B-170536(2), DEC 9, 1971

B-170536(2): Dec 9, 1971

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PROTESTANT'S ATTEMPT TO CLARIFY THIS THROUGH A CONVERSATION WITH THE CONTRACTING OFFICER IS INCONSISTENT WITH STANDARD FORM 33A HOLDING THAT ANY EXPLANATION DESIRED MUST BE REQUESTED IN WRITING AND FURTHER. THAT ORAL EXPLANATIONS GIVEN BEFORE AWARD WILL NOT BE BINDING. THE PROTEST IS DENIED. TO APACHE FLOORING COMPANY: THIS IS IN REFERENCE TO YOUR LETTER DATED MARCH 5. YOUR PROTEST IS MADE ON THE BASES THAT (1) GSA PROVIDED PREFERENTIAL TREATMENT TO ARMSTRONG BY FAILING TO ENFORCE EQUAL EMPLOYMENT OPPORTUNITY (EEO) REQUIREMENTS AGAINST ARMSTRONG. (2) ARMSTRONG'S BID WAS NONRESPONSIVE IN THAT IT PROPOSED ONLY ONE LIGHT COLOR TILE FOR AWARD GROUP I. THE BASIS OF SUCH CONTENTION WAS CONSIDERED IN A PRIOR PROTEST CONCERNING A DIFFERENT ARMSTRONG CONTRACT WHICH WAS DENIED IN OUR DECISION B-170536.

B-170536(2), DEC 9, 1971

BID PROTEST - BID RESPONSIVENESS - ORAL EXPLANATION DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO ARMSTRONG CORK COMPANY, LOW BIDDER, UNDER AN IFB ISSUED BY GSA, FEDERAL SUPPLY SERVICE, FOR ASPHALT TILE. WHERE THE OFFER SCHEDULE REQUIRED PRICES FOR "LIGHT COLORS - D," "MEDIUM COLORS - C" AND "DARK COLORS - B" THE WORD "COLORS" DID NOT ESTABLISH A REQUIREMENT FOR A MINIMUM OF TWO IN EACH CATEGORY; RATHER, THE SOLICITATION REQUIRED A MINIMUM OF SEVEN TO BE OFFERED IN THE AGGREGATE. THEREFORE, ARMSTRONG'S OFFER OF ONLY ONE LIGHT COLOR DID NOT RENDER THE BID NONRESPONSIVE. ALSO, PROTESTANT'S ATTEMPT TO CLARIFY THIS THROUGH A CONVERSATION WITH THE CONTRACTING OFFICER IS INCONSISTENT WITH STANDARD FORM 33A HOLDING THAT ANY EXPLANATION DESIRED MUST BE REQUESTED IN WRITING AND FURTHER, THAT ORAL EXPLANATIONS GIVEN BEFORE AWARD WILL NOT BE BINDING. FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.

TO APACHE FLOORING COMPANY:

THIS IS IN REFERENCE TO YOUR LETTER DATED MARCH 5, 1971, AND LETTER DATED MARCH 26, 1971, WITH ENCLOSURES, SUBMITTED ON YOUR BEHALF BY ARNDT & DAY, WASHINGTON, D.C., PROTESTING THE AWARD OF CONTRACT NO. GS 10S-31194 TO ARMSTRONG CORK COMPANY (ARMSTRONG) FOR GROUP I, ASPHALT TILE, CATEGORY A, UNDER GENERAL SERVICES ADMINISTRATION (GSA), FEDERAL SUPPLY SERVICE INVITATION FOR BIDS (IFB), NO. 10-PN-GMS-1435, ISSUED NOVEMBER 16, 1970.

