B-167891, OCT. 30, 1969

B-167891: Oct 30, 1969

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WAS PROPERLY REJECTED. INCORPORATED: REFERENCE IS MADE TO THE LETTER OF SEPTEMBER 15. THE CONTRACT PERIOD IS TO BE FROM DECEMBER 1. THE ITEM DESCRIPTION ON PAGE 8 OF THE SOLICITATION IS DIVIDED INTO TWO PARTS. THE FIRST PART OF THE ITEM DESCRIPTION APPLIES TO BOTH THE EMBOSSED AND UNEMBOSSED CARDS AND IT IS PROVIDED THAT CERTAIN PRINTED MATERIAL IS TO BE PUT ON THE FACE OF BOTH THE EMBOSSED AND UNEMBOSSED CARDS. CERTAIN OTHER MATERIAL WHICH IS TO BE PRINTED ON THE BACK OF BOTH THE EMBOSSED AND UNEMBOSSED CARDS IS ALSO SET OUT IN THE FIRST PART OF THE ITEM DESCRIPTION. LINE 1 WILL BE THE ACCOUNT NUMBER * * * THE ACCOUNT NUMBER WILL CONSIST OF TEN DIGITS. THE FIRST THREE WILL BE 000 (WITH THE EXCEPTION OF THE SPECIAL ACCOUNT NUMBERS AS SHOWN BELOW *).

B-167891, OCT. 30, 1969

BIDS--QUALIFIED--LETTER CONTAINING CONDITIONS NOT IN INVITATION LOW BID WHICH, UNDER PROCUREMENT FOR FURNISHING U.S. GOVERNMENT NATIONAL CREDIT CARDS, INCLUDED COVER LETTER WHICH RESTRICTED BID TO EMBOSSING, WHEN FIRST ITEM REQUIREMENTS PROVIDED FOR EMBOSSING AND PRINTING, NOTWITHSTANDING BIDDER'S INTERPRETATION THAT SEPARATE CONTRACTS WOULD BE LET FOR PRINTING AND EMBOSSING WORK UNDER ITEM NO. 1, WAS PROPERLY REJECTED, SINCE PROCURING AGENCY, BASED ON REASONABLE INTERPRETATION OF PROTESTANT'S COVER LETTER, CORRECTLY CONCLUDED BID OFFERED TO FURNISH ONLY PART OF REQUIRED WORK MAKING BID NONRESPONSIVE. BIDDER WHO SUBMITS LETTER DISCUSSING REQUIREMENTS TAKES RISK THAT LETTER MAY BE FOUND TO QUALIFY BID WITH RESPECT TO CERTAIN MATERIAL REQUIREMENTS.

TO LEMCO, INCORPORATED:

REFERENCE IS MADE TO THE LETTER OF SEPTEMBER 15, 1969, PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. FPNGG-M 27824-A-8- 12-69, ISSUED ON JULY 22, 1969, BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA), FOR FURNISHING UNITED STATES GOVERNMENT NATIONAL CREDIT CARDS. THE CONTRACT PERIOD IS TO BE FROM DECEMBER 1, 1969, TO NOVEMBER 30, 1970.

THE ITEM DESCRIPTION ON PAGE 8 OF THE SOLICITATION IS DIVIDED INTO TWO PARTS. THE FIRST PART OF THE ITEM DESCRIPTION APPLIES TO BOTH THE EMBOSSED AND UNEMBOSSED CARDS AND IT IS PROVIDED THAT CERTAIN PRINTED MATERIAL IS TO BE PUT ON THE FACE OF BOTH THE EMBOSSED AND UNEMBOSSED CARDS. CERTAIN OTHER MATERIAL WHICH IS TO BE PRINTED ON THE BACK OF BOTH THE EMBOSSED AND UNEMBOSSED CARDS IS ALSO SET OUT IN THE FIRST PART OF THE ITEM DESCRIPTION.

