B-169594(1), OCT. 27, 1970

B-169594(1): Oct 27, 1970

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ESTABLISH AN AMBIGUITY IN THE SPECIFICATIONS AND WHERE PROTESTANT'S SUGGESTED INTERPRETATIONS ARE UNREASONABLE IN LIGHT OF NORMAL ENGINEERING PRACTICE AND ARE FOUND NOT TO HAVE MISLED ANY BIDDER OR POTENTIAL BIDDER. WHICH IS FOUND IN THE PRESENT CASE. IT IS IMMATERIAL THAT SUCCESSFUL BIDDER DID NOT RETURN ALL PAGES OF THE ORIGINAL SOLICITATION WHERE IT IS DETERMINED THAT THE BID IS IN SUCH FORM THAT ACCEPTANCE WOULD CREATE A VALID AND BINDING CONTRACT REQUIRING THE BIDDER TO PERFORM IN ACCORDANCE WITH ALL OF THE MATERIAL TERMS AND CONDITIONS OF THE INVITATION. THE INFORMATION REQUESTED ON CERTAIN PAGES OF THE SCHEDULE WHICH WERE NOT RETURNED IS NOT OF SUCH CONSEQUENCE AS TO RENDER THE BID NONRESPONSIVE.

B-169594(1), OCT. 27, 1970

BID PROTEST - BIDDER RESPONSIVENESS - AMBIGUITY DENIAL OF PROTEST OF AMERICAN AIR FILTER COMPANY, INC. AGAINST THE AWARD OF AN ADVERTISED CONTRACT FOR A COMPLETE COMBUSTION AIR CLEANING SYSTEM TO BE DESIGNED, TESTED, AND FURNISHED, ISSUED BY DIVISION ENGINEERS, U.S. ARMY TO YORK RESEARCH CORPORATION ON THE BASIS OF URGENCY. DISPARITY IN BID PRICES AMONG NORMALLY CLOSE COMPETITORS DOES NOT, IPSO FACTO, ESTABLISH AN AMBIGUITY IN THE SPECIFICATIONS AND WHERE PROTESTANT'S SUGGESTED INTERPRETATIONS ARE UNREASONABLE IN LIGHT OF NORMAL ENGINEERING PRACTICE AND ARE FOUND NOT TO HAVE MISLED ANY BIDDER OR POTENTIAL BIDDER, THE ALLEGATION OF AMBIGUITY MUST BE REJECTED. FURTHER, SUCCESSFUL BIDDER'S FAILURE TO SIGN ITS BID CAN BE WAIVED AS A MINOR IRREGULARITY WHEN ACCOMPANIED BY SOME DOCUMENTARY EVIDENCE SHOWING A CLEAR INTENT TO SUBMIT A BID, WHICH IS FOUND IN THE PRESENT CASE. FURTHER, IT IS IMMATERIAL THAT SUCCESSFUL BIDDER DID NOT RETURN ALL PAGES OF THE ORIGINAL SOLICITATION WHERE IT IS DETERMINED THAT THE BID IS IN SUCH FORM THAT ACCEPTANCE WOULD CREATE A VALID AND BINDING CONTRACT REQUIRING THE BIDDER TO PERFORM IN ACCORDANCE WITH ALL OF THE MATERIAL TERMS AND CONDITIONS OF THE INVITATION; AND THE INFORMATION REQUESTED ON CERTAIN PAGES OF THE SCHEDULE WHICH WERE NOT RETURNED IS NOT OF SUCH CONSEQUENCE AS TO RENDER THE BID NONRESPONSIVE. THEREFORE THE PROTEST IS DENIED.

TO AMERICAN AIR FILTER COMPANY, INC., DEFENSE PRODUCTS GROUP:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 23, 1970, AND SUPPLEMENTING LETTERS OF APRIL 27, MAY 5, AND JUNE 23, 1970, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. DACA87-70-B-0002, ISSUED BY THE DIVISION ENGINEER, U.S. ARMY ENGINEER DIVISION, HUNTSVILLE, ALABAMA.

THE IFB, ISSUED ON DECEMBER 12, 1969, ORIGINALLY COVERED THE PROCUREMENT OF A QUANTITY OF COMBUSTION AIR DUST SEPARATORS AND COMBUSTION AIR SCRUBBERS ON A MULTIYEAR BASIS. SUBSEQUENTLY, A TOTAL OF NINE AMENDMENTS WAS ISSUED. AMENDMENT 6, ISSUED ON FEBRUARY 13, 1970, DELETED THE TECHNICAL PROVISIONS FOR THE ABOVE EQUIPMENT AND SUBSTITUTED THEREFOR TECHNICAL PROVISIONS FOR A COMPLETE COMBUSTION AIR CLEANING SYSTEM TO BE DESIGNED, TESTED, AND FURNISHED BY THE SUCCESSFUL BIDDER.

BIDS WERE OPENED ON APRIL 9, 1970, AND INDICATED THE FOLLOWING PRICES:

WESTERN PRECIPITATION DIVISION OF JOY

MANUFACTURING COMPANY $ 297,000

YORK RESEARCH CORPORATION 396,132

RESEARCH-COTTRELL, INC. 528,220

TAILOR AND COMPANY, INC. 627,550

ZURN AIR SYSTEMS DIVISION OF ZURN

INDUSTRIES, INC. 744,656

AMERICAN AIR FILTER COMPANY, INC. 1,388,728

THE BID OF THE APPARENT LOW BIDDER, WESTERN PRECIPITATION DIVISION OF JOY MANUFACTURING COMPANY, WAS REJECTED AS NONRESPONSIVE FOR FAILURE TO ACKNOWLEDGE RECEIPT OF MATERIAL AMENDMENTS TO THE IFB.

YORK RESEARCH CORPORATION (YORK) WAS THEREAFTER REQUESTED TO REVIEW ITS BID, CONFIRM ITS BID PRICE, AND CONFIRM THAT IT FULLY UNDERSTOOD AND WOULD COMPLY WITH ALL THE SPECIAL AND TECHNICAL PROVISIONS OF THE IFB. YORK CONFIRMED THE FOREGOING AS REQUESTED. ON APRIL 23 AND 24, 1970, A PREAWARD SURVEY WAS CONDUCTED ON YORK. THE RECOMMENDATION OF THE SURVEY WAS THAT COMPLETE AWARD BE MADE TO YORK.

IN YOUR APRIL 27, 1970, LETTER TO OUR OFFICE, YOU STATE THAT AMERICAN AIR FILTER (AAF) HAD "SUBMITTED ITS BID WITH THE BELIEF THAT ITS UNDERSTANDING OF THE SPECIFICATIONS WAS CLEAR." YOU CONTEND, HOWEVER, THAT THE DISPARITY OF PRICE BETWEEN THE BIDS OF AAF, ZURN INDUSTRIES, AND WESTERN PRECIPITATION, NORMALLY CLOSE COMPETITORS IN THE COMMERCIAL AIR CLEANING BUSINESS, INDICATES THE EXISTENCE OF AMBIGUITIES IN THE SPECIFICATIONS AS FINALLY AMENDED. ALTERNATIVELY, YOU CONTEND THAT AAF IS THE ONLY BIDDER RESPONSIVE TO THE IFB.

TO INVESTIGATE THE VALIDITY OF AAF'S ALLEGATION THAT THE DISPARITY IN BID PRICES INDICATED VARIANCES IN INTERPRETATION OF THE SPECIFICATIONS AND TO INSURE THAT YORK'S DESIGN WAS WORKABLE AND ITS BID REALISTIC, THE U.S. ARMY ENGINEER DIVISION, HUNTSVILLE (USAEDH), UNDERTOOK A TECHNICAL AND PRICE ANALYSIS OF YORK'S BID. BASED ON THIS ANALYSIS, USAEDH CONCLUDED THAT YORK COULD REASONABLY BE EXPECTED TO PRODUCE THE PROPOSED SYSTEM FOR ITS BID PRICE AND THAT ITS SYSTEM WOULD WORK AND WOULD COMPLY WITH THE SPECIFICATIONS. AWARD WAS MADE TO YORK, ON THE BASIS OF URGENCY, ON JUNE 30, 1970, NOTWITHSTANDING YOUR PROTEST TO OUR OFFICE. SEE, IN THIS RESPECT, PARAGRAPH 2-407.8(B)(3) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

AAF'S ASSERTION THAT THE DISPARITY OF BID PRICES PROVES THE EXISTENCE OF AMBIGUITIES IS WITHOUT MERIT. BID PRICES REFLECT MANY FACTORS AND CONTINGENCIES WHICH MAY, AND IN ALL LIKELIHOOD DO, VARY FROM BIDDER TO BIDDER. WHATEVER THE REASON FOR PRICE DISPARITY, THE FACT OF SUCH DISPARITY DOES NOT, IPSO FACTO, ESTABLISH THE EXISTENCE OF AN AMBIGUITY. TO PROVE AMBIGUITY, AN EXAMINATION OF THE IFB IS REQUIRED.

IN 48 COMP. GEN. 757 (1969), WE HELD THAT NO AMBIGUITY EXISTED IN THE ABSENCE OF MORE THAN ONE REASONABLE INTERPRETATION OF A BIDDING SCHEDULE, AND WE STATED AT PAGE 760:

"THE MERE ALLEGATION THAT SOMETHING IS AMBIGUOUS DOES NOT MAKE IT SO. SIMILARLY, SOME FACTOR IN A WRITTEN INSTRUMENT MAY BE SOMEWHAT CONFUSING AND PUZZLING WITHOUT CONSTITUTING AN AMBIGUITY, PROVIDED THAT AN APPLICATION OF REASON WOULD SERVE TO REMOVE THE DOUBT. IN OTHER WORDS, AN AMBIGUITY EXISTS ONLY IF TWO OR MORE REASONABLE INTERPRETATIONS ARE POSSIBLE. DITTMORE-FREIMUTH CORP. V UNITED STATES, 182 CT. CL. 507, 390 F. 2D 664 (1968). *** " WITH THIS PRINCIPLE AS A GUIDE, THERE ARE FOR CONSIDERATION AAF'S LETTERS OF MAY 5 AND JUNE 23, 1970, WHICH SET FORTH AND AMPLIFY THOSE AREAS OF THE SPECIFICATIONS WHICH IT CLAIMS TO BE AMBIGUOUS.

IT IS CONTENDED THAT THE POINT IN THE SYSTEM AT WHICH THE SPECIFIED ENTERING DUST LOAD IS APPLICABLE IS AMBIGUOUS SINCE THE POINT COULD BE AT EITHER THE AIR INLET INTERFACE FLANGE OR AT SOME POINT IN THE AIR INTAKE STACK ADJACENT TO THE ENCLOSED ROOM WHERE THE AIR CLEANING SYSTEM IS TO BE IMPLACED.

BY WAY OF REPLY, THE ADMINISTRATIVE REPORT REFERS TO PARAGRAPHS TP6.2 AND TP7.2 OF THE IFB. THE IMPORT OF THESE REFERENCES, AS CONFIRMED TO OUR OFFICE, IS THAT AS TP7.2 SPEAKS OF "AIR CLEANING EQUIPMENT" AND TP6.2 STATES, IN PERTINENT PART, THAT THE EQUIPMENT SHALL TERMINATE AT THE AIR INLET INTERFACE, THE POINT OF DUST LOADING MUST BE DETERMINED WITH REFERENCE TO THE "AIR CLEANING EQUIPMENT," I.E., WHERE INCOMING AIR FIRST ENTERS THE EQUIPMENT--THE AIR INLET INTERFACE FLANGE. BEYOND THAT FLANGE, A BIDDER HAS NEITHER RESPONSIBILITY NOR CONCERN. YOU MAINTAIN, HOWEVER, THAT TP6.2 SPEAKS OF AN AIR INLET WHICH CANNOT BE EQUATED WITH THE AIR INLET INTERFACE FLANGE AND, THEREFORE, IT IS REASONABLE TO CONCLUDE THAT THE DUST LOADING POINT IS AT THE AIR INLET TO THE ADJACENT AIR INTAKE STACK. WE AGREE WITH THE ADMINISTRATIVE INTERPRETATION OF PARAGRAPHS TP6.2 AND TP7.2 AND WITH THE CONCLUSION THAT THE POINT OF DUST LOADING IS AT THE AIR INLET INTERFACE FLANGE. FURTHER, YOUR SUGGESTED LOCATION OF THE DUST LOADING POINT IS NOT REASONABLE AND, AS A CONSEQUENCE, WE CANNOT CONCLUDE THAT AN AMBIGUITY EXISTS AS TO THIS MATTER.

AS DEFINED BY TP6.2, ONE OF THE TERMINALS FOR THE EQUIPMENT IS THE AIR INLET INTERFACE. ACCORDING TO THE SKETCHES IN THE IFB, THAT INTERFACE IS COVERED BY A FLANGE ALREADY BUILT INTO THE WALL OF THE SURROUNDING STRUCTURE AND LABELED THE AIR INLET INTERFACE FLANGE OR AIR INLET FLANGE. DIMENSIONS FOR THIS FLANGE ARE GIVEN IN SEVERAL SKETCHES AND WE ARE INFORMALLY ADVISED THAT IT WILL BE MATED TO AND CONNECTED WITH A FLANGE ON THE EQUIPMENT BEING OFFERED. WE BELIEVE IT REASONABLE TO CONCLUDE, THEREFORE, THAT THE AIR INLET INTERFACE FLANGE IS, IN FACT, ONE OF THE "EQUIPMENT CONNECTIONS INDICATED ON SKETCHES SK-1 THROUGH SK-6" MENTIONED IN THE LAST SENTENCE OF TP6.2 TO WHICH THE INTERFACE CONNECTIONS OF THE EQUIPMENT BEING OFFERED MUST MATCH WITH RESPECT TO SIZE AND LOCATION. SINCE THE AIR INLET INTERFACE FLANGE SHOWN IN THE SKETCHES IS NOT SUPPLIED BY A BIDDER AND MUST BE CONNECTED TO THE OFFERED EQUIPMENT, WE MUST CONCLUDE THAT IT CONSTITUTES A TERMINAL POINT AT WHICH AIR FIRST ENTERS THE AIR CLEANING EQUIPMENT, AND IS, THEREFORE, THE DUST LOADING POINT.

AS TO THE PRACTICAL PROBLEMS WHICH MILITATE AGAINST THE REASONABLENESS OF THE CONTENTION THAT THE DUST LOADING POINT IS SOMEWHERE IN THE AIR INTAKE STACK, THE FOLLOWING COMMENTS BY THE PROCURING ACTIVITY ARE PERTINENT:

"DUST LOAD PERTAINING TO THE AIR CLEANING EQUIPMENT COULD BE SPECIFIED ONLY AT THE EQUIPMENT INLET. THE INTAKE SHAFT IS NOT A PART OF THE AIR CLEANING SYSTEM. ANY REDUCTION IN DUST LOADING IN THE INTAKE SHAFT IN FRONT OF THE EQUIPMENT IS INDETERMINATE. THEREFORE, THE GOVERNMENT ELECTED IN THE PROCUREMENT TO SPECIFY THAT THE EQUIPMENT BE DESIGNED TO REMOVE DUST FROM AIR ENTERING THE EQUIPMENT WITH A MAXIMUM DUST LOADING OF 34 GMS/CU FT. COMPLETE DETAILS OF THE SHAFT (FOR EXAMPLE, HEIGHT AND INTAKE CONFIGURATION) WERE NOT PROVIDED IN THE PROCUREMENT DOCUMENTS. THEREFORE, ANY CONSIDERATION GIVEN TO THE SHAFT RELATIVE TO DUST LOADING WOULD BE INVALID WITHOUT CONSIDERATION OF DETAILS OF SHAFT INTAKE CONFIGURATION WHICH WERE NOT PROVIDED IN THE IFB. THE LIMITED AIR INTAKE SHAFT DETAILS PROVIDED WERE TO DEFINE SPACE ENVELOPE AVAILABLE FOR THE AIR CLEANING EQUIPMENT."

AAF NEXT CONTENDS THAT AS NO AIR DENSITY IS SPECIFIED FOR THE SPECIFIED DUST LOAD, BIDDERS COULD HAVE INTERPRETED THE AIR DENSITY AS SOMETHING LOWER THAN STANDARD AIR DENSITY AND THAT SUCH INTERPRETATION WOULD HAVE HAD A MATERIAL EFFECT ON LOWERING THEIR BID PRICE. IN ANSWER TO OUR INQUIRY AS TO WHERE IN THE IFB THE AIR DENSITY FOR THE SPECIFIED DUST LOADING WAS STATED, THE PROCURING ACTIVITY COMMENTED:

"THE AIR DENSITY IS NOT STATED IN THE IFB. THEREFORE, IN ACCORDANCE WITH ACCEPTED ENGINEERING PRACTICE, THE ONLY INTERPRETATION WHICH COULD BE MADE WAS THAT THE DENSITY OF 'STANDARD' AIR CONDITION BE USED."

IN VIEW OF WHAT IS ACCEPTED ENGINEERING PRACTICE, THE INTERPRETATION YOU SUGGEST DOES NOT APPEAR TO BE REASONABLE.

AAF POINTS OUT THAT THE MEASURE FOR DUST LOADING AS SPECIFIED IN APPENDIX "A" IS GRAMS, BUT THAT AN ABBREVIATED SPELLING "GMS" IS USED FOR IT. ALTHOUGH IT TAKES EXCEPTION TO THIS ABBREVIATION, AAF MAKES IT CLEAR THAT THE REAL PROBLEM LIES IN THE FACT THAT GRAINS NOT GRAMS IS NORMALLY THE UNIT OF MEASURE ASSOCIATED WITH COMMERCIAL SPECIFICATIONS. CONSEQUENTLY, IT SUGGESTS THAT IF THE ABBREVIATED SPELLING WERE INTERPRETED TO REFER TO GRAINS, THEN A SUBSTANTIALLY LOWER BID PRICE WOULD RESULT. TO THIS, THE CONTRACTING OFFICER'S SUPPLEMENTAL STATEMENT REPLIES:

"'GM' IS A COMMONLY USED ABBREVIATION FOR GRAMS (REFERENCE WEBSTERS DICTIONARY). THE ABBREVIATION FOR GRAINS IS 'GR' (WEBSTERS DICTIONARY). ANY DOUBT IN THE MIND OF THE BIDDER SHOULD BE DISPELLED BY PARAGRAPH TP 8.2 WHICH GIVES THE FINAL DUST CONCENTRATION IN GRAMS/FT TO THE THIRD POWER, WHEREIN GRAMS IS SPELLED OUT AND NOT ABBREVIATED."

WE FIND NO MERIT IN AAF'S CONTENTION THAT THE USE OF "GMS" RESULTED IN SUCH CONFUSION TO BIDDERS AS TO CAUSE THEM TO REASONABLY INTERPRET THE ABBREVIATION TO MEAN GRAINS. NO MENTION OF GRAINS IN THE IFB HAS BEEN BROUGHT TO OUR ATTENTION. MOREOVER, WHATEVER MAY BE THE UNIT OF MEASURE ASSOCIATED WITH COMMERCIAL PROCUREMENTS, THIS PROCUREMENT WAS TO SATISFY A MILITARY NEED AND MORE STRINGENT SPECIFICATIONS HAD TO BE MET. THERE IS CERTAINLY NO REQUIREMENT THAT THE PROCURING ACTIVITY USE A COMMERCIAL STANDARD WHEN THAT STANDARD WILL NOT ADEQUATELY IDENTIFY ITS NEEDS.

APPENDIX "A" PRESCRIBES TWO DIFFERENT SETS OF CRITERIA FOR THE DUST SEPARATOR AND COMBUSTION AIR SCRUBBER WHICH WERE TO BE PROCURED UNDER THE ORIGINAL IFB. AMENDMENT 6, HOWEVER, CHANGED THE PROCUREMENT TO ONE FOR A COMBUSTION AIR CLEANING SYSTEM BUT NO CHANGE WAS MADE TO APPENDIX "A." AAF STATES THAT IT UNDERSTOOD THE INLET AIR DUST LOADING SPECIFICATIONS FOR THE REVISED SYSTEM TO BE THE SAME AS THAT SPECIFIED FOR THE DUST SEPARATOR IN APPENDIX "A" BUT CONTENDS THAT SOME OTHER BIDDER COULD HAVE UNDERSTOOD THE INLET AIR DUST LOADING FOR THE REVISED SYSTEM TO BE THE SAME AS FOR THE COMBUSTION AIR SCRUBBER IN APPENDIX "A."

IN HIS ORIGINAL REPLY TO THIS MATTER, THE CONTRACTING OFFICER STATED:

"IN THE ORIGINAL IFB, SEPARATE CONDITIONS WERE SPECIFIED FOR THE SEPARATORS AND SCRUBBERS BECAUSE IT WAS THE INTENT AT THAT TIME TO PROCURE THOSE COMPONENTS SEPARATELY RATHER THAN PROCURE THE COMPLETE AIR CLEANING SYSTEM AS AN ENTITY. AS THE SEPARATOR AND SCRUBBER COULD HAVE BEEN MANUFACTURED BY DIFFERENT FIRMS, IT WAS NECESSARY TO STIPULATE THE INLET AIR DUST LOADING SPECIFICATIONS AT THE ENTRANCE OF EACH UNIT. THE DUST LOADING SPECIFICATIONS WERE STATED IN APPENDIX A AS BEING MUCH GREATER ENTERING THE SEPARATOR THAN AT THE SCRUBBER BECAUSE THE SEPARATOR WAS THE INITIAL POINT FOR AIR TO ENTER THE AIR CLEANING SYSTEM. HOWEVER, WHEN THE PROCUREMENT WAS AMENDED TO PROVIDE FOR A COMPLETE AIR CLEANING SYSTEM, TO BE PROCURED FROM ONE SOURCE, THE DESIGN OF THE ENTIRE SYSTEM, WITHIN THE CRITERIA SPECIFIED IN THE IFB, BECAME THE RESPONSIBILITY OF THE BIDDER. THE INITIAL DUST LOADING CONDITIONS AND THE SPECIFIED END RESULTS OF THE CLEANING SYSTEM WERE CONTROLLING CRITERIA. THE INITIAL DUST LOADING CONDITIONS WOULD REMAIN THE SAME AT THE SEPARATOR REGARDLESS AS TO THE TYPE EQUIPMENT DESIGN TO REDUCE IT. ONE CAN ONLY CONCLUDE THAT THE DUST LOADING CRITERIA AS SET FORTH IN APPENDIX A FOR THE DUST SEPARATOR MUST PREVAIL."

IN ITS LETTER OF JUNE 23, 1970, AAF REITERATES THAT THE IFB DOES NOT STATE WHICH SET OF CRITERIA IS CONTROLLING FOR THE SYSTEM AND THEREFORE BIDDERS HAD "TO ASSUME THE PROPER SET OF CRITERIA." AAF ALSO NOTES THAT FOR THE PENULTIMATE SENTENCE OF THE CONTRACTING OFFICER'S ANSWER TO BE TRUE, IT IS NECESSARY TO ASSUME THAT THE FIRST PIECE OF EQUIPMENT IN THE SYSTEM IS THE SEPARATOR.

IN RESPONSE TO INQUIRIES BY OUR OFFICE AS TO WHY APPENDIX "A" HAD NOT BEEN CHANGED SUBSEQUENT TO THE ISSUANCE OF AMENDMENT 6 AND WHETHER DUST COULD REASONABLY ENTER THE SYSTEM AT A POINT OR AT A PIECE OF EQUIPMENT OTHER THAN A SEPARATOR, THE PROCURING ACTIVITY MADE THE FOLLOWING COMMENTS:

"THE CRITERIA FOR TWO PIECES OF EQUIPMENT WERE RETAINED, EVEN THOUGH THE SPECIFICATIONS PERMITTED A SYSTEM, TO ASSIST ANY BIDDERS WHO ELECTED TO USE THE SEPARATOR AND SCRUBBER TECHNIQUE, TO ACCOMPLISH THE FINAL RESULT. THIS ENGINEERING DATA WAS DEVELOPED BY THE GOVERNMENT DURING POWER PLANT DESIGN. "DUST ENTERS THE SYSTEM AT THE INLET FLANGE. IT IS CARRIED WITH THE AIR. IT CANNOT ENTER AT ANY OTHER POINT. IF A SEPARATOR IS USED AT ALL, THE DUST WOULD BE FIRST TREATED THERE. IF THE SYSTEM CONTAINS NO SEPARATOR, ANOTHER PIECE OF EQUIPMENT MUST PROVIDE INITIAL TREATMENT. THE ENTRY CONDITION OF DUST LADEN AIR TO BE TREATED BY THAT PIECE OF EQUIPMENT WOULD BE SAME AS FOR THE SEPARATOR."

IT IS OUR UNDERSTANDING OF THE ABOVE THAT AMENDMENT 6 GAVE PROSPECTIVE BIDDERS GREATER LATITUDE AS TO SYSTEM DESIGN BUT IT DID NOT PRECLUDE A DESIGN BASED ON A SEPARATOR AND SCRUBBER. IF A SYSTEM EMPLOYING A SEPARATOR IS PROPOSED, THEN THE INLET AIR DUST LOAD REQUIREMENT OF APPENDIX "A" APPLICABLE TO SUCH A DEVICE WOULD HAVE TO BE MET. IN VIEW OF THIS, IT IS UNREASONABLE TO CONCLUDE THAT THE INLET AIR DUST LOADING REQUIREMENT APPLICABLE TO A DIFFERENTLY DESIGNED SYSTEM WOULD BE GREATER OR LESS THAN THAT APPLICABLE TO A SYSTEM USING A SEPARATOR.

AAF NEXT CONTENDS THAT THERE WAS ORIGINALLY A CONFLICT BETWEEN THE SPECIFIED BULK DUST DENSITY AND THE DUST PARTICLE SIZE DISTRIBUTION REQUIREMENTS OF APPENDIX "A." WE ASSUME THIS CONTENTION TO BE CORRECT SINCE AMENDMENT 9 CHANGED THE WORD "DENSITY" TO "LOADING" IN TP12.2 IN AN APPARENT ATTEMPT TO RECTIFY THE MATTER. AAF CONTENDS FURTHER, HOWEVER, THAT ALTHOUGH CHANGES ARE NORMALLY INDICATED BY AN ASTERISK IN THE MARGIN OF THE AMENDED SPECIFICATION SHEETS, AMENDMENT 9 WAS NOT SO NOTED WITH RESPECT TO THE ABOVE WORD CHANGE AND THE BULK DENSITY REQUIREMENT OF APPENDIX "A" WAS NEVER DELETED.

OUR EXAMINATION OF THE LANGUAGE INVOLVED IN THE ABOVE WORD CHANGE REVEALS THAT THE LANGUAGE FIRST APPEARED IN THE SPECIFICATIONS IN PARAGRAPH TP12, ENTITLED "PERFORMANCE TESTS," AS A RESULT OF AMENDMENT 6. IT WAS NOT REVISED THEREAFTER UNTIL AMENDMENT 9. PARAGRAPH TP12 OF THIS LAST AMENDMENT, ENTITLED "TESTS," WAS NOTED WITH AN ASTERISK AND REVISED THE ENTIRE FORMAT FOR THAT PORTION OF THE IFB DEALING WITH TESTS. AMENDMENT 9, AS PREVIOUSLY MENTIONED, ALSO MADE THE WORD CHANGE INDICATED ABOVE IN A PARAGRAPH RENUMBERED TP12.2 AND RETITLED "SYSTEMS TESTS." IN VIEW OF THESE CHANGES AND THE LOCATION OF THE ASTERISK IN THE MARGIN OF THE SECTION HEADING, WE BELIEVE THAT BIDDERS WERE REASONABLY INFORMED THAT THE ENTIRE TEST SECTION OF THE IFB HAD BEEN REVISED.

AS TO THE MATERIALITY OF THE BULK DUST DENSITY CRITERIA AND WHY IT WAS NOT DELETED FROM APPENDIX "A," THE PROCURING ACTIVITY, IN RESPONSE TO INQUIRIES BY OUR OFFICE, STATES:

"BULK DENSITY OF THE DUST IS NOT A MATERIAL FACTOR IN EITHER THE TEST OR THE IFB IN GENERAL. THE TERM WAS ORIGINALLY USED TO INDICATE THE TYPE OF SOIL FROM WHICH THE DUST WAS TO BE CONSIDERED AS ORIGINATING. SINCE THE DUST LOADING IS PROVIDED IN GRAMS PER CUBIC FOOT OF AIR AND THE DISTRIBUTION OF THE PARTICLES ON A PERCENTAGE OF WEIGHT BASIS WITHIN THAT GRAMS PER CUBIC FOOT LOADING, BULK DENSITY IS NOT MATERIAL.

"THE BULK DENSITY WAS NOT DELETED SINCE IT WAS ORIGINALLY PROVIDED FOR INFORMATION AND NOT AS A DESIGN POINT."

THE LATTER STATEMENT IS APPARENTLY BORNE OUT BY THE FAILURE OF TP7.2 TO INCLUDE BULK DUST DENSITY IN A LIST OF DESIGN CRITERIA CATEGORIES WHICH HAD TO BE CONSIDERED UNDER HIGH DUST LOAD CONDITIONS. IN VIEW OF THE LACK OF SIGNIFICANCE ATTACHED TO THE BULK DUST DENSITY, WE ARE INCLINED TO AGREE THAT REMOVAL OF THE CRITERIA FROM APPENDIX "A" WOULD HAVE BEEN PREFERABLE. HOWEVER, WE DO NOT FEEL THAT SUCH FAILURE CREATED VARYING INTERPRETATIONS OF WHAT WAS REQUIRED AS WOULD HAVE MISLED QUALIFIED AND REASONABLY KNOWLEDGEABLE BIDDERS.

ALSO, AAF POINTS OUT THAT TP8.2 DOES NOT LIST AN AIR FLOW. WHILE ADMITTING THAT IT BASED ITS DESIGN ON 804 POUNDS OF AIR PER MINUTE LEAVING THE SYSTEM WITH THE MAXIMUM APPENDIX "A" INLET TEMPERATURE CONDITION, AAF CONTENDS THAT A LOWER AIR FLOW COULD BE ASSUMED BY A BIDDER AND THAT SUCH AN ASSUMPTION WOULD RESULT IN LOWER COSTS.

TO THIS CONTENTION, THE CONTRACTING OFFICER REPLIED:

"PARAGRAPH TP 7.2 STATES THAT THE MAXIMUM PRESSURE DROP UNDER HIGH DUST LOAD CONDITIONS SHALL BE 9 INCHES WATER COLUMN WITH A FLOW RATE OF 804 LBS/MIN. PARAGRAPH TP 7.2.1 STATES THE SYSTEM SHALL BE CAPABLE OF COOLING 804 POUNDS OF AIR PER MINUTE TO 130 DEGS F. FROM THE TEMPERATURE CONDITION LISTED IN APPENDIX A. THESE SPECIFIC REFERENCES MAKE IT VERY CLEAR AS TO WHAT THE WEIGHT AIR FLOW PER MINUTE WILL BE. AAF MADE THE OBVIOUS AND REASONABLE INTERPRETATION THAT AIR FLOW LEAVING THE SYSTEM IS 804 POUNDS PER MINUTE, AS WOULD ANY REASONABLE AND PRUDENT BIDDER."

IN REPLY, AAF CONCEDES THE CORRECTNESS OF THE CONTRACTING OFFICER'S POSITION INSOFAR AS IT RELATES TO TP7.2 AND 7.2.1. IT POINTS OUT, HOWEVER, THAT THESE PARAGRAPHS ARE LISTED UNDER A HEADING OF "SYSTEM DESCRIPTION" WHILE ITS ORIGINAL COMMENTS WERE DIRECTED TO THE MISSING AIR FLOW SPECIFICATION OF TP8.2, "HIGH DUST LOAD CONDITION," WHICH IS UNDER THE HEADING OF "PERFORMANCE REQUIREMENTS."

THE BASIS OF AAF'S CONTENTION, AS WE UNDERSTAND IT, IS THAT THE PARAGRAPHS UNDER TP7 HAVE NO CONNECTION WITH THOSE UNDER TP8 AND, THEREFORE, THE INFORMATION CONTAINED IN TP7 CANNOT BE USED IN CONNECTION WITH TP8. THE VALIDITY OF THIS THEORY CAN ONLY BE TESTED BY AN EXAMINATION OF THE SPECIFICATIONS ABOVE CITED. THEY ARE, THEREFORE, INSOFAR AS THEY ARE PERTINENT, SET OUT BELOW:

"7.2 HIGH DUST LOAD CONDITIONS: THE FOLLOWING CRITERIA NECESSARY FOR THE DESIGN OF THE AIR CLEANING EQUIPMENT IS CONTAINED IN APPENDIX 'A', CLASSIFIED SECRET, WHICH FORMS A PART OF THIS SPECIFICATION. ***

"DURING THE PERIOD OF HIGH DUST LOAD CONDITIONS, *** THE PRESSURE DROP SHALL NOT EXCEED 9.0 INCHES WATER COLUMN AT THE FLOW RATE OF 804 POUNDS PER MINUTE UNDER THE TEMPERATURE AND DUST CONDITIONS SPECIFIED IN APPENDIX 'A'. THE SYSTEM SHALL BE DESIGNED FOR CONTINUOUS OPERATION UNDER THESE CONDITIONS AND SHALL PROVIDE FOR DUST REMOVAL FROM THE SYSTEM IN A SLURRY FORM TO THE SLURRY DISPOSAL INTERFACE CONNECTIONS SHOWN ON THE SKETCHES.

"7.2.1 AIR COOLING: THE AIR CLEANING EQUIPMENT SHALL BE CAPABLE OF REDUCING THE TEMPERATURE OF THE AIR STREAM FROM THE TEMPERATURE CONDITION SHOWN IN APPENDIX 'A', TO 130 DEGS F. AT A WEIGHT FLOW RATE OF 804 POUNDS PER MINUTE WITH THE WATER SUPPLY INDICATED IN PARAGRAPH AVAILABLE POWER AND WATER.

"8.2 HIGH DUST LOAD CONDITION:WITH THE TEMPERATURE AND DUST LOADING CONDITIONS SPECIFIED IN APPENDIX 'A', CLASSIFIED SECRET, THE AIR CLEANING SYSTEM SHALL PROVIDE CONDITIONS NOT TO EXCEED THE FOLLOWING:

"TEMPERATURE (MAX.) 130 DEGS F.

"DUST QUANTITY (MAX.) CONCENTRATION OF

0.05 GRAM/FT TO THE THIRD

POWER WITH NO PARTICLES

GREATER THAN 10 MICRON

"NO ENTRAINED WATER DROPLETS

"MAXIMUM TOTAL PRESSURE DROP 9.0 INCHES WATER

COLUMN"

WE NOTE THAT THE PRESSURE DROP AND AIR COOLING DESIGN REQUIREMENTS OF TP7.2 AND 7.2.1 ARE DIRECTLY RELATED TO THE EXISTENCE OF AN AIR FLOW RATE OF 804 POUNDS PER MINUTE UNDER THE TEMPERATURE AND DUST LOADING SPECIFIED IN APPENDIX "A." THESE REQUIREMENTS ARE RESTATED UNDER TP8.2 AS PERFORMANCE REQUIREMENTS WHICH CANNOT BE EXCEEDED BY THE AIR CLEANING SYSTEM WHERE THE TEMPERATURE AND DUST LOADING CONDITIONS ARE AGAIN THOSE UNDER APPENDIX "A." WE CAN SAY, THEREFORE, THAT CERTAIN IDENTICAL REQUIREMENTS ARE FOUND IN THE FOREGOING PROVISIONS REGARDLESS OF HOW, IN FACT, THOSE PROVISIONS ARE LABELED. IN VIEW OF THIS COMMONALITY, WE CANNOT CONCLUDE THAT IT WOULD BE REASONABLE FOR A BIDDER TO ASSUME, IN THE ABSENCE OF A SPECIFIED AIR FLOW RATE IN TP8.2, THAT A RATE OTHER THAN 804 POUNDS PER MINUTE IS FOR APPLICATION.

AAF'S NEXT TO LAST CONTENTION IN THIS AREA IS THAT THERE ARE NO ESTABLISHED CRITERIA UPON WHICH TO BASE A PERFORMANCE TEST AND THE SPECIFICATIONS DO NOT REQUIRE A SPECIFIC METHOD OF TEST FOR DUST COLLECTION EFFICIENCY. AS A CONSEQUENCE, THE ACCURACY OF THE TEST RESULTS ARE VARIABLE DEPENDING ON THE TYPE OF TEST SELECTED AND THIS IN TURN COULD AFFECT THE KIND OF EQUIPMENT SUPPLIED. ALL THIS, AAF MAINTAINS, IS CONTRARY TO ASPR 2-101(I) WHICH INDICATES THAT AN IFB SHOULD CONTAIN ALL NECESSARY INFORMATION CLEARLY, ACCURATELY, AND COMPLETELY.

PARAGRAPH TP12.2 STATES:

"12.2 SYSTEM TESTS: THE FIRST SYSTEM PRODUCED UNDER THIS CONTRACT SHALL BE SUBJECTED TO COMPLETE PERFORMANCE TESTS. THE TEST SHALL DEMONSTRATE THE DUST REMOVAL EFFICIENCY OF THE AIR CLEANING EQUIPMENT WITH THE AIR FLOW RATE SPECIFIED HEREIN AND THE DUST LOADING AND PARTICLE SIZE DISTRIBUTION GIVEN IN APPENDIX 'A'. DUST LOADING FOR THE TEST SHALL BE AS SHOWN ON SKETCH SK-7 AS A PERCENTAGE OF THE TOTAL DUST LOADING GIVEN IN APPENDIX 'A'. TOTAL TEST DURATION SHALL BE TEN MINUTES. IN ADDITION, THE TEST SHALL DEMONSTRATE CONFORMANCE WITH THE AIR COOLING REQUIREMENT LISTED IN PARAGRAPH 'AIR COOLING'. THE CONTRACTOR SHALL SUBMIT A DETAILED TEST PROCEDURE FOR REVIEW AND APPROVAL BY THE CONTRACTING OFFICER. THIS PROCEDURE SHALL BE SUBMITTED AT THE TIME OF FINAL SHOP DRAWING SUBMITTAL."

THE CONTRACTING OFFICER ADMITS THAT NO SPECIFIC METHOD OF TESTING IS REQUIRED BUT MAINTAINS THAT WITHIN THE CRITERIA ESTABLISHED BY THE IFB ANY ADEQUATE METHOD WILL SUFFICE. IN COMMENTS RESULTING FROM AN INQUIRY BY OUR OFFICE, THE PROCUREMENT ACTIVITY STATES:

"CRITERIA FOR 'DUST REMOVAL EFFICIENCY' IS PROVIDED BY THE 34 GMS/CU FT DUST LOADING GIVEN IN APPENDIX A AND BY FINAL AIR CONDITION LISTED IN PARAGRAPH 8.2. THE QUANTITY OF DUST IN, VERSUS THE QUANTITY OF DUST DISCHARGED, ESTABLISHES THE EFFICIENCY OR DUST REMOVAL CAPABILITY REQUIRED.

"THE TYPE OF TEST PROCEDURE USED, ASSUMING AN HONEST ATTEMPT TO DEMONSTRATE THE CAPABILITY OF A SYSTEM TO MEET THE CLEANING REQUIREMENT, WOULD NOT VARY EFFICIENCY. THE TEST WAS NOT SPECIFICALLY DESIGNED AND INCLUDED IN THE IFB SINCE THE ONLY ITEM OF INTEREST IS SATISFACTORY DEMONSTRATION OF THE ABILITY OF THE EQUIPMENT TO REMOVE DUST FROM THE AIR. THE TEST SETUP AND LOCATION WOULD NECESSARILY VARY BETWEEN MANUFACTURERS, AND TO REQUIRE A SPECIFIC SETUP REQUIREMENT COULD CAUSE AN UNNECESSARY DISADVANTAGE TO BE IMPOSED UPON ONE OR MORE OF THE BIDDERS."

IT IS OUR OPINION THAT THE IFB, INCLUDING APPENDIX "A," STATES CRITERIA FOR AIR ENTERING AND LEAVING THE AIR CLEANING SYSTEM WITH THE CLARITY, ACCURACY, AND COMPLETENESS REQUIRED BY ASPR 2-101(I). AAF'S CONTENTION OF A LACK OF CRITERIA IS APPARENTLY PREMISED ON THE EXISTENCE OF AMBIGUITIES WHICH IT ALLEGED EARLIER IN ITS PROTEST AND WHICH WE HAVE ALREADY DECIDED DO NOT EXIST. THEREFORE, WE CONCLUDE THAT THE POSITION OF THE PROCUREMENT ACTIVITY ON THIS MATTER IS CORRECT.

FURTHERMORE, IT IS A QUESTION OF FACT AS TO WHETHER OR NOT THE ACCURACY OF TEST RESULTS WILL VARY AS A RESULT OF USING DIFFERENT TESTS. ON SUCH QUESTIONS, THE POSITION OF THE ADMINISTRATIVE AGENCY WILL BE ACCEPTED AS CORRECT IN THE ABSENCE, AS HERE, OF SUBSTANTIAL EVIDENCE TO THE CONTRARY. SEE 40 COMP. GEN. 178 (1960). ACCORDINGLY, WE ARE CONSTRAINED TO THE VIEW THAT NO VARIATION IN TEST ACCURACY SUCH AS AAF SUGGESTS WILL OCCUR. THIS REGARD, WE ARE ADVISED THAT ANY TEST APPROVED BY THE CONTRACTING OFFICER WILL SUFFICE.

AAF'S LAST CONTENTION WITH RESPECT TO THE SUFFICIENCY OF THE IFB CONCERNS MATTERS RELATIVE TO THE APPLICATION OF THE AMERICAN SOCIETY OF MECHANICAL ENGINEERS (ASME), BOILER AND PRESSURE VESSEL CODE, DIVISION 1, PRESSURE VESSELS, WHICH IS MADE PART OF THE IFB BY TP1.5.

TP7.3 REQUIRES:

"7.3 ASME CONSTRUCTION: THE AIR CLEANING EQUIPMENT SHALL BE DESIGNED AND CONSTRUCTED IN ACCORDANCE WITH ALL APPLICABLE SECTIONS OF THE ASME BOILER AND PRESSURE VESSEL CODE, SECTION VIII, PRESSURE VESSELS *** "

AAF MAINTAINS, HOWEVER, THAT CERTAIN PRESSURE VESSELS, SUCH AS THE ONE REQUIRED FOR THE AIR CLEANING SYSTEM, ARE EXPRESSLY, BY CODE PROVISION, NOT CONSIDERED TO BE WITHIN THE JURISDICTION OF SECTION VIII, DIVISION 1, OF THE CODE. THUS, CONTINUES AAF, A BIDDER COULD POSSIBLY REACH THE CONCLUSION THAT THE CODE WAS NOT APPLICABLE.

THE ACCEPTANCE OF AAF'S ARGUMENT MEANS THAT SECTION VIII, DIVISION 1, OF THE ASME CODE IS INCORPORATED INTO THE IFB BY TP1 ONLY TO BE RENDERED A NULLITY BY OPERATION OF ITS OWN PROVISIONS. ON ITS FACE, THIS REASONING IS AS UNREASONABLE TO US AS IT APPARENTLY WAS TO AAF WHO ADVISES THAT IT SUBMITTED ITS BID ON THE ASSUMPTION THAT THE CODE WAS APPLICABLE.

DIVISION 1 OF SECTION VIII OF THE CODE COVERS THE MINIMUM CONSTRUCTION REQUIREMENTS FOR THE DESIGN, FABRICATION, INSPECTION, AND CERTIFICATION OF CERTAIN PRESSURE VESSELS. THE PRESSURE VESSEL REQUIRED FOR THIS PROCUREMENT IS NOT, HOWEVER, COVERED UNDER THE STANDARDS OF DIVISION 1, AS IT IS SPECIFICALLY EXCLUDED FROM SUCH COVERAGE BY THE CODE. NONETHELESS, WE KNOW OF NO REASON, NOR HAS ANY REASON BEEN SUGGESTED, WHY INAPPLICABLE COMMERCIAL STANDARD MAY NOT BE USED IF THE PROCURING ACTIVITY DEEMS SUCH STANDARD NECESSARY TO MEET ITS NEEDS. TP7.3 STATES THE STANDARDS BY WHICH THE AIR CLEANING EQUIPMENT MUST BE DESIGNED AND CONSTRUCTED. WE THINK THE STANDARDS ARE CLEAR. THE FACT THAT THESE STANDARDS ARE NOT ORDINARILY USED FOR SUCH COMPONENTS AS THE PRESSURE VESSEL IN NO WAY OBVIATES THE NECESSITY FOR THEIR USE IN THIS PROCUREMENT SINCE THE ASME CODE STANDARDS ARE SPECIFICALLY REQUIRED. THE USUAL SITUATION OF NONCOVERAGE BY THE CODE SIMPLY DOES NOT EXIST HERE. THE FACT THAT THE PRESSURE VESSEL COULD NEVER BE CERTIFIED UNDER THE CODE IS OF NO SIGNIFICANCE. NO ASME CODE CERTIFICATION WAS REQUIRED BY TP7.3 OR BY ANY OTHER PROVISION OF THE IFB. ON THIS POINT AND OTHERS THE PROCUREMENT ACTIVITY COMMENTED: "NAMEPLATES ATTESTING TO CONSTRUCTION OF AN ITEM TO THE ASME CODE ARE NOT REQUIRED BY THAT CODE UNLESS IT IS DESIRED THAT THE ITEM BE A CERTIFIED PRESSURE VESSEL, NOT APPLICABLE IN THIS PROCUREMENT. THE NAMEPLATE CAN BE A REQUIREMENT, BUT WAS NOT IN THIS PROCUREMENT. IN BOTH GOVERNMENT AND PRIVATE INDUSTRY PRACTICE, AN ITEM IS FREQUENTLY BUILT IN ACCORDANCE WITH THE CODE, BUT THE NAMEPLATE IS OMITTED SINCE THE EXPENSE OF THE TAG IS NOT NECESSARY. THE INFORMATION LISTED IN THE CLASSIFIED APPENDIX A COULD NOT BE PLACED ON A NAMEPLATE SINCE IT WOULD COMPROMISE SAFEGUARD SECURITY REQUIREMENTS. THE SKETCHES INCLUDED IN THE ORIGINAL IFB REQUIRED A RECTANGULAR OPENING IN THE SEPARATOR. A VESSEL WITH SUCH AN OPENING CANNOT BE CODE STAMPED. IT IS OBVIOUS THAT THE STAMP, THEREFORE, WAS NOT AN APPLICABLE REQUIREMENT."

FACED WITH DETERMINING THE REASONABLENESS OF TWO INTERPRETATIONS OF THE SPECIFICATIONS, ONE WHICH RENDERS TP1 AND TP7.3 NULLITIES AND THE OTHER WHICH WILL GIVE EFFECT TO THE SAME PROVISIONS, WE THINK IT PROPER TO CONCLUDE THAT THE FORMER IS UNREASONABLE.

CERTAIN PROVISIONS OF THE ASME CODE EXCLUDE PIPING EXTERNAL TO A PRESSURE VESSEL FROM JURISDICTION OF THE CODE REQUIREMENTS. AAF CONTENDS THAT IF A BIDDER INTERPRETED "PIPING" TO BE "DUCT-WORK" THEN CONSIDERABLE COST SAVINGS WOULD RESULT. AAF NOTES, HOWEVER, THAT IN SUCH A CIRCUMSTANCE, THE BIDDER MIGHT NOT PROVIDE A TOTAL SYSTEM THAT COULD WITHSTAND THE SPECIFIED PRESSURE. MOREOVER, AAF STATES THAT IT DID NOT ADOPT THE INTERPRETATION WHICH EQUATES "PIPING" FOR "DUCT WORK," "SINCE IT WOULD BE ILLOGICAL TO HAVE SOME SECTIONS OF THE SYSTEM OMITTED FROM THE PRESSURE REQUIREMENTS." WE THINK THE LOGIC OF THIS STATEMENT IS SUFFICIENT TO PRECLUDE AS REASONABLE ANY OTHER INTERPRETATION OF THE SPECIFICATIONS.

WE NOW CONSIDER THE SECOND MAJOR GROUND OF AAF'S PROTEST. IT CONTENDS THAT NO BIDDER, OTHER THAN ITSELF, WAS RESPONSIVE TO THE IFB. THE CONTRACTING OFFICER CONCEDES THE NONRESPONSIVENESS OF WESTERN PRECIPITATION DIVISION OF JOY MANUFACTURING COMPANY, AND RESEARCH COTTRELL, INC.

WITH RESPECT TO YORK'S BID, AAF CONTENDS THAT YORK FAILED TO RETURN ALL PAGES OF THE BID PACKAGE, FAILED TO RESPOND TO ALL REQUIRED INFORMATION, AND SIGNED ITS BID WITH AN APPARENT FACSIMILE SIGNATURE INSTEAD OF AN ACTUAL SIGNATURE. WITH REGARD TO THE MATTER OF THE FACSIMILE SIGNATURE, ASPR 2-405(III) ALLOWS THE CONTRACTING OFFICER TO WAIVE AS A MINOR IRREGULARITY A BIDDER'S FAILURE TO SIGN HIS BID, BUT ONLY IF:

"(A) THE FIRM SUBMITTING THE BID HAS FORMALLY ADOPTED OR AUTHORIZED THE EXECUTION OF DOCUMENTS BY TYPEWRITTEN, PRINTED, OR RUBBER STAMPED SIGNATURE AND SUBMITS EVIDENCE OF SUCH AUTHORIZATION AND THE BID CARRIES SUCH A SIGNATURE, OR

"(B) THE UNSIGNED BID IS ACCOMPANIED BY OTHER MATERIAL INDICATING THE BIDDER'S INTENTION TO BE BOUND BY THE UNSIGNED BID DOCUMENT SUCH AS THE SUBMISSION OF A BID GUARANTEE WITH BID, OR A LETTER SIGNED BY THE BIDDER WITH THE BID REFERRING TO AN CLEARLY IDENTIFYING THE BID ITSELF;"

AS FOR THE REASONS FOR HOLDING YORK'S BID RESPONSIVE, THE CONTRACTING OFFICER EXPLAINS:

"(A) THE YORK BID IS ENFORCEABLE, AS IT STANDS, IF ACCEPTED BY THE GOVERNMENT IN SPACE 21 OF FORM 33. WE HAVE AN ENVELOPE EVIDENCING DELIVERY OF BID AND INTENT TO BID. IT WAS LABELED 'SEALED BID. INV. NO. DACA87-70-B-0002, OPENING 2 P.M. 9 APRIL.' BIDS WERE REQUIRED TO BE FILED IN TWO SETS, AN ORIGINAL AND ONE COPY. IT APPEARS THAT THE BID FORM WAS SIGNED BY AN AUTHORIZED OFFICIAL, 'FRANCIS A. GOVAN, P. E., EXECUTIVE VICE PRESIDENT,' AGAIN WITH APPARENT INTENT TO BID, BUT THEREAFTER THE BIDDER REPRODUCED EXTRA COPIES. ONE SET DELIVERED AS THE BID IS CLEARLY A REPRODUCED COPY AS TO ALL SHEETS. THE OTHER SET DELIVERED AS THE BID MAY OR MAY NOT BE A REPRODUCTION ON THE FIRST SIGNATURE PAGE OF FORM 33. HOWEVER, PAGE 2 OF FORM 33 IS AN ORIGINAL WITH A PEN AND INK ENTRY STATING 'SEE ATTACHED ACKNOWLEDGMENT' WITH RESPECT TO ACKNOWLEDGMENT OF AMENDMENTS. THIS IS FOLLOWED BY PAGE 3 OF AMENDMENT NUMBER NINE, WHICH IS AN ORIGINAL COPY SIGNED WITH AN ACTUAL PEN AND INK SIGNATURE BY 'FRANCIS A. GOVEN, EXEC. VICE PRESIDENT,' IN A SPACE WHICH WAS PROVIDED TO GIVE BIDDERS AN OPPORTUNITY TO ACKNOWLEDGE RECEIPT OF ALL NINE AMENDMENTS. THIS IS FOLLOWED BY PAGES 7 OF 19 AND 8 OF 19, WHICH ARE ORIGINAL PEN AND INK BID SCHEDULES SETTING FORTH THE BID PRICES FOR THE ITEMS BID ON. THEN COMES A 2-PAGE ATTACHMENT FROM THE FEDERAL SUPPLY CODE FOR MANUFACTURERS, DEFENSE SUPPLY AGENCY, H 4 1, SHOWING THAT

"'YORK RESEARCH CORP., 1 RESEARCH DR., STAMFORD, CONN. 06906' IS A LISTED MANUFACTURER UNDER 'MANUFACTURERS CODE 18595.'

"(B) THE FIRST PAGE OF THIS 'ORIGINAL' SET IS A REPRODUCED COPY OF THE BID FORM. IT IS NOT CLEAR WHETHER THE SIGNATURE THEREON IS AN ACTUAL PEN AND INK SIGNATURE OR A REPRODUCTION THEREOF. HOWEVER, TO HAVE A REPRODUCTION THERE MUST HAVE BEEN AN ORIGINAL SIGNED MASTER. FURTHERMORE, THE ATTACHMENTS AND THE BONA FIDE SIGNATURE ON AMENDMENT NUMBER NINE EVIDENCE AN INTENT TO BE BOUND BY THE BID."

WE MAY ASSUME, ARGUENDO, THAT THE REPRODUCED SIGNATURE BEING QUESTIONED BY AAF IS NOT A REPRODUCTION OF AN ORIGINAL MANUALLY SIGNED SIGNATURE. SUCH A CIRCUMSTANCE, OUR OFFICE HAS HELD THAT BIDS NOT MANUALLY SIGNED MAY BE CONSIDERED FOR AWARD IF ACCOMPANIED BY SOME DOCUMENTARY EVIDENCE SHOWING A CLEAR INTENT TO SUBMIT A BID. B-150459, MARCH 6, 1963; B- 164040, JUNE 26, 1968. MANUALLY SIGNED SIGNATURES OR INITIALS OF INDIVIDUALS AUTHORIZED TO SIGN BIDS APPEARING ON A BID ENVELOPE OR ELSEWHERE IN A BID OR DOCUMENTATION ACCOMPANYING A BID HAVE PROVIDED A BASIS FOR DETERMINING THE EXISTENCE OF AN INTENT TO SUBMIT A BINDING BID. 48 COMP. GEN. 648 (1969); B-158607, APRIL 21, 1966; B 155049, AUGUST 31, 1964. IN B-164040, SUPRA, WE HELD, IN CIRCUMSTANCES VERY SIMILAR TO THOSE HEREIN, THAT THE SIGNED ACKNOWLEDGMENT OF AN AMENDMENT WHICH WAS STAPLED TO THE BID FORM SATISFACTORILY ESTABLISHED THE BIDDER'S INTENTION TO BE BOUND BY ITS UNSIGNED BID. IN VIEW OF THE SIGNED ACKNOWLEDGMENT ATTACHED TO THE YORK BID, WE CONCLUDE THAT THERE IS SUFFICIENT EVIDENCE TO INDICATE AN INTENT TO SUBMIT A BINDING BID.

WITHOUT DOUBT, YORK FAILED TO RETURN ALL PAGES OF THE ORIGINAL SOLICITATION PACKAGE. AS TO THE EFFECT OF THAT FAILURE, WE STATED IN 49 COMP. GEN. 289, 290 (1969):

"THERE IS NO REQUIREMENT IN THE PROCUREMENT LAWS, IN THE APPLICABLE REGULATIONS, OR IN THE PROVISIONS OF THE STANDARD INVITATION FOR BID FORMS THAT BIDDERS MUST RETURN WITH THEIR BIDS ALL PORTIONS OF, AND ATTACHMENTS TO, THE INVITATION IN ORDER TO BE ELIGIBLE FOR AWARD OF A CONTRACT. THE ABSENCE OF SUCH A REQUIREMENT THIS OFFICE HAS HELD THAT THE QUESTION TO BE DECIDED, WHEN A BIDDER FAILS TO RETURN ALL DOCUMENTS WITH HIS BID WHICH WERE ATTACHED TO THE INVITATION, IS WHETHER THE BIDDER HAS SUBMITTED HIS BID IN SUCH A FORM THAT ACCEPTANCE WOULD CREATE A VALID AND BINDING CONTRACT REQUIRING THE BIDDER TO PERFORM IN ACCORDANCE WITH ALL OF THE MATERIAL TERMS AND CONDITIONS OF THE INVITATION. THUS, WE HAVE HELD THAT BIDS SUBMITTED IN THE FORM OF A LETTER COULD BE ACCEPTED, B-128399, JULY 19, 1956; B-113920, FEBRUARY 27, 1953; THAT A BID CONSISTING ONLY OF THE FACE SHEET OF STANDARD FORM 33 AND THE COMPANY IDENTIFICATION INFORMATION FORM COULD BE ACCEPTED, B 148548, APRIL 17, 1962; *** "

WE HELD IN THAT CASE THAT THE SUBMISSION OF A SCHEDULE CONTINUATION SHEET CONTAINING A PROVISION ENTITLED "COMPOSITION," WHICH LISTED THE VARIOUS CONDITIONS, PROVISIONS, SCHEDULES, CERTIFICATES, AND OTHER DOCUMENTS COMPRISING THE TERMS OF THE CONTRACT TO BE AWARDED, WAS SUFFICIENT IN VIEW OF THE OFFER CLAUSE OF STANDARD FORM 33 (SOLICITATION, OFFER, AND AWARD), TO BIND THE BIDDER TO FULL PERFORMANCE IN ACCORD WITH THE REQUIREMENTS OF THE IFB. WE BELIEVE A SIMILAR SITUATION EXISTS HERE.

AS ORIGINALLY ISSUED, THE IFB CONTAINED A TABLE OF CONTENTS INDICATING THAT THE IFB CONSISTED OF PART I - SOLICITATION SCHEDULE; PART II - GENERAL PROVISIONS; PART III - SPECIAL PROVISIONS; AND PART IV - TECHNICAL PROVISIONS. THE VARIOUS PROVISIONS AND STANDARD FORMS INVOLVED IN THE PROCUREMENT WERE THEREAFTER INDEXED BY TITLE UNDER THEIR APPROPRIATE PART. THE VARIOUS AMENDMENTS WHICH EVENTUALLY WERE ISSUED MENTION ALL OF THE FOUR PARTS BY NAME AND NUMBER AS WELL AS MANY OF THE INDIVIDUAL PROVISIONS OF THE IFB. AMENDMENT 6 NOT ONLY CONTAINED THE ABOVE TABLE OF CONTENTS BUT ALSO INCLUDED COMPLETE INDEXES OF ALL PROVISIONS COMPRISING PART I - SOLICITATION SCHEDULE AND PART IV - TECHNICAL PROVISIONS. AMENDMENT 7 REVISED PART I ENTIRELY AND PROVIDED A COMPLETE INDEX TO THE PROVISIONS SUBSUMED IN THAT PART. THE SAME AMENDMENT ALSO REVISED PART II - GENERAL PROVISIONS, IN PART, AND AGAIN AN INDEX OF THE REVISED PROVISIONS WAS PROVIDED WITH THE AMENDMENT.

YORK'S ACKNOWLEDGMENT OF THE AMENDMENTS NECESSARILY MEANS THAT IT WAS COGNIZENT OF THE VARIOUS PARTS OF THE IFB AT THE TIME OF BID SUBMISSION. WE BELIEVE, THEREFORE, THAT ATTACHMENT OF THE ACKNOWLEDGMENT TO ALL NINE AMENDMENTS TO ITS BID INDICATES AN INTENT TO BE BOUND BY THE IFB AS AMENDED, AND THAT ACCEPTANCE OF SUCH AN OFFER REQUIRED YORK TO COMPLY WITH ALL THE MATERIAL PROVISIONS OF THE CONTRACT.

BIDDERS WERE REQUIRED TO SUPPLY SPECIFIED INFORMATION ON PAGES 7, 8, 15, 16, AND 17 OF THE SCHEDULE. PAGES 7 AND 8 WERE FILLED IN BY YORK AND RETURNED WITH ITS BID. PAGES 15, 16, AND 17 WERE NOT RETURNED. THEREFORE, ALTHOUGH WE HAVE DETERMINED THAT THE FAILURE TO RETURN THE PAGES THEMSELVES DID NOT RENDER YORK'S BID NONRESPONSIVE, WE ALSO MUST CONSIDER WHETHER THE OMITTED INFORMATION WAS OF SUCH CONSEQUENCE AS TO RENDER YORK'S BID NONRESPONSIVE.

FAILURE TO FURNISH THE LABOR SURPLUS AREA STATUS INFORMATION REQUIRED ON PAGE 15 WOULD, BY THE TERMS OF THE PROVISION, PRECLUDE CONSIDERATION OF YORK AS A LABOR SURPLUS AREA CONCERN IN THE EVENT OF TIE BIDS OR BID EVALUATION UNDER THE BUY AMERICAN CLAUSE OF THE IFB. THE IFB ITSELF IS NOT SET ASIDE FOR LABOR SURPLUS AREA CONCERNS. SINCE THE COMPLETION OF THIS PROVISION WOULD NOT AFFECT THE RIGHTS AND OBLIGATIONS OF THE PARTIES, WE DO NOT BELIEVE THAT THE FAILURE TO SUPPLY THE INFORMATION REQUESTED CONSTITUTED GROUNDS FOR REJECTION OF YORK'S BID.

PAGE 16 REQUIRES YORK TO SUPPLY AN ALTERNATE ADDRESS IN THE EVENT IT DESIRES PAYMENT MAILED TO A LOCATION OTHER THAN THE ADDRESS APPEARING ON PAGE 1 OF THE IFB. FAILURE TO SUPPLY SUCH AN ALTERNATE ADDRESS IS NOT MATERIAL TO THE OBLIGATIONS OF THE PARTIES AND PROVIDES NO BASIS FOR REJECTING THE BID.

PAGE 17 REQUIRES THE BIDDER TO FILL IN THE FOLLOWING WITH RESPECT TO THE PLACE OF MANUFACTURE OR THE ESTABLISHMENT FROM WHICH THE SUPPLIES WILL BE FURNISHED:

"NAME OF PLANT

"STREET ADDRESS

"CITY AND STATE

"SHIPPING POINT "

WE HELD IN B-167974, NOVEMBER 14, 1969, THAT THE FAILURE TO LIST THE BIDDER'S PLANT LOCATION WAS SUFFICIENT TO RENDER A BID NONRESPONSIVE WHERE THE SOLICITATION REQUIRED BIDDERS TO BE ON A QUALIFIED MANUFACTURERS LIST AND SPECIFICALLY WARNED THAT THE FAILURE TO LIST THE PLACE OF PERFORMANCE WOULD RENDER THE BID NONRESPONSIVE. THE SAME SET OF CIRCUMSTANCES DO NOT EXIST IN THE SUBJECT CASE AND B-167974 IS, THEREFORE, CLEARLY DISTINGUISHABLE. MOREOVER, IN VIEW OF THE IFB PROVISIONS WHICH STATE THAT DELIVERIES ARE TO BE F.O.B. DESTINATION (PARAGRAPH 16) AND THAT GOVERNMENT INSPECTION "MAY BE PERFORMED AT, BUT NOT LIMITED TO, POINT OF MANUFACTURE" (PARAGRAPH 23), WE DO NOT SEE HOW THE FAILURE TO LIST THE PLACE OF MANUFACTURE OR SHIPPING POINT COULD AFFECT THE PRICE, QUANTITY, QUALITY, OR DELIVERY PROVISIONS OF THE IFB. CONSEQUENTLY, WE AGREE WITH THE PROCURING ACTIVITY'S EXPLANATION THAT COMPLETION OF THE FILL-IN SPACES WAS INTENDED ONLY TO PROVIDE INFORMATION NECESSARY TO DETERMINE WHICH DEFENSE CONTRACT ADMINISTRATION SERVICES REGION OFFICE WOULD ULTIMATELY ADMINISTER THE CONTRACT. WE THEREFORE CONCLUDE THAT THE FAILURE TO COMPLETE THE SPACES DID NOT REQUIRE REJECTION OF YORK'S BID AS NONRESPONSIVE.

ACCORDINGLY, YOUR PROTEST IS DENIED.