YOUR PROTEST IS MADE ON THE BASES THAT (1) GSA PROVIDED PREFERENTIAL TREATMENT TO ARMSTRONG BY FAILING TO ENFORCE EQUAL EMPLOYMENT OPPORTUNITY (EEO) REQUIREMENTS AGAINST ARMSTRONG; (2) ARMSTRONG'S BID WAS NONRESPONSIVE IN THAT IT PROPOSED ONLY ONE LIGHT COLOR TILE FOR AWARD GROUP I; AND (3) GSA OFFICIALS MISLED YOU INTO OFFERING TWO LIGHT COLOR TILES FOR AWARD GROUP I WHICH CAUSED YOU TO INCREASE YOUR BID PRICE.

WITH RESPECT TO YOUR FIRST CONTENTION REGARDING EEO REQUIREMENTS, THE BASIS OF SUCH CONTENTION WAS CONSIDERED IN A PRIOR PROTEST CONCERNING A DIFFERENT ARMSTRONG CONTRACT WHICH WAS DENIED IN OUR DECISION B-170536, MARCH 15, 1971. SINCE WE HAVE AGREED TO YOUR REQUEST TO RECONSIDER OUR PRIOR DECISION, YOUR CONTENTIONS REGARDING THE EEO COMPLIANCE REQUIREMENTS ARE NOT ADDRESSED HEREIN BUT WILL BE THE SUBJECT OF A SEPARATE DECISION TO BE ISSUED AT A FUTURE DATE.

AS TO THE REMAINING POINTS IN YOUR PROTEST, THE PRIMARY QUESTION IS WHETHER THE SOLICITATION REQUIRED BIDDERS TO OFFER MORE THAN ONE LIGHT COLORED TILE FOR COLOR CLASSIFICATION D IN AWARD GROUP I.

THE INVITATION DEFINED AWARD GROUP I AS CONTAINING TILE COLOR CLASSIFICATIONS B, C AND D. THE RECORD INDICATES THAT THESE COLOR CLASSIFICATIONS ARE ESTABLISHED THROUGHOUT THE ASPHALT TILE INDUSTRY WITH THE FOLLOWING DESIGNATIONS: D FOR LIGHT COLORS, C FOR MEDIUM COLORS AND B FOR DARK COLORS. UNDER THE GENERAL HEADING OF "SPECIFICATIONS AND OFFERS" (PARAGRAPH 35) THE INVITATION REQUESTED OFFERORS TO LIST THE MANUFACTURER'S NAME, COLOR NUMBER AND COLOR NAME FOR THE ITEMS OFFERED AND, INSOFAR AS IS PERTINENT TO YOUR PROTEST, A MINIMUM OF SEVEN COLORS WERE SPECIFICALLY REQUIRED TO BE OFFERED FOR GROUP I. PRICES WERE TO BE INSERTED BY BIDDERS IN A SEPARATE SECTION OF THE INVITATION ENTITLED "OFFER SCHEDULE." SEPARATE PRICES WERE TO BE SHOWN IN THE "OFFER SCHEDULE" FOR "LIGHT COLORS - D", "MEDIUM COLORS - C" AND "DARK COLORS - B" FOR EACH DELIVERY ZONE PROVIDED IN THE INVITATION.

ESSENTIALLY, IT IS YOUR POSITION THAT USE OF THE PLURAL FORM IN THE HEADING "LIGHT COLORS - D", IN THAT PORTION OF THE IFB WHERE PRICES WERE TO BE INSERTED, ESTABLISHED A REQUIREMENT FOR A MINIMUM OF TWO LIGHT COLORS.