THE SECOND PART OF THE ITEM DESCRIPTION WHICH APPLIES ONLY TO THE EMBOSSED CARDS STATES AS FOLLOWS:

"CARDS TO BE EMBOSSED IN ACCORDANCE WITH DATA FURNISHED BY THE REQUISITIONING AGENCY; EMBOSSING TO CONSIST OF FIVE LINES, LINE 1 WILL BE THE ACCOUNT NUMBER * * * THE ACCOUNT NUMBER WILL CONSIST OF TEN DIGITS, THE FIRST THREE WILL BE 000 (WITH THE EXCEPTION OF THE SPECIAL ACCOUNT NUMBERS AS SHOWN BELOW *), THE FOURTH WILL SIGNIFY THE VEHICLE CLASS, THE FIFTH AND SIXTH WILL CONSTITUTE THE AGENCY CODE NUMBER, THE SEVENTH, EIGHTH AND NINTH WILL INDICATE THE AGENCY BILLING ADDRESS; THE TENTH DIGIT WILL BE A CHECK NUMBER FOR USE IN AUTOMATIC BILLING OPERATIONS OF THE OIL COMPANIES AND WILL BE DETERMINED ON A MATHEMATICAL BASIS BY THE HOLDER OF THE CONTRACT FOR EMBOSSING THE CARDS. * * *".

BIDS WERE OPENED ON AUGUST 12, 1969, AND A BID WAS RECEIVED FROM YOUR CONCERN WHICH PURPORTEDLY QUOTED A PRICE ON ITEM NO. 1 AND THIS PRICE WAS FOUND TO BE LOW. AMENDMENT NO. 1 WAS NOT RETURNED WITH THE BID BUT IT WAS FOUND THAT THIS WOULD HAVE ONLY AN INCONSEQUENTIAL EFFECT ON YOUR BID. COVER LETTER DATED AUGUST 8, 1969, ATTACHED TO LEMCO'S BID REFERENCING THE INSTANT INVITATION STATED AS FOLLOWS:

"RE: SOLICITATION NO. FPNGG-M-27824-A-8-12-69 "THIS BID IS SUBMITTED WITH THE PROVISION THAT THE TYPE STYLE SUBMITTED (SAMPLES ENCLOSED) WILL BE ACCEPTABLE TO THE UNITED STATES VERNMENT.'THIS MAKES NO REFERENCE TO THE ACTUALLY PRINTED CARDS BECAUSE WE ARE NOT BIDDING ON THAT PART OF THE CONTRACT. THE EMBOSSED SAMPLES ARE SUBMITTED MERELY TO SHOW THE TYPE STYLE WE CAN PRODUCE FOR THE EMBOSSING PART OF THE CONTRACT AND IS NOT A SAMPLE FOR EITHER SPACING OR EMBOSSING PRESSURE.'

GSA DETERMINED THAT YOUR BID WAS NONRESPONSIVE SINCE IT COVERED ONLY THE EMBOSSING OF THE CARD, WHEREAS THE SPECIFICATION REQUIREMENT FOR ITEM NO. 1 WAS FOR PRINTED CARDS, TO BE EMBOSSED IN ACCORDANCE WITH DATA FURNISHED BY THE REQUISITIONING AGENCIES. BY LETTER OF SEPTEMBER 3, 1969, GSA ADVISED YOU OF ITS DETERMINATION. GSA MADE AWARDS UNDER THE SOLICITATION ON AUGUST 28, 1969, PRIOR TO RECEIPT OF NOTICE OF YOUR PROTEST.

THE ARGUMENT IN THE LETTER OF SEPTEMBER 15 FROM YOUR CONCERN IS THAT THE INVITATION PROVIDES FOR AWARD ON AN ITEM-BY-ITEM BASIS AND THAT "* * * UNDER -EMBOSSING- ONE PORTION OF A SENTENCE READS -WILL BE DETERMINED ON A MATHEMATICAL BASIS BY THE HOLDER OF THE CONTRACT FOR EMBOSSING THE CARDS.- THIS LEADS ONE TO BELIEVE THAT THERE CERTAINLY CAN BE MORE THAN ONE PARTY INVOLVED IN THIS CONTRACT.' THE LETTER OF SEPTEMBER 15 CONCLUDES AS FOLLOWS:

"WE CAN FIND NO WHERE IN THIS CONTRACT THAT STATES VAGUELY OR CLEARLY THAT YOU HAVE TO BID ON BOTH PORTIONS OF THE CONTRACT. IF THIS HAD BEEN THE CASE THIS SHOULD HAVE CERTAINLY BEEN SPELLED OUT VERY CLEARLY.

