B-165254, NOV. 7, 1968

B-165254, NOV. 7, 1968

TO JONARD INDUSTRIES CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10, 1968, PROTESTING AGAINST THE AWARD OF CERTAIN ITEMS TO OTHER BIDDERS UNDER INVITATION FOR BIDS FPNTN-E7-70172-A-7-31-68 ISSUED BY THE GENERAL SERVICES ADMINISTRATION.

THAT INVITATION ISSUED ON JUNE 26, 1968, WAS FOR A REQUIREMENTS CONTRACT WITH GUARANTEED MINIMUMS FOR FS CLASS 5120, ALIGNMENT AND ADJUSTING TOOLS FOR ELECTRONIC EQUIPMENT AND PIN STRAIGHTENERS FOR ELECTRON TUBES. PARAGRAPH 6, PAGE 10, OF THE INVITATION CONTAINED A MONTHLY SUPPLY POTENTIAL CLAUSE WHICH PROVIDED IN PART:

"* * * IN ORDER TO PRECLUDE THE PLACEMENT OF ORDERS WITH ANY CONTRACTOR IN EXCESS OF HIS PRODUCTION CAPACITY, BIDDERS ARE REQUESTED TO INDICATE IN THE SPACES PROVIDED, THE TOTAL QUANTITY PER MONTH WHICH THEY ARE WILLING TO FURNISH OF ANY ITEM OR GROUP OF ITEMS INVOLVING THE USE OF THE SAME PRODUCTION FACILITIES. SINCE THE NUMBER OF ITEMS ON WHICH ANY BIDDER MAY BE ELIGIBLE FOR AWARD CANNOT BE DETERMINED IN ADVANCE OF BID OPENING, BIDDERS ARE URGED, IN SETTING THEIR MONTHLY SUPPLY POTENTIALS, TO GROUP AS MANY ITEMS AS POSSIBLE. * * * FOR EXAMPLE, IF A BIDDER'S PRODUCTION FACILITIES CAN BE USED TO PRODUCE ANY OF THE ITEMS COVERED BY THE INVITATION, THE BIDDER MAY INSERT A SINGLE OVERALL LIMITATION ON THE QUANTITY HE CAN SUPPLY APPLICABLE TO ALL ITEMS.' JONARD WAS THE LOW BIDDER ON ITEMS 4, 16, 25, 36, AND 45 OF THE INVITATION AND COMPLETED THE "BIDDER'S MONTHLY SUPPLY POTENTIAL" IN PARAGRAPH 6 AS FOLLOWS:

STOCK ITEMS, GROUPS OF

STOCK ITEMS OR AGGREGATE BIDDER'S MONTHLY

GROUPS SUPPLY POTENTIAL

APPLICABLE TO ALL ITEMS 1200 PCS.

EXCEPT ITEM NO. 37 4500 PCS.

AND ITEM NO. 40 4500 PCS.

THE CONTRACTING OFFICER UNDERSTOOD THE BID TO MEAN THAT FOR ALL ITEMS, OTHER THAN NO. 37 AND NO. 40, JONARD HAD A TOTAL SUPPLY POTENTIAL OF 1200 ITEMS AND INASMUCH AS ITEM NO. 45 ALONE WAS FOR 1200 PIECES HE MADE AWARD OF THAT ITEM TO JONARD AND AWARDED THE OTHER ITEMS UPON WHICH JONARD WAS LOW TO OTHER SUPPLIERS.

JONARD'S PROTEST WAS ESSENTIALLY THAT ITS BID WAS INTENDED AND SHOULD HAVE BEEN UNDERSTOOD TO MEAN 1200 PIECES MONTHLY POTENTIAL FOR EACH SEPARATE ITEM BID ON BY THE COMPANY. THE LETTER OF SEPTEMBER 10, 1968, STATED THAT THIS INTERPRETATION WAS BORNE OUT BY THE FACT THAT:

"THE POTENTIAL 1200 PCS. IS WAY ABOVE THE REQUIREMENTS ON THE BID AND IF THERE WAS ANY QUESTION AS TO WHETHER IT APPLIES TO ONE ITEM, OR ALL ITEMS AS WE CLEARLY INDICATED, WE FEEL THIS SHOULD HAVE BEEN QUESTIONED BEFORE AWARD WAS MADE TO OTHER BIDDERS HIGHER IN PRICE. FURTHERMORE, MONTHLY REQUIREMENTS ARE INDICATED NEXT TO EACH ITEM AND WE WOULD NOT HAVE BIDDED IF WE COULD NOT SUPPLY.'

