B-170294, OCT. 5, 1970

B-170294: Oct 5, 1970

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A LOW BIDDER WHO FAILED TO SPECIFY THE TIME AND DATE OF A PREBID SITE INSPECTION ALTHOUGH IT WAS ASCERTAINED BEFORE AWARD THAT SUCH SITE WAS MADE HAD DEVIATION PROPERLY WAIVED AS MINOR INFORMALITY. TECHNICAL DETERMINATION THAT ALTERNATIVE METHOD OF ASSURING COMPLIANCE WAS ADEQUATE. SUCH DETERMINATION WILL NOT BE DISTURBED. INC.: THIS IS IN REPLY TO YOUR LETTER OF JULY 7. WERE INCOMPLETE OR AMBIGUOUS. BID OPENING WAS DELAYED PENDING A REEVALUATION OF THE SPECIFICATIONS IN LIGHT OF THAT REQUEST. WAS MAILED TO ALL PROSPECTIVE BIDDERS. RECEIPT OF THIS AMENDMENT WAS ACKNOWLEDGED BY ALL BIDDERS. AWARD WAS MADE TO THE LOW BIDDER. YOU HAVE ASSERTED THAT THE FAILURE OF SOUND ENGINEERING TO COMPLETE THE PORTION OF THE INVITATION INDICATING THE TIME AND DATE IT PERFORMED A PREBID SITE INSPECTION RENDERED THAT FIRM'S BID NONRESPONSIVE.

B-170294, OCT. 5, 1970

BID PROTEST - DEVIATION DENIAL OF PROTEST AGAINST AWARD OF A CONTRACT FOR INSTALLATION OF A POST- WIDE PUBLIC ADDRESS SYSTEM AT FORT MCCLELLAN, ALA., TO SOUND ENGINEERING SERVICE CO., INC., LOW BIDDER. A LOW BIDDER WHO FAILED TO SPECIFY THE TIME AND DATE OF A PREBID SITE INSPECTION ALTHOUGH IT WAS ASCERTAINED BEFORE AWARD THAT SUCH SITE WAS MADE HAD DEVIATION PROPERLY WAIVED AS MINOR INFORMALITY. IN ABSENCE OF EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION OR LACK OF BAD FAITH, TECHNICAL DETERMINATION THAT ALTERNATIVE METHOD OF ASSURING COMPLIANCE WAS ADEQUATE, SUCH DETERMINATION WILL NOT BE DISTURBED.

TO ELECTRONIC ENGINEERS, INC.:

THIS IS IN REPLY TO YOUR LETTER OF JULY 7, 1970, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT FOR THE INSTALLATION OF A POST-WIDE PUBLIC ADDRESS SYSTEM AT FORT MCCLELLAN, ALABAMA, TO SOUND ENGINEERING SERVICE CO., INC., UNDER INVITATION FOR BIDS NO. DABC05-70-B-0013, ISSUED ON MAY 22, 1970, WITH A BID OPENING SCHEDULED FOR JUNE 8, 1970.

IT APPEARS FROM THE RECORD THAT SHORTLY BEFORE BID OPENING, SOUND ENGINEERING SUBMITTED A LETTER TO THE CONTRACTING OFFICER REQUESTING CLARIFICATION OF CERTAIN TECHNICAL PROVISIONS OF THE INVITATION WHICH, IT ALLEGED, WERE INCOMPLETE OR AMBIGUOUS. BID OPENING WAS DELAYED PENDING A REEVALUATION OF THE SPECIFICATIONS IN LIGHT OF THAT REQUEST. ON JUNE 12, 1970, AN AMENDMENT TO THE INVITATION, CHANGING PORTIONS OF THE SPECIFICATIONS AND DRAWINGS AND EXTENDING THE BID OPENING DATE TO JUNE 23, 1970, WAS MAILED TO ALL PROSPECTIVE BIDDERS. RECEIPT OF THIS AMENDMENT WAS ACKNOWLEDGED BY ALL BIDDERS. AWARD WAS MADE TO THE LOW BIDDER, SOUND ENGINEERING, ON JUNE 26, 1970.

IN YOUR LETTER OF PROTEST, YOU HAVE ASSERTED THAT THE FAILURE OF SOUND ENGINEERING TO COMPLETE THE PORTION OF THE INVITATION INDICATING THE TIME AND DATE IT PERFORMED A PREBID SITE INSPECTION RENDERED THAT FIRM'S BID NONRESPONSIVE. IN THIS REGARD, PAGE 6 OF SECTION "B" OF THE INVITATION STATED:

"1. IT IS A MATERIAL REQUIREMENT THAT EACH PROSPECTIVE BIDDER VISIT THE WORK SITE PRIOR TO SUBMISSION OF A BID. FAILURE TO ADHERE TO THIS REQUIREMENT COULD RESULT IN SUBMISSION OF AN ERRONEOUS BID.

