B-170957, MAR 17, 1971

B-170957: Mar 17, 1971

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IT WAS PROVIDED THAT AWARD WAS TO BE MADE UNDER ITEM 1(A) - INCLUDING FIRST ARTICLE TESTING OR ITEM 1(B) - WAIVING FIRST ARTICLE TESTING. CHANGES IN DESTINATIONS FOR DELIVERY WERE ADDED. PROTESTANT'S FAILURE TO INDICATE WHETHER IT WAS BIDDING ON ITEM 1(A) OR ITEM 1(B) DID NOT BIND ITSELF TO EITHER. ITS REJECTION AS NONRESPONSIVE WAS PROPER. THE INVITATION FOR BIDS WAS ISSUED ON JULY 29. THE BID OPENING WAS EXTENDED TO SEPTEMBER 21. THE INVITATION WAS AMENDED AS FOLLOWS: "9. THIS BLOCK APPLIES ONLY TO AMENDMENTS OF SOLICITATIONS (X) THE ABOVE NUMBERED SOLICITATION IS AMENDED AS SET FORTH IN BLOCK 12. THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS (X) IS EXTENDED. 70 SEP 21 ( ) IS NOT EXTENDED.

B-170957, MAR 17, 1971

BID PROTEST - BID RESPONSIVENESS DECISION DENYING PROTEST AGAINST AWARD OF AN ADVERTISED CONTRACT TO BAUSCH & LOMB, INC., FOR FURNISHING AND INSTALLING 16 PRECISION STEREO MARKING INSTRUMENTS, F.O.B. DESTINATION WASHINGTON, D.C. AND OTHER PLACES. ORIGINALLY, ITEM 1 OF THE SOLICITATION CALLED FOR THE EQUIPMENT TO BE DELIVERED F.O.B. DESTINATION WASHINGTON, D.C. AND REQUIRED FIRST ARTICLE TESTING. BY AMENDMENT ACKNOWLEDGED BY ALL THREE BIDDERS, IT WAS PROVIDED THAT AWARD WAS TO BE MADE UNDER ITEM 1(A) - INCLUDING FIRST ARTICLE TESTING OR ITEM 1(B) - WAIVING FIRST ARTICLE TESTING, AND CHANGES IN DESTINATIONS FOR DELIVERY WERE ADDED. PROTESTANT'S FAILURE TO INDICATE WHETHER IT WAS BIDDING ON ITEM 1(A) OR ITEM 1(B) DID NOT BIND ITSELF TO EITHER, AND ITS REJECTION AS NONRESPONSIVE WAS PROPER.

TO MR. WALTER J. MALYSZEK:

WE REFER TO A TELEGRAM OF OCTOBER 5, 1970, FROM MR. ROBERT P. SCHNEIDER, PRESIDENT, OPTOMECHANISMS, INC., AND TO YOUR LETTERS OF OCTOBER 23, 1970, AND NOVEMBER 3, 1970, RELATING TO OPTOMECHANISMS' PROTEST UNDER INVITATION FOR BIDS NO. DACA71-71-B-0002.

THE INVITATION FOR BIDS WAS ISSUED ON JULY 29, 1970, BY THE U.S. ARMY TOPOGRAPHIC COMMAND, CORPS OF ENGINEERS, AND UNDER PART II - THE SCHEDULE - SECTION E, ITEM NO. 1 CALLED FOR FURNISHING AND INSTALLING 16 PRECISION STEREO MARKING INSTRUMENTS, WITH SPARE DIES, F.O.B. DESTINATION, U.S. ARMY TOPOGRAPHIC COMMAND, WASHINGTON, D.C. BY AMENDMENT NO. DACA71-71-B-0002- 0001, DATED AUGUST 24, 1970, THE BID OPENING WAS EXTENDED TO SEPTEMBER 21, 1970, AND THE INVITATION WAS AMENDED AS FOLLOWS:

