B-165549, FEB. 12, 1969

B-165549: Feb 12, 1969

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TO MECHANICAL PRODUCTS: REFERENCE IS MADE TO YOUR TELEFAX OF OCTOBER 31. INVITATION FOR BIDS N00019-69-B-0013 WAS ISSUED ON AUGUST 2. SEVEN BIDS WERE RECEIVED AND OPENED ON AUGUST 28. IT WAS DETERMINED THAT SIX BIDS WERE NONRESPONSIVE BECAUSE EACH OF THE SIX BIDDERS HAD FAILED TO ENTER A PRICE IN THE "TOTAL PRICE" COLUMN FOR ITEM 3. THE INSTRUCTION READ IN PART AS FOLLOWS: "PRICING OF OFFERS - OFFERS WHICH FAIL TO COMPLY WITH THE PRICING REQUIREMENTS SET FORTH BELOW WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED. "* * * OFFEROR MUST PLACE AN ENTRY IN THE UNIT PRICE AND THE TOTAL PRICE COLUMNS FOR EACH ITEM SET FORTH ABOVE. OR THERE ARE INSTRUCTIONS ELSEWHERE IN THIS SOLICITATION DELETING THIS REQUIREMENT.

B-165549, FEB. 12, 1969

TO MECHANICAL PRODUCTS:

REFERENCE IS MADE TO YOUR TELEFAX OF OCTOBER 31, 1968, AND LETTER OF NOVEMBER 4, 1968, PROTESTING THE AWARD OF A CONTRACT TO THE ALUMINUM SPECIALTY COMPANY UNDER INVITATION FOR BIDS N00019-69-B-0108 FOR AMMUNITION LINK 20 MM.

INVITATION FOR BIDS N00019-69-B-0013 WAS ISSUED ON AUGUST 2, 1968. SEVEN BIDS WERE RECEIVED AND OPENED ON AUGUST 28, 1968, BUT IT WAS DETERMINED THAT SIX BIDS WERE NONRESPONSIVE BECAUSE EACH OF THE SIX BIDDERS HAD FAILED TO ENTER A PRICE IN THE "TOTAL PRICE" COLUMN FOR ITEM 3,"FIRST ARTICLE (GOVERNMENT TESTING) FOR ITEM 1," NOTWITHSTANDING THAT THE BID INSTRUCTIONS REQUIRED SUCH PRICING. THE INSTRUCTION READ IN PART AS FOLLOWS:

"PRICING OF OFFERS - OFFERS WHICH FAIL TO COMPLY WITH THE PRICING REQUIREMENTS SET FORTH BELOW WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.

"* * * OFFEROR MUST PLACE AN ENTRY IN THE UNIT PRICE AND THE TOTAL PRICE COLUMNS FOR EACH ITEM SET FORTH ABOVE, UNLESS THE TOTAL PRICE COLUMN REFERENCES ANOTHER SECTION OF THE SCHEDULE, OR THERE ARE INSTRUCTIONS ELSEWHERE IN THIS SOLICITATION DELETING THIS REQUIREMENT. IF ANY PARTICULAR ITEM IS TO BE PERFORMED AT NO COST TO THE GOVERNMENT, THE ENTRY -AT NO COST- SHALL BE PLACED IN THE UNIT PRICE AND TOTAL PRICE COLUMNS.'

THE SEVENTH BID WAS CONSIDERED TO BE UNREASONABLY HIGH.

BECAUSE SIX OUT OF THE SEVEN BIDDERS WERE NONRESPONSIVE TO THE INVITATION PRICING REQUIREMENT AND THE SEVENTH BID WAS EXCESSIVE, INVITATION -0013 WAS CANCELED ON OCTOBER 16, 1968, WITH NOTICE TO EACH BIDDER THAT INVITATION -0013 WAS CANCELED IN THE BEST INTERESTS OF THE GOVERNMENT "DUE TO THE AMBIGUITIES IN THE BID PACKAGE.' INVITATION N00019-69-B-0108 WAS ISSUED AS PART OF THE SAME TELEGRAM WHICH CANCELED INVITATION -0013. AN ATTEMPT TO AVOID THE PROBLEMS ENCOUNTERED ON THE ORIGINAL INVITATION, INVITATION -0108 INSTRUCTED BIDDERS TO INCLUDE THE COST OF "FIRST ARTICLE (GOVERNMENT TESTING)" IN THE BID PRICE FOR ITEM 1. INVITATION -0108 WAS OPENED ON OCTOBER 22, 1968, AND, ON THE BASIS OF THE LOW RESPONSIVE BID BY THE ALUMINUM SPECIALTY COMPANY, CONTRACT N00019-69-C-0261 WAS AWARDED TO THAT COMPANY ON OCTOBER 30, 1968.

