B-167248, AUG. 22, 1969

B-167248: Aug 22, 1969

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WHERE ALL BUT ONE BID WAS NONRESPONSIVE BECAUSE OF FAILURE TO SUBMIT REQUIRED FORMS. THE ONLY RESPONSIVE BID WAS IN EXCESS OF TWO LOW BIDS. THE DETERMINATION TO CANCEL THE INVITATION AND READVERTISE WAS JUSTIFIED. SECRETARY: REFERENCE IS MADE TO A LETTER DATED JULY 19. A TOTAL OF FIVE BIDS WAS RECEIVED AND OPENED ON JUNE 11. 595.00 IT WAS DISCLOSED AT BID OPENING TIME THAT. IT IS THE PROTESTOR'S CONTENTION THAT THIS FAILURE ON THE PART OF THE OTHER BIDDERS MADE THEIR BIDS NONRESPONSIVE. CENTRAL BUILDING MAINTENANCE ARE NONRESPONSIVE FOR THE ADDITIONAL REASON THAT THEY FAILED TO STATE THEIR BID PRICE IN THE MANNER REQUIRED BY THE SOLICITATION. JULY 1966) PROVIDED THAT ALL BIDS WERE SUBJECT TO THE FOLLOWING: "3.

B-167248, AUG. 22, 1969

BID PROTEST - REJECTION AND READVERTISEMENT JUSTIFICATION DECISION TO SECRETARY OF THE ARMY DENYING PROTEST OF BUILDING MAINTENANCE CORPORATION TO AWARD OF JANITORIAL SERVICES CONTRACT TO ANY OTHER BIDDER BY ARMY CENTRAL PROCUREMENT ACTIVITY, WARRENTON, VIRGINIA. WHERE ALL BUT ONE BID WAS NONRESPONSIVE BECAUSE OF FAILURE TO SUBMIT REQUIRED FORMS, THE ONLY RESPONSIVE BID WAS IN EXCESS OF TWO LOW BIDS, AND APPROPRIATED FUNDS ALLOCATED FOR THE PRODUCEMENT HAD BEEN REDUCED PRECLUDING AN AWARD IN EXCESS OF LOW BIDS, THE DETERMINATION TO CANCEL THE INVITATION AND READVERTISE WAS JUSTIFIED.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED JULY 19, 1969, WITH ENCLOSURES, FROM THE DIRECTOR OF MATERIEL ACQUISITION, OFFICE OF THE ASSISTANT SECRETARY, REPORTING ON THE PROTEST OF BUILDING MAINTENANCE CORPORATION (BMC) TO THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. DAHC07-69-B-0156, ISSUED BY THE USASA CENTRAL PROCUREMENT ACTIVITY, VINT HILL FARMS STATION, WARRENTON, VIRGINIA, ON MAY 26, 1969, OR THE CANCELLATION OF THE INVITATION.

THE INVITATION SOLICITED BIDS FOR JANITORIAL SERVICES AT CERTAIN FACILITIES AT VINT HILL FARMS STATION. FOLLOWING A LONG STANDING PROCEDURE, THE PROCURING ACTIVITY SENT ONLY ONE COPY OF THE SPECIFICATIONS AND DD FORM 1113 (ANALYSIS OF CUSTODIAL PERSONNEL REQUIREMENTS) TO EACH OF THE PROSPECTIVE BIDDERS, ALTHOUGH IT APPARENTLY SENT FOUR COPIES OF ALL OTHER SOLICITATION MATERIAL TO THE SAME BIDDERS.

A TOTAL OF FIVE BIDS WAS RECEIVED AND OPENED ON JUNE 11, 1963. THEY INDICATED THE FOLLOWING PRICES:

DYNAMIC ENTERPRISES, INC. $26,757.00

KLEENRITE JANITORIAL SERVICE 43,683.16

BUILDING MAINTENANCE CORP. 44,595.00

CENTRAL BUILDING MAINTENANCE 31,216.56

NATIONWIDE BUILDING MAINTENANCE 44,595.00

IT WAS DISCLOSED AT BID OPENING TIME THAT, WITH THE EXCEPTION OF BMC, NONE OF THE OTHER BIDDERS HAD ATTACHED A COPY OF THE SPECIFICATIONS AND DD FORM 1113 TO THEIR BIDS. IT IS THE PROTESTOR'S CONTENTION THAT THIS FAILURE ON THE PART OF THE OTHER BIDDERS MADE THEIR BIDS NONRESPONSIVE. BMC ALSO CLAIMS THAT THE BIDS OF DYNAMIC ENTERPRISES, INC., AND CENTRAL BUILDING MAINTENANCE ARE NONRESPONSIVE FOR THE ADDITIONAL REASON THAT THEY FAILED TO STATE THEIR BID PRICE IN THE MANNER REQUIRED BY THE SOLICITATION.

PARAGRAPH 9 OF THE FACESHEET OF THE INVITATION (STANDARD FORM 33, JULY 1966) PROVIDED THAT ALL BIDS WERE SUBJECT TO THE FOLLOWING:

"3. THE SCHEDULE INCLUDED BELOW AND/OR ATTACHED HERETO.

"4. SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED HEREIN BY REFERENCE. (ATTACHMENTS ARE LISTED IN THE SCHEDULE.)"

THE SCHEDULE REQUIRED THE FURNISHING OF JANITORIAL SERVICES "HEREINAFTER MORE PARTICULARLY SET FORTH ON THE ATTACHED SPECIFICATION AND DD FORM 1113.'

