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B-168531, FEB. 10, 1970

B-168531 Feb 10, 1970
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WAS RESPONSIVE AND COULD BE CONSIDERED FOR AWARD BY NAVY PURCHASING OFFICE. THE IMPLEMENTATION OF THE PREBID CONFERENCE IS NOT DECISIVE. WAS RESPONSIVE AND COULD PROPERLY BE CONSIDERED FOR AWARD OF A CONTRACT UNDER NAVY PURCHASING OFFICE. THE FACTS NECESSARY TO A CONSIDERATION OF YOUR REQUEST ARE RESTATED FROM OUR DECISION OF DECEMBER 30. UNIT BID PRICES WERE REQUESTED ON VARIOUS LINE ITEMS. THE REQUIRED SERVICES WERE SET FORTH IN SIX LOTS CORRESPONDING TO THE SIX INACTIVE SHIP DEPOTS. THE MAXIMUM AMOUNT WAS TO BE COMPUTED BY MULTIPLYING THE SUCCESSFUL BIDDER'S UNIT PRICES BY THE ESTIMATED NUMBER OF ITEMS APPLICABLE TO EACH LINE ITEM. PROVIDED IN THE SECOND PARAGRAPH OF PARAGRAPH C2 AS FOLLOWS: "IF REDISTRIBUTION INSTRUCTION IS NOT PROVIDED BY 60 DAYS AFTER INTERROGATION CARDS ARE MAILED BY OIC.

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B-168531, FEB. 10, 1970

BID PROTESTS--PREBID CONFERENCES AFFIRMATION OF DECISION OF DECEMBER 30, 1969, CONCLUDING THAT BID OF SPACE AGE ENGINEERING, INC; WAS RESPONSIVE AND COULD BE CONSIDERED FOR AWARD BY NAVY PURCHASING OFFICE. WHEN A CONTRACTING OFFICER'S INTERPRETATION OF A PARTICULAR PROVISION AT A PREBID CONFERENCE HAS BEEN SUPERSEDED BY SUBSEQUENT AMENDMENT TO THE SOLICITATION, THE IMPLEMENTATION OF THE PREBID CONFERENCE IS NOT DECISIVE.

TO MR. MILTON C. GRACE:

WE REFER TO YOUR LETTERS OF JANUARY 8 AND 26, 1970, ON BEHALF OF GULF STATES ENTERPRISE, INC. (GULF), REQUESTING RECONSIDERATION OF OUR DECISION B-168531, DECEMBER 30, 1969, WHEREIN WE CONCLUDED THAT THE BID OF SPACE AGE ENGINEERING, INC. (SPACE AGE), WAS RESPONSIVE AND COULD PROPERLY BE CONSIDERED FOR AWARD OF A CONTRACT UNDER NAVY PURCHASING OFFICE, WASHINGTON, D.C; INVITATION FOR BIDS NO. N00600-70-B 0123, AS AMENDED.

THE FACTS NECESSARY TO A CONSIDERATION OF YOUR REQUEST ARE RESTATED FROM OUR DECISION OF DECEMBER 30, 1969, IN RELEVANT PARTS, AS FOLLOWS:

THE INVITATION, ISSUED ON SEPTEMBER 30, 1969, SOLICITED BIDS FOR SERVICES TO OFF-LOAD, SCREEN, IDENTIFY, INVENTORY, UPDATE AND REDISTRIBUTE MATERIAL, NOT PERMANENTLY INSTALLED, FROM DESIGNATED INACTIVE SHIPS AT SIX NAVAL SHIPYARDS. UNIT BID PRICES WERE REQUESTED ON VARIOUS LINE ITEMS, INDEFINITE IN QUANTITY, TO BE ORDERED BY THE GOVERNMENT FOR THE TERM OF THE CONTRACT. THE REQUIRED SERVICES WERE SET FORTH IN SIX LOTS CORRESPONDING TO THE SIX INACTIVE SHIP DEPOTS. AS AMENDED, THE INVITATION REQUIRED THE GOVERNMENT TO ORDER SERVICES IN THE MINIMUM AMOUNT OF $40,000 NOT TO EXCEED A MAXIMUM AMOUNT WHICH WOULD BE SET FORTH IN THE ACTUAL AWARD. THE MAXIMUM AMOUNT WAS TO BE COMPUTED BY MULTIPLYING THE SUCCESSFUL BIDDER'S UNIT PRICES BY THE ESTIMATED NUMBER OF ITEMS APPLICABLE TO EACH LINE ITEM. THE SOLICITATION PLACED SPECIFIC LIMITATIONS ON THE NUMBER OF UNITS PER LINE ITEM WHICH THE CONTRACTOR WOULD BE REQUIRED TO PERFORM WITHIN ANY 3-MONTH PERIOD.

