B-165094, OCT. 18, 1968

B-165094, OCT. 18, 1968

TO JOHN R. CHRISMAN AND ASSOCIATES:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 19, 1968, WITH ENCLOSURE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANYONE EXCEPT YOUR ORGANIZATION UNDER REQUEST FOR QUOTATIONS (RFQ) NO. DAEA10-69-Q-0005, ISSUED ON AUGUST 7, 1968, BY THE DIRECTOR OF LOGISTICS, PURCHASING AND CONTRACTING DIVISION, UNITED STATES ARMY STRATEGIC COMMUNICATIONS COMMAND (USASTRATCOM/-CONUS, ALEXANDRIA, VIRGINIA. ALTHOUGH THE SOLICITATION WAS GIVEN AN RFQ DESIGNATION IT WILL HEREAFTER BE CONSIDERED A REQUEST FOR PROPOSAL (RFP) SINCE THE CRITICAL INDICIA OF AN RFP IS PRESENT, I.E., THE PROPOSALS SUBMITTED ON STANDARD FORM 33, CONSTITUTED OFFERS BY WHICH UPON WRITTEN MAILED ACCEPTANCE BY THE GOVERNMENT OF THE NOTICE OF AWARD TO NATIONWIDE BUILDING MAINTENANCE, INC., ON AUGUST 19, 1968, A BINDING CONTRACT WAS CREATED. COMPARE PARAGRAPH 16-102.3 (B) WITH PARAGRAPH 16- 102.1 OF THE ARMED SERVICES PROCUREMENT REGULATION. SEE ALSO 35 COMP. GEN. 272, 274 (1955).

THE PROCUREMENT WAS SET ASIDE FOR EXCLUSIVE SMALL BUSINESS PARTICIPATION AND PROPOSALS WERE SOLICITED FOR FURNISHING CUSTODIAL SERVICES FOR SPECIFIED BUILDINGS AT THE USASTRATCOM-CONUS FACILITY AT SUITLAND, MARYLAND, FOR THE PERIOD BEGINNING SEPTEMBER 3, 1968, AND TERMINATING JUNE 30, 1969. THE TASKS REQUIRED TO BE PERFORMED, TIME OF PERFORMANCE AND COMPLETE STANDARDS FOR THE PERFORMANCE OF EACH TYPE OF PRESCRIBED TASK, WERE SET FORTH UNDER TECHNICAL SPECIFICATIONS OF THE SOLICITATION.

PARAGRAPH 11 OF THE SPECIAL PROVISIONS PORTION OF THE SOLICITATION PROVIDES AS FOLLOWS: "SP-11 QUALIFICATION: THE SUCCESSFUL BIDDER SHALL SUBMIT UPON REQUEST, A STATEMENT OF HIS QUALIFICATIONS WHICH SHALL INCLUDE:

A. LENGTH OF TIME IN THIS TYPE OF BUSINESS.

B. LOCATION OF OFFICE OR PLANT.

C. NAME AND LOCATION OF BANK WHERE ACCOUNT IS MAINTAINED.

D. LIST OF PLACES, APPROXIMATE AREAS AND DATES WHERE THIS TYPE OF SERVICE HAS BEEN SATISFACTORILY PERFORMED, PARTICULARLY FEDERAL GOVERNMENT AGENCIES, IF ANY.

E. STATEMENT TO THE EFFECT THAT ADEQUATE PERSONNEL AND EQUIPMENT ARE AVAILABLE TO PERFORM THE SERVICES SPECIFIED IN A SATISFACTORY MANNER AND WITHIN THE PERIOD SPECIFIED.

"THE ABOVE INFORMATION MUST BE FURNISHED THE CONTRACTING OFFICER, WITH BID, OR BID WILL BE CONSIDERED NON-RESPONSIVE.'

THE PROPOSALS WERE OPENED ON AUGUST 14, 1968. OF THE TWO PROPOSALS SUBMITTED, THE PROPOSALS OF NATIONWIDE BUILDING MAINTENANCE, INC., AND JOHN R. CHRISMAN AND ASSOCIATES, INC., WERE IDENTICAL EXCEPT THAT THE FORMER OFFERED A DISCOUNT OF 2 PERCENT COMPARED TO THE LATTER'S OFFER OF 1 PERCENT. THE NOTICE OF AWARD DATED AUGUST 16, 1968, WAS MAILED TO NATIONWIDE BUILDING MAINTENANCE, INC., ON AUGUST 19, 1968.