"IF THIS CONTRACT WAS AWARDED TO THE LOW BIDDER FOR EMBOSSED CARDS AND THE LOW BIDDER FOR UNEMBOSSED CARDS THE SAVINGS TO THE GOVERNMENT WOULD BE VERY GREAT, OVER 100 PERCENT ON THE UNEMBOSSED CARDS. THEREFORE, WE FEEL THIS CONTRACT SHOULD BE AWARDED TO THESE TWO PARTIES OR RELET THE CONTRACT WITH THE REQUIREMENTS SPELLED OUT MORE CLEARLY.'

THE LETTER OF SEPTEMBER 15 ASSUMES THAT YOUR BID WAS REJECTED ON THE BASIS THAT YOUR CONCERN DID NOT BID ON BOTH ITEMS 1 AND 2. HOWEVER, THIS WAS NOT THE CASE. THE FIRST PART OF THE ITEM DESCRIPTION PROVIDED THAT THE CARDS DESCRIBED UNDER ITEM NO. 1 SHOULD HAVE CERTAIN PRINTING ON THE FACE OF THE CARD AS WELL AS ON THE BACK OF THE CARD IN ADDITION TO THE EMBOSSING WORK WHICH WAS TO BE IN ACCORDANCE WITH DATA FURNISHED BY THE REQUISITIONING AGENCY. GSA INTERPRETED THE COVER LETTER, QUOTED ABOVE, SUBMITTED WITH YOUR BID, AS LIMITING YOUR OFFER FOR ITEM NO. 1 TO THE EMBOSSING WORK ONLY. IT WAS GSA'S FINDING THAT YOUR BID DEVIATED FROM THE REQUIREMENTS FOR ITEM NO. 1 WHICH CALLED FOR BOTH PRINTING WORK AND EMBOSSING WORK.

THE ITEM-BY-ITEM AWARD PROVISION IN PARAGRAPH 4 OF THE SPECIAL PROVISIONS RELATES TO THE POSSIBILITY OF HAVING ONE CONTRACTOR FOR ITEM NO. 1 AND ANOTHER CONTRACTOR FOR ITEM NO. 2. THERE IS NOTHING IN PARAGRAPH 4 WHICH WOULD INDICATE THAT IT WAS INTENDED TO HAVE DIFFERENT CONTRACTORS FOR THE PRINTING AND EMBOSSING REQUIREMENTS OF ITEM NO. 1. THE SENTENCE IN THE EMBOSSING SECTION OF THE ITEM DESCRIPTION REFERRED TO IN THE LETTER OF SEPTEMBER 15 CLEARLY APPLIES TO HOW THE CONTRACTOR WILL DETERMINE WHICH DIGIT WILL BE THE TENTH DIGIT OF THE ACCOUNT NUMBER. THERE IS NO BASIS FOR THE INTERPRETATION APPARENTLY URGED BY YOU THAT "WILL BE DETERMINED ON A MATHEMATICAL BASIS BY THE HOLDER OF THE CONTRACT FOR EMBOSSING THE CARDS" MEANS THAT SEPARATE CONTRACTS WILL BE LET FOR THE PRINTING AND EMBOSSING WORK UNDER ITEM NO. 1.

WHENEVER A BIDDER SUBMITS A LETTER WITH HIS BID WHICH DISCUSSES THE REQUIREMENTS OF THE SPECIFICATIONS HE IS TAKING THE RISK THAT IT MAY BE FOUND THE LETTER QUALIFIED THE BID WITH RESPECT TO CERTAIN MATERIAL REQUIREMENTS. HOWEVER, THE INTERPRETATION OF THE LETTER SUBMITTED WITH THE BID MUST BE A REASONABLE ONE. SEE B-159691, MARCH 6, 1967. IN THE INSTANT CASE IT WAS FOUND THAT THE COVER LETTER QUALIFIED YOUR BID FOR ITEM NO. 1 SINCE THERE APPEARS TO BE NO QUESTION THAT THE COVER LETTER MEANT YOUR CONCERN WAS OFFERING TO FURNISH ONLY PART OF THE REQUIREMENTS FOR THE ITEM. THE PRINTING REQUIREMENT OF ITEM NO. 1 AND THE EMBOSSING REQUIREMENT OF ITEM NO. 1 OBVIOUSLY ARE BOTH MATERIAL AND AS PREVIOUSLY INDICATED THERE IS NOTHING WHICH WOULD PERMIT A SPLIT AWARD FOR THESE REQUIREMENTS.