THE SOLICITATION, AT PAGE 27, PROVIDED IN THE SECOND PARAGRAPH OF PARAGRAPH C2 AS FOLLOWS:

"IF REDISTRIBUTION INSTRUCTION IS NOT PROVIDED BY 60 DAYS AFTER INTERROGATION CARDS ARE MAILED BY OIC, ISSOT, ALL REMAINING MATERIAL WILL BE DISPOSED OF IN ACCORDANCE WITH PARAGRAPH D, MATERIAL DISPOSAL * * *"

THE EFFECT OF THIS PARAGRAPH IS THAT IF THE GOVERNMENT COULD NOT PROVIDE DISPOSITION INSTRUCTIONS TO THE CONTRACTOR WITHIN 60 DAYS AFTER INTERROGATION CARDS WERE MAILED, THE MATERIAL COVERED BY THE CARDS WOULD AUTOMATICALLY BECOME DISPOSAL MATERIAL.

ON OCTOBER 13, 1969, IN ACCORDANCE WITH THE INVITATION, A BIDDERS' CONFERENCE AND SITE VISIT WAS HELD AT NAVAL STATION, ORANGE, TEXAS, INACTIVE SHIP MAINTENANCE FACILITY, USS PELIAS AS-14. BIDDERS' QUESTIONS WERE ANSWERED BY GOVERNMENT CONTRACTING OFFICIALS IN CONSONANCE WITH PARAGRAPH 2-207 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR); A REPRESENTATIVE OF GULF STATES ATTENDED AND PARTICIPATED IN THE CONFERENCE.

SUBSEQUENTLY, THE GOVERNMENT DETERMINED THAT THE RISK OF CERTAIN USABLE HIGH VALUE ITEMS POSSIBLY BEING DISPOSED OF UNDER THE ABOVE QUOTED PARAGRAPH WAS UNACCEPTABLE; THEREFORE, WHEN AMENDMENT 0001 TO THE INVITATION WAS ISSUED ON NOVEMBER 3, 1969, PAGE 6 INCLUDED A DELETION OF THE 60-DAY DISPOSAL ALLOWANCE AND SUBSTITUTED, IN LIEU THEREOF, THE FOLLOWING:

"FROM TIME TO TIME THE OIC, ISSOT WILL REQUIRE THE CONTRACTOR TO DISPOSE OF DESIGNATED UNDISTRIBUTED MATERIAL IN ACCORDANCE WITH PARAGRAPH D, 'MATERIAL DISPOSAL' * * *"

OTHER SPECIFICATION REQUIREMENTS WERE MODIFIED BY THIS AMENDMENT. PAGE 9 OF THE AMENDMENT ADVISED BIDDERS THAT CERTAIN ATTACHMENTS WERE FORWARDED AND MADE APPLICABLE TO THE SOLICITATION. LISTED AS ATTACHMENT (7) WAS A "SUMMARY OF QUESTIONS AND ANSWERS DISCUSSED AT BIDDERS' CONFERENCES HELD IN CONNECTION WITH THIS PROCUREMENT." ATTACHMENT (7), ENTITLED "RESUME OF QUESTION AND ANSWER SESSIONS DURING BIDDER'S CONFERENCES" CONTAINED THE FOLLOWING:

"QUESTION: ARE BID EVALUATION FIGURES ESTIMATED AMOUNTS TO BE ORDERED?

"ANSWER: YES.

"QUESTION: PARAGRAPH 7, PAGE 26, REQUIRES THE CONTRACTOR TO REMOVE AND SEGREGATE MATERIAL THAT DOES NOT UPDATE. DUE TO THE TIME AND EFFORT INVOLVED, SHOULD THIS NOT BE AN ADDITIONAL LINE ITEM?

"ANSWER: NO. SINCE 60 DAYS AFTER THE EAM CARDS ARE MAILED FOR SYSTEM INTERROGATION, ANY MATERIAL NOT SELECTED FOR REDISTRIBUTION WILL AUTOMATICALLY BECOME DISPOSAL CANDIDATES. MATERIAL SEGREGATION DURING THE UPDATE PROCESS NEED NOT BE PERFORMED UNLESS THE CONTRACTOR DESIRES THE SPACE FOR OTHER MATERIAL. SEGREGATION OF THE APPLICABLE WORK CARDS WILL ENSURE PAYMENT TO THE CONTRACTOR FOR UNSUCCESSFUL UPDATE EFFORT.

"QUESTION:HOW MANY REDISTRIBUTION ACTIONS AND HOW MANY TYPES OF DOCUMENTS MAY BE EXPECTED WITHIN A REDISTRIBUTION UNIT?

"ANSWER:SINCE A REDISTRIBUTION UNIT WILL CONSIST OF NO LESS THAN 3,000 SEPARATE LINE ITEMS, AND A 60 DAY REDISTRIBUTION PERIOD WILL EXIST, YOU MUST ASSUME AS MANY ACTIONS AS LINE ITEMS. DUE TO SYSTEMS CHANGES, THE MAXIMUM NUMBER OF DOCUMENT TYPES ARE NOT AVAILABLE."

IT IS REPORTED THAT A BIDDER MISINTERPRETED THE FIRST QUESTION AND ANSWER AFTER MODIFICATION 0001 HAD BEEN ISSUED. THE BIDDER INTERPRETED THE QUESTION AND ANSWER TO MEAN THAT THE GOVERNMENT WOULD BE REQUIRED TO ORDER THE FULL ESTIMATED QUANTITIES LISTED IN THE INVITATION. IN ADDITION, THE CONTRACTING OFFICER HAD NOTED, ON HIS OWN INITIATIVE, THAT THE LAST TWO QUESTIONS AND ANSWERS MADE REFERENCE TO THE 60-DAY DISPOSAL REQUIREMENT ALTHOUGH THIS REQUIREMENT HAD BEEN DELETED BY AMENDMENT 0001. ON NOVEMBER 7, 1969, THE CONTRACTING OFFICER TRANSMITTED THE FOLLOWING TELEGRAPHIC MESSAGE TO ALL PROSPECTIVE BIDDERS TO "CLARIFY" THE QUESTIONS AND ANSWERS REFERRED TO ABOVE. THE TELEGRAM READS AS FOLLOWS:

"REF (A) THE QUESTION READS AS FOLLOWS: 'ARE BID EVALUATION FIGURES ESTIMATED AMOUNTS TO BE ORDERED?' THE ANSWER GIVEN WAS 'YES' IN CLARIFICATION OF THE 'YES' ANSWER GIVEN, THE FOLLOWING CONDITIONS MUST BE CONSIDERED BY ALL BIDDERS: THE ESTIMATED QUANTITIES REPRESENT THE GOVERNMENT'S BEST ESTIMATE OF WORK TO BE ACCOMPLISHED DURING A ONE YEAR PERIOD FOLLOWING CONTRACT AWARD AND ARE BASED ON CURRENT FORECASTS SUBJECT TO PROGRAM CHANGES AND POSSIBLE BUDGETARY LIMITATIONS. YOUR ATTENTION IS INVITED TO THE MINIMUM AND MAXIMUM CONTRACT AMOUNT (1966 FEB) CLAUSE SET FORTH ON PAGE 63 OF THE INVITATION FOR BIDS, AS AMENDED, WHICH READS AS FOLLOWS: MINIMUM AND MAXIMUM CONTRACT AMOUNT (1966 FEB) DURING THE LIFE OF THIS CONTRACT, THE GOVERNMENT SHALL PLACE ORDERS TOTALING A MINIMUM OF $40,000.00, APPLICABLE TO EACH SEPARATE LOT. TOTAL ORDERS PLACED DURING THE LIFE OF THE CONTRACT SHALL NOT EXCEED A MAXIMUM AMOUNT TO BE SET FORTH IN AWARD.

"REF (B) THE ANSWER GIVEN IS HEREWITH DELETED AND THE FOLLOWING IS SUBSTITUTED THEREFOR. ANSWER: NO. SINCE ANY MATERIAL NOT SELECTED FOR REDISTRIBUTION WILL AUTOMATICALLY BECOME DISPOSAL CANDIDATES. MATERIAL SEGREGATION DURING THE UPDATE PROCESS NEED NOT BE PERFORMED UNLESS THE CONTRACTOR DESIRES THE SPACE FOR OTHER MATERIAL. SEGREGATION OF THE APPLICABLE WORK CARDS WILL ENSURE PAYMENT TO THE CONTRACTOR FOR UNSUCCESSFUL UPDATE EFFORT.

"REF (C) THE ANSWER GIVEN IS HEREWITH DELETED AND THE FOLLOWING IS SUBSTITUTED THEREFOR. ANSWER: SINCE A REDISTRIBUTION UNIT WILL CONSIST OF NO LESS THAN 3,000 SEPARATE LINE ITEMS, YOU MUST ASSUME AS MANY ACTIONS AS LINE ITEMS. DUE TO SYSTEMS CHANGES, THE MAXIMUM NUMBER OF DOCUMENT TYPES ARE NOT AVAILABLE.

"REQUEST ACKNOWLEDGMENT"

MODIFICATION 0002 ISSUED ON NOVEMBER 5, 1969, EXTENDED THE OPENING OF BIDS ORIGINALLY SCHEDULED FOR NOVEMBER 7, 1969, TO NOVEMBER 12, 1969.

ALTHOUGH SPACE AGE, THE EVALUATED LOW BIDDER ON LOT VI, HAD ACKNOWLEDGED MODIFICATIONS 0001 AND 0002 PRIOR TO BID OPENING, IT FAILED TO ACKNOWLEDGE RECEIPT OF THE NOVEMBER 7 TELEGRAPHIC MESSAGE UNTIL NOVEMBER 13, 1969, SUBSEQUENT TO BID OPENING. ALL OTHER BIDDERS ACKNOWLEDGED RECEIPT OF THE TELEGRAM TIMELY.

YOUR LETTER OF JANUARY 8, 1970, RENEWS YOUR BASIC CONTENTION THAT BY FAILING TO TIMELY ACKNOWLEDGE THE TELEGRAM OF NOVEMBER 7, SPACE AGE'S BID MUST BE CONSIDERED NONRESPONSIVE. BASIC TO THIS CONTENTION IS, OF COURSE, THE THRESHOLD QUESTION WHETHER PRIOR TO THE ISSUANCE OF THE NOVEMBER 7 TELEGRAM, THE SOLICITATION AS MODIFIED BY AMENDMENTS 0001 AND 0002 WAS AMBIGUOUS. WE RESOLVED THIS QUESTION IN OUR DECISION OF DECEMBER 30 IN THE FOLLOWING TERMS:

"WE DO NOT BELIEVE THAT AMENDMENT 0001 CREATED AN AMBIGUITY WHICH NECESSITATED THE ISSUANCE OF THE NOVEMBER 7 TELEGRAM. THE AFFIRMATIVE LANGUAGE ON PAGE 6 OF AMENDMENT 0001 SPECIFICALLY DELETED THE 60-DAY CLEARING ALLOWANCE. WE REGARD THE RESUME ANSWERS IN ATTACHMENT (7) AS REPRESENTING NOTHING MORE THAN THE CONTEMPORANEOUS INTERPRETATION OF THE SPECIFICATIONS BY THE CONTRACTING OFFICIALS AS OF THE DATE OF THE PREBID CONFERENCE. IT IS NOTED THAT THE CONFERENCE WAS HELD MORE THAN 3 WEEKS BEFORE THE ISSUANCE OF THE TELEGRAM. WE FIND NOTHING IN ASPR 2-207 WHICH FURNISHES A LEGAL BASIS UPON WHICH A BIDDER WOULD BE JUSTIFIED IN RELYING ON THE LANGUAGE OF AN ATTACHMENT TO AN AMENDMENT AS HAVING PRECEDENCE OVER THE SPECIFIC LANGUAGE APPEARING IN THE BODY OF THE AMENDMENT. IT IS NOTED THAT PARAGRAPH 2 (A) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS PROVIDES THAT BIDDERS ARE EXPECTED TO EXAMINE THE SPECIFICATIONS, AND ALL INSTRUCTIONS, ADMONISHING THAT FAILURE TO DO SO WOULD BE AT THE BIDDER'S RISK. IN THIS REGARD, THE APPROPRIATE POINT IN TIME FOR RAISING AN OBJECTION TO AN ALLEGEDLY AMBIGUOUS SOLICITATION IS PRIOR TO THE TIME OF BID OPENING. SEE B-164648, DECEMBER 16, 1968; B-151355, JUNE 25, 1963. WE CONCLUDE THAT A READING OF AMENDMENT 0001 IN ITS ENTIRETY DOES NOT GIVE RISE TO A PATENT AMBIGUITY SUBJECT TO MORE THAN ONE INTERPRETATION SO AS TO RENDER THE SPECIFICATIONS AMBIGUOUS. SEE B 157692, NOVEMBER 2, 1965; B -129678, NOVEMBER 8, 1956; B-140071, SEPTEMBER 29, 1959; B-160909, APRIL 19, 1967."

FROM A REVIEW OF YOUR SUBMISSIONS, WE NOTE THAT YOU DO NOT DISPUTE THE EFFECT TO BE GIVEN THE FAILURE TO ACKNOWLEDGE THE TELEGRAM- WHETHER OR NOT IT BE DENOMINATED AN AMENDMENT--IF THE INVITATION, AS MODIFIED BY AMENDMENTS 0001 AND 0002, IS NOT CONSIDERED AMBIGUOUS; THAT IS, THE FAILURE TO ACKNOWLEDGE THE TELEGRAM WOULD BE AN INFORMALITY HAVING NO EFFECT UPON PRICE, QUANTITY, OR QUALITY. AS WE STATED IN OUR DECISION, "THE OBLIGATION OF SPACE AGE TO PERFORM ALL OF THE REQUIREMENTS OF THE SOLICITATION, IF ITS BID WERE ACCEPTED WITHOUT REGARD TO THE TELEGRAM OF NOVEMBER 7, WOULD BE THE SAME AS IF AWARD WERE MADE TO ANY OTHER BIDDER WHO DID TIMELY ACKNOWLEDGE SUCH AMENDMENT."

AS STATED IN THE LETTER OF JANUARY 8, YOUR BASIC OBJECTION TO THE DETERMINATION THAT THE INVITATION, AS AMENDED, WAS UNAMBIGUOUS IS WHAT YOU PERCEIVE TO BE A FAILURE TO "ATTEMPT TO UNDERSTAND THE SOLICITATION AS THE BIDDERS WOULD UNDERSTAND IT." YOU SUGGEST THAT "THE SOLICITATION MUST BE SO DRAWN THAT THE BIDDERS, TO WHOM THE SOLICITATION IS ADDRESSED, WILL ALL PLACE THE SAME INTERPRETATION ON IT." CONSEQUENTLY, YOU URGE THAT IT IS "COMPLETELY IMMATERIAL" TO CONCLUDE "AFTER APPLICATION OF THE RULES FOR THE CONSTRUCTION OF CONTRACTS * * * THAT THE SOLICITATION IS SUSCEPTIBLE OF ONLY ONE INTERPRETATION."

WE RECOGNIZE THE DESIRABILITY OF DRAFTING SOLICITATIONS IN TERMS THAT IMPART TO ALL BIDDERS THE SAME MEANING. NEVERTHELESS, IF WE WERE TO RESOLVE THE LEGAL QUESTION OF WHETHER THE SOLICITATION COMPLIES WITH THE REQUIREMENTS OF FORMAL ADVERTISING PROCEDURES SOLELY ON THE GROUND THAT A PARTICULAR BIDDER REACHES A DIVERGENT INTERPRETATION OF THE SOLICITATION, WE WOULD BE IGNORING THE REALITIES OF BID PREPARATION. CLEARLY, THE INQUIRY MUST TAKE INTO CONSIDERATION THE REASONABLENESS OF SUCH INTERPRETATION.

IN OUR VIEW, YOUR PRESENT POSITION UNDERSTATES THE RESPONSIBILITY PLACED ON A BIDDER COMPETING FOR THE POTENTIAL AWARD OF A GOVERNMENT CONTRACT. AS WE INDICATED IN OUR DECISION OF DECEMBER 30, THE OUTLINES OF THIS RESPONSIBILITY ARE REFLECTED IN PARAGRAPH 2 (A) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, WHICH PROVIDES:

"OFFERORS ARE EXPECTED TO EXAMINE THE DRAWINGS, SPECIFICATIONS, SCHEDULE AND ALL INSTRUCTIONS. FAILURE TO DO SO WILL BE AT THE OFFEROR'S RISK."

IT IS OBVIOUS THAT INCIDENT TO INTELLIGENT BID PREPARATION, A BIDDER MUST EXAMINE ALL PORTIONS OF THE SOLICITATION AND IN THIS PROCESS OF EVALUATION HE WILL NECESSARILY BE REQUIRED TO MAKE JUDGMENTS AS TO THE NATURE AND EXTENT OF HIS RIGHTS AND OBLIGATIONS SHOULD HE BE AWARDED A CONTRACT. THIS CONNECTION, IT SHOULD BE EMPHASIZED THAT THE ENTIRE PROCEDURE IS ULTIMATELY DIRECTED TO THE FORMATION OF A LEGAL RELATIONSHIP WITH THE UNITED STATES. MOREOVER, AS THE CASES CITED IN YOUR SUBMISSION AMPLY DEMONSTRATE, AFTER AWARD THE VALIDITY OF A BIDDER'S INITIAL JUDGMENT AS TO THE EFFECT OF THE TERMS AND CONDITIONS OF A SOLICITATION WILL BE TESTED, IF AT ALL, BY "APPLICATION OF THE RULES FOR THE CONSTRUCTION OF CONTRACTS." WE BELIEVE, THEREFORE, THAT INSOFAR AS THESE PRINCIPLES ARE EXPRESSIVE OF THE ONLY REASONABLE CONCLUSION THAT A BIDDER WHEN EXAMINING THE TERMS OF THE SOLICITATION COULD DRAW, THEN THEIR APPLICATION IS ENTIRELY APPROPRIATE. TURNING NOW TO A CONSIDERATION OF AMENDMENT 0001, WITH ATTACHMENTS, YOU TAKE EXCEPTION TO OUR OBSERVATION THAT THE AFFIRMATIVE LANGUAGE ON PAGE 6 OF AMENDMENT 0001 SPECIFICALLY DELETED THE 60-DAY CLEARING ALLOWANCE AND SUGGEST, QUITE CORRECTLY, THAT THE ABSENCE OF AN AMBIGUITY CANNOT BE ESTABLISHED BY ISOLATEDLY CONSIDERING A PART OF THE INSTRUMENT. OUR STATEMENT, HOWEVER, MUST BE CONSIDERED IN CONJUNCTION WITH OUR FURTHER OBSERVATIONS THAT THE BID CONFERENCE RESUME (ATTACHMENT (7) ) REPRESENTED NOTHING MORE THAN A CONTEMPORANEOUS INTERPRETATION OF THE SPECIFICATIONS BY CONTRACTING OFFICIALS, AND THAT WE FOUND NO BASIS IN ASPR 2-207 UPON WHICH A BIDDER WOULD BE JUSTIFIED IN RELYING ON THE LANGUAGE OF AN ATTACHMENT TO AN AMENDMENT AS HAVING CONTROLLING EFFECT OVER THE SPECIFIC LANGUAGE OF THE AMENDMENT. THUS, CONSIDERING AMENDMENT 0001 AND THE ATTACHMENTS IN THEIR ENTIRETY, WE CONCLUDED THAT A REASONED JUDGMENT DID NOT LEAD TO THE AMBIGUITY ALLEGED.

YOU HAVE DRAWN INTO QUESTION OUR OBSERVATION THAT ATTACHMENT (7) REPRESENTED A "CONTEMPORANEOUS INTERPRETATION" OF THE SPECIFICATION BY POINTING OUT THAT:

"* * * THIS IS NOT A SITUATION IN WHICH THERE WAS ONLY ONE PREBID CONFERENCE WHERE THERE WERE ORAL QUESTIONS AND ANSWERS, AND THE MATTER CONCLUDED. THERE WERE CONFERENCES AT NORFOLK AND SAN FRANCISCO, WHICH WERE DESCRIBED IN THE INVITATION AS 'BIDDERS' CONFERENCES,' AND AT SIX LOCATIONS THERE WERE SMALL CONFERENCES WHICH WERE DESCRIBED AS 'SITE VISITS.' IT IS OUR UNDERSTANDING THAT AT ALL EIGHT LOCATIONS THE BIDDERS WERE PERMITTED TO ORALLY PUT QUESTIONS TO THE CONTRACTING OFFICER, AND THEY RECEIVED ORAL ANSWERS AT THAT TIME, WITH THE UNDERSTANDING THAT THEY SHOULD SUBMIT THEIR QUESTIONS IN WRITING TO THE CONTRACTING OFFICER, AND LATER THEY WOULD BE FURNISHED WRITTEN ANSWERS OF THE CONTRACTING OFFICER. ALL THE BIDDERS RECEIVED THE WRITTEN ANSWERS OF THE CONTRACTING OFFICER FOR THE FIRST TIME IN ATTACHMENT 7 OF AMENDMENT ONE. UNDER THIS PROCEDURE, THE ORAL QUESTIONS PUT TO THE CONTRACTING OFFICER SAY AT NORFOLK, AND HIS ORAL ANSWERS GIVEN THERE, WERE NOT KNOWN TO THE BIDDERS WHO HAD PARTICIPATED IN THE BIDDERS' CONFERENCE IN SAN FRANCISCO, OR AT THE OTHER LOCATIONS. CONSEQUENTLY, THE FIRST TIME MOST BIDDERS KNEW OF THE QUESTIONS AND ANSWERS WHICH APPEARED IN ATTACHMENT 7, WAS WHEN THEY READ ATTACHMENT 7. * * *"

OUR INITIAL RESPONSE WAS MADE IN LIGHT OF THE PREBID CONFERENCE HELD AT ORANGE, TEXAS. ADMITTEDLY, CERTAIN BIDDERS ATTENDING CONFERENCES AT OTHER SITES MIGHT NOT HAVE KNOWLEDGE OF THE SUBSTANCE OF THE RESUME QUESTIONS AND ANSWERS UNTIL RECEIPT OF ATTACHMENT (7). THE ESSENTIAL POINT, HOWEVER, REMAINS THE SAME--NAMELY, A BIDDER SHOULD KNOW THAT THE RESUME QUESTIONS WERE GENERATED BY, AND THE ANSWERS DIRECTED TO, THE TERMS OF THE SOLICITATION AS ORIGINALLY ISSUED. WITH PARTICULAR REGARD TO THE 60-DAY CLEARING REQUIREMENT, WE NOTE THAT THE RELEVANT RESUME ANSWERS ARE ENTIRELY CONSISTENT WITH THE EFFECT OF THAT PROVISION UNDER THE SOLICITATION AS ORIGINALLY ISSUED AND, AS SUCH, CONSTITUTE A "CONTEMPORANEOUS CONSTRUCTION." SUCH CONTEMPORANEOUS INTERPRETATION WAS SUPERSEDED BY THE EXPRESS LANGUAGE OF AMENDMENT 0001.

IN YOUR SUBMISSIONS AND DURING CONFERENCES WITH REPRESENTATIVES OF OUR OFFICE, YOU HAVE QUESTIONED THE ADEQUACY OF THE PREBID CONFERENCE PROCEDURES PRESCRIBED IN PARAGRAPHS 2-207 AND 3-504 OF ASPR UNDER THE CIRCUMSTANCES OF THIS PROCUREMENT AND DISCUSSED THE IMPACT OF A CONTRACTING OFFICER'S RESPONSES TO QUESTIONS RAISED DURING THE COURSE OF SUCH PROCEDURES ON BID PREPARATION AND CONTRACT INTERPRETATION. HOWEVER, WITH RESPECT TO THE MERITS OF YOUR PROTEST, THE IMPLEMENTATION OF PREBID CONFERENCE PROCEDURES HERE, WHILE CERTAINLY A PART OF THE FACTUAL SETTING, IS NOT DECISIVE WHEN A CONTRACTING OFFICER'S INTERPRETATION OF A PARTICULAR PROVISION HAS BEEN SUPERSEDED BY SUBSEQUENT AMENDMENT TO THE SOLICITATION. THE DESIRABILITY OF IMPROVING THE PROCEDURES IS, OF COURSE,ANOTHER QUESTION. AS YOU KNOW, WE HAVE RECEIVED A SIMILAR INQUIRY FROM A CONGRESSIONAL SOURCE, AND WE HAVE REQUESTED THE COMMENTS OF THE SECRETARY OF DEFENSE AS TO WHETHER REGULATORY REVISIONS MIGHT BE APPROPRIATE. UPON RECEIPT OF THE SECRETARY'S COMMENTS, WE EXPECT TO RESPOND TO THIS POINT IN DETAIL, AND WE WILL ADVISE YOU OF OUR VIEWS AT THAT TIME.

FOR THE FOREGOING REASONS, OUR DECISION OF DECEMBER 30, 1969, IS AFFIRMED.

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