"9. THIS BLOCK APPLIES ONLY TO AMENDMENTS OF SOLICITATIONS

(X) THE ABOVE NUMBERED SOLICITATION IS AMENDED AS SET FORTH IN BLOCK 12. THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS (X) IS EXTENDED, TO 2 PM, 70 SEP 21 ( ) IS NOT EXTENDED. OFFERORS MUST ACKNOWLEDGE RECEIPT OF THIS AMENDMENT PRIOR TO THE HOUR AND DATE SPECIFIED IN THE SOLICITATION, OR AS AMENDED, BY ONE OF THE FOLLOWING METHODS: (A) BY SIGNING AND RETURNING 3 COPIES OF THIS AMENDMENT; (B) BY ACKNOWLEDGING RECEIPT OF THIS AMENDMENT ON EACH COPY OF THE OFFER SUBMITTED; OR (C) BY SEPARATE LETTER OR TELEGRAM WHICH INCLUDES A REFERENCE TO THE SOLICITATION AND AMENDMENT NUMBERS. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE RECEIVED AT THE ISSUING OFFICE PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. IF, BY VIRTUE OF THIS AMENDMENT YOU DESIRE TO CHANGE AN OFFER ALREADY SUBMITTED, SUCH CHANGE MAY BE MADE BY TELEGRAM OR LETTER, PROVIDED SUCH TELEGRAM OR LETTER MAKES REFERENCE TO THE SOLICITATION AND THIS AMENDMENT, AND IS RECEIVED PRIOR TO THE OPENING HOUR AND DATE SPECIFIED.

12. DESCRIPTION OF AMENDMENT/MODIFICATION

THE SOLICITATION FOR PRECISION STEREO POINT MARKING INSTRUMENTS IS AMENDED AS FOLLOWS TO PROVIDE FOR FIRST ARTICLE APPROVAL AND DELIVERY POINT CHANGES:

1. THE FOLLOWING STATEMENTS SHALL BE ADDED TO PART I - GENERAL INSTRUCTIONS, SECTION-C

A. FIRST ARTICLE TESTING: GOVERNMENT TESTING FOR FIRST ARTICLE APPROVAL IS SET FORTH IN THE PURCHASE DESCRIPTION.

THE APPROVED FIRST ARTICLE SHALL SERVE AS A PRODUCTION INSTRUMENT AND SHALL BE DELIVERED AS PART OF THE CONTRACT QUANTITY IF IT MEETS ALL THE OTHER TERMS AND CONDITIONS OF THE CONTRACT FOR ACCEPTANCE.

B. FIRST ARTICLE WAIVER: IF THE BIDDER STATES IN HIS BID (1) THAT THE INSTRUMENT HE IS OFFERING TO FURNISH IS IDENTICAL OR SIMILAR TO ONE HE HAS OFFERED TO THE GOVERNMENT ON A PREVIOUS PROCUREMENT AND (II) THE CONTRACTING OFFICER DETERMINES THAT SUCH INSTRUMENT WAS PREVIOUSLY PROCURED BY THE GOVERNMENT AND DETERMINED TO CONFORM WITH THE REQUIREMENTS OF THE PURCHASE DESCRIPTION IN THIS SOLICITATION, THE REQUIREMENT FOR FIRST ARTICLE APPROVAL MAY BE WAIVED BY THE GOVERNMENT.

2. PART I - GENERAL INSTRUCTIONS - SECTION D ENTITLED 'EVALUATION AND AWARD FACTORS' SHALL READ AS FOLLOWS:

'AWARD IS TO BE MADE UNDER ITEM NO. 1(A) OR 1(B), NOT BOTH, AS SET FORTH IN PART II - THE SCHEDULE - SECTION E (REVISED) WHICHEVER BASIS IS DEEMED TO BE IN THE BEST INTEREST OF THE GOVERNMENT AT TIME OF AWARD'.

