B-167409, SEP 11, 1969

B-167409: Sep 11, 1969

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WHERE PROTESTANT'S BID WAS REJECTED FOR FAILURE TO ACKNOWLEDGE AMENDMENT AND ONLY OTHER BID WAS DETERMINED TO BE UNREASONABLE AS TO PRICE. ADMINISTRATIVE ACTION IN CANCELING PROCUREMENT AND READVERTISING IS JUSTIFIED. INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED JULY 2 AND 3. AN EQUIVALENT QUANTITY WAS SET ASIDE FOR AWARD TO LABOR SURPLUS AREA CONCERNS. EACH KIT IS COMPOSED OF DIFFERENT QUANTITIES OF 20 SUBITEMS AS SET FORTH IN THE DESCRIPTION OF ITEM 1. IT IS REPORTED THAT THE ITEM DESCRIPTION ERRONEOUSLY IDENTIFIED PART NUMBER 55SQ5A7 AS THE PART NUMBER FOR SUBITEM 15 AND THAT TO CORRECT THIS ERROR THE CONTRACTING OFFICER ISSUED AMENDMENT 1 TO THE SOLICITATION SETTING FORTH S5SQ5A7 AS THE CORRECT PART NUMBER FOR SUBITEM 15.

B-167409, SEP 11, 1969

BID PROTEST - CANCELLATION AND READVERTISEMENT DECISION TO G Z PRODUCTS, INC., DENYING PROTEST AGAINST CANCELLATION AND READVERTISEMENT OF AIR FORCE PROCUREMENT FOR SPARE PART KITS FOR MD3 FRONT WHEEL DRIVES. WHERE PROTESTANT'S BID WAS REJECTED FOR FAILURE TO ACKNOWLEDGE AMENDMENT AND ONLY OTHER BID WAS DETERMINED TO BE UNREASONABLE AS TO PRICE, ADMINISTRATIVE ACTION IN CANCELING PROCUREMENT AND READVERTISING IS JUSTIFIED.

TO G Z PRODUCTS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED JULY 2 AND 3, 1969, RESPECTIVELY, PROTESTING AGAINST THE ACTION OF THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, MCCLELLAN AIR FORCE BASE, CALIFORNIA, IN CANCELING DEPARTMENT OF THE AIR FORCE INVITATION FOR BIDS (IFB) NO. F04606 -69-B-0473 AND READVERTISING THE PROCUREMENT UNDER INVITATION FOR BIDS NO. F04606-70-B-0009.

THE ORIGINAL INVITATION, IFB -0473, ISSUED ON MAY 13, 1969, REQUESTED BIDS FOR FURNISHING AN ESTIMATED QUANTITY OF 1,250 SPARE PART KITS APPLICABLE TO MD3 FRONT WHEEL DRIVES. AN EQUIVALENT QUANTITY WAS SET ASIDE FOR AWARD TO LABOR SURPLUS AREA CONCERNS. EACH KIT IS COMPOSED OF DIFFERENT QUANTITIES OF 20 SUBITEMS AS SET FORTH IN THE DESCRIPTION OF ITEM 1. IT IS REPORTED THAT THE ITEM DESCRIPTION ERRONEOUSLY IDENTIFIED PART NUMBER 55SQ5A7 AS THE PART NUMBER FOR SUBITEM 15 AND THAT TO CORRECT THIS ERROR THE CONTRACTING OFFICER ISSUED AMENDMENT 1 TO THE SOLICITATION SETTING FORTH S5SQ5A7 AS THE CORRECT PART NUMBER FOR SUBITEM 15. REGARD TO AMENDMENTS, THE SOLICITATION PROVIDED IN PARAGRAPH 4 OF THE INSTRUCTIONS AND CONDITIONS AS FOLLOWS:

"RECEIPT OF AN AMENDMENT TO A SOLICITATION BY AN OFFEROR MUST BE ACKNOWLEDGED (A) BY SIGNING AND RETURNING THE AMENDMENT, (B) ON THE REVERSE OF STANDARD FORM 33, OR (C) BY LETTER OR TELEGRAM. SUCH ACKNOWLEDGMENT MUST BE RECEIVED PRIOR TO THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS."