"3. DATE AND APPROXIMATE TIME OF INSPECTION OF WORK SITE IS TO BE INDICATED BELOW BY PROSPECTIVE BIDDER:

"DATE:

APPROXIMATE TIME: " PARAGRAPH 2 OF THE INSTRUCTIONS TO BIDDERS PROVIDED:

"BIDDERS SHOULD VISIT THE SITE AND TAKE SUCH OTHER STEPS AS MAY BE REASONABLY NECESSARY TO ASCERTAIN THE NATURE AND LOCATION OF THE WORK AND THE GENERAL AND LOCAL CONDITIONS WHICH AFFECT THE WORK OR THE COST THEREOF. FAILURE TO DO SO WILL NOT RELIEVE BIDDERS FROM RESPONSIBILITY FOR ESTIMATING PROPERLY THE DIFFICULTY OR COST OF SUCCESSFULLY PERFORMING THE WORK. *** "

OUR OFFICE HAS CONSISTENTLY HELD THAT DEVIATIONS FROM OR FAILURE TO COMPLY WITH THE PROVISIONS OF AN INVITATION WHICH DO NOT AFFECT PRICE, QUANTITY, OR QUALITY OF THE WORK REQUIRED MAY BE CONSIDERED AS MINOR DEVIATIONS AND MAY BE WAIVED BY THE CONTRACTING OFFICER. 40 COMP. GEN. 321, 324 (1960). THIS POSITION IS REFLECTED IN PARAGRAPH 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). IN THIS INSTANCE, SOUND ENGINEERING'S FAILURE TO SPECIFY THE TIME AND DATE OF ITS SITE VISIT APPEARS TO BE A MINOR INFORMALITY WHICH IN NO WAY AFFECTS THE SUBSTANCE OF ITS BID. IT IS EVIDENT THAT THE INVITATION "REQUIREMENT" FOR A PREBID SITE VISIT WAS INTENDED TO WARN BIDDERS OF THE IMPORTANCE OF EXAMINING CONDITIONS OF THE WORKSITE BEFORE PREPARING THEIR BIDS AND WAS, THEREFORE, INCLUDED PRIMARILY FOR THEIR PROTECTION. THE PROCURING ACTIVITY HAS ADVISED OUR OFFICE THAT BEFORE MAKING THE AWARD, IT ASCERTAINED THAT SOUND ENGINEERING HAD, IN FACT, MADE A SITE VISIT. THUS, WE ARE UNABLE TO AGREE THAT SOUND ENGINEERING'S BID WAS NONRESPONSIVE FOR FAILURE TO CONFORM WITH RESPECT TO THIS REQUIREMENT.

YOU FURTHER CONTEND THAT THE CIRCUMSTANCES OF SOUND ENGINEERING'S JUNE 5 LETTER REQUESTING CLARIFICATION OF CERTAIN TECHNICAL PROVISIONS OF THE SPECIFICATIONS AND THE SUBSEQUENT FORMAL AMENDMENT OF THE SOLICITATION BY THE PROCURING ACTIVITY AFFORDED SOUND ENGINEERING AN UNFAIR ADVANTAGE OVER OTHER BIDDERS SINCE ONLY SOUND ENGINEERING WAS AWARE OF THE REASONS FOR THE AMENDMENT. YOU HAVE CITED AS AN EXAMPLE OF THIS ADVANTAGE THE FACT THAT SOUND ENGINEERING'S JUNE 5 LETTER INQUIRED WHERE CERTAIN EQUIPMENT WAS REQUIRED TO BE HOUSED IN CABINETS MATCHING EXISTING CABINETRY, INASMUCH AS THE SOLICITATION WAS SILENT AS TO ANY REQUIREMENT PERTAINING TO CABINET CHARACTERISTICS. IT IS YOUR CONTENTION THAT BECAUSE THE ACTIVITY DID NOT ADDRESS THIS SUBJECT IN ITS AMENDMENT, SOUND ENGINEERING COULD ASSUME THAT MATCHING CABINETS WERE NOT REQUIRED, WHEREAS OTHER BIDDERS, UNAWARE OF SOUND ENGINEERING'S REQUEST, COULD ONLY REASONABLY ASSUME OTHERWISE.

