B-165469, MAR. 19, 1969

B-165469, MAR. 19, 1969

TO LA BRUM AND DOAK:

REFERENCE IS MADE TO YOUR PROTEST, ON BEHALF OF HENRY PRODUCTS COMPANY, INC. (HENRY), AGAINST THE AWARD OF A CONTRACT TO WILLIAM WALTERS, INC. (WALTERS), UNDER INVITATION FOR BIDS N00383-69-B-0088, ISSUED BY THE AVIATION SUPPLY OFFICE, DEPARTMENT OF THE NAVY, PHILADELPHIA, PENNSYLVANIA.

THE SUBJECT INVITATION WAS ISSUED ON AUGUST 7, 1968, AND REQUESTED BIDS ON ALTERNATE QUANTITIES OF COMPONENTS OF THE AN/ARA-25 DIRECTION FINDER GROUP DESIGNATED AS ITEMS 1-5, AND ON CERTAIN DATA REQUIREMENTS CONNECTED THEREWITH, ITEM 6. THE INVITATION STATED THAT AWARD WOULD BE MADE ON THE BASIS OF THE LOW OVERALL PRICE FOR THE QUANTITY SELECTED UNDER ITEMS 1 THROUGH 5 PLUS THE LOT PRICE FOR ITEM 6. THE BIDS WERE OPENED ON SEPTEMBER 6, 1968, AND SIX BIDS WERE RECEIVED. WALTERS SUBMITTED THE LOWEST BID, IN THE AGGREGATE AMOUNT OF $60,725.50, FOR THE QUANTITIES OF ITEMS 1 TO 5 SELECTED FOR AWARD, BUT MADE NO INSERTION OF A PRICE AFTER ITEM 6 THE DATA ITEM, ON PAGE 9. HENRY'S BID FOR ITEMS 1 THROUGH 5 AND ITEM 6 IN THE AMOUNT OF $73,650.41 WAS THE SECOND LOW BID.

NOTE 2, FOLLOWING THE BID SCHEDULE ON PAGE 9, PROVIDED AS FOLLOWS:

"2. PRICING OF ITEM 6: NOTWITHSTANDING THE REQUEST FOR THE INSERTION OF ESTIMATED PRICES ON DD FORM 1423, EXHIBIT -A- OFFERORS ARE REQUIRED TO INSERT A PRICE OR THE NOTATION -NO CHARGE- ADJACENT TO ITEM 6. THIS PRICE SHALL BE THE LOT PRICE FOR ALL TECHNICAL DATA REQUIRED TO SUPPORT ITEMS 1 THRU 5 AND SHALL BE THE ONLY PRICE CONSIDERED FOR TECHNICAL DATA FOR THE PURPOSE OF QUOTATION EVALUATION.'

IT IS YOUR CONTENTION THAT WALTER'S BID SHOULD NOT BE CONSIDERED FOR AWARD SINCE IT FAILED TO INSERT EITHER A BID PRICE OR "NO CHARGE" FOR ITEM 6 ON PAGE 9 OF THE INVITATION, AND THUS WAS NONRESPONSIVE, SINCE ACCORDING TO THE INVITATION THE PRICE ON PAGE 9 "SHALL BE THE ONLY PRICE CONSIDERED FOR TECHNICAL DATA FOR THE PURPOSE OF QUOTATION EVALUATION.' IN ADDITION TO THE ABOVE-QUOTED PROVISION, YOU REFER TO CLAUSE 123 OF THE INVITATION, ENTITLED DATA PRICING, WHICH STATES:

"EXCEPT WHERE OTHERWISE STATED, THE BIDDER/OFFEROR SHALL, FOR EACH ITEM OF DATA, INSERT A PRICE OR A SPECIFIC RESPONSE SUCH AS -NO CHARGE OR - INCLUDED IN THE PRICE OF ITEMS ----- -. IF A BIDDER FAILS TO ENTER A PRICE OR A SPECIFIC RESPONSE, AS ABOVE REQUESTED FOR ANY LINE ITEM OF DATA, IT SHALL BE PRESUMED THAT THE PRICE FOR SUCH LINE ITEM OF DATA IS INCLUDED IN THE PRICES SUBMITTED FOR OTHER ITEMS.'