3. PART II - THE SCHEDULE - SECTION E IS REVISED AS FOLLOWS:

FURNISH AND INSTALL PRECISION STEREO MARKING INSTRUMENTS IN ACCORDANCE WITH PURCHASE DESCRIPTION SET FORTH IN PART II - THE SCHEDULE - SECTION F, (REVISED) INCLUDING FIRST ARTICLE APPROVAL TESTS, AS FOLLOWS:

QUANTITY UNIT

1(A) (1) F.O.B. - U.S. ARMY TOPOGRAPHIC COMMAND 10 EA

CORPS OF ENGINEERS

FREMONT BUILDING

6100 MACARTHUR BLVD.

WASHINGTON, D.C. 20315

SPARE DIES AS FOLLOWS:

150 MICRON DOTS 6 PR

80 MICRON DOTS 4 PR

60 MICRON DOTS 6 PR

(2) F.O.B. U.S. ARMY 2 EA.

ENGINEER

TOPOGRAPHIC

PRODUCTION CENTER

(TPC)

KANSAS CITY OFFICE

609 HARDESTY

KANSAS CITY, MISSOURI 64124

(3) F.O.B. U.S. ARMY 2 EA

ENGINEER (TPC)

SAN ANTONIO OFFICE

BUILDING 4011

FORT SAM HOUSTON

TEXAS 78234

(4) F.O.B.U.S. ARMY 1 EA

ENGINEER (TPC)

LOUISVILLE OFFICE

600 FEDERAL PLACE

LOUISVILLE, KY. 40202

(5) F.O.B. U.S. ARMY 1 EA

ENGINEER, TPC

PROVIDENCE OFFICE

BROOKSIDE AVE.

WEST WARWICK, RHODE

ISLAND 02893

4. PART II - THE SCHEDULE - SECTION - E IS REVISED AS FOLLOWS

FURNISH AND INSTALL PRECISION STEREO MARKING INSTRUMENTS IN ACCORDANCE WITH PURCHASE DESCRIPTION SET FORTH IN PART II - THE SCHEDULE - SECTION F, (REVISED) EXCLUDING FIRST ARTICLE APPROVAL TESTS, AS FOLLOWS:

1(B) (1) F.O.B. U.S. ARMY TOPOGRAPHIC COMMAND 10 EA

CORPS OF ENGINEERS

FREMONT BUILDING

6100 MACARTHUR BLVD.

WASHINGTON, D.C. 20315

SPARE DIES AS FOLLOWS:

150 MICRON DOTS 6 PR

80 MICRON DOTS 4 PR

60 MICRON DOTS 6 PR

(2) F.O.B. U.S. ARMY 2 EA

ENGINEER

TOPOGRAPHIC

PRODUCTION CENTER

(TPC)

KANSAS CITY OFFICE

609 HARDESTY

KANSAS CITY, MISSOURI 64124

(3) F.O.B. U.S. ARMY 2 EA

ENGINEER (TPC)

SAN ANTONIO OFFICE

BUILDING 4011

FORT SAM HOUSTON,

TEXAS 78234

(4) F.O.B. U.S. ARMY 1 EA

ENGINEER (TPC)

LOUISVILLE OFFICE

600 FEDERAL PLACE

LOUISVILLE, KY. 40202

(5) F.O.B. U.S. ARMY 1 EA

ENGINEER, TPC

PROVIDENCE OFFICE

BROOKSIDE AVENUE

WEST WARWICK, RHODE

ISLAND 02893"