ASPR 2-208 PROVIDES:

"(C) ANY INFORMATION GIVEN TO A PROSPECTIVE BIDDER CONCERNING AN INVITATION FOR BIDS SHALL BE FURNISHED PROMPTLY TO ALL OTHER PROSPECTIVE BIDDERS, AS AN AMENDMENT TO THE INVITATION *** IF SUCH INFORMATION IS NECESSARY TO THE BIDDERS IN SUBMITTING BIDS ON THE INVITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED BIDDERS. AWARD SHALL BE MADE ON THE INVITATION UNLESS SUCH AMENDMENT HAS BEEN ISSUED IN SUFFICIENT TIME TO PERMIT ALL PROSPECTIVE BIDDERS TO CONSIDER SUCH INFORMATION IN SUBMITTING OR MODIFYING THEIR BIDS." SEE, ALSO, PARAGRAPH 1 OF THE INSTRUCTIONS TO BIDDERS TO THE SAME EFFECT.

IN CASES WHERE A PROCURING ACTIVITY HAS GIVEN MATERIAL INFORMATION TO ONE BIDDER WHICH WAS NOT FURNISHED TO OTHER INTERESTED BIDDERS, WITH THE RESULT THAT ALL PROSPECTIVE BIDDERS WERE NOT COMPETING UPON AN EQUAL BASIS FOR AWARD, WE HAVE HELD THAT THE INVITATION SHOULD BE CANCELED AND THE REQUIREMENT READVERTISED. SEE, FOR EXAMPLE, B-169205, MAY 22, 1970. APPEARS FROM THE RECORD IN THIS CASE THAT NO INFORMATION OTHER THAN THAT PROVIDED IN THE AMENDMENT WAS GIVEN TO SOUND ENGINEERING, AND THAT COPIES OF THE AMENDMENT WERE FURNISHED TO ALL PROSPECTIVE BIDDERS. THEREFORE, ALL BIDDERS WERE EQUALLY INFORMED AS TO THE SPECIFICATION CHANGES. AS TO THOSE SUGGESTIONS MADE BY SOUND ENGINEERING WHICH WERE NOT ADOPTED IN THE AMENDMENT, SOUND ENGINEERING COULD ONLY ASSUME, AS COULD OTHER BIDDERS, THAT THE SPECIFICATIONS AS ORIGINALLY WRITTEN IN THAT REGARD WERE CONSIDERED BY THE PROCURING ACTIVITY TO REFLECT THE GOVERNMENT'S MINIMUM REQUIREMENTS. THE ASSUMPTION ON YOUR PART THAT THE CABINETRY WOULD HAVE TO BE MATCHED WAS UNWARRANTED IN LIGHT OF THE OMISSION FROM SECTION 4.9.1.7 OF ANY SUCH AFFIRMATIVE REQUIREMENT. ALL BIDDERS WERE ADVISED BY THE PORTION OF THE INSTRUCTIONS TO BIDDERS QUOTED ABOVE TO TAKE ANY STEPS NECESSARY TO ASCERTAIN THE EXACT NATURE OF THE WORK REQUIRED AND FURTHER BY THE FOLLOWING PROVISION IN PARAGRAPH 4 ON PAGE 5 OF THE INVITATION THAT -- "*** SHOULD A BIDDER FIND DISCREPANCIES IN OR OMISSIONS FROM SPECIFICATIONS (OR) OTHER DOCUMENTS OR SHOULD HE BE IN DOUBT AS TO THEIR MEANING, HE SHOULD AT ONCE NOTIFY THE CONTRACTING OFFICER AND OBTAIN CLARIFICATION PRIOR TO SUBMITTING A BID."

AS A FURTHER EXAMPLE OF THE UNFAIR ADVANTAGE WHICH YOU FEEL RESULTED AS A CONSEQUENCE OF SOUND ENGINEERING'S REQUEST FOR CLARIFICATION AND THE AMENDMENT SUBSEQUENTLY ISSUED, YOU CITE THE SPECIFICATION REQUIREMENT FOR SOUND LEVEL TESTS. PARAGRAPH 4.10.3 OF THE SPECIFICATIONS ORIGINALLY REQUIRED "SOUND LEVEL TEST WITHIN EACH AREA TO INDICATE THAT THE REQUIRED SOUND LEVEL IS PROVIDED." BY ITS LETTER OF JUNE 5, SOUND ENGINEERING REQUESTED THAT THE PARTICULAR TESTS REQUIRED BE SPECIFICALLY SPELLED OUT, OR ALTERNATIVELY THAT THIS REQUIREMENT BE DELETED AND A MANUFACTURER'S CERTIFICATE OF COMPLIANCE INSTEAD BE ACCEPTED AS PROOF OF MEETING THE REQUIRED LEVEL. THE INVITATION WAS THEN AMENDED TO READ:

"SOUND LEVEL TEST TO INDICATE COMPLIANCE WITH THE SPECIFICATIONS. SOUND LEVEL TEST OF LOUDSPEAKERS MAY BE CONDUCTED ON SITE IN THE MANNER SPECIFIED BY THE CONTRACTOR TO PROVE COMPLIANCE WITH REQUIRED SOUND POWER LEVEL. THE AVAILABLE SPL THROUGHOUT THE AREA OF COVERAGE MAY BE PROVED BY MATHEMATIC COMPUTATION BASED UPON THE SHORT DISTANCE SPL TEST. IN LIEU OF METER READ SPL TESTS, THE CONTRACTOR MAY PROVIDE A CERTIFICATE FROM THE EQUIPMENT MANUFACTURER STATING THE CHARACTERISTICS OF THE LOUDSPEAKER AND HORN AS A COORDINATED GROUP WHICH SHALL PROVE COMPLIANCE WITH THE ITEM AND SYSTEM PERFORMANCE SPECIFICATION."

ACCORDINGLY, ALL BIDDERS WERE NOTIFIED THAT EITHER A SOUND LEVEL TEST OR CERTIFICATION COULD BE USED TO DEMONSTRATE COMPLIANCE WITH ITEM AND SYSTEM PERFORMANCE SPECIFICATIONS. OUR OFFICE WILL NOT QUESTION THE TECHNICAL DETERMINATION OF THE ACTIVITY THAT SUCH ALTERNATIVE METHODS OF INSURING COMPLIANCE WITH THE SOUND LEVEL REQUIREMENTS OF THE SPECIFICATION WERE ADEQUATE. IT IS THE LONG-STANDING POSITION OF OUR OFFICE THAT SINCE WE DO NOT POSSESS THE NECESSARY TECHNICAL EXPERTISE, WE WILL NOT ACT AS AN ARBITER OF TECHNICAL DISPUTES. WE ARE CONSTRAINED TO RELY UPON THE TECHNICAL JUDGMENT OF ENGINEERING PERSONNEL OF THE PROCURING ACTIVITY AND, IN THE ABSENCE OF ARBITRARINESS, CAPRICIOUSNESS, BAD FAITH, OR LACK OF SUBSTANTIAL EVIDENCE, WE WILL NOT DISTURB SUCH JUDGMENTS. SEE B-169007, JULY 27, 1970, AND CASES CITED THEREIN; AND B-167185, SEPTEMBER 3, 1969. YOU HAVE INDICATED THAT SOUND ENGINEERING SUBMITTED ITS BID ON THE BASIS OF FURNISHING A CERTIFICATE OF COMPLIANCE, WHEREAS YOU DID NOT PREPARE YOUR BID ON THAT BASIS. WE ARE UNABLE TO SEE THAT ANY UNFAIR ADVANTAGE ACCRUED TO SOUND ENGINEERING UNDER THESE CIRCUMSTANCES. YOUR ELECTION TO USE THE MORE COSTLY MEANS FOR DEMONSTRATING COMPLIANCE WITH THE SOUND LEVEL REQUIREMENTS WAS MADE IN THE FACE OF THE CLEAR OPTION AFFORDED BY THE AMENDMENT TO CHOOSE BETWEEN THE TWO ALTERNATIVE METHODS. YOUR FURTHER ASSERTION THAT THE BASIS FOR ISSUING THE SOUND LEVEL CERTIFICATE OF COMPLIANCE WAS NOT CLEAR IS NOT TIMELY. AS EARLIER NOTED, THE APPROPRIATE TIME TO ALLEGE AN AMBIGUITY OR TO SEEK CLARIFICATION OF ANY UNCERTAINTIES IN A SOLICITATION IS PRIOR TO THE TIME FOR SUBMISSION OF BIDS.

FINALLY, YOU ASSERT THAT "IT WILL BE IMPOSSIBLE FOR THE LOW BIDDER TO MEET THE REQUIREMENTS IN THE TECHNICAL PROVISIONS THAT THE SOUND PRESSURE LEVEL WITHIN THE CROSS-HATCHED AREAS ON THE DRAWINGS BE NOT LESS THAN 80 DB WITHOUT INCURRING A FINANCIAL LOSS ON THE CONTRACT." IN VIEW OF THE FACT THAT SOUND ENGINEERING CONFIRMED ITS BID, WE ARE AWARE OF NO LEGAL PRINCIPLE ON WHICH AN AWARD MAY BE PRECLUDED OR DISTURBED MERELY BECAUSE THE LOW BIDDER SUBMITTED AN UNPROFITABLE PRICE. SEE B-169465, JUNE 19, 1970, AND CASES CITED THEREIN.

FOR THE ABOVE REASONS, OUR OFFICE FINDS NO LEGAL BASIS FOR QUESTIONING THE AWARD OF THE CONTRACT TO SOUND ENGINEERING SERVICE CO., INC. ACCORDINGLY, YOUR PROTEST IS DENIED.