B-167149, AUG. 25, 1969

B-167149: Aug 25, 1969

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INVITATION WHICH CONTAINS AMBIGUITIES THAT WERE REFLECTED IN BIDS OF TWO LOWEST BIDDERS. CANCELLATION IS PROPER. INC.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 2. WERE THE LOWEST BIDS RECEIVED. YOU HAVE PROTESTED THAT THE BID OF R.W. WAS NONRESPONSIVE IN THAT THE BUSES THAT THE CORPORATION STATED IN ITS BID THAT WOULD BE FURNISHED TO TRANSPORT THE STUDENTS DID NOT CONTAIN ENOUGH SEATS TO TRANSPORT THE APPROXIMATE NUMBER OF CHILDREN NEEDED TO BE TRANSPORTED AS STATED IN THE IFB FOR TWO OF THE THREE SCHOOLS. THE DEPARTMENT OF THE ARMY AGREES WITH THIS POSITION BUT MAINTAINS THAT YOUR BID WAS ALSO NONRESPONSIVE FOR THE SAME REASON. THE PERTINENT PART OF THE IFB READS AS FOLLOWS: "SCHOOLS: IT IS ESTIMATED THAT THE FOLLOWING NUMBER OF CHILDREN WILL BE TRANSPORTED TO EACH SCHOOL: APPROX NR APPROX NR "SCHOOL LOCATION OF CHILDREN OF SCHOOL DAYS .

B-167149, AUG. 25, 1969

BID PROTEST - AMBIGUOUS INVITATION DECISION TO GOLDEN ARROW LINE, INC. DENYING PROTEST AGAINST AWARD TO ANY OTHER FIRM UNDER SOLICITATION BY DEPARTMENT OF THE ARMY FOR BUS TRANSPORTATION FOR DEPENDENT SCHOOL CHILDREN AT FORT RUCKER, ALABAMA. INVITATION WHICH CONTAINS AMBIGUITIES THAT WERE REFLECTED IN BIDS OF TWO LOWEST BIDDERS, CANCELLATION IS PROPER. PROTESTANT SHOULD BE GIVEN EQUAL OPPORTUNITY TO COMPETE UNDER NEW SOLICITATION.

TO GOLDEN ARROW LINE, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 2, 1969, WHEREIN YOU PROTESTED THE AWARD TO ANY OTHER FIRM OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. DABC01-69-B-0072, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, FORT RUCKER, ALABAMA.

THE SOLICITATION COVERED THE TRANSPORTING BY BUS OF DEPENDENT SCHOOL CHILDREN TO AND FROM THREE SCHOOLS IN AND AROUND FORT RUCKER, ALABAMA, FOR APPROXIMATELY 176 DAYS, FOR THE 1969-70 SCHOOL YEAR. OF THE THREE BIDS RECEIVED, R.W. HARMON AND SONS, INC., BID OF $77,468.16 AND YOUR BID OF $93,456.00, WERE THE LOWEST BIDS RECEIVED. NO AWARD HAS BEEN MADE TO DATE AND THE DEPARTMENT OF THE ARMY PROPOSES TO CANCEL THE SOLICITATION DUE TO SEVERAL AMBIGUITIES CONTAINED THEREIN AND RESOLICIT AFTER CLARIFICATION BY THE PROCURING ACTIVITY OF THE TERMS AND CONDITIONS.

YOU HAVE PROTESTED THAT THE BID OF R.W. HARMON AND SONS, INC., WAS NONRESPONSIVE IN THAT THE BUSES THAT THE CORPORATION STATED IN ITS BID THAT WOULD BE FURNISHED TO TRANSPORT THE STUDENTS DID NOT CONTAIN ENOUGH SEATS TO TRANSPORT THE APPROXIMATE NUMBER OF CHILDREN NEEDED TO BE TRANSPORTED AS STATED IN THE IFB FOR TWO OF THE THREE SCHOOLS. THE DEPARTMENT OF THE ARMY AGREES WITH THIS POSITION BUT MAINTAINS THAT YOUR BID WAS ALSO NONRESPONSIVE FOR THE SAME REASON.

THE PERTINENT PART OF THE IFB READS AS FOLLOWS:

"SCHOOLS: IT IS ESTIMATED THAT THE FOLLOWING NUMBER OF CHILDREN WILL BE TRANSPORTED TO EACH SCHOOL:

APPROX NR APPROX NR "SCHOOL LOCATION OF CHILDREN OF SCHOOL DAYS -------- -------- ----------- ------ ------- A. CARROLL HIGH OZARK, ALABAMA 225 176

D. A. SMITH SCHOOL B. FT. RUCKER DEPENDENT FT. RUCKER, ALABAMA 750 176/SEE NOTE)

SCHOOL C. EAST GATE SCHOOL VICINITY OF OZARK GATE 375 176

TOTAL 1350 "NOTE: GRADES 3 THRU 6 MUST BE AT THE FORT RUCKER DEPENDENT SCHOOL NO LATER THAN 0750. GRADES 1 AND 2 MUST ARRIVE AT THE DEPENDENT SCHOOL NOT LATER THAN 0810. GRADES 1 AND 2 WILL DEPART THE DEPENDENT SCHOOL AT 1400 HOURS. GRADES 3 THRU 6 WILL DEPART DEPENDENT SCHOOL AT 1430. IT HAS BEEN DETERMINED BY PAST EXPERIENCE THAT THE TIME ELEMENT PERMITS THOSE BUSES UTILIZED TO TRANSPORT GRADES 3 THRU 6 TO BE UTILIZED TO TRANSPORT GRADES 1 AND 2.'