SIX BIDS WERE RECEIVED AND OPENED ON JUNE 13, 1969. THE LOWEST AGGREGATE BID IN THE AMOUNT OF $67,212 WAS SUBMITTED BY YOUR FIRM. YOUR BID WAS DEFICIENT IN THAT YOU HAD FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT 1. THE CONTRACTING OFFICER DETERMINED THAT THE FAILURE OF YOUR FIRM TO ACKNOWLEDGE AMENDMENT 1 COULD NOT BE WAIVED AS A MINOR INFORMALITY AND THAT, THEREFORE, YOUR BID WOULD HAVE TO BE REJECTED. IT IS REPORTED THAT THE BIDS OF THREE OTHER BIDDERS WERE ALSO REJECTED BECAUSE OF THEIR FAILURE TO ACKNOWLEDGE AMENDMENT 1 AND THAT THE BID OF THE FIFTH BIDDER WAS ALSO REJECTED BECAUSE OF ITS FAILURE TO BID ON A COMPLETE KIT AS REQUIRED BY THE SOLICITATION. THE ONLY REMAINING BID, THAT OF LA SIERRA SCREW MACHINE PRODUCTS IN THE AMOUNT OF $87,275, WAS RESPONSIVE TO THE SOLICITATION BUT WAS DETERMINED TO BE UNREASONABLE AS TO PRICE. IFB NO. - 0473 WAS THEN CANCELED AND THE PROCUREMENT READVERTISED ON JUNE 27, 1969, UNDER INVITATION FOR BIDS NO. F04606-70 B-0009, WHICH PROVIDED FOR A BID OPENING DATE OF JULY 8, 1969.

YOU CONTEND THAT YOUR BID SHOULD NOT HAVE BEEN REJECTED AS NONRESPONSIVE BECAUSE (1) YOU WERE NOT FURNISHED A COPY OF AMENDMENT 1 AND (2) YOUR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT 1 SHOULD BE WAIVED AS A MINOR INFORMALITY OR IRREGULARITY SINCE THE TYPOGRAPHICAL ERROR IN THE SOLICITATION WHICH WAS CORRECTED BY AMENDMENT 1 IS COMPLETELY IRRELEVANT AND DOES NOT AFFECT THE SOLICITATION WITH REGARD TO PRICE OR DELIVERY. YOU ALSO CONTEND THAT IF THE ORIGINAL SOLICITATION WAS CANCELED BECAUSE OF THIS TYPOGRAPHICAL ERROR AND AN AMENDMENT WAS ISSUED BECAUSE OF SUCH ERROR, THE INFORMATION CONTAINED IN THE AMENDMENT WAS NOT NECESSARY TO THE BIDDER IN SUBMITTING A BID ON THE SOLICITATION AND WAS NOT OF THE TYPE SPECIFIED IN PARAGRAPH 2 208(C) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). YOU STATE THAT DURING THE TIME YOUR FIRM WAS ESTIMATING YOUR BID PRICES, YOUR ESTIMATOR RECEIVED FIRM WRITTEN QUOTATIONS FROM MARLIN ROCKWELL AND FAFNIR BEARING CO. ON THE BEARING COVERED BY SUBITEM 15, AND THAT NO CONFUSION WHATSOEVER EXISTED FROM THE QUOTING COMPANIES AS TO WHAT WAS REQUIRED. YOU ALSO STATE THAT YOU HAVE PREVIOUSLY FURNISHED THE SAME PARTS KITS AS REQUIRED BY THIS SOLICITATION IN LATE 1968 AT A UNIT PRICE OF $57.65.

AS POINTED OUT ABOVE, IFB NO. -0473 WAS NOT CANCELED BECAUSE OF THE TYPOGRAPHICAL ERROR MADE IN CITING THE PART NUMBER OF SUBITEM 15, BUT BECAUSE THE CONTRACTING OFFICER CONCLUDED THAT THE PRICES OF THE ONLY REMAINING RESPONSIVE BIDDER WERE UNREASONABLE, AND DETERMINED TO REJECT THAT BID IN ACCORDANCE WITH ASPR 2-404.1(B) (VI) FOR UNREASONABLENESS OF PRICE. THE RECORD INDICATES THAT THE PROCUREMENT WAS READVERTISED UNDER A NEW SOLICITATION, NO. F04606-70-B-0009, WHICH WAS ISSUED JUNE 27, 1969, AND THAT THE OPENING DATE OF JULY 8, 1969, HAS BEEN INDEFINITELY EXTENDED PENDING A DECISION ON YOUR PROTEST BY OUR OFFICE.

IN REGARD TO THE FAILURE OF YOUR FIRM TO RECEIVE A COPY OF AMENDMENT 1, THERE IS NOTHING TO INDICATE THAT SUCH FAILURE WAS THE FAULT OF THE PROCUREMENT AGENCY. BUT, EVEN WHERE A PROCUREMENT AGENCY HAS FAILED TO ENSURE THAT AN INTERESTED BIDDER HAS RECEIVED A COPY OF AN AMENDMENT, WE HAVE HELD THAT SUCH FACT DOES NOT WARRANT THE ACCEPTANCE OF THE BID OR MODIFICATION THEREOF SUBMITTED AFTER BID OPENING. 40 COMP. GEN. 126.

