B-165183, NOV. 8, 1968

B-165183: Nov 8, 1968

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THE INVITATION SCHEDULE CONTAINED 45 LINE ITEMS AND PROVIDED IN ARTICLE 12 THAT BIDS FAILING TO QUOTE PRICES ON ALL SCHEDULE ITEMS WOULD BE REJECTED AS NONRESPONSIVE SINCE AWARD WAS TO BE MADE ON AN ALL OR NONE BASIS. THE INVITATION ALSO PROVIDED IN ARTICLE 12 THAT EVALUATION WAS TO BE ACCOMPLISHED BY MULTIPLYING THE UNIT PRICE STATED FOR EACH LINE ITEM BY A NUMBER REPRESENTING THE ESTIMATED QUANTITY FOR EACH LINE ITEM. BIDS WERE OPENED ON AUGUST 29. 504.28 WAS THE LOWEST RECEIVED. DID NOT INCLUDE A PRICE FOR LINE ITEM 29 OF THE SCHEDULE AND WAS THEREFORE REJECTED AS NONRESPONSIVE FOR FAILURE TO COMPLY WITH THE REQUIREMENTS OF ARTICLE 12. BAYSIDE WAS VERBALLY ADVISED OF THE REJECTION OF ITS BID ON AUGUST 30.

B-165183, NOV. 8, 1968

TO BAYSIDE GRAPHIC ARTS, INC.:

YOUR TELEGRAM AND LETTER DATED SEPTEMBER 3, 1968, PROTEST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. S 03512/663, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), GODDARD SPACE FLIGHT CENTER, GREENBELT, MARYLAND.

THE SUBJECT INVITATION, ISSUED ON A 100-PERCENT SMALL BUSINESS SET ASIDE BASIS, CONTEMPLATED AN INDEFINITE QUANTITIES TYPE CONTRACT FOR THE FURNISHING OF DUPLICATING SERVICES AND RELATED ITEMS. THE INVITATION SCHEDULE CONTAINED 45 LINE ITEMS AND PROVIDED IN ARTICLE 12 THAT BIDS FAILING TO QUOTE PRICES ON ALL SCHEDULE ITEMS WOULD BE REJECTED AS NONRESPONSIVE SINCE AWARD WAS TO BE MADE ON AN ALL OR NONE BASIS. THE INVITATION ALSO PROVIDED IN ARTICLE 12 THAT EVALUATION WAS TO BE ACCOMPLISHED BY MULTIPLYING THE UNIT PRICE STATED FOR EACH LINE ITEM BY A NUMBER REPRESENTING THE ESTIMATED QUANTITY FOR EACH LINE ITEM.

BIDS WERE OPENED ON AUGUST 29, 1968, AND THE BID SUBMITTED BY YOUR FIRM IN THE AMOUNT OF $131,504.28 WAS THE LOWEST RECEIVED. YOUR BID, HOWEVER, DID NOT INCLUDE A PRICE FOR LINE ITEM 29 OF THE SCHEDULE AND WAS THEREFORE REJECTED AS NONRESPONSIVE FOR FAILURE TO COMPLY WITH THE REQUIREMENTS OF ARTICLE 12. BAYSIDE WAS VERBALLY ADVISED OF THE REJECTION OF ITS BID ON AUGUST 30, 1968, AND BY TELEGRAM RECEIVED BY NASA ON SEPTEMBER 3, 1968, IT FURNISHED A PRICE FOR LINE ITEM 29 AND MODIFIED ITS PRICE FOR LINE ITEM 45. THE CONTRACTING OFFICER DETERMINED THAT THE BAYSIDE TELEGRAM WAS AN UNACCEPTABLE LATE BID MODIFICATION AND REJECTED IT. AWARD WAS THEN MADE TO DARSEL GRAPHIC ART SERVICES, INC., (DARSEL) THE SECOND LOW BIDDER, AT A PRICE OF $137,033.07 ON SEPTEMBER 3, 1968.

YOU PROTEST THE REJECTION OF YOUR BID AS NONRESPONSIVE, CONTENDING THAT YOUR FAILURE TO FURNISH A PRICE FOR LINE ITEM 29 WAS A MERE TYPOGRAPHICAL ERROR WHICH WAS PROPERLY CORRECTED BY YOUR LATER TELEGRAM. ALSO, BY YOUR TELEGRAM DATED SEPTEMBER 3, 1968, TO OUR OFFICE, YOU STATE THAT DARSEL IS IN FACT A LARGE BUSINESS CONCERN NOTWITHSTANDING ITS BID CERTIFICATION OF SMALL BUSINESS STATUS, AND THAT IT THEREFORE IS NOT ENTITLED TO ANY AWARD SINCE THIS PROCUREMENT WAS SET ASIDE EXCLUSIVELY FOR SMALL BUSINESS PARTICIPATION.