THIS OFFICE MUST CONCLUDE AFTER REVIEWING ALL THE EVIDENCE THAT AT BEST JONARD HAS ONLY SHOWN THAT ANOTHER MEANING COULD BE ATTACHED TO ITS MONTHLY SUPPLY POTENTIAL AS SET OUT IN THE BID. FIRST, WE CANNOT CONCUR THAT THE INTERPRETATION GIVEN JONARD'S SUPPLY POTENTIAL BY THE CONTRACTING OFFICER WAS UNREASONABLE INASMUCH AS BIDDERS WERE ADVISED AND URGED TO SUBMIT SUPPLY LIMITATIONS FOR GROUPS OF ITEMS WHERE POSSIBLE AND THAT A BIDDER MIGHT INSERT A SINGLE OVERALL LIMITATION ON THE QUANTITY HE COULD SUPPLY APPLICABLE TO ALL ITEMS. THAT ADVICE GIVEN IN PARAGRAPH 6, PAGE 10, OF THE INVITATION URGED A BIDDER TO CONSOLIDATE HIS MONTHLY SUPPLY POTENTIALS AND IF POSSIBLE INSERT A SINGLE POTENTIAL. ADDITIONALLY, THIS OFFICE DOES NOT BELIEVE THIS INTERPRETATION OF THE SUPPLY POTENTIAL STATED BY JONARD IS REBUTTED BY THE INDIVIDUAL ITEM BIDDING, WHERE MONTHLY REQUIREMENTS ARE INDICATED NEXT TO EACH ITEM, AND THE SUBSEQUENT STATEMENT BY JONARD THAT A BID WOULD NOT HAVE BEEN SUBMITTED ON AN ITEM IF IT COULD NOT SUPPLY THE AMOUNT REQUIRED. IT WOULD APPEAR, REGARDLESS OF OVERALL TOTAL SUPPLY POTENTIAL, A PRUDENT BIDDER WOULD SUBMIT OFFERS ON ALL ITEMS WHERE THE ESTIMATED REQUIREMENT WAS WITHIN HIS RESOURCES. FURTHER, IT HAS BEEN BROUGHT TO OUR ATTENTION THAT EVEN UNDER THE INTERPRETATION URGED BY JONARD, THE BIDS ON ITEMS 14, 26, 40, AND 46 WERE FOR ESTIMATED QUANTITIES IN EXCESS OF THE MONTHLY SUPPLY POTENTIAL INSERTED IN PARAGRAPH 6.

ACCORDINGLY, THIS OFFICE MUST CONCLUDE THAT THE INTERPRETATION OF ITS BID NOW URGED BY JONARD IS NOT A REASONABLE INTERPRETATION. JONARD ALSO PROTESTED THAT PRIOR TO AWARD IT SHOULD HAVE BEEN ABLE TO CLARIFY ANY QUESTION AS TO ITS MONTHLY SUPPLY POTENTIAL. CLEARLY, THE QUESTION OF MONTHLY SUPPLY POTENTIAL AFFECTS A BIDDER'S ELIGIBILITY FOR AWARD ON VARIOUS ITEMS AND MUST BE CONSIDERED A MATTER OF RESPONSIVENESS OF THE BID. 45 COMP. GEN. 611. ADDITIONALY, THE RULE IS WELL SETTLED THAT THE RESPONSIVENESS OF A BID MUST BE ASCERTAINED FROM THE BID ALONE AND TO ALLOW A BIDDER AN OPPORTUNITY TO CLARIFY OR CHANGE THE BID WOULD BE TANTAMOUNT TO ALLOWING A SECOND BID. 46 COMP. GEN. 856.