THREE BIDS WERE RECEIVED AND OPENED ON SEPTEMBER 21, 1970. ALL THREE BIDDERS SIGNED AND RETURNED THEIR COPIES OF THE AMENDMENT WITH THE BID DOCUMENTS. BAUSCH & LOMB, INC., INSERTED ITS BID UNDER ITEM 1(B) OF THE AMENDMENT AT A UNIT PRICE OF $32,000.00 FOR ALL DESTINATIONS. MARATECK PROTECTIVE DEVICES MFG. CO., INC., LISTED ITS BID UNDER ITEM 1(A) OF THE AMENDMENT AT A UNIT PRICE OF $37,923.00 FOR ALL DESTINATIONS. OPTOMECHANISMS DID NOT BID ON EITHER ITEM 1(A) OR 1(B) IN THE AMENDMENT, BUT PLACED ITS BID UNDER ITEM 1 OF THE ORIGINAL INVITATION AT A UNIT PRICE OF $21,562.00 FOR DELIVERY AND INSTALLATION OF ALL 16 UNITS F.O.B. DESTINATION, WASHINGTON, D.C.

AT THE TIME OF THE BID OPENING, THE BID OF OPTOMECHANISMS WAS APPARENTLY ANNOUNCED AS THE LOW BID, AND STEPS WERE TAKEN TO INSTITUTE A PREAWARD SURVEY. CERTAIN INFORMATION RELATING TO THE PREAWARD SURVEY WAS TELEPHONICALLY REQUESTED ON SEPTEMBER 23, 1970, AND WAS FURNISHED BY OPTOMECHANISMS ON THE SAME DATE.

ON SEPTEMBER 30, 1970, OPTOMECHANISMS LEARNED THAT THE PREAWARD SURVEY HAD BEEN DISCONTINUED AND THAT ITS BID HAD BEEN SUBMITTED TO COUNSEL FOR AN OPINION ON THE QUESTION OF THE BID'S RESPONSIVENESS. MR. DAVID MACLEAN, EXECUTIVE VICE PRESIDENT, VISITED THE CONTRACTING OFFICE TO VERIFY THAT OPTOMECHANISMS BID WAS INTENDED TO BE A FIRM FIXED PRICE FOR THE REQUIREMENTS IN BOTH THE BASIC SOLICITATION AND THE AMENDMENT. MR. MACLEAN DID NOT LEARN THE REASON THE BID WAS BEING CONSIDERED BY COUNSEL, BUT HE LEFT THE MEETING WITH THE UNDERSTANDING THAT THE MATTER WOULD BE RESOLVED BY OCTOBER 7, 1970.

ON OCTOBER 2, 1970, THE CONTRACTING OFFICER, ON ADVICE OF COUNSEL, REJECTED THE BID OF OPTOMECHANISMS AS NONRESPONSIVE IN THAT IT DID NOT STATE A PRICE FOR EITHER ITEM 1(A) OR 1(B). HE AWARDED THE CONTRACT TO BAUSCH & LOMB ON THE BASIS OF ITS BID UNDER ITEM 1(B).

OPTOMECHANISMS LEARNED ON OCTOBER 5, 1970, OF THE AWARD TO BAUSCH & LOMB AND IMMEDIATELY FILED ITS PROTEST WITH OUR OFFICE. YOUR BRIEF IN SUPPORT OF THE PROTEST CONTENDED THAT OPTOMECHANISMS' BID SHOULD NOT HAVE BEEN REJECTED BUT SHOULD HAVE BEEN CONSIDERED FULLY RESPONSIVE TO THE INVITATION AS AMENDED.

IN CONNECTION WITH THIS CONTENTION YOU ADVANCED A NUMBER OF ARGUMENTS, THE PRINCIPAL ONES AS FOLLOWS: FIRST, SINCE THE PRINTED INSTRUCTIONS IN BLOCK 9 OF THE AMENDMENT REQUIRED ONLY ACKNOWLEDGMENT OF THE AMENDMENT AND DID NOT REQUIRE ANY CHANGE IN A BID ALREADY SUBMITTED, YOUR BID SUBMITTED AFTER RECEIPT OF THE AMENDMENT WAS NOT REQUIRED TO BE IN ANY DIFFERENT FORM; SECOND, THAT OPTOMECHANISMS HAD NO OPTION TO ASK FOR WAIVER OF FIRST ARTICLE TESTING BY THE GOVERNMENT, THAT THE IMPACT OF THIS REQUIREMENT WAS EITHER NEGLIGIBLE OR ZERO ON THE COST, AND THEREFORE THE BID OF OPTOMECHANISMS SHOULD HAVE BEEN CONSIDERED AS RESPONSIVE TO ITEM 1(A) OF THE AMENDMENT; THIRD, THAT THE INCLUSION OF A PROVISION FOR WAIVER OF FIRST ARTICLE APPROVAL WHICH APPLIED ONLY TO BAUSCH & LOMB WAS AN ATTEMPT TO FAVOR THAT COMPANY; AND FOURTH, THAT THE ACTIONS OF THE PROCURING AGENCY IN ANNOUNCING OPTOMECHANISMS AS THE APPARENT LOW BIDDER AT BID OPENING AND INSTITUTING A PREAWARD SURVEY LED OPTOMECHANISMS TO ASSUME THAT THESE ACTIONS WERE CONSTRUCTIVE NOTICE THAT AN AWARD HAD BEEN MADE TO IT AND IN THE ABSENCE OF A PRESCRIBED FORM FOR SUCH NOTICE, THE ONLY REMAINING ACT ON THE PART OF THE CONTRACTING AGENCY SHOULD HAVE BEEN TO MAKE THE AWARD FORMAL.

THE ADMINISTRATIVE REPORT POINTED OUT THAT ITEM 1 OF THE ORIGINAL SOLICITATION CALLED FOR DELIVERY AND INSTALLATION OF THE 16 INSTRUMENTS AT WASHINGTON, D.C., WHILE THE AMENDMENT, IN ADDITION TO THE FIRST ARTICLE APPROVAL PROVISIONS, REDUCED THE NUMBER FOR WASHINGTON, D.C., TO TEN AND ADDED THE REQUIREMENT FOR DELIVERY AND INSTALLATION OF TWO INSTRUMENTS TO KANSAS CITY, MISSOURI, TWO TO SAN ANTONIO, TEXAS, ONE TO LOUISVILLE, KENTUCKY, AND ONE TO WEST WARWICK, RHODE ISLAND. IN THE ACCOMPANYING STATEMENT BY THE CONTRACTING OFFICER, HE ADVISED THAT SINCE THE AMENDMENT PROVIDED THAT AWARD WAS TO BE MADE UNDER ITEM 1(A) OR ITEM 1(B) AND YOUR BID FAILED TO SET FORTH A PRICE FOR EITHER, HE REJECTED YOUR BID AS NONRESPONSIVE AND AWARDED THE CONTRACT TO BAUSCH & LOMB ON THE BASIS OF ITS BID UNDER ITEM 1(B).

YOUR BRIEF SUBMITTED IN REBUTTAL OF THE ADMINISTRATIVE REPORT REPEATED AND EXPANDED ON THE ASSERTIONS MADE IN SUPPORT OF YOUR CONTENTION THAT THE BID OF OPTOMECHANISMS WAS RESPONSIVE AND ADDED THAT THE BID OF BAUSCH & LOMB SHOULD BE CONSIDERED NONRESPONSIVE SINCE IT FAILED TO STATE THE INSTRUMENT OFFERED WAS IDENTICAL OR SIMILAR TO ONE PREVIOUSLY OFFERED TO THE GOVERNMENT, SINCE IT FAILED TO STATE A PRICE FOR THE SPARE DIES FOR 150 MICRON DOTS, AND SINCE IT FAILED TO DESIGNATE ON PAGE 2 OF THE SOLICITATION WHETHER BAUSCH & LOMB HAD PREVIOUSLY PARTICIPATED IN A CONTRACT SUBJECT TO THE EQUAL OPPORTUNITY CLAUSE.