IN YOUR PROTEST, YOU ANALYZED THE IFB ESTIMATE OF THE NUMBER OF STUDENTS, I.E., SEATS REQUIRED, AND YOUR CORPORATION'S AND R.W. HARMON AND SONS, INC.'S BIDS AS FOLLOWS:

"BID GOLDEN R. W. HARMON

ESTIMATE ARROW BID BID

-------- --------- ---------- "/A) CARROLL HIGH SCHOOL

225 SEATS 240 SEATS 220 SEATS (B) FORT RUCKER DEPENDENT

SCHOOL * 750 SEATS * (FOUR OF SIX GRADES MOVE

AT ONE TIME) 4/6 X 750 450 SEATS 462 SEATS 432 SEATS (C) EAST GATE SCHOOL

375 SEATS 404 SEATS 375 SEATS "IN ITEMS (A) AND (B), R. W. HARMON DOES NOT MEET THE GOVERNMENT'S ESTIMATE.'IF AN AWARD IS GRANTED TO THE APPARENT LOW-BIDDER, R.W. HARMON, INC. IT WILL ONLY HAVE TO FURNISH 220 SEATS FOR CARROLL HIGH AND A MAXIMUM OF 432 SEATS TO THE FORT RUCKER DEPENDENT SCHOOL SINCE IT SPECIFICALLY IDENTIFIED THE CAPACITY AND NUMBER OF VEHICLES IN THE SCHEDULE ACCOMPANYING THE BID. ASSUMING THAT THE ESTIMATED NUMBER OF 225 STUDENTS AT CARROLL HIGH IS REACHED, THE GOVERNMENT WOULD HAVE TO PAY ADDITIONALLY FOR THE EXTRA FIVE STUDENTS, SINCE HARMON SPECIFICALLY DENOTES THAT THE FOUR BUSES TO BE USED ON CARROLL HIGH ARE 55-PASSENGER EACH, A TOTAL OF 220 SEATS.'

ALTHOUGH NOT PERTINENT FOR A DETERMINATION OF YOUR PROTEST, R.W. HARMON AND SONS, INC., OFFERED 6 SIXTY-FIVE PASSENGER BUSES EQUALING 390 SEATS OR 15 EXTRA SEATS FOR THE EAST GATE SCHOOL, RATHER THAN THE 375 SEATS AS SHOWN BY YOUR ILLUSTRATION. YOUR ILLUSTRATION DOES CORRECTLY SHOW, HOWEVER, THAT FOR THE FIRST TWO SCHOOLS R.W. HARMON AND SONS, INC., BID WAS NONRESPONSIVE IN THAT THE GOVERNMENT'S ESTIMATED NUMBER OF SEATS REQUIRED WAS NOT MET, BUT BY THE SAME ILLUSTRATION YOUR BID IS SIMILARLY NONRESPONSIVE. IN MULTIPLYING 4/6 X 750 YOU ARRIVED AT A GOVERNMENT ESTIMATE OF 450 SEATS FOR THE FORT RUCKER DEPENDENT SCHOOL, WHEREAS THE PROPER MULTIPLICATION WOULD REQUIRE 500 SEATS. THIS MAKES YOUR BID OF 462 SEATS FOR THAT SCHOOL NONRESPONSIVE TO THE GOVERNMENT ESTIMATE OF SEATS REQUIRED.

CORRESPONDENCE FROM R.W. HARMON AND SONS TO THE PROCURING ACTIVITY DATED JUNE 16, 1969, INDICATES THAT THEY CONSIDERED THAT THE NUMBER OF SEATS STATED IN THE IFB WAS FOR THE MAXIMUM NUMBER OF STUDENTS AND NOT THE ESTIMATED NUMBER OF STUDENTS. THIS WOULD TEND TO CONFIRM YOUR ARGUMENT THAT R.W. HARMON AND SONS, INC., WAS BIDDING ON A DIFFERENT BASIS THAN YOUR CORPORATION, IN THAT THE FIRM WAS IGNORING THE GOVERNMENT ESTIMATE AND THEREBY GREATLY REDUCING ITS COSTS. THIS IS ONE OF SEVERAL AMBIGUITIES IN THE IFB WHICH THE DEPARTMENT OF THE ARMY FEELS REQUIRES CANCELLATION OF THE PRESENT SOLICITATION. WE NOTE IN ADDITION THAT THE - BIDDING SCHEDULE, READ IN CONJUNCTION WITH THE PROVISIONS OF PARAGRAPH 8 OF THE SPECIAL CONDITIONS, LEAVES ROOM FOR DOUBT AS TO WHETHER THE CONTRACTOR'S OBLIGATION IS TO FURNISH ALL REQUIRED SERVICE AT THE TOTAL PRICE BID, OR TO FURNISH THE REQUIRED SERVICES AT THE STATED RATE PER BUS PER DAY.

ON THE RECORD WE AGREE WITH THE DEPARTMENT OF THE ARMY'S POSITION THAT CANCELLATION OF THE INVITATION IS WARRANTED. ARMED SERVICES PROCUREMENT REGULATION 2-404.1 (B) (I) PROVIDES THAT INVITATIONS FOR BIDS MAY BE CANCELLED AFTER BID OPENING BUT BEFORE AWARD WHERE INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION. SEE B-155025, MARCH 3, 1965; B-154415, AUGUST 4, 1964.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED, BUT YOU SHOULD BE GIVEN AN EQUAL OPPORTUNITY TO COMPETE UNDER THE NEW SOLICITATION.