IN YOUR PROTEST YOU STATE THAT "FURTHER, STUDIED CONSIDERATION OF THE ORIGINAL IFB BY OUR COMPANY MANAGEMENT, CONTRACT DEPARTMENT, PRODUCTION DEPARTMENT AND ENGINEERING DEPARTMENT DO NOT DISCLOSE ANY AMBIGUITIES WHICH WERE USED AS A SUBTERFUGE TO CANCEL SAID ORIGINAL BID ICITATION.' HOWEVER, WE ARE ADVISED BY THE PROCUREMENT AGENCY THAT:

"ALTHOUGH THE USE OF THE WORD -AMBIGUITIES' IN THE 16 OCTOBER LETTER MAY HAVE BEEN AN UNFORTUNATE CHOICE OF A WORD, IT WAS THE ONLY CONCLUSION THE CONTRACTING OFFICER COULD REACH TO EXPLAIN THE FAILURE BY SIX OUT OF SEVEN BIDDERS TO ENTER A PRICE FOR ITEM 3. NOTWITHSTANDING THE CHOICE OF WORDS, ASPR 2-404.1 (B) (VIII) PROVIDES AUTHORITY FOR CANCELLATION IN THESE CIRCUMSTANCES AND CANCELLATION WAS CONSIDERED BY THE CONTRACTING OFFICER TO BE -CLEARLY IN THE BEST INTEREST OF THE GOVERNMENT.-"

THE "AMBIGUITY" TO WHICH REFERENCE IS MADE IN THE OCTOBER 16 LETTER IS, OF COURSE, THE FAILURE OF THE BIDDERS TO ENTER A PRICE OR STATEMENT THAT THERE WOULD BE NO CHARGE UNDER ITEM 3, FIRST ARTICLE TESTING. IT IS FURTHER STATED BY THE PROCUREMENT ACTIVITY THAT:

"THE SUGGESTION HAS BEEN MADE THAT THE OMISSION OF A PRICE IN THE TOTAL PRICE- COLUMN SHOULD BE CONSTRUED AS A BID OF -ZERO- OR -AT NO COST.- THIS COULD BE A REASONABLE POSITION WERE IT NOT FOR THE EXPLICIT LANGUAGE OF SECTION A (AT PAGE 3) THAT AN OFFER MUST PLACE AN ENTRY IN THE TOTAL PRICE COLUMN FOR EACH ITEM, UNLESS OTHERWISE DIRECTED, (WHICH THEY WERE NOT) AND THAT IF A PARTICULAR ITEM IS TO BE AT NO COST TO THE GOVERNMENT, THE ENTRY -AT NO COST- IS TO BE MADE. IN VIEW OF THE LANGUAGE CONTAINED ON PAGE 3 OF THE INITIAL SOLICITATION N00019-69-B-0013, SIX APPARENT LOW BIDDERS WERE CONSIDERED TO BE CLEARLY NON-RESPONSIVE TO THE SOLICITATION.'

WE CAN WELL UNDERSTAND THE DISAPPOINTMENT OF A BIDDER WHO MIGHT HAVE RECEIVED AWARD BUT FOR A DISCREPANCY IN HIS BID WHICH MIGHT HAVE BEEN OTHERWISE RESPONSIVE. HOWEVER, IT IS OUR OPINION THAT FAILURE TO INCLUDE A PRICE OR A STATEMENT "AT NO COST" FOR THE FIRST ARTICLE WAS A MATERIAL DEVIATION ON THE PART OF SIX BIDDERS AFFECTING THE RESPONSIVENESS OF THEIR BIDS AND CONSTITUTED A SUFFICIENT REASON FOR THE CANCELLATION OF THE ORIGINAL INVITATION. UNDER THESE CIRCUMSTANCES, AN AWARD COULD NOT PROPERLY BE MADE TO ANY BIDDER SINCE 10 U.S.C. 2305 (C) REQUIRES AWARD TO BE MADE TO THE RESPONSIBLE BIDDER CONFORMING TO THE INVITATION. SEE 43 COMP. GEN. 813.

THE DISCLOSURE OF THE PRICES BID WAS A REGRETTABLE INCIDENT OF CANCELLATION WHICH SHOULD BE AVOIDED WHENEVER POSSIBLE, BUT IN THIS INSTANCE WE VIEW THIS CONSEQUENCE AS LESS UNDESIRABLE THAN WOULD BE THE ACCEPTANCE OF A NONRESPONSIVE BID. IN THIS REGARD, THE RIGHT OF THE GOVERNMENT TO REJECT ALL BIDS IS SPECIFICALLY AUTHORIZED BY PARAGRAPH 10 (B) OF THE INVITATION INSTRUCTIONS AND CONDITIONS AND 10 U.S.C. 2305 (C). SEE, ALSO, ASPR 2-404.1.

YOU FURTHER STATE THAT THE ALUMINUM SPECIALTY COMPANY, BECAUSE OF THE CONSIDERABLE LOWERING OF ITS BID UNDER THE SECOND INVITATION, WAS IN EFFECT "BUYING IN.' OUR OFFICE HAS NO EVIDENCE WHICH WOULD SUBSTANTIATE SUCH A CHARGE, AND IT IS TO BE OBSERVED THAT YOUR COMPANY HAD THE SAME OPPORTUNITY TO LOWER ITS BID PRICE UNDER THE SECOND INVITATION.

BECAUSE THE BIDDERS FAILED TO FOLLOW THE PRICING INSTRUCTIONS UNDER THE FIRST INVITATION AND SINCE BIDDERS WERE WARNED THAT FAILURE TO DO SO WOULD RESULT IN THE REJECTION OF THEIR BIDS AS NONRESPONSIVE, WE FIND NO BASIS TO DISAGREE WITH THE CONTRACTING OFFICER'S DETERMINATION TO CANCEL THE FIRST INVITATION AND READVERTISE THE PROCUREMENT UNDER PROPER PRICING INSTRUCTIONS.