THE QUESTION PRESENTED WITH RESPECT TO THE RESPONSIVENESS OF OPTOMECHANISMS' BID IS A RELATIVELY STRAIGHTFORWARD ONE, DESPITE THE LENGTHY DOCUMENTATION OF THE DIFFERENCES BETWEEN THE INTERPRETATIONS OF THE CONTRACTING AGENCY AND THE BIDDER. IN A SIMILAR CASE INVOLVING AN AMENDMENT WHICH INCREASED THE NUMBER OF UNITS FROM THE AMOUNTS STATED IN THE ORIGINAL SOLICITATION, 49 COMP. GEN. 147 (1969), WE HELD THAT MERE ACKNOWLEDGMENT OF THE AMENDMENT WITHOUT PRICING THE ADDITIONAL UNITS DID NOT OPERATE TO EXTEND THE UNIT PRICE IN THE ORIGINAL BID TO THE ADDITIONAL UNITS CALLED FOR IN THE AMENDMENT. IN ACCORD WITH THIS DECISION, WE ARE OF THE OPINION THAT ACKNOWLEDGING THE AMENDMENT IN THIS CASE, WITHOUT INSERTING ANY PRICES IN THE SPACES PROVIDED THEREIN, CANNOT BE CONSTRUED AS EXTENDING THE BID PRICE UNDER ITEM 1 OF THE ORIGINAL SOLICITATION TO THE DIFFERENT REQUIREMENTS OF ITEM 1(A) OR 1(B) IN THE AMENDMENT.

EVEN IN THE ABSENCE OF OUR DECISION IN THE CITED CASE, WE DO NOT REGARD THE PRINTED INSTRUCTIONS, RELATING TO CHANGING A BID SUBMITTED PRIOR TO RECEIPT OF AN AMENDMENT, AS CONSTITUTING A GUARANTEE THAT SUCH A BID WILL BE CONSIDERED RESPONSIVE TO THE CHANGED CONDITIONS IN THE AMENDMENT, IF A BIDDER SHOULD CHOOSE NOT TO RESPOND TO THE AMENDMENT. MOREOVER, THE STATEMENT IN THE AMENDMENT THAT "AWARD IS TO BE MADE UNDER ITEM 1(A) OR 1(B) ... " HAS THE EFFECT OF REMOVING ITEM 1 IN THE ORIGINAL SOLICITATION COMPLETELY FROM CONSIDERATION IN EVALUATING THE BIDS, SINCE THE GOVERNMENT'S INTENTIONS IN MAKING THE AWARD ARE CLEARLY STATED. YOUR ASSERTION THAT OPTOMECHANISMS' BID UNDER ITEM 1 SHOULD BE CONSIDERED RESPONSIVE TO ITEM 1(A), SINCE THE OPTOMECHANISMS DID NOT HAVE AN OPTION TO ASK FOR WAIVER OF FIRST ARTICLE TESTING UNDER ITEM 1(B), IS A CONTENTION WHICH DOES NOT ADDRESS THE FACT THAT CHANGES IN DESTINATIONS FOR DELIVERY AND INSTALLATION WERE ALSO ADDED BY THE AMENDMENT. IN THE ABSENCE OF A BID FOR EACH OF THE DESTINATIONS SPECIFIED IN THE AMENDMENT, IT IS APPARENT THAT OPTOMECHANISMS DID NOT BIND ITSELF BY THE TERMS OF ITS BID TO COMPLY WITH DELIVERY TO THE DESTINATIONS SET FORTH.

WITH REGARD TO YOUR ASSERTION THAT INCLUSION OF PROVISIONS FOR WAIVER OF FIRST ARTICLE TESTING WAS AN ATTEMPT TO FAVOR BAUSCH & LOMB IN THIS PROCUREMENT, WE HAVE PREVIOUSLY EXAMINED THE PRACTICE OF PROVIDING FOR WAIVER OF FIRST ARTICLE TESTING AND HAVE HELD THAT THERE IS NO BASIS FOR OBJECTION TO THE PRACTICE. IN B-160514, MARCH 30, 1967, WE STATED:

"WE DO NOT AGREE WITH YOUR CHARACTERIZATION OF THE TERMS OF THE INVITATION AS 'BEING ALIGNED WITH SOLE SOURCE PROCUREMENT.' IN ANY EVENT, THERE DOES NOT APPEAR TO BE ANY SATISFACTORY SUBSTITUTE FOR THE SOLICITATION OF ALTERNATIVE BIDS WHERE, AS HERE, THE PRODUCT INVOLVED IS IDENTICAL OR SIMILAR TO ARTICLES PREVIOUSLY FURNISHED TO THE GOVERNMENT WITHIN A COMPARATIVELY RECENT TIME; OR WHERE A GOVERNMENT CONTRACTOR CURRENTLY IN PRODUCTION OF THE SAME ARTICLES HAS RECEIVED FIRST ARTICLE APPROVAL."

YOUR CONTENTION THAT THE ACTIONS OF THE CONTRACTING AGENCY IN ANNOUNCING AT BID OPENING THAT OPTOMECHANISMS WAS THE APPARENT LOW BIDDER, AND IN INSTITUTING A PREAWARD SURVEY, LED OPTOMECHANISMS TO ASSUME THAT AWARD HAD BEEN MADE TO IT, MUST BE CONSIDERED UNDER THE APPLICABLE STATUTE AND IMPLEMENTING REGULATION CONCERNING AWARD. 10 U.S.C. 2305(C) PROVIDES THAT "AWARDS SHALL BE MADE WITH REASONABLE PROMPTNESS BY GIVING WRITTEN NOTICE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION ... ". THIS PROVISION FOR WRITTEN NOTICE IS REPEATED IN ASPR 2-407.1, AND AGAIN IN PARAGRAPH 10(D) OF THE SOLICITATION TERMS AND CONDITIONS. THESE REQUIREMENTS FOR WRITTEN NOTICE MUST BE CONSTRUED AS CONTROLLING. THE RECORD SHOWS THAT NO WRITTEN NOTICE OF ANY KIND WAS ISSUED TO OPTOMECHANISMS. IT IS THEREFORE OUR OPINION THAT THERE IS NO LEGAL BASIS FOR ANY ASSUMPTION ON THE PART OF OPTOMECHANISMS REGARDING AWARD.

YOUR BRIEF IN RESPONSE TO THE ADMINISTRATIVE REPORT CONTENDED IN THE ALTERNATIVE THAT THE BID OF BAUSCH & LOMB SHOULD BE CONSIDERED NONRESPONSIVE SINCE BAUSCH & LOMB FAILED TO MAKE AN AFFIRMATIVE STATEMENT THAT IT HAD PREVIOUSLY OFFERED AN IDENTICAL OR SIMILAR INSTRUMENT TO THE GOVERNMENT. OUR OFFICE HAS UPHELD REJECTION OF BIDS AS NONRESPONSIVE UNDER WAIVER OF FIRST ARTICLE TESTING PROVISIONS WHERE THE BIDDERS FAILED TO STATE THAT THEY HAD FURNISHED IDENTICAL OR SIMILAR ARTICLES. B-167524, AUGUST 28, 1969; B-157529, NOVEMBER 24, 1965. HOWEVER, IN BOTH OF THOSE CASES, WE TOOK COGNIZANCE OF THE FACT THAT THE RECORDS OF THE CONTRACTING AGENCY, APART FROM THE BIDS, CONTAINED NO INFORMATION REGARDING SUCH PREVIOUS PROCUREMENTS.

IN A RECENT CASE, B-170099, JANUARY 22, 1971, WE HELD THAT AN EXPERIENCE REQUIREMENT GOES TO THE RESPONSIBILITY OF THE BIDDER AND NOT TO THE RESPONSIVENESS OF THE BID. THIS PERMITS THE CONTRACTING OFFICER TO LOOK OUTSIDE THE BID DOCUMENT FOR OTHER INFORMATION AVAILABLE TO HIM IN DETERMINING A BIDDER'S RESPONSIBILITY.

