B-171854(1), MAY 21, 1971

B-171854(1): May 21, 1971

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PROTESTANT'S ALLEGATION THAT THE AMENDMENT TO THE SOLICITATION STATING "AWARD WILL BE MADE FOR TWO YEARS. EVALUATION FOR AWARD WILL BE MADE ON AN ALL OR NOTHING BASIS FOR FIRST YEAR OF PERFORMANCE" IS AMBIGUOUS WILL NOT STAND WHEN READ IN CONJUNCTION WITH ARTICLES II AND III OF THE IFB WHICH SPECIFY A ONE YEAR PERIOD AND IN LIGHT OF THE FACT THAT THE MEANING OF THE AMENDMENT WAS EXPLAINED AT A PRE-BID CONFERENCE. NOR CAN PROTESTANT'S CONTENTION THAT AWARD BE MADE ON BASIS OF THE TOTAL OF THE FIRST AND SECOND YEARS' PRICES ON WHICH IT WOULD BE LOW BE PUT IN EFFECT SINCE IT IS CONTRARY TO THE TERMS OF THE IFB AND. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 5. STATED THE CONTRACT WAS RENEWABLE AT THE OPTION OF THE GOVERNMENT FOR A TOTAL CONTRACT PERIOD NOT TO EXCEED TWO YEARS DURATION.

B-171854(1), MAY 21, 1971

BID PROTEST - AMBIGUITY - OPTION DENYING PROTEST OF SUN PHOTOGRAPHICS, INC., AGAINST THE AWARD OF A CONTRACT UNDER AN IFB ISSUED BY THE GODDARD SPACE FLIGHT CENTER FOR STILL PHOTOGRAPHIC SERVICES TO ANOTHER BIDDER. PROTESTANT'S ALLEGATION THAT THE AMENDMENT TO THE SOLICITATION STATING "AWARD WILL BE MADE FOR TWO YEARS, HOWEVER, EVALUATION FOR AWARD WILL BE MADE ON AN ALL OR NOTHING BASIS FOR FIRST YEAR OF PERFORMANCE" IS AMBIGUOUS WILL NOT STAND WHEN READ IN CONJUNCTION WITH ARTICLES II AND III OF THE IFB WHICH SPECIFY A ONE YEAR PERIOD AND IN LIGHT OF THE FACT THAT THE MEANING OF THE AMENDMENT WAS EXPLAINED AT A PRE-BID CONFERENCE. NOR CAN PROTESTANT'S CONTENTION THAT AWARD BE MADE ON BASIS OF THE TOTAL OF THE FIRST AND SECOND YEARS' PRICES ON WHICH IT WOULD BE LOW BE PUT IN EFFECT SINCE IT IS CONTRARY TO THE TERMS OF THE IFB AND, FOLLOWING THE REASONING OF 41 COMP. GEN. 203 (1961), A HIGH BID MAY NOT BE ACCEPTED UPON THE BASIS THAT IT MAY BECOME LOW UPON THE OCCURENCE OF AN UNCERTAIN EVENT.

TO SUN PHOTOGRAPHICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 5, 1971, WITH ENCLOSURES, AS SUPPLEMENTED BY LETTER DATED FEBRUARY 18, 1971, FROM YOUR ATTORNEYS, PROTESTING AWARD TO ANOTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. S03013/667, ISSUED DECEMBER 30, 1970, BY GODDARD SPACE FLIGHT CENTER (GSFC), NATIONAL AERONAUTICS AND SPACE ADMINISTRATION.

THE IFB CALLED FOR THE FURNISHING OF STILL PHOTOGRAPHIC SERVICES, AND SPECIFICALLY PROVIDED THAT THE PERIOD OF PERFORMANCE WOULD BE FOR ONE YEAR UNDER ARTICLE II - PERIOD OF PERFORMANCE. ARTICLE III - OPTIONS, STATED THE CONTRACT WAS RENEWABLE AT THE OPTION OF THE GOVERNMENT FOR A TOTAL CONTRACT PERIOD NOT TO EXCEED TWO YEARS DURATION, AND REQUIRED THE CONTRACTING OFFICER TO GIVE THE CONTRACTOR WRITTEN NOTICE OF RENEWAL WITHIN THE PERIOD OF PERFORMANCE. THE SERVICES WERE TO BE FURNISHED ON AN "AS REQUIRED" BASIS.

ON DECEMBER 30, 1970, AMENDMENT NO. 1 TO THE IFB WAS ISSUED WHICH STATED IN PERTINENT PART:

"(C) FOR THE OPTION PERIOD OF PERFORMANCE, PLEASE COMPLETE THE 'ATTACHMENT A - SCHEDULE OF RATES (FOR SECOND YEAR)', WHICH IS ATTACHED TO THIS AMENDMENT NO. ONE (1).