WE MUST CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED AS NONRESPONSIVE AND THAT YOUR SEPTEMBER 3 TELEGRAM FURNISHING A PRICE FOR ITEM 29 WAS NOT ACCEPTABLE. IT IS WELL SETTLED THAT IN ORDER FOR A BID TO BE CONSIDERED RESPONSIVE THE BID AS SUBMITTED MUST CONFORM TO ALL MATERIAL INVITATION TERMS AND CONDITIONS. THE INVITATION REQUIREMENT FOR BID PRICES ON ALL LINE ITEMS INVOLVED HERE WAS MATERIAL BECAUSE BID EVALUATION ON AN ALL OR NONE BASIS NECESSARILY HAD TO TAKE INTO ACCOUNT ALL PRICES BID ON THE ITEMS CONSTITUTING THE AGGREGATE AWARD. IT IS EQUALLY WELL SETTLED THAT A NONRESPONSIVE BID CANNOT BE CHANGED AFTER OPENING SO AS TO BE MADE RESPONSIVE BECAUSE TO ALLOW SUCH A CHANGE WOULD BE TANTAMOUNT TO ALLOWING A BIDDER TO SUBMIT A NEW BID. SEE 38 COMP. GEN. 819. THEREFORE, ALLEGATIONS OF ERROR CAN ONLY BE CONSIDERED WITH REGARD TO BIDS DETERMINED TO BE RESPONSIVE TO THE MATERIAL TERMS OF THE INVITATION. 40 COMP. GEN. 432.

AS A RESULT OF YOUR ALLEGATION THAT DARSEL IS NOT A SMALL BUSINESS CONCERN, THE MATTER WAS REFERRED BY THE PROCUREMENT ACTIVITY TO THE SMALL BUSINESS ADMINISTRATION (SBA). THAT AGENCY DETERMINED THAT DARSEL IS NOT AN ELIGIBLE SMALL BUSINESS CONCERN FOR THE PURPOSES OF THE SUBJECT PROCUREMENT. HOWEVER, YOUR SEPTEMBER 3 TELEGRAM CONCERNING DARSEL'S SIZE STATUS WAS DIRECTED TO OUR OFFICE RATHER THAN THE CONTRACTING OFFICER WITH THE RESULT THAT THAT OFFICIAL WAS NOT AWARE OF YOUR PROTEST AT THE TIME THE AWARD WAS MADE. IN THIS REGARD, NASA PROCUREMENT REGULATION (NASA PR) 1.703 (A) REQUIRES THAT THE CONTRACTING OFFICER ACCEPT AT FACE VALUE "A REPRESENTATION BY THE BIDDER OR OFFEROR THAT IT IS A SMALL BUSINESS CONCERN," AND SUBSECTION (B) OF THAT SECTION SPECIFICALLY PROVIDES THAT "THE CONTROLLING POINT IN TIME FOR A DETERMINATION CONCERNING THE SIZE STATUS OF A QUESTIONED BIDDER OR OFFEROR SHALL BE THE DATE OF AWARD * * *.' FINALLY, NASA PR 1.703 (B) (1) (III)PROVIDES THAT WHERE SIZE PROTESTS ARE RECEIVED AFTER AWARD HAS BEEN MADE, THEY WILL BE FORWARDED TO THE APPROPRIATE SBA REGIONAL OFFICE "FOR ITS CONSIDERATION IN FUTURE ACTIONS.' IN THIS REGARD OUR OFFICE HAS HELD THAT THE RULE THAT SIZE PROTESTS SHALL NOT BE CONSIDERED AFTER AWARD HAS BEEN MADE "IS EMINENTLY REASONABLE AND NECESSARY * * * SINCE A BIDDER IN SUCH CIRCUMSTANCES OTHERWISE COULD NEVER BE SURE AN AWARD TO HIM WOULD BE SUSTAINED.' SEE 46 COMP. GEN. 342, 345. WE MUST CONCLUDE, THEREFORE, THAT THE AWARD MADE TO DARSEL IS NOT SUBJECT TO QUESTION.

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, YOUR PROTEST MUST BE DENIED.