ESSENTIALLY, YOU CONTEND THAT YOU ARE THE ONLY RESPONSIVE OFFEROR SINCE THE LAST SENTENCE OF SPECIAL PROVISION 11 PROVIDES THAT IF THE QUALIFICATION INFORMATION LISTED THEREIN IS NOT FURNISHED WITH THE PROPOSAL, THE PROPOSAL "WILL BE CONSIDERED NON-RESPONSIVE.' YOU DID, AND THE LOW OFFEROR DID NOT, FURNISH THE SPECIFIED INFORMATION WITH YOUR RESPECTIVE PROPOSALS. IT IS NOTED THAT THE QUALIFICATION INFORMATION REQUESTED UNDER SPECIAL PROVISION 11 WAS FURNISHED BY NATIONWIDE BUILDING MAINTENANCE, INC., ON THE NOTICE OF AWARD DATE, AUGUST 16, 1968.

ALTHOUGH SPECIAL PROVISION 11 STATES THAT THE REQUESTED "QUALIFICATION" DATA PERTAINS TO THE RESPONSIVENESS OF THE PROPOSAL, QUESTIONS OF CAPACITY AND RESPONSIBILITY MAY NOT BE TREATED AS QUESTIONS OF RESPONSIVENESS MERELY BECAUSE OF A STATEMENT TO THAT EFFECT IN THE SOLICITATION. 150373, MARCH 7, 1963. THERE SHOULD BE NO QUESTION IN THE INSTANT MATTER, DUE TO THE NATURE OF THE REQUESTED "QUALIFICATION" DATA, THAT SUCH DATA PERTAINS SOLELY TO THE OFFEROR'S RESPONSIBILITY AND NOT TO THE RESPONSIVENESS OF THE PROPOSAL. SEE B 158290, JANUARY 17, 1966.

WE HAVE CONSISTENTLY HELD THAT WHERE THE REQUIREMENT FOR THE SUBMISSION OF DATA IS FOR THE PURPOSE OF DETERMINING THE CAPACITY OR RESPONSIBILITY OF THE OFFEROR RATHER THAN WHETHER THE PROPERTY OR SERVICES OFFERED CONFORM TO THE GOVERNMENT'S NEEDS AS STATED IN THE SOLICITATION, THE FAILURE OF THE OFFEROR TO SUBMIT ADEQUATE DATA WITH HIS PROPOSAL FOR SUCH USE IS NOT FATAL TO CONSIDERATION OF THE PROPOSAL, INASMUCH AS A BIDDER'S CAPACITY OR RESPONSIBILITY MAY BE DETERMINED ON THE BASIS OF INFORMATION SUBMITTED AFTER THE OPENING OF THE PROPOSALS. 39 COMP. GEN. 247; ID. 881, 41 ID. 555. THE RESULT SHOULD BE THE SAME EVEN THOUGH OFFERORS ARE WARNED, AS IN THIS CASE, THAT FAILURE TO CONFORM TO DATA SUBMISSION WILL RESULT IN THEIR PROPOSALS BEING DEEMED NON-RESPONSIVE. SEE 39 COMP. GEN. 881; 42 ID. 464.

FURTHERMORE, THE PROVISION IN THE INVITATION REQUIRING QUALIFICATION DATA WAS INSERTED FOR THE CONVENIENCE OF THE GOVERNMENT AND IN NO WAY AFFECTS THE RIGHTS OF THE COMPETING OFFERORS. THE LOW OFFEROR LEGALLY COULD NOT HAVE REFUSED TO ACCEPT AWARD OF THE CONTRACT ON THE GROUND THAT HIS PROPOSAL WAS DEFECTIVE IN THAT IT DID NOT INCLUDE THE INFORMATION REQUESTED IN SPECIAL PROVISION 11. IN SUCH CIRCUMSTANCES STRICT COMPLIANCE WITH THE REQUIREMENT MAY BE WAIVED BY THE GOVERNMENT AS AN INFORMALITY AS EXPRESSLY AUTHORIZED BY PARAGRAPH 10 (B) ON THE REVERSE OF STANDARD FORM 33A USED IN THE SOLICITATION. SEE 39 COMP. GEN. 881.

FOR THE ABOVE REASONS, WE CONCLUDE THAT NO LEGAL BASIS EXISTS FOR OBJECTING TO THE AWARD OF THE CONTRACT TO NATIONWIDE BUILDING MAINTENANCE, INC., AND YOUR PROTEST MUST THEREFORE BE DENIED.