IN A REPORT TO THIS OFFICE THE CONTRACTING OFFICER HAS STATED THAT THE USE OF THE PLURAL WORD "COLORS" IN CONNECTION WITH COLOR CLASSIFICATIONS B, C AND D IN THE "OFFER SCHEDULE" PORTION OF THE INVITATION WAS INTENDED MERELY TO RECOGNIZE THE FACT THAT THROUGHOUT THE INDUSTRY MORE THAN ONE COLOR WAS AVAILABLE IN EACH OF THE CLASSIFICATIONS, RATHER THAN FOR THE PURPOSE OF ESTABLISHING A MINIMUM REQUIREMENT FOR TWO COLORS IN EACH CLASSIFICATION. USE OF THE PLURAL FORM FOR EACH COLOR CLASSIFICATION WAS IN CONSONANCE WITH BOTH THE REQUIREMENT IN PARAGRAPH 35C (LIST OF COLORS) THAT A MINIMUM OF SEVEN COLORS BE OFFERED IN GROUP I, AND THE URGING IN PARAGRAPH 35D THAT, NOTWITHSTANDING THE SPECIFIED MINIMUM NUMBER OF COLORS, BIDDERS SUBMIT THE WIDEST SELECTION OF COLORS POSSIBLE. IT IS ALSO POINTED OUT THAT ONLY THE USE OF THE PLURAL FORM IN THE OFFER SCHEDULE COULD COVER THE MULTIPLE COLORS WHICH BIDDERS WERE URGED TO OFFER IN EACH CLASSIFICATION, AND USE OF THE SINGULAR FORM "COLOR" FOR EACH CLASSIFICATION WOULD HAVE BEEN IN CONFLICT WITH THE REQUIREMENT THAT A MINIMUM OF SEVEN COLORS BE OFFERED IN THE THREE COLOR CLASSIFICATIONS OF GROUP I. OUR EXAMINATION OF THE IFB SHOWS THAT THE ONLY SPECIFIC REQUIREMENTS CONCERNING THE NUMBER OF COLORS WHICH MUST BE OFFERED WERE CONTAINED IN PARAGRAPH 35C, SUPRA, AND SUCH PROVISIONS REQUIRED ONLY THAT SEVEN COLORS BE OFFERED FOR GROUP I. THERE IS NO REQUIREMENT THEREIN, OR ELSEWHERE IN THE IFB, THAT ANY SPECIFIC NUMBER OF COLORS MUST BE OFFERED FOR EACH OF THE COLOR CLASSIFICATIONS INCLUDED IN THAT GROUP. TO HOLD THAT USE OF THE PLURAL FORM OF THE WORD "COLOR" IN THE OFFER SCHEDULE REQUIRES IN-AND-OF ITSELF AT LEAST TWO COLORS IN EACH COLOR CLASSIFICATION OF GROUP I WOULD, IN OUR VIEW, CALL FOR AN UNREASONABLE INTERPRETATION OF THE IFB PROVISIONS.

ACCORDINGLY, SINCE WE PERCEIVE NO REQUIREMENT FOR OFFERING TWO LIGHT COLORS IN GROUP I, WE SEE NO BASIS ON SUCH GROUNDS FOR CONCLUDING THAT ARMSTRONG'S BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE.

IT IS YOUR FURTHER POSITION THAT PURSUANT TO YOUR ORAL INQUIRY MADE ON DECEMBER 15, 1970, THE DAY PRIOR TO BID OPENING, AS TO WHETHER YOUR BID WOULD BE RESPONSIVE IF IT OFFERED ONLY ONE LIGHT COLOR, YOU WERE CALLED BACK LATER THAT DAY BY THE CONTRACTING OFFICER AND ASSURED BY HIM THAT "THE WORDING OF THE IFB WOULD GOVERN." THIS APPEARS TO BE CONSISTENT WITH THE CONTRACTING OFFICER'S REPORT WHICH SHOWS THAT IN RESPONSE TO YOUR QUESTION REGARDING COLOR REQUIREMENTS HE READ TO YOU THE FOLLOWING PREDRAFTED REPLY:

"IF YOUR BID IS RECEIVED TIMELY IT WILL BE CONSIDERED AND EVALUATED ON THE BASIS OF THE TERMS AND CONDITIONS OF THE SOLICITATION."