YOU STATE THAT CLAUSE 123 CONTEMPLATES THE SITUATION WHERE THE DATA ITEM IS LISTED IMMEDIATELY AFTER EACH EQUIPMENT ITEM. IN SUCH A SITUATION IF THE BIDDER DOES OMIT A PRICE "FOR ANY LINE ITEM OF DATA" THAT PRICE WOULD BE PRESUMED TO BE INCLUDED IN THE PRICE FOR THE PARTICULAR EQUIPMENT ITEM. HOWEVER, YOU STATE THAT CLAUSE 123 WAS NOT INTENDED TO COVER THE SITUATION IN THE PRESENT CASE WHERE THE DATA FOR ALL ITEMS 1 THRU 5 IS INCLUDED IN ITEM 6, WITH A SINGLE DATA PRICE REQUIRED AS A BASIS FOR EVALUATION. YOU FURTHER STATE THAT THE CLEAR REQUIREMENT OF NOTE 2 IS THAT THE PRICE OF ITEM 6 BE STATED SEPARATELY AND THAT SUCH PRICE OVERRIDES ANY INCONSISTENT PRICE INSERTED ON FORM 1423. ADDITIONALLY, YOU STATE THAT IF THE GOVERNMENT RELIES ON CLAUSE 123, IT WOULD HAVE NO WAY OF KNOWING WHAT PRICE IS BEING ASKED FOR ITEMS 1 THROUGH 5 AND WALTER'S BID COULD NOT BE EVALUATED SHOULD THE GOVERNMENT DECIDE TO BUY ONLY ITEMS 1 THROUGH 5, OR A PART OF THEM, SINCE IT COULD NOT DETERMINE THE CREDIT TO WHICH IT WOULD BE ENTITLED AGAINST ANY PARTICULAR ITEM PRICE ON ACCOUNT OF THE DELETION OF ITEM 6.

THE SPECIFIC DATA INCLUDED IN ITEM 6 WAS ITEMIZED ON DD FORM 1423 WHICH WAS INCLUDED IN THE INVITATION AS EXHIBIT "A". THIS FORM AS STATED IN THE INSTRUCTIONS ON THE BACK THEREOF, IS REQUIRED TO BE USED WHENEVER DATA IS REQUIRED TO BE DELIVERED UNDER A CONTRACT, AND CONSTITUTES THE SOLE CONTRACTUAL LIST OF REQUIREMENTS FOR THE AMOUNTS AND KINDS OF DATA REQUIRED. FOR EACH SEPARATE ITEM OF DATA SPACES ARE PROVIDED FOR INSERTION BY THE BIDDER OF DESIGNATED INFORMATION, ONE OF WHICH (BLOCK 26) CALLS FOR ESTIMATED TOTAL PRICE. INSTRUCTIONS FOR BLOCK 26 INCLUDE THE STATEMENT THAT "FOR EACH ITEM OF DATA LISTED THE BIDDER OR OFFEROR SHALL ENTER AN AMOUNT EQUAL TO THAT PORTION OF THE TOTAL PRICE WHICH IS ESTIMATED TO BE ATTRIBUTABLE TO THE PRODUCTION OR DEVELOPMENT FOR THE GOVERNMENT OF THAT ITEM OF DATA * * *.' ON THE SAME PAGE THE BIDDER IS ADVISED THAT REGARDLESS OF WHETHER THE BIDDER HAS MADE ANY ENTRIES IN BLOCKS 25 AND 26, AND REGARDLESS OF WHAT THESE ENTRIES ARE, THE BIDDERS ARE OBLIGATED TO DELIVER ALL THE DATA LISTED ON THE "1423" AND THAT THE PRICE TO BE PAID FOR SUCH DATA IS INCLUDED IN THE TOTAL PRICE SPECIFIED IN THE CONTRACT.

IN COMPLIANCE WITH DD FORM 1423, WALTERS INSERTED A NOTATION OF "NC" (A NOTATION COMMONLY USED TO INDICATE "NO CHARGE") ON FORM 1423 FOR ALL DEFINITIVE DATA REQUIREMENTS, EXCEPT FOR SEQUENCE NO. 10, THE FIRST DATA ITEM ON 1423. NO NOTATION WAS INSERTED FOR THIS ITEM APPARENTLY BECAUSE THE INVITATION PROVIDED THAT THE PRICE FOR THAT ITEM WOULD BE NEGOTIATED AT A LATER DATE.

THE RULE IS WELL ESTABLISHED IN ADVERTISED PROCUREMENTS THAT A BIDDER'S FAILURE TO SUPPLY INFORMATION IN HIS BID WHICH IS NECESSARY TO A COMPLETE AND FULL EVALUATION OF THE BID WILL RENDER THE BID NONRESPONSIVE TO THE INVITATION. 41 COMP. GEN. 412; B-162793, JANUARY 18, 1968. ALSO, WE HAVE HELD THAT THE QUESTION WHETHER A BID IS RESPONSIVE TO THE INVITATION IS FOR DETERMINATION UPON THE BASIS OF THE BID AS SUBMITTED AND ADDITIONAL MATERIAL OR INFORMATION MAY NOT BE INTRODUCED AFTER BID OPENING TO MAKE THE BID RESPONSIVE. B-165769, JANUARY 21, 1969.

IN B-165549, FEBRUARY 12, 1969, SIX OUT OF SEVEN BIDDERS FAILED TO QUOTE A PRICE OR TO INDICATE "NO CHARGE" FOR AN ITEM OF THE SCHEDULE, DESPITE A STATED REQUIREMENT THAT THEY DO SO. THE CONTRACTING OFFICER HAD CONCLUDED THAT THIS INDICATED AN AMBIGUITY IN THE INVITATION AND CANCELLED IT. WE SUSTAINED THIS ACTION AGAINST A PROTEST SUBMITTED AFTER AWARD UNDER A LATER INVITATION. IN THAT CASE THERE WAS NOTHING 1HDR XXXXX00001-002 AFLITEDATA68261-000 ELSE IN THE INVITATION OR BID WHICH COULD HAVE BEEN INTERPRETED TO BIND A BIDDER TO FURNISH THE ITEM IN QUESTION AT NO COST. IN 41 COMP. GEN. 412, CITED IN YOUR LETTER OF NOVEMBER 1, 1968, AS INDISTINGUISHABLE FROM THE PRESENT CASE, WE HELD THAT WHERE THERE WAS A SPECIFIC REQUIREMENT FOR A SEPARATE BID PRICE FOR ENGINEERING DATA AND THE BIDDER FAILED TO PUT DOWN A SEPARATE BID PRICE FOR SUCH DATA, ITS BID WAS NONRESPONSIVE AND ADDITIONAL INFORMATION COULD NOT BE INTRODUCED AFTER BID OPENING TO MAKE THE BID RESPONSIVE. IT IS TO BE NOTED THAT THE BID IN THAT CASE WAS NONRESPONSIVE ALSO FOR FAILURE TO BID ON SEVERAL ITEMS ADDED BY AMENDMENT. HOWEVER, IN THE PRESENT CASE WALTERS DID INDICATE A "NO CHARGE" FOR ENGINEERING DATA ON FORM 1423, WHICH WAS PART OF THE INVITATION, AND HIS COMPLETION OF THAT FORM CLEARLY OBLIGATED HIM TO FURNISH ALL DATA SPECIFIED. CONSEQUENTLY, WE FAIL TO SEE ANY DIFFICULTY IN THE EVALUATION OF WALTERS' BID, SINCE ITS BID PRICES FOR ITEMS 1 THROUGH 5, COUPLED WITH ITS FORM 1423, CLEARLY INDICATES THAT THE COST OF ITEM 6 WOULD BE INCLUDED IN ITS PRICES ON ITEMS 1 THROUGH 5, AND THERE WAS NO NEED FOR WALTERS TO INTRODUCE INFORMATION AFTER BID OPENING TO MAKE ITS BID RESPONSIVE.

