B-171910, JUN 29, 1971

B-171910, JUN 29, 1971

BID PROTEST - AWARD PROCEDURES - INSPECTION STANDARDS REQUEST BY AIRFLOTE, INC. THAT WE REVIEW THE ACTIONS OF THE PROCURING ACTIVITY PRIOR TO ANY AWARD UNDER AN IFB ISSUED BY THE U.S. ARMY MOBILITY EQUIPMENT COMMAND, DIRECTORATE OF PROCUREMENT AND PRODUCTION, FOR ALUMINUM -FRAMED CLOTH PASSAGEWAYS AND AIR-SUPPORTED SHELTER SECTIONS AND DENYING ITS CONTENTION THAT IT SHOULD BE AWARDED THE CONTRACT. WHERE A DISPUTE AROSE BETWEEN THE CONTRACTING AGENCY AND THE LOW BIDDER ON A SEGMENT OF A PROPOSAL AS TO THE INSPECTION STANDARD TO BE APPLIED TO THAT SEGMENT, THE STANDARD WAS DETERMINED BY REFERRING TO THE OFFICIAL RECOMMENDATIONS OF THE PRODUCT ASSURANCE DIRECTORATE IN THE CONTRACTING OFFICER'S RECORDS, AND NOT BY THE COMMENTS OF A MEMBER OF THE PRE-AWARD SURVEY TEAM, WHICH INDICATED THE POSSIBILITY OF A LOWER STANDARD. WHERE SUCH A MISUNDERSTANDING OCCURS, THE BIDDER SHOULD BE ON NOTICE TO REQUEST A CLARIFICATION OF THE DISPUTE FROM THE CONTRACTING OFFICER BEFORE SUBMITTING A BID BASED ON THE INTERPRETATION MOST FAVORABLE TO HIMSELF.

TO AIRFLOTE, INC.:

WE REFER TO YOUR CORRESPONDENCE REQUESTING THAT WE REVIEW THE ACTIONS OF THE PROCURING ACTIVITY PRIOR TO ANY AWARD UNDER INVITATION FOR BIDS (IFB) DAAK01-71-B-1792 ISSUED OCTOBER 9, 1970, BY THE U.S. ARMY MOBILITY EQUIPMENT COMMAND, DIRECTORATE OF PROCUREMENT AND PRODUCTION, ST. LOUIS, MISSOURI.

THE REFERENCED IFB SOUGHT THE PROCUREMENT OF 354 ALUMINUM-FRAMED CLOTH PASSAGEWAYS (ITEM NO. 0001), AND 314 AIR-SUPPORTED SHELTER SECTIONS (ITEM NO. 0004), ONE ADDITIONAL ITEM OF EACH FOR FIRST ARTICLE APPROVAL (ITEM NOS. 0002 AND 0005), AND VARIOUS DATA PERTAINING TO EACH (ITEM NOS. 0003 AND 0006).

SEVENTY-TWO FIRMS WERE SOLICITED WITH SEVEN FIRMS SUBMITTING BIDS AND BID AMENDMENTS BY BID OPENING ON DECEMBER 7, 1970. THE CONTRACTING OFFICER DETERMINED THAT YOUR FIRM WAS THE LOW RESPONSIVE BIDDER ON ITEMS 0001, 0002 AND 0003 WHILE INFLATED PRODUCTS, INC., WAS ASCERTAINED TO BE THE LOW RESPONSIVE BIDDER ON ITEMS 0004, 0005 AND 0006, AND SECOND LOW ON ITEMS 0001, 0002 AND 0003.

BASED UPON A PREAWARD SURVEY OF INFLATED, THE CONTRACTING OFFICER DETERMINED THAT FIRM WAS NOT A RESPONSIBLE BIDDER. ACCORDINGLY, THE MEMORANDA RELATING TO THE PREAWARD SURVEY, ALONG WITH OTHER PERTINENT MATERIAL, WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION'S REGIONAL OFFICE IN NEW YORK, N.Y., BY LETTER OF MARCH 26, 1971, FOR THE LATTER'S CONSIDERATION AND POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY.

UPON RECEIPT OF A LETTER FROM THE SBA REGIONAL OFFICE DATED APRIL 21, 1971, IN WHICH THE SBA VENTURED ITS OPINION THAT INFLATED POSSESSED THE REQUISITE ABILITY TO MEET THE BID REQUIREMENTS IN ALL RESPECTS, THE CONTRACTING OFFICER REVISED HIS DETERMINATION AND FOUND INFLATED TO BE A RESPONSIBLE BIDDER.

A PREAWARD SURVEY WAS PERFORMED ON YOUR FIRM IN DECEMBER 1970, WHEREBY YOU RECEIVED A SATISFACTORY EVALUATION AND WERE RECOMMENDED FOR AWARD ON ITEMS 0001, 0002 AND 0003.

A MISUNDERSTANDING CONCERNING THE APPLICABLE INSPECTION STANDARDS, AND THE ITEMS TO WHICH THEY APPLIED, FIRST MANIFESTED ITSELF DURING THE VISIT OF THE PREAWARD SURVEY TEAM TO YOUR FACILITIES IN LATE DECEMBER, 1970. UNDER SECTION L1. OF THE REFERENCED IFB, IT IS PROVIDED THAT CERTAIN DELINEATED SECