B-170006, AUG. 17, 1970

B-170006: Aug 17, 1970

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A BIDDER WHO INDICATED THAT HE WAS COMPLYING WITH EVERY PARTICULAR IN THE ADVERTISEMENT BUT THEN INSERTED A QUALIFICATION THAT SUBSTITUTION WOULD BE MADE SUCH QUALIFICATION RENDERED THE BID AMBIGUOUS AND REJECTION BECAUSE OF THE QUALIFICATION WAS PROPER. BIDS WERE INVITED FOR FURNISHING FISH FOOD PELLETS AND GRANULES FOR THE PERIOD JULY 1. PRICES PER POUND FOR THE FISH FOOD WERE TO BE INSERTED BY BIDDERS ON PAGE 8 OF THE INVITATION. THE TOTAL ESTIMATED REQUIREMENT WAS STATED TO BE 766. BIDS WERE OPENED ON MAY 20. THE FOLLOWING BIDS WERE RECEIVED: NAME AND LOCATION OF BIDDER TOTAL AMOUNT OF BID HILL MILLING COMPANY $81. UTAH THE BID FROM HILL MILLING COMPANY WAS QUALIFIED IN SEVERAL MATERIAL RESPECTS AND THIS BID WAS REJECTED AS NONRESPONSIVE.

B-170006, AUG. 17, 1970

BID PROTEST DENIAL OF PROTEST OF SECOND LOW BIDDER BECAUSE OF DEVIATION IN BID FOR FURNISHING FISH FOOD PELLETS AND GRANULES TO INTERIOR. A BIDDER WHO INDICATED THAT HE WAS COMPLYING WITH EVERY PARTICULAR IN THE ADVERTISEMENT BUT THEN INSERTED A QUALIFICATION THAT SUBSTITUTION WOULD BE MADE SUCH QUALIFICATION RENDERED THE BID AMBIGUOUS AND REJECTION BECAUSE OF THE QUALIFICATION WAS PROPER.

TO RANGEN, INCORPORATED:

THIS CONCERNS YOUR PROTEST BY LETTER OF JUNE 5, 1970, AGAINST THE AWARD MADE BY THE BUREAU OF SPORT FISHERIES AND WILDLIFE, DEPARTMENT OF THE INTERIOR, UNDER INVITATION FOR BIDS NO. SFW1-1021, ISSUED ON APRIL 27, 1970. BIDS WERE INVITED FOR FURNISHING FISH FOOD PELLETS AND GRANULES FOR THE PERIOD JULY 1, 1970, THROUGH DECEMBER 31, 1970, IN ACCORDANCE WITH CERTAIN ATTACHED CONDITIONS AND SPECIFICATIONS.

PRICES PER POUND FOR THE FISH FOOD WERE TO BE INSERTED BY BIDDERS ON PAGE 8 OF THE INVITATION. ITEM NO. 13 OF THE "SPECIAL CONDITIONS PROVIDED THAT INDIVIDUAL PURCHASE ORDERS WOULD BE ISSUED BY EACH HATCHERY TO COVER THE PELLETS OR GRANULES REQUIRED. PAGE 9 LISTED THE LOCATIONS OF THE VARIOUS HATCHERIES; GAVE A BREAKDOWN OF THE ESTIMATED REQUIREMENTS BY PARTICLE SIZE AND A BREAKDOWN OF THE ESTIMATED QUANTITIES FOR EACH OF THE HATCHERIES LISTED. THE TOTAL ESTIMATED REQUIREMENT WAS STATED TO BE 766,300 POUNDS.

BIDS WERE OPENED ON MAY 20, 1970, AND THE FOLLOWING BIDS WERE RECEIVED: NAME AND LOCATION OF BIDDER TOTAL AMOUNT OF BID HILL MILLING COMPANY $81,994.10 TERRETON, IDAHO (F.O.B. TERRETON, IDAHO) RANGEN, INCORPORATED $82,739.44 BUHL, IDAHO STERLING H. NELSON & SONS, INC. $83,833.22 MURRAY ELEVATORS DIVISION MURRAY. UTAH MOORE-CLARK COMPANY $85,677.79 SALT LAKE CITY, UTAH

THE BID FROM HILL MILLING COMPANY WAS QUALIFIED IN SEVERAL MATERIAL RESPECTS AND THIS BID WAS REJECTED AS NONRESPONSIVE. THE SECOND LOW BID FROM RANGEN, INCORPORATED, WAS REJECTED AS NONRESPONSIVE SINCE IT WAS DETERMINED THAT THIS BID WAS ALSO QUALIFIED IN A MATERIAL MANNER. AWARD WAS MADE TO STERLING ON JUNE 3, 1970, IN THE AMOUNT OF $83,833.22. LETTER OF MAY 26, 1970, YOU WERE ADVISED THAT YOUR BID WAS REJECTED.

THE CONTRACTING AGENCY DETERMINED THAT YOUR BID WAS NONRESPONSIVE BECAUSE OF AN INSERTION MADE BY YOU UNDER PARAGRAPH 1A OF THE SECTION OF THE INVITATION ENTITLED "EXCEPTIONS TO SPECIFICATIONS AND CONDITIONS". WITH RESPECT TO QUESTION 1. UNDER THIS SECTION WHICH WAS, "DOES YOUR BID, INCLUDING THE EQUIPMENT, MATERIALS, OR SUPPLIES OFFERED, COMPLY WITH THE 'CONDITIONS' IN THIS ADVERTISEMENT IN EVERY PARTICULAR", YOU INSERTED, "YES". PARAGRAPH 1A. STATED, "IF YOUR ANSWER IS 'NO' EXPLAIN BELOW WHERE THE EQUIPMENT, MATERIALS OR SUPPLIES OFFERED DO NOT COMPLY WITH THE 'CONDITIONS.'" UNDER THIS STATEMENT RANGEN INSERTED THE FOLLOWING QUALIFICATION:

"FISHMEAL IS AND HAS BEEN VERY DIFFICULT TO COME BY - EVERY EFFORT WOULD BE MADE TO PURCHASE THE MEAL AS SHOWN IN THE SPECS - BUT IF THE MATERIAL IS NOT AVAILABLE - SUBSTITUTIONS WOULD HAVE TO BE MADE."

THE ESTIMATED TOTAL REQUIREMENTS BY PARTICLE SIZE (POUNDS) WERE LISTED AS FOLLOWS ON PAGE 9 OF THE INVITATION:

"STARTER 1,400 POUNDS

NO. 1 GRANULE6,700 POUNDS

NO. 2 GRANULE 8,800 POUNDS

NO. 3 GRANULE 27,300 POUNDS

NO. 4 GRANULE 53,200 POUNDS

3/32" X 3/32" PELLET 127,200 POUNDS

1/8" X 1/8" PELLET 248,000 POUNDS

3/16" X 3/16" PELLET 293,700 POUNDS

TOTAL 766,300"

PAGES 10 THROUGH 12 OF THE INVITATION GAVE THE SPECIFICATIONS AND IT WAS STATED THAT THE BID CALLED FOR TWO DIETS. DIET SD4(71) WAS REQUIRED FOR ALL STARTER AND NOS. 1 AND 2 GRANULES. DIET PR6(71) WAS REQUIRED FOR ALL SIZE NO. 3 GRANULES AND LARGER GRANULES AND ALL PELLET SIZES.

UNDER FORMULATION SD4-25(71) IT WAS PROVIDED THAT THE FISH FOOD MIXTURE SHOULD BE COMPOSED OF CERTAIN LISTED ITEMS IN PROPORTIONATE QUANTITIES PER HUNDRED POUNDS AND IT WAS FURTHER PROVIDED THAT THE FINAL PRODUCT WAS TO CONTAIN A GUARANTEED ANALYSIS IN ACCORDANCE WITH THE MIX SET FORTH UNDER THIS FORMULATION. TWELVE ITEMS ARE SET FORTH IN PROPORTIONATE QUANTITIES PER HUNDRED POUNDS AND ITEM NO. 1 UNDER THIS FORMULATION IS AS FOLLOWS:

"CANADIAN OR ALASKAN HERRING MEAL, MINIMUM PROTEIN 70%, MAXIMUM FAT 10.5%, MAXIMUM SALT (NAC1) 2%, MAXIMUM MOISTURE 10%, IMMEDIATE PAST SEASON. PEPSIN DIGESTIBILITY NOT LESS THAN 92.5%."

"FISH MEAL MAY BE VARIED BETWEEN 40-43% DEPENDING ON PROTEIN CONTENT BUT MUST PROVIDE NOT LESS THAN 30% FISH PROTEIN PER HUNDRED POUNDS." UNDER FORMULATION PR6-29(71) A FINAL GUARANTEED ANALYSIS WAS ALSO SET FORTH AND ITEM NO. 1 UNDER THIS FORMULATION WAS BASICALLY THE SAME AS ITEM NO. 1 UNDER FORMULATION SD4-25(71), QUOTED ABOVE.

THE FOLLOWING COMMENTS HAVE BEEN FURNISHED BY THE DEPARTMENT OF THE INTERIOR REGARDING THE REASONS WHY YOUR BID WAS REJECTED.

"THE TWO FORMULATIONS WERE DEVELOPED AFTER SEVERAL YEARS OF RESEARCH AT THE BUREAU'S DIET TESTING DEVELOPMENT CENTER, SPEARFISH, SOUTH DAKOTA, AND THEY PROVIDE THE BEST DIETS KNOWN FOR FEEDING TROUT AT THE VARIOUS HATCHERIES. THE SPECIFICATIONS CALL FOR THE FINAL PRODUCT TO HAVE GUARANTEED ANALYSIS AS FOLLOWS:

'FORMULATION SD4-25 (71)

(STARTER, NO. 1 AND NO. 2 GRANULES)

'CRUDE PROTEIN, NOT LESS THAN 46%

FISH MEAL PROTEIN, NOT LESS THAN 30%

CRUDE FAT, NOT LESS THAN 12% OR MORE THAN 13%

CRUDE FIBER, NOT MORE THAN 4%

MOISTURE, NOT MORE THAN 10.5% AT SACK-OFF

'FORMULATION PR6-25 (71)

(NO. 3 AND LARGER GRANULES AND ALL PELLET SIZES)

'CRUDE PROTEIN, NOT LESS THAN 40%

FISH MEAL PROTEIN, NOT LESS THAN 24.5%

CRUDE FAT, NOT LESS THAN 7% OR GREATER THAN 8%

CRUDE FIBER, NOT MORE THAN 5%

MOISTURE, NOT MORE THAN 10% AT SACK-OFF'

"PLEASE NOTE THAT WITH THE EXCEPTION OF CRUDE PROTEIN, THE QUANTITIES OF FISH MEAL PROTEIN IN THE ABOVE GUARANTEED ANALYSIS ACCOUNTS FOR THE GREATER AMOUNTS OF THE FINAL PRODUCTS. THE MANUFACTURERS ARE REQUIRED TO SUPPLY REPRESENTATIVE SAMPLES OF FEED FROM EACH PRODUCTION RUN TO THE BUREAU'S DIET TESTING DEVELOPMENT CENTER FOR TESTING TO DETERMINE IF THEY MEET THE ABOVE ANALYSIS.

"COMMERCIALLY AVAILABLE FISH MEAL VARIES CONSIDERABLY IN QUALITY. THIS VARIATION IS CAUSED BY THE SPECIES OF FISH USED TO PRODUCE THE MEAL AND BY THE MANUFACTURING METHOD USED. TROUT DIETS CONTAIN BETWEEN 20 AND 30% FISH MEAL AND THE WELL-BEING AND GROWTH RATE OF THESE FISH ARE CLOSELY CORRELATED WITH THE QUALITY OF THE FISH MEAL USED. NUTRITION TESTS HAVE PROVEN THAT FISH MEAL QUALITY MUST BE WITHIN CERTAIN LIMITS TO PROVIDE AN ADEQUATE DIET. THE ONLY RELIABLE METHOD FOR MAINTAINING THE REQUIRED PROTEIN QUALITY OF TROUT DIETS IS TO SPECIFY SOURCES AND TYPES OF FISH MEAL THAT HAVE BEEN PROVEN BY TESTING TO POSSESS THE NECESSARY NUTRITIONAL COMPONENTS.

"SINCE THE BID SUBMITTED BY RANGEN, INC. CONTAINED QUALIFYING LANGUAGE OF A SUBSTANTIAL NATURE, THEIR BID WAS CONSIDERED NONRESPONSIVE AND WAS THEREFORE REJECTED *** ."

THE INSERTION BY YOU UNDER PARAGRAPH 1A. UNDER THE "EXCEPTIONS TO SPECIFICATIONS AND CONDITIONS" SECTION OF THE INVITATION OBVIOUSLY QUALIFIED YOUR BID BY OFFERING TO SUBSTITUTE SOME OTHER COMMERCIALLY AVAILABLE FISH MEAL FOR THE FISH MEAL SPECIFIED. HOWEVER, NO INFORMATION WAS GIVEN WITH RESPECT TO THE TYPE OF SUBSTITUTED FISH MEAL WHICH YOU PROPOSED TO FURNISH. THERE IS NO WAY OF DETERMINING WHAT IS MEANT BY " *** IF THE MATERIAL IS NOT AVAILABLE *** ", IN WHICH CASE YOU RESERVED THE RIGHT TO MAKE SUBSTITUTIONS. IN VIEW OF THE ADVICE FROM INTERIOR THAT COMMERCIALLY AVAILABLE FISH MEAL VARIES CONSIDERABLY IN QUALITY, CAUSED BY THE SPECIES OF FISH USED TO PRODUCE THE MEAL AND THE MANUFACTURING PROCESS USED, THE QUALIFICATION IN YOUR BID, AT BEST, RENDERED YOUR BID AMBIGUOUS AS TO WHETHER THE FISH MEAL WHICH YOU WOULD USE IN THE EVENT OF A SUBSTITUTION WOULD MEET THE REQUIREMENTS OF THE SPECIFICATIONS. WHILE YOU ARGUE THAT THE STATEMENT UNDER PARAGRAPH 1A. WAS INTENDED TO BE ONE OF FACT, THE STATEMENT CAN ALSO BE INTERPRETED AS BEING INTENDED TO QUALIFY YOUR BID TO PERMIT YOU TO FURNISH UNIDENTIFIED AND PERHAPS NONCONFORMING SUBSTITUTIONS. YOUR QUALIFICATION, IN EFFECT, WOULD VITIATE THE GUARANTEE PROVISIONS MENTIONED EARLIER.

THE GENERAL RULE IS THAT IF A BID IS AMBIGUOUS AS TO WHETHER THE PRODUCT OFFERED COMPLIES WITH THE ADVERTISED SPECIFICATIONS, IT MUST BE REJECTED AS NONRESPONSIVE AND ANY CLARIFICATION WHICH A BIDDER MAY WANT TO SUBMIT AFTER BID OPENING WILL NOT BE CONSIDERED. SEE 36 COMP. GEN. 705 (1957); B -161532, AUGUST 17, 1967 AND B-166284, APRIL 14, 1969. IN OUR OPINION THIS RULE IS APPLICABLE TO THE CONSIDERATION OF YOUR BID; CONSEQUENTLY, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION TO REJECT YOUR BID AS NONRESPONSIVE.

FOR THESE REASONS YOUR PROTEST IS DENIED.