IN THE PRESENT CASE, THE CONTRACTING OFFICER HAS ADVISED THAT HE WAS AWARE BAUSCH & LOMB HAD FURNISHED A SIMILAR INSTRUMENT TO THE ARMY TOPOGRAPHIC COMMAND ON DECEMBER 8, 1969, AND THAT THE INSTRUMENT IS CURRENTLY IN USE IN THEIR PRODUCTIVE OPERATIONS AT WASHINGTON, D.C.

THE FACT THAT BAUSCH & LOMB DID NOT SUBMIT INFORMATION ABOUT THE PREVIOUS CONTRACT MAY WELL HAVE BEEN CAUSED BY THE FAILURE OF THE CONTRACTING AGENCY TO PROVIDE SPACE IN THE AMENDMENT FOR SUCH INFORMATION. IN 49 COMP. GEN. 147, CITED ABOVE, WE HAD OCCASION TO CRITICIZE THE FAILURE TO PROVIDE SPACE IN AN AMENDMENT FOR PRICING THE ADDITIONAL UNITS ADDED. THINK THE SAME CRITICISM SHOULD EXTEND TO FAILURE IN THIS CASE TO PROVIDE SPACE IN THE AMENDMENT FOR INFORMATION ABOUT THE FORMER CONTRACT. ALTHOUGH IT IS OUR OPINION THAT OMISSION OF INFORMATION ABOUT THE FORMER CONTRACT DOES NOT CONSTITUTE A SUFFICIENT REASON FOR DISTURBING THE AWARD, SINCE THE INFORMATION REQUESTED WAS ALREADY IN POSSESSION OF THE CONTRACTING AGENCY, WE HAVE RECOMMENDED TO THE SECRETARY OF THE ARMY THAT SPACE BE PROVIDED IN AMENDMENTS OF THIS TYPE WHERE THE INFORMATION IS ACTUALLY REQUIRED TO SUPPORT A DETERMINATION TO WAIVE FIRST ARTICLE TESTING.

YOUR CONTENTION THAT BAUSCH & LOMB'S BID WAS NONRESPONSIVE FOR FAILURE TO PRICE THE SPARE DIES FOR 150 MICRON DOTS DOES NOT APPEAR TO BE SUPPORTED BY THE RECORD. UNDER THE REQUIREMENT FOR SPARE DIES, BAUSCH & LOMB PLACED THE STATEMENT "INCLUDED IN UNIT PRICE ABOVE." IT IS OUR OPINION THAT THIS STATEMENT APPLIES TO THE ENTIRE REQUIREMENT FOR SPARE DIES AND DOES NOT OMIT THE 150 MICRON DOTS, ALTHOUGH THE STATEMENT IS MORE NEARLY ALIGNED WITH THE TWO LINES WHERE THE 80 AND 60 MICRON DOTS ARE SET FORTH.

YOUR REMAINING ARGUMENT THAT BAUSCH & LOMB'S FAILURE TO INDICATE WHETHER IT HAD PARTICIPATED IN A GOVERNMENT CONTRACT INVOLVING THE EQUAL OPPORTUNITY CLAUSE RENDERED ITS BID NONRESPONSIVE IS NOT WELL TAKEN, SINCE WE HAVE HELD THAT INFORMATION OF THIS TYPE RELATES TO THE RESPONSIBILITY OF THE BIDDER, NOT THE RESPONSIVENESS OF THE BID, AND MAY THEREFORE BE OBTAINED AFTER BID OPENING. B-165186, NOVEMBER 7, 1968.

FOR THE REASONS STATED, WE ARE OF THE OPINION THAT THE CONTRACTING OFFICER PROPERLY REJECTED YOUR BID AS NONRESPONSIVE AND THAT HE CORRECTLY MADE AWARD TO BAUSCH & LOMB AS THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER. ACCORDINGLY, YOUR PROTEST IS DENIED.