THE CONTRACTING OFFICER FURTHER REPORTS THE CONVERSATION:

"HE INFORMED ME THAT HE HAD ALREADY TALKED WITH HIS SUPPLIER AND GOT HIM TO AGREE, RELUCTANTLY, TO INCLUDE ONE MORE LIGHT (D) COLOR AND HE HAS ISSUED A WIRE TO ADD THIS COLOR TO HIS BID. I REITERATED OUR POSITION BY STATING 'WE WILL BE GOVERNED BY THE TERMS AND CONDITIONS OF THE SOLICITATION' AND SPECIFICALLY READ HIM THE PERTINENT PART OF THE APPLICABLE PARAGRAPH (35C). 'THE FOLLOWING MINIMUM NUMBER OF COLORS MUST BE OFFERED: GROUP I, ASPHALT 9 X 9, MINIMUM NUMBER - 7'."

YOU SAY THAT YOU CONSTRUED THE ABOVE CONVERSATION TO MEAN THAT ANY BIDDER OFFERING LESS THAN TWO COLORS IN ANY COLOR CLASSIFICATION OF GROUP I WOULD BE HELD NONRESPONSIVE, AND YOU CLAIM THAT ON THE BASIS OF THE ADVICE GIVEN, YOU TELEGRAPHICALLY MODIFIED YOUR BID BY ADDING A SECOND LIGHT COLOR. YOU ALSO STATE THAT YOUR BID WOULD HAVE BEEN LOW EXCEPT THAT, SINCE THE SECOND LIGHT COLOR HAD TO BE SPECIALLY PRODUCED AT A SUBSTANTIALLY HIGHER COST, YOU PRORATED THE ADDED COST BY INCREASING YOUR BID PRICES FOR ALL COLORS.

IT IS APPARENT THAT THE CONTRACTING OFFICER'S RESPONSE TO YOUR QUESTION WAS A NONCOMMITTAL STATEMENT WHICH DID NOT PROVIDE A DIRECT ANSWER TO THE QUESTION PRESENTED. HOWEVER, EVEN IF THE CONTRACTING OFFICER'S ORAL REPLY COULD BE PROPERLY INTERPRETED TO MEAN WHAT YOU ASCRIBE TO IT, PARAGRAPH 3 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS (STANDARD FORM 33A) SPECIFICALLY STATES THAT ORAL EXPLANATIONS GIVEN BEFORE AWARD OF THE CONTRACT WILL NOT BE BINDING. THAT PARAGRAPH ALSO PROVIDES THAT ANY EXPLANATION DESIRED BY AN OFFEROR REGARDING THE MEANING OR INTERPRETATION OF THE IFB MUST BE REQUESTED IN WRITING AND WITH SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH BIDDERS BEFORE THE SUBMISSION OF BIDS. SINCE YOUR REQUEST WAS NOT SUBMITTED IN THE MANNER PRESCRIBED, AND ORAL EXPLANATIONS BEFORE AWARD WERE SPECIFICALLY EXCLUDED FROM HAVING ANY BINDING SIGNIFICANCE, THE CONTRACTING OFFICER'S ORAL REPLY TO YOU WOULD NOT, IN OUR VIEW, PROVIDE AN ADEQUATE BASIS FOR HOLDING THAT THE AWARD TO ARMSTRONG WAS CLEARLY ILLEGAL AND THEREFORE JUSTIFY THE CANCELLATION OF THAT FIRM'S CONTRACT.

SINCE YOU HAVE BEEN FURNISHED A COPY OF THE ADMINISTRATIVE REPORT ON YOUR PROTEST, WE WILL NOT REPEAT HERE THE VIEWS OF THE AGENCY WHICH REJECT YOUR CONTENTION THAT THE TELEGRAPHIC MODIFICATION OF YOUR BID ON DECEMBER 15, 1970, WAS A DIRECT CONSEQUENCE OF THE CONTRACTING OFFICER'S REPLY TO YOUR INQUIRY OF THAT DATE.

FOR THE FOREGOING REASONS, YOUR PROTEST IS DENIED.