"AWARD WILL BE MADE FOR TWO (2) YEARS; HOWEVER, EVALUATION FOR AWARD WILL BE MADE ON AN 'ALL OR NOTHING BASIS' FOR FIRST YEAR OF PERFORMANCE ONLY."

ON JANUARY 21, 1971, MR. STANLEY OSBORNE, OF YOUR FIRM, MET WITH THE CONTRACTING OFFICER, TO DISCUSS THE IFB. THE CONTRACTING OFFICER REPORTS THAT DISCUSSION AS FOLLOWS:

"A SUN PHOTOGRAPHIC'S REPRESENTATIVE, MR. STANLEY OSBORNE, CONTACTED THE UNDERSIGNED ON JANUARY 20, 1971, AND WANTED TO DISCUSS THE IFB ON SAID DATE; HOWEVER, DUE TO PRIOR COMMITMENTS ON MY PART, I COULD NOT SEE HIM ON THE 20TH BUT INDICATED THAT I COULD SET UP AN APPOINTMENT WITH HIM THE NEXT DAY. MR. OSBORNE ACKNOWLEDGED MY SCHEDULE AND HE ARRIVED IN MY OFFICE AT 10:37 A.M. ON THE 21ST. I DEVOTED ALMOST ONE (1) HOUR TO HIS COMPANY'S INQUIRIES (UNTIL 11:30 A.M.) IN ORDER TO EXPLAIN THE ENTIRE IFB REQUIREMENT TO HIS COMPLETE SATISFACTION. I BELIEVE THIS WAS ACCOMPLISHED AT THE TIME. WHEN HE ARRIVED, HE DID NOT KNOW THE NATURE OF THE GSFC REQUIREMENTS, I.E., IQ ('CALL TYPE') CONTRACT, WEIGHTED AVERAGES OF INDIVIDUAL ITEMS, BASIS OF AWARD, OPTIONS, ETC.WHEN HE LEFT MY OFFICE TO SEE THE TECHNICAL INITIATOR FOR THIS PROCUREMENT, HE INDICATED TO ME THAT HE THOROUGHLY UNDERSTOOD THE IFB AND GSFC'S INTENTS. THIS WAS QUITE EVIDENT SINCE DURING THE DISCUSSION, HE WAS APPRISED, IN PARTICULAR, OF THE INTENT OF THE LANGUAGE IN AMENDMENT NO. 1 TO THE IFB AND WHY SAID AMENDMENT WAS ISSUED. HE WAS DEFINITELY ADVISED THAT THE TERMINOLOGY IN SAID AMENDMENT NO. 1 MEANT THAT GSFC INTENDED TO AWARD A ONE (1) YEAR FIRM PERIOD OF PERFORMANCE CONTRACT WHICH INCLUDED A FIRM ONE (1) YEAR OPTION PERIOD OF PERFORMANCE. HE WAS ALSO ADVISED THAT THE OPTION PERIOD OF PERFORMANCE COULD BE UNILATERALLY EXERCISED BY THE CONTRACTING OFFICER IF A 'TEST OF THE MARKET' INDICATED THAT THE OPTION PERIOD BILLING RATES WERE ADVANTAGEOUS TO THE GOVERNMENT. MR. OSBORNE HAD SOME DIFFICULTY IN UNDERSTANDING THE OPTION AND THE AWARD BASIS. THEREFORE, THE IFB METHOD OF EVALUATION WAS POINTED OUT AS BEING VERY SPECIFIC (ON AN 'ALL OR NOTHING' BASIS FOR THE FIRST YEAR OF PERFORMANCE ONLY) AND THAT NO TOTALS WERE INCLUDED ON THE 'SCHEDULE OF RATES' BID FORMS IN THE IFB PACKAGE FOR THE 2ND (OR OPTION) YEAR OF PERFORMANCE. MR. OSBORNE STATED THAT HE UNDERSTOOD AND WOULD BID ON THIS BASIS.

"MR. OSBORNE THEN ASKED THE PURPOSE OF OPTIONS AND WHY THEY ARE USED. TOLD HIM THAT THE OPTION PERIOD OF PERFORMANCE FOR THIS PARTICULAR REQUIREMENT WAS AN ATTEMPT TO CONSERVE GSFC MANPOWER RESOURCES NEXT YEAR (WHEN THE OPTION WAS TO BE EXERCISED) WHICH WOULD NORMALLY BE REQUIRED FOR A COMPLETE IFB PROCUREMENT PROCESS AND THAT, ADDITIONALLY, AN OPTION MIGHT TEND TO ELICIT MORE FAVORABLE PRICES FROM INDUSTRY SINCE A POTENTIAL TWO (2) YEAR EFFORT IS MORE ATTRACTIVE AND INDICATES A CONTINUING REQUIREMENT. HOWEVER, IT WAS STATED TO MR. OSBORNE THAT THE OPTION WOULD HAVE TO BE ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS OF CONSIDERATION TO THE CENTER, OR IT WOULD NOT BE EXERCISED."