IN THIS REGARD, WE HAVE STATED THE PROPOSITION THAT IF AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE ITS RECEIPT IN THE MANNER REQUIRED BY THE INVITATION RENDERS THE BID NONRESPONSIVE. 37 COMP. GEN. 785; 40 ID. 48. IF, AS HERE, AN AMENDMENT WHICH AFFECTS PRICE, QUANTITY OR QUALITY IS NOT ACKNOWLEDGED BY THE BIDDER PRIOR TO BID OPENING, HIS OFFER IS FOR SOMETHING OTHER THAN THE PERFORMANCE SOLICITED BY THE TERMS OF THE INVITATION, INCLUDING ANY AMENDMENTS. THE ACCEPTANCE OF A BID WHICH DISREGARDS A MATERIAL PROVISION OF AN INVITATION, AS AMENDED, WOULD NOT OBLIGATE THE BIDDER TO PERFORM IN ACCORDANCE WITH THE AMENDMENT, AND WOULD BE PREJUDICIAL TO OTHER BIDDERS. WITH REGARD TO YOUR CONTENTION THAT SINCE THE ERRONEOUS PART NUMBER APPEARING IN THE INITIAL SOLICITATION IS A TYPOGRAPHICAL ERROR, IT DOES NOT AFFECT PRICE OR DELIVERY OF THE EQUIPMENT UNDER ANY RESULTING CONTRACT, THE FACT REMAINS THAT IN VIEW OF YOUR FAILURE TO ACKNOWLEDGE THE RECEIPT OF AMENDMENT 1 YOUR FIRM WOULD NOT BE OBLIGATED TO FURNISH PART NUMBER S5SQ5A7 UNDER ANY RESULTING CONTRACT. FAR AS CONCERNS THE EFFECT ON THE CONTRACT PRICE, THE CONTRACTING OFFICE STATES THAT THE CURRENT MARKET UNIT PRICE OF PART NUMBER S5SQ5A7 IS $1.21 AND THAT IF THE TOTAL QUANTITY OF SUBITEM 15, INCLUDING THE QUANTITY SET ASIDE FOR LABOR SURPLUS AREA CONCERNS, IS CONSIDERED, THE TOTAL VALUE OF SUBITEM 15 IS APPROXIMATELY $6,050. IN VIEW THEREOF, IT IS OBVIOUS THAT THE TOTAL CONTRACT PRICE WOULD BE MATERIALLY AFFECTED. ALSO, SINCE YOU WOULD NOT BE OBLIGATED TO FURNISH PART NUMBER S5SQ5A7 UNDER ANY RESULTING CONTRACT, IT APPEARS THAT THE QUALITY OF THE SUPPLIES CALLED FOR BY THE CONTRACT WOULD BE AFFECTED. WHILE YOUR FAILURE TO RECEIVE THE AMENDMENT IS REGRETTABLE, WE MUST HOLD THAT UNDER THE ABOVE-CITED DECISIONS THE REJECTION OF YOUR BID AS NONRESPONSIVE IS REQUIRED.

YOU STATE THAT THE ERROR IN THE PART NUMBER FOR SUBITEM 15 AS SET FORTH IN THE SCHEDULE OF THE ORIGINAL SOLICITATION WAS CORRECTED BY DRAWING 62C40239 FURNISHED WITH THE SOLICITATION. WE AGREE WITH THE CONTRACTING OFFICER THAT THE CLARITY OF DRAWING 62C40239 IS QUESTIONABLE. THE FIRST PORTION OF THE PART NUMBER FOR SUBITEM 15 CAN BE READ AS EITHER "55S" OR "S5S." MOREOVER, IN ANY CONFLICT BETWEEN THE PART NUMBERS AS SET FORTH IN THE SCHEDULE AND THE DRAWINGS, THE PART NUMBER IN THE SCHEDULE WOULD CONTROL UNDER THE PROVISION ENTITLED "ORDER OF PRECEDENCE" OF PARAGRAPH 19 OF "SOLICITATION INSTRUCTIONS AND CONDITIONS" OF THE SOLICITATION.

YOU ALSO PROTEST THE TIME GIVEN PROSPECTIVE BIDDERS TO SUBMIT BIDS UNDER IFB NO. -0009, WHICH WAS ISSUED ON JUNE 27, 1969. YOU STATE THAT A CLOSING DATE OF JULY 8 WAS ESTABLISHED FOR RECEIPT OF OFFERS UNDER THAT SOLICITATION. SINCE YOUR FIRM AND OTHER INTERESTED BIDDERS WERE ADVISED ON JULY 7, 1969, THAT BECAUSE OF YOUR PROTEST THE BID OPENING DATE WAS BEING EXTENDED INDEFINITELY, IT IS NOT NECESSARY FOR US TO DETERMINE WHETHER THE TIME SPECIFIED IN IFB NO. -0009 FOR THE RECEIPT OF BIDS IS REALISTIC.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASES FOR DISAPPROVING THE ADMINISTRATIVE ACTION TAKEN IN REJECTING YOUR BID UNDER IFB NO. -0473 AND IN CANCELING THAT INVITATION. ACCORDINGLY, YOUR PROTEST IS DENIED.