR BID. SEE B- 159360, JUNE 14, 1966; B-160068, OCTOBER 27, 1966; AND B 163647, MAY 15, 1968.

ADDITIONALLY, IT APPEARS THAT YOUR BID WAS PROPER FOR REJECTION BECAUSE THE MODIFIED STATION WAGONS OFFERED BY YOU DID NOT CONFORM TO THE REQUIREMENTS OF THE SPECIFICATIONS. WITH RESPECT TO YOUR CONTENTIONS TO THE CONTRARY, WE ARE ADVISED BY THE PROCUREMENT OFFICE AS FOLLOWS:

"2. SPECIFICALLY, THE CONVERTED STATION WAGON OFFERED BY THE PROTESTOR DOES NOT ALLOW ADEQUATE ROOM TO PERMIT ATTENTION TO A PATIENT DURING TRANSIT IF SUCH WERE NECESSARY. QUOTED IS A STATEMENT FROM THE CHIEF, OUT -PATIENT SERVICE WHICH INDICATES THE PROBLEM THAT MAY BE ENCOUNTERED IF CONVERTED STATION WAGONS WERE PERMITTED. -HEADROOM IS AT A PREMIUM. BECAUSE OF THIS, IT IS RATHER DIFFICULT TO MOVE ABOUT TO ATTEND THE LITTER AND FOR THE PATIENT TO BE IN AN ELEVATED POSITION. THIS COULD BE PROBLEMATIC ON LONG TRIPS.-

"3. MANY OTHER HOSPITALS IN THIS VICINITY, SUCH AS MILWAUKEE COUNTY GENERAL WHICH IS BY FAR THE LARGEST, PROVIDE AMBULANCE SERVICE ONLY BY REGULATION AMBULANCES, THAT ARE ACEPTED AS SUCH BY THE TRADE. A VEHICLE WHICH WOULD MEET THE SPECIFICATIONS OF AN AMBULANCE HAS MANY MORE FEATURES THAN JUST THE LACK OF HEAD ROOM AS PREVIOUSLY MENTIONED. FOR EXAMPLE, THE BODIES ARE MORE STURDILY CONSTRUCTED, HEAVIER IN WEIGHT, AND HAVE AN ADEQUATE WHEELBASE LENGTH TO PERMIT COMFORTABLE TRANSPORTATION OF VERY ILL PATIENTS.

"4. IN ANSWER TO YOUR QUESTION REGARDING ANY SUGGESTIONS OR ADDITIONAL SPECIFICATIONS, I AM CONVINCED THAT THE SPECIFICATIONS AS STATED IN THE INVITATION ON PAGE 7, PARAGRAPHS 5 AND 6, ARE ENTIRELY ADEQUATE IF THEY ARE FOLLOWED.

"5. THE REFERENCE TO THE PROTESTOR'S STATEMENT THAT HIS EQUIPMENT IS LICENSED BY THE CITY OF GREEN BAY MAY BE TRUE, HOWEVER, IT MAY BE BY REASON OF THE FACT THAT THERE ARE NO OTHER TYPES OF VEHICLES BEING OFFERED FOR AMBULANCE SERVICE IN THAT AREA. IN DISCUSSING THIS MATTER FURTHER WITH OTHER AMBULANCE CONTRACTORS IN THE CITY OF MILWAUKEE, THEY STATED THAT THEY WOULD NOT EVEN CONSIDER THE USE OF SUCH A LIGHTLY CONSTRUCTED, LIMITED HEAD ROOM, HARD RIDING VEHICLE AS THE TYPE SUITABLE FOR TRANSPORTATION OF PATIENTS WHO ARE ILL.'

IT LONG HAS BEEN RECOGNIZED THAT THE FACTUAL DETERMINATION AS TO WHETHER THAT WHICH IS OFFERED BY THE BIDDER CONFORMS TO THE SPECIFICATIONS IS TO BE DECIDED PRIMARILY BY THE CONTRACTING AGENCY. 17 COMP. GEN. 554; 36 COMP. GEN. 251. THUS, WHERE IT IS REASONABLY SHOWN THAT EQUIPMENT OFFERED BY A BIDDER FAILS TO MEET THE SPECIFICATIONS IN SOME MATERIAL RESPECTS, A DETERMINATION THAT SUCH BID SHOULD BE REJECTED GENERALLY WILL NOT BE QUESTIONED BY OUR OFFICE. MOREOVER, WE HAVE BEEN ADVISED BY THE PROCUREMENT OFFICE THAT THE SECOND LOWEST BID ON ITEM 2 OF THE INVITATION WAS ALSO REJECTED AS NONRESPONSIVE. IN VIEW THEREOF AND SINCE THE ONLY REMAINING BID IS UNREASONABLE AS TO PRICE, THE PROCUREMENT OFFICE INTENDS TO CANCEL THE ITEM 2 REQUIREMENT AND READVERTISE IT AT A FUTURE DATE. SEE FEDERAL PROCUREMENT REGULATIONS 1-2.404-1.

FOR THE REASONS STATED, WE FIND NO LEGAL BASIS TO OBJECT TO THE ADMINISTRATIVE REJECTION OF YOUR BID AS NONRESPONSIVE. THEREFORE, YOUR PROTEST IS DENIED.