SUN PHOTOGRAPHICS, INC., TOOK NO EXCEPTION TO THE PROCEDURES AS CLARIFIED AND, ALONG WITH THE COMPETITOR FIRMS, SUBMITTED ITS BID ON JANUARY 22, 1971. BIDS WERE OPENED THE SAME DAY AT 2:00 P.M. THE FOLLOWING FIGURES ARE THE BIDS SUBMITTED, EXCLUSIVE OF DISCOUNTS:

FIRM 1ST YEAR 2ND YEAR

BARA PHOTOGRAPHICS, INC. $122,642.56 $140,953.16

SUN PHOTOGRAPHICS, INC. 126,258.00 126,258.00

J. R. DUNLOP 146,832.00 158,534.00

AWARD WAS MADE TO THE LOWEST RESPONSIVE BIDDER, BARA PHOTOGRAPHICS, ON FEBRUARY 4, 1971, FOR THE FIRST YEAR'S REQUIREMENTS.

YOU CONTEND THAT PARAGRAPH (C) OF AMENDMENT NO. 1 RENDERED THE IFB DEFECTIVE DUE TO AMBIGUITY; THAT SUN PHOTOGRAPHICS WAS THE LOWEST RESPONSIVE BIDDER; AND THAT ANY PREBID CONFERENCE SHOULD NOT BE RELIED UPON TO ALTER THE TERMINOLOGY OF THE AMENDMENT.

CONCERNING YOUR CONTENTION THAT AMENDMENT NO. 1 TO THE IFB, WAS SO AMBIGUOUS AS TO RENDER THE SOLICITATION FATALLY DEFECTIVE, AN AMBIGUITY EXISTS ONLY IF TWO OR MORE REASONABLE INTERPRETATIONS ARE POSSIBLE. JEFFERSON CONSTRUCTION CO. V UNITED STATES, 151 CT. CL. 75 (1960). CONSIDERING THE STATEMENT IN THE AMENDMENT THAT "AWARD WILL BE MADE FOR TWO (2) YEARS" IN THE CONTEXT OF THE ENTIRE SOLICITATION, IT IS READILY APPARENT THAT SUCH STATEMENT IS INCONSISTENT WITH ARTICLES II AND III OF THE IFB, AND THE AMENDMENT DID NOT PURPORT TO MODIFY THOSE ARTICLES. ARTICLE II SPECIFIED THE PERIOD OF PERFORMANCE AS ONE YEAR, AND INCLUSION OF THE OPTION IN THE AWARD FOR A TWO YEAR CONTRACT WOULD NOT ONLY HAVE BEEN CONTRARY TO THE REQUIREMENT IN ARTICLE III THAT WRITTEN NOTICE BE GIVEN WITHIN THE PERIOD OF PERFORMANCE, BUT WOULD HAVE RENDERED ARTICLE III MEANINGLESS SINCE AN OPTION COULD NOT BE EXERCISED UNDER THAT CLAUSE TO EXTEND THE TOTAL DURATION OF THE CONTRACT BEYOND TWO YEARS. HENCE, THERE IS FOR APPLICATION OUR DECISION 41 COMP. GEN. 709 (1962) WHEREIN WE INDICATED THAT EVALUATION OF BIDS, WHERE OPTIONS ARE INCLUDED, MUST BE MADE ON THE BASIS OF THE SERVICES CALLED FOR, EXCLUSIVE OF THE OPTION, UNLESS THE OPTION IS TO BE EXERCISED AT THE TIME OF THE AWARD. ADDITIONALLY, THE STATEMENT THAT AWARD WOULD BE MADE FOR TWO YEARS IS INCOMPATIBLE WITH THE FURTHER STATEMENT IN THE AMENDMENT, THAT EVALUATION WOULD BE MADE ON THE FIRST YEAR ONLY, SINCE BIDS MUST BE EVALUATED ON THE BASIS OF THE TOTAL CONTRACT AWARDED, RATHER THAN ON A PORTION OF THE CONTRACT.