EVEN SHOULD THE GOVERNMENT DECIDE TO BUY ONLY ITEMS 1 THROUGH 5, OR A PART OF THEM (WHICH THE GOVERNMENT RESERVED THE RIGHT TO DO UNDER PARAGRAPH 10 (C) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS) THERE WOULD BE NO PROBLEM CONCERNING THE CREDIT TO BE RECEIVED AGAINST ANY PARTICULAR ITEM PRICE ON ACCOUNT OF THE DELETION OF ITEM 6 -- SINCE THERE IS "NO CHARGE" FOR THE DATA COVERED BY ITEM 6, THERE COULD BE NO CREDIT, AND THE BID WOULD BE FOR EVALUATION ON THE BASIS OF THE FULL PRICES STATED. HOWEVER, THE QUESTION WOULD APPEAR TO BE ACADEMIC, SINCE IT DOES NOT APPEAR THAT SEPARTE AWARDS WERE EVER INTENDED, IN VIEW OF THE FACT THAT THE INVITATION SCHEDULE, NOTE 1 ON PAGE 9, SPECIFICALLY PROVIDED THAT AWARD WOULD BE MADE ON THE BASIS OF THE LOW OVERALL PRICE BID FOR THE QUANTITY SELECTED UNDER ITEMS 1 THROUGH 5 PLUS THE LOT PRICE FOR ITEM 6. SEE B-161220, APRIL 19, 1967, AND B 145859, MAY 22, 1961. OF COURSE, IF THERE IS A CONFLICT OR INCONSISTENCY BETWEEN 10 (C) AND THE SCHEDULE PROVISION, THE LATTER PROVISION WOULD GOVERN SINCE PARAGRAPH 19 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS STATES, IN PERTINENT PART, THAT: "IN THE EVENT OF AN INCONSISTENCY BETWEEN PROVISIONS OF THIS SOLICITATION, THE INCONSISTENCY SHALL BE RESOLVED BY GIVING PRECEDENCE IN THE FOLLOWING ORDER: (A) THE SCHEDULE: (B) SOLICITATION INSTRUCTION AND CONDITIONS * *