THE SENTENCE IN THE COVER LETTER WITH YOUR BID WHICH STATES "THIS MAKES NO REFERENCE TO THE ACTUALLY PRINTED CARDS BECAUSE WE ARE NOT BIDDING ON THAT PART OF THE CONTRACT" MUST BE CONSTRUED TO MEAN THAT YOU WERE BIDDING ON ONLY THE EMBOSSING REQUIREMENT OF ITEM NO. 1. PURSUANT TO OUR REVIEW WE FIND NO BASIS TO QUESTION GSA'S DETERMINATION THAT YOUR BID FOR ITEM NO. 1 WAS NONRESPONSIVE.

IN CONSIDERING YOUR CONTENTION THAT THERE WOULD HAVE BEEN A 100 PERCENT SAVING IF THE AWARD HAD BEEN MADE TO THE LOW BIDDER FOR THE EMBOSSED CARDS AND THE LOW BIDDER FOR THE UNEMBOSSED CARDS, WE WILL COMPARE HOW MUCH ITEM NO. 1 WOULD COST IF THE PRINTING AND EMBOSSING PORTIONS WERE APPORTIONED BETWEEN DIFFERENT CONTRACTORS WITH THE COST OF ITEM NO. 1 WITH ONE CONTRACTOR DOING BOTH PORTIONS OF THE JOB. THE BID FROM PRINTLOID, INCORPORATED, AT $0.132 FOR BOTH THE PRINTING AND EMBOSSING PORTIONS OF ITEM NO. 1 WAS FOUND TO BE THE LOW RESPONSIVE BID FOR THIS ITEM AND AWARD FOR THIS ITEM WAS MADE TO THIS BIDDER. SINCE THERE WAS NO BID FOR ONLY THE PRINTING PORTION OF ITEM NO. 1, ANY COMPUTATION OF THE PRICE FOR THIS ITEM ON AN APPORTIONED BASIS FOR THE PRINTING AND EMBOSSING WORK WOULD HAVE TO BE A THEORETICAL ONE. IN COMPUTING HOW MUCH THE PRINTING PORTION OF ITEM NO. 1 WOULD COST, WE WILL USE THE PRICES SUBMITTED FOR ITEM NO. 2 WHICH WAS FOR UNEMBOSSED WORK AND WE WILL GIVE YOU THE BENEFIT OF THE LOW BID FROM MARAN PLASTIC COMPANY EVEN THOUGH THIS BID WHICH QUOTED A ,PER M" PRICE RATHER THAN AN "EACH" PRICE WAS FOUND TO BE NONRESPONSIVE. FOR THE EMBOSSED PORTION OF THE WORK UNDER ITEM NO. 1, WE WILL USE THE PRICE IN YOUR BID. THIS COMPUTATION IS AS FOLLOWS:

MARAN PLASTIC'S BID FOR UNEMBOSSED

CARDS. $0.02575 EACH

LEMCO'S PRICE FOR ITEM NO. 1, LESS

DISCOUNT OF ONE PERCENT. $0.1283 EACH

TOTAL $0.15405 EACH

THE ABOVE COMPUTATION

INDICATES THAT IF THE AWARD FOR ITEM NO. 1 WERE MADE ON AN APPORTIONED BASIS FOR THE PRINTING AND EMBOSSING WORK, THE GOVERNMENT WOULD ACTUALLY HAVE TO PAY MORE THAN IT WILL UNDER THE CONTRACT AWARDED TO PRINTLOID FOR ITEM NO. 1 AT $0.132. IN THE CIRCUMSTANCES WE FIND NO BASIS TO YOUR CONTENTION THAT AN AWARD TO THE LOW BIDDER FOR THE EMBOSSED PORTION AND THE LOW BIDDER FOR THE UNEMBOSSED PORTION WOULD HAVE RESULTED IN A 100- PERCENT SAVING TO THE GOVERNMENT.