THE SPECIFICATION AND DD FORM 1113 STATED INTER ALIA WHERE, WHEN, AND IN WHAT MANNER THE JANITORIAL SERVICES WERE TO BE PERFORMED. BEYOND QUESTION, THE PROVISIONS OF THESE DOCUMENTS WERE ,SUBSTANTIVE" IN THAT THEY IMPOSED MATERIAL OBLIGATIONS ON THE PROSPECTIVE CONTRACTORS. SUCH, IT WOULD BE NECESSARY FOR ANY PROSPECTIVE CONTRACTOR TO AGREE TO BE BOUND BY THEM.

WE HAVE HELD THAT A BIDDER WOULD NOT BE OBLIGATED TO COMPLY WITH ANY PROVISIONS WHICH THE INVITATION STATED WERE ATTACHED BUT WHICH, IN FACT, WERE NOT ATTACHED WHEN THE BID WAS SUBMITTED. SEE 42 COMP. GEN. 502, WHEREIN IT WAS HELD THAT WHILE PORTIONS OF THE CONTRACT INCORPORATED BY REFERENCE IN THE INVITATION WOULD BE BINDING ON BIDDERS WHO FAILED TO TAKE EXCEPTION TO THEM, SPECIAL PROVISIONS ATTACHED TO THE INVITATION WOULD NOT BE BINDING UNLESS SUBMITTED WITH THE BID, THE LANGUAGE ON THE FIRST SIGNED PAGE ONLY BINDING THE BIDDER TO ABIDE BY THOSE SCHEDULES AND PROVISIONS ATTACHED TO THE BID WHEN IT IS SUBMITTED. THE OBVIOUS THRUST OF THIS HOLDING IS TO CLARIFY AND SETTLE WITH AS MUCH CERTAINTY AS POSSIBLE THE INTENT OF A BIDDER AS ASCERTAINED FROM THE BID ITSELF. IN THIS CONNECTION, THE CITED CASE HELD:

"* * * THE DETERMINING FACTOR IS NOT WHETHER THE BIDDER INTENDS TO BE BOUND, IT IS WHETHER THIS INTENTION IS APPARENT FROM THE BID AS SUBMITTED. IN THE PRESENT SITUATION, A BIDDER COULD TAKE THE POSITION THAT HE WAS BOUND ONLY BY THE SPECIAL PROVISIONS ACTUALLY ATTACHED TO THE BID -- A CONTENTION WHICH IF MADE WOULD APPEAR TO BE LEGALLY SOUND. * *

BY THIS STANDARD, THE INTENT OF FOUR OF FIVE BIDDERS TO AGREE TO SUBSTANTIVE PROVISIONS OF THE PROPOSED CONTRACT WAS NOT CLEARLY ASCERTAINABLE FROM THE BIDS THEY SUBMITTED. THEREFORE, NOTWITHSTANDING THAT THE PROCURING AGENCY FAILED TO INCLUDE MORE THAN ON SET OF THE SPECIFICATIONS AND DD FORM 1113 IN THE SOLICITATION MATERIAL SENT TO PROSPECTIVE BIDDERS, WE DO NOT VIEW THAT CIRCUMSTANCE AS EXCUSING BIDDERS FROM ATTACHING THOSE SUBSTANTIVE DOCUMENTS TO THEIR BIDS. SINCE THE BIDS OF DYNAMIC ENTERPRISES, INC., AND CENTRAL BUILDING MAINTENANCE ARE NONRESPONSIVE FOR FAILURE TO SUBMIT THE SPECIFICATIONS AND DD FORM 1113 IT IS NOT NECESSARY FOR US TO DECIDE WHETHER THEY WERE NONRESPONSIVE ON THE OTHER GROUND ALLEGED BY THE PROTESTOR.

THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2.404-1 (A) INDICATES A GENERAL RELUCTANCE TO CANCEL AN INVITATION AFTER BID OPENING IN THE ABSENCE OF SOME COMPELLING REASON. NOTWITHSTANDING THIS, ASPR 2.404-1 (B) (VI) AUTHORIZES CANCELLATION WHEN ALL OTHERWISE ACCEPTABLE BIDS RECEIVED ARE AT UNREASONABLE PRICES. SEE 10 U.S.C. 2305 (C), AND PARAGRAPH 10 (B) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS.

THE CONTRACTING OFFICER FOUND THAT THE BID OF BMC EXCEEDED THOSE OF THE TWO LOWER BIDDERS BY $17,838 AND $13,378.44. IT WAS ALSO HIS FINDING THAT APPROPRIATED FUNDS ALLOCATED FOR THIS PROCUREMENT HAD BEEN REDUCED IN AN AMOUNT SUBSTANTIALLY LOWER THAN THE BID PRICE OF BMC, THEREBY PRECLUDING ANY AWARD IN AN AMOUNT IN EXCESS OF THE AMOUNTS BID BY THE TWO LOW BIDDERS.

ON THESE BASES, THE CONTRACTING OFFICER DETERMINED THAT THE GOVERNMENT WOULD NOT RECEIVE THE BENEFITS OF PRICE COMPETITION BY MAKING AN AWARD TO BMC AND THAT IT WAS NOT POSSIBLE TO DETERMINE THAT THE BID OF BMC WAS FAIR AND REASONABLE.

WE BELIEVE THE ABOVE FINDINGS ARE SUFFICIENT UNDER THE CONTRACTING OFFICER'S BROAD AUTHORITY TO REJECT ALL BIDS TO REQUIRE THAT HIS DETERMINATION BE SUSTAINED. SEE 36 COMP. GEN. 364; 43 ID. 268, 273; B 164931, SEPTEMBER 5, 1968. THE INVITATION SHOULD, THEREFORE, BE CANCELED AND THE PROCUREMENT READVERTISED.

RETURNED HEREWITH ARE THE BIDS OF BUILDING MAINTENANCE CORPORATION, CENTRAL BUILDING MAINTENANCE, INC., AND DYNAMIC ENTERPRISES, INC. ..END :