EVEN IF YOUR CONTENTION OF MATERIAL AMBIGUITY WERE TO BE ACCEPTED, TO PRECLUDE AWARD OF THE CONTRACT SUCH AMBIGUITY MUST ADVERSELY AFFECT COMPETITION AMONG THE BIDDERS. 39 COMP. GEN. 834 (1960); 40 ID. 561 (1961). AS SHOWN ABOVE, THE METHOD OF EVALUATION AND AWARD WAS FULLY EXPLAINED TO YOU, AND THERE IS NO INDICATION THAT THE PRICES SUBMITTED BY YOU AND THE OTHER BIDDERS FOR THE FIRST AND OPTION YEARS WOULD HAVE BEEN DIFFERENT HAD THE AMENDMENT NOT INCLUDED THE STATEMENT THAT AWARD WOULD BE MADE FOR TWO YEARS. THUS, WE DO NOT FIND THAT INCLUSION OF THE STATEMENT ADVERSELY AFFECTED THE COMPETITION.

AS TO YOUR CONTENTION THAT YOUR BID WAS THE LOWEST RESPONSIVE BID, SINCE THE BASIS FOR EVALUATION WAS THE FIRST YEAR PRICE ONLY AND BARA'S CONTRACT IS ONLY FOR THAT SINGLE YEAR, IT IS APPARENT THAT YOU DID NOT SUBMIT THE LOWEST BID ON THE CONTRACT WHICH WAS AWARDED. ALSO, WE DO NOT AGREE WITH YOUR STATEMENT THAT BARA CAN REQUIRE THE GOVERNMENT TO PERMIT THAT FIRM TO PERFORM FOR THE SECOND YEAR AND, INASMUCH AS YOU HAVE NOT CITED ANY LEGAL SUPPORT FOR YOUR POSITION, SUCH CONTENTION MUST BE REJECTED.

CONCERNING YOUR ARGUMENT THAT THE PREBID CONFERENCE MAY NOT BE RELIED UPON TO ALTER THE TERMS OF THE SOLICITATION, IT SHOULD BE OBSERVED THAT THE CONTRACTING OFFICER'S ADVICE TO YOU - THAT BIDS WOULD BE EVALUATED ON THE BASIS OF THE FIRST YEAR ONLY - WAS COMPLETELY CONSISTENT WITH THE METHOD OF EVALUATION SPECIFIED IN THE IFB AND MAY NOT BE CONSTRUED AS PURPORTING TO ALTER THE SOLICITATION IN SUCH RESPECT. AN AWARD, HOWEVER, ON THE BASIS OF THE TOTAL OF THE FIRST AND SECOND YEARS' PRICES AS YOU PROPOSE, WOULD NOT ONLY HAVE BEEN CONTRARY TO THE ADVICE GIVEN YOU BUT WOULD HAVE REQUIRED ALTERING THE TERMS OF THE IFB. YOUR BID WAS EVALUATED IN ACCORDANCE WITH THE ADVICE FURNISHED YOU AND THERE IS NO INDICATION THAT YOU WERE MISLED AS TO THE MANNER IN WHICH YOUR BID SHOULD BE SUBMITTED OR AS TO HOW IT WOULD BE EVALUATED. IN THIS CONNECTION WE NOTE THAT YOUR PROTEST AS TO THE CLARITY OF THE SOLICITATION WAS NOT MADE UNTIL AFTER THE OPENING OF BIDS, AND WE HAVE HELD THAT THE TIME TO PROTEST THE ADEQUACY OR PROPRIETY OF A SOLICITATION'S PROVISIONS IS BEFORE THE BID IS SUBMITTED, AND IN ANY EVENT BEFORE BEING ADVISED OF THE CONTRACT AWARD. -156825, JULY 26, 1965; B-161642; AUGUST 17, 1967; B-156025, MAY 4, 1965.

FINALLY, WE BELIEVE THAT 41 COMP. GEN. 203 (1961) IS APPLICABLE HERE. THAT DECISION WE STATED THAT IT IS IMPROPER TO ACCEPT A HIGH BID UPON THE BASIS THAT IT WILL BECOME THE LOW BID UPON THE OCCURRENCE OF A CONTINGENCY THAT MIGHT OR MIGHT NOT ARISE. IN ADDITION TO THE CONTINGENCY IN THE INSTANT CASE OF WHETHER IT WILL BE TO THE GOVERNMENT'S PRICE ADVANTAGE TO EXERCISE ITS OPTION, THE AGENCY REPORTS THAT GSFC'S FUTURE REQUIREMENTS MAY NECESSITATE REVISION OF THE SPECIFICATIONS FOR THE OPTION YEAR AND, DUE TO RECENT REDUCTIONS IN APPROPRIATIONS, IT IS QUESTIONABLE THAT FUNDS WILL BE AVAILABLE FOR ANY PARTICULAR PROCUREMENT.

IN VIEW OF THE FOREGOING YOUR PROTEST IS DENIED.