CONCERNING YOUR ALLEGATION THAT CLAUSE 123 IS TO BE USED ONLY WHERE A DATA ITEM IS LISTED AFTER EACH HARDWARE ITEM, WE ARE ADVISED THAT CLAUSE 123 IS REGULARLY USED IN SOLICITATIONS FOR MULTIPLE HARDWARE ITEMS AND THE DATA RELATED THERETO, WHERE, AS IN THE PRESENT CASE, AWARD WILL BE MADE TO A SINGLE BIDDER FOR ALL ITEMS. THEREFORE, IT WOULD APPEAR THAT CLAUSE 123 WAS INCLUDED IN THE SCHEDULE MERELY TO ADVISE BIDDERS THAT IF THEY FAILED TO INSERT A PRICE FOR THE DATA ITEM, IT WOULD BE PRESUMED THAT THE PRICE FOR THE DATA WAS INCLUDED IN THE PRICES SUBMITTED FOR THE OTHER ITEMS LISTED IN THE INVITATION. THE ACTION OF WALTERS IS CONSISTENT WITH THE INTENT OF CLAUSE 123, SINCE BY INDICATING ON FORM 1423 THAT THERE WOULD BE "NO CHARGE" FOR THE DATA UNDER ITEM 6, WALTERS CLEARLY INDICATED THAT THE PRICES FOR THE DATA ITEM WOULD BE INCLUDED IN THE PRICE OF THE HARDWARE ITEMS. THE ADMINISTRATIVE POSITION IS THAT NOTE 2 ON PAGE 9 OF THE INVITATION IS ENTIRELY CONSISTENT WITH CLAUSE 123, THE PURPOSE OF NOTE 2 BEING MERELY TO CAUTION BIDDERS THAT THE GOVERNMENT WOULD NOT LOOK TO THE ESTIMATED PRICES CONTAINED ON FORM 1423, BUT IN ITS EVALUATION OF THE BID, WOULD ONLY LOOK TO THE PRICE SUBMITTED ON THE BID FORM. ADDITIONALLY, THE BIDDER IS PUT ON NOTICE THAT IT WOULD BE BOUND BY THE PRICE INSERTED ON THE BID FORM EVEN IF THERE WAS A DISCREPANCY BETWEEN THE PRICE SHOWN THEREON AND THE ESTIMATED PRICES SHOWN ON FORM 1423. THE ADMINISTRATIVE REPORT GOES ON TO STATE THAT IT WOULD HAVE BEEN BETTER TO HAVE USED THE WORD ,REQUESTED" IN THE FIRST SENTENCE OF NOTE 2, WHICH WILL BE DONE IN FUTURE SOLICITATIONS, RATHER THAN THE WORD "REQUIRED". HOWEVER, WE WILL NOT DISCUSS THE EFFECT OF THE WORDING OF NOTE 2, SINCE WE ARE OF THE OPINION THAT WALTERS' FAILURE TO INSERT A PRICE OR A NOTATION OF "NO CHARGE" AFTER ITEM 6 AMOUNTED TO NO MORE THAN A MINOR DEVIATION, THE PRICES LISTED FOR ITEMS 1 THROUGH 5 COUPLED WITH ITS NOTATION OF "NO CHARGE" ON FORM 1423 BEING SUFFICIENT FOR THE PURPOSE OF EVALUATING ITS BID. WE HAVE HELD THAT WHERE THE AWARD WAS TO BE MADE IN THE AGGREGATE AND AN AGGREGATE TOTAL PRICE WAS INVITED INDIVIDUAL ITEM PRICES WERE NOT MATERIAL TO THE EVALUATION OF BIDS. B 161012, JUNE 13, 1967, AND B- 149051, JUNE 29, 1962. THE INVITATION PROVIDED FOR AWARD ON THE AGGREGATE TOTAL OF THE QUANTITIES SELECTED UNDER ITEMS 1 THROUGH 5 PLUS THE LOT PRICE FOR ITEM 6. SINCE NOTE 2 SPECIFICALLY AUTHORIZED A "NO CHARGE" QUOTATION FOR ITEM 6, THE LOT PRICE FOR ITEM 6 IS NOT MATERIAL, AND THE FAILURE TO INSERT "NO CHARGE" OPPOSITE THAT ITEM IN THE PRICING SCHEDULE, SO LONG AS IT WAS CLEARLY SHOWN IN FORM 1423, IS A MINOR DEVIATION. SEE B -157494, SEPTEMBER 22, 1965. ALSO, SEE B-157359, OCTOBER 26, 1965, WHEREIN WE CONCURRED IN THE ADMINISTRATIVE PROPOSAL TO AWARD A CONTRACT ON THE BASIS OF AN "AGGREGATE TOTAL" PRICE WHERE THE BIDDER DID NOT BID ON AN ITEM FOR MANUALS BUT EXPRESSED THE AFFIRMATIVE INTENTION ELSEWHERE IN THE BID TO FURNISH THE ITEM WITHIN THE DELIVERY PERIOD SPECIFIED.

AS TO YOUR CONTENTION THAT THE IMPLEMENTATION OF SEVERAL PROVISIONS, INCORPORATED BY REFERENCE IN THE CONTRACT AWARDED AS A RESULT OF THE INVITATION, REQUIRES A SEPARATE PRICE FOR ITEM 6, WE ARE UNABLE TO AGREE. SINCE THE INVITATION AUTHORIZED A "NO CHARGE" OFFER FOR ITEM 6, YOUR CONTENTION WOULD NECESSARILY INVOLVE A CONCLUSION THAT THE CONTRACT AWARDED WOULD CONTAIN WHOLLY INCONSISTENT PROVISIONS. WE FIND NO SUCH INCONSISTENCY.

WITH RESPECT TO THE AWARD MADE AFTER NOTICE OF YOUR PROTEST, THIS WAS IN ACCORDANCE WITH A DETERMINATION BY THE CONTRACTING OFFICER PURSUANT TO ASPR 2-407.9 (B) (3), AND WE FIND NO LEGAL BASIS TO QUESTION IT. ..END :