B-167892(1), NOV. 18, 1969

B-167892(1): Nov 18, 1969

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OFFERED- NONCOMPLIANCE WHERE LOW BIDDER FAILED TO SUBMIT RESPRESENTATIVE SAMPLE OR CERTIFICATE THAT LEAD IT WAS OFFERING CONTAINED NO RADIUM. OR URANIUM (AS REQUIRED BY AMENDMENT TO IFB) BUT INSTEAD FURNISHED SPECTRUM ANALYSIS WHICH WAS DETERMINED UNACCEPTABLE. AWARD TO SECOND LOW BIDDER IS AFFIRMED. IT IS IRRELEVANT AT THIS STAGE WHETHER LEAD OFFERED MET GOVT.'S REQUIREMENTS. IN ADVERTISED PROCUREMENTS AWARD MUST BE MADE TO RESPONSIBLE BIDDER ADVERTISED PROCUREMENTS AWARD MUST BE MADE TO RESPONSIBLE BIDDER WHOSE BID CONFORMS TO INVITATION AND IS LOW (10 U.S.C. 2305 (C)). THIS INVITATION FOR BIDS WAS ISSUED ON MAY 12. AMENDMENT NO. 0001 TO THE IFB WAS ISSUED ON MAY 27. THE LEAD MUST NOT HAVE ANY DETECTABLE AMOUNTS OF RADIUM.

B-167892(1), NOV. 18, 1969

SPECIFICATIONS--CONFORMABILITY OF EQUIPMENT, ETC; OFFERED- NONCOMPLIANCE WHERE LOW BIDDER FAILED TO SUBMIT RESPRESENTATIVE SAMPLE OR CERTIFICATE THAT LEAD IT WAS OFFERING CONTAINED NO RADIUM, THORIUM, OR URANIUM (AS REQUIRED BY AMENDMENT TO IFB) BUT INSTEAD FURNISHED SPECTRUM ANALYSIS WHICH WAS DETERMINED UNACCEPTABLE, AND FAILED TO INDICATE PROVISION FOR WATERPROOF PACKING REQUIRED BY TELEGRAM AMENDMENT, AWARD TO SECOND LOW BIDDER IS AFFIRMED. IT IS IRRELEVANT AT THIS STAGE WHETHER LEAD OFFERED MET GOVT.'S REQUIREMENTS. IN ADVERTISED PROCUREMENTS AWARD MUST BE MADE TO RESPONSIBLE BIDDER ADVERTISED PROCUREMENTS AWARD MUST BE MADE TO RESPONSIBLE BIDDER WHOSE BID CONFORMS TO INVITATION AND IS LOW (10 U.S.C. 2305 (C)); AND CONTRACTING OFFICER CANNOT CONVERT ADVERTISED PROCUREMENT INTO NEGOTIATED ONE SIMPLY BY CALLING BIDDER FOR CLARIFICATION OF HIS BID. SEE 41 COMP. GEN. 721 (1962).

TO NUCLEAR EQUIPMENT CHEMICAL CORPORATION:

WE REFER TO YOUR LETTER OF SEPTEMBER 9, 1969, PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER INVITATION NO. DAAD07-69-B-0176.

THIS INVITATION FOR BIDS WAS ISSUED ON MAY 12, 1969, BY THE WHITE SANDS MISSILE RANGE, DEPARTMENT OF THE ARMY, FOR THE PROCUREMENT OF 1,200 LEAD BRICKS OF LOW LEVEL RADIOACTIVITY. IN RESPONSE TO A REQUEST FOR A DEFINITION OF LOW LEVEL RADIOACTIVITY, AMENDMENT NO. 0001 TO THE IFB WAS ISSUED ON MAY 27, 1969, EXTENDING BID OPENING TO JUNE 11, 1969, AND ADVISING BIDDERS AS OLLOWS:

"B. TO CLARIFY THE TERM -LOW LEVEL,- TO BE ACCEPTABLE, THE LEAD MUST NOT HAVE ANY DETECTABLE AMOUNTS OF RADIUM, THORIUM OR URANIUM. FOR PROOF OF ACCEPTABILITY, BIDDERS MAY EITHER SUBMIT A REPRESENTATIVE SAMPLE WITH THEIR BID FOR TESTING PURPOSES OR MAY SUBMIT WITH THEIR BID A CERTIFICATION THAT THE PRODUCT ON WHICH THEY ARE BIDDING HAS BEEN TESTED AND CONTAINS NO DETECTABLE AMOUNTS OF RADIUM, THORIUM OR URANIUM.' AMENDMENT NO. 0002 WAS ISSUED ON JUNE 6, 1969, BY TELEGRAM TO REQUIRE WATERPROOF PACKING OF THE LEAD BRICKS.

BIDS WERE OPENED ON JUNE 11, 1969, AS SCHEDULED, AND THE BID BY NUCLEAR WAS LOW. DIVISION LEAD COMPANY WAS THE SECOND LOW BIDDER. ON THE DAY OF BID OPENING THE CONTRACTING OFFICER TELEPHONED TO ASK IF NUCLEAR HAD RECEIVED AMENDMENT NO. 0002 SINCE ITS BID DID NOT INDICATE PROVISION FOR WATERPROOF PACKING. THE CONTRACTING OFFICER WAS ADVISED THAT THE AMENDMENT WAS RECEIVED BUT THAT WATERPROOFING WAS NOT DEEMED NECESSARY. SUBSEQUENT REVIEW OF NUCLEAR'S BID REVEALED A FAILURE TO COMPLY WITH THE REQUIREMENT IN AMENDMENT NO. 0001 TO EITHER SUBMIT A REPRESENTATIVE LEAD SAMPLE OR A CERTIFICATE THAT THE PRODUCT OFFERED CONTAINED NO DETECTABLE AMOUNTS OF RADIUM, THORIUM OR URANIUM. INSTEAD, NUCLEAR FURNISHED A SPECTRUM ANALYSIS OF THE LEAD IT WAS OFFERING. ON JUNE 24, 1969, AFTER TECHNICAL EVALUATION, THE SPECTRUM ANALYSIS OF THE LEAD OFFERED BY NUCLEAR WAS DETERMINED TO BE UNACCEPTABLE AND THE BID OF NUCLEAR WAS REJECTED AS NONRESPONSIVE TO THE IFB. CONTRACT NO. DAAD07-69-C-0365 WAS AWARDED TO DIVISION LEAD COMPANY ON JUNE 30, 1969.

YOU CONTEND THAT YOUR BID OFFERED LEAD MEETING THE GOVERNMENT'S REQUIREMENTS AND SHOULD NOT HAVE BEEN REJECTED. YOU ALSO CLAIM THAT A TELEPHONE CALL ON JUNE 11, 1969, TO YOUR FIRM CONCERNING AMENDMENT NO. 0002 CONVERTED THIS ADVERTISED PROCUREMENT INTO A NEGOTIATED PROCUREMENT.

THIS OFFICE MUST REJECT BOTH PROPOSITIONS. IN THE FIRST INSTANCE IT IS IRRELEVANT AT THIS STAGE WHETHER THE LEAD OFFERED BY NUCLEAR MET THE GOVERNMENT'S REQUIREMENTS. IN ADVERTISED PROCUREMENTS AWARD IS REQUIRED TO BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND IS LOW. 10 U.S.C. 2305 (C). WE HAVE CONSISTENTLY CONSTRUED THAT STATUTE TO REQUIRE REJECTION AS NONRESPONSIVE OF A BID WHICH DOES NOT CONFORM TO A MATERIAL PROVISION OF THE IFB SINCE BIDDERS OTHERWISE WOULD NOT BE COMPETING ON AN EQUAL BASIS. 41 COMP. GEN. 721 (1962). THE BID BY NUCLEAR WAS NOT ACCOMPANIED BY EITHER A LEAD SAMPLE FOR TESTING OR A CERTIFICATE THAT THE LEAD OFFERED WOULD MEET THE GOVERNMENT'S REQUIREMENTS AS REQUIRED BY AMENDMENT NO. 0001. UNDER THE RULE CITED ABOVE THE FAILURE TO SUBMIT THE SAMPLE OR CERTIFICATE WITH THE BID RENDERED THAT BID NONRESPONSIVE. THE FACT THAT A TECHNICAL EVALUATION WAS CONDUCTED ON A BASIS NOT PROVIDED FOR IN THE IFB DOES NOT CURE THE FAILURE OF NUCLEAR'S BID TO CONFORM TO THE IFB.

SIMILARLY, WE MUST REJECT THE CONTENTION THAT THE CONTRACTING OFFICER'S TELEPHONE INQUIRY RESPECTING RECEIPT BY NUCLEAR OF AMENDMENT NO. 0002 CONVERTED THIS TO A NEGOTIATED PROCUREMENT. THE CONTRACTING OFFICER CANNOT CONVERT AN ADVERTISED PROCUREMENT INTO A NEGOTIATED ONE BY THE SIMPLE ACT OF CALLING A BIDDER FOR CLARIFICATION HIS BID. HOWEVER, IT SEEMS TO US THAT THE DIFFICULTY AROSE BECAUSE THE AMENDMENT WAS NOT MADE IN WRITING BY USING STANDARD FORM 30, AS REQUIRED BY ASPR 2-208. FURTHER, PARAGRAPH 4, GENERAL PROVISIONS OF STANDARD FORM 33A, WHICH WAS INCLUDED IN THE BID DOCUMENTS, REQUIRES ACKNOWLEDGMENT OF ALL AMENDMENTS. NEVERTHELESS, SINCE THE SUCCESSFUL BIDDER CLEARLY BID ON THE BASIS OF WATERPROOF PACKING AND YOUR BID WAS NOT RESPONSIVE IN ANY CASE, WE DO NOT BELIEVE THAT THE FAILURE OF THE AMENDMENT TO MEET THE STATED REQUIREMENTS EITHER RESTRICTED COMPETITION OR PREJUDICED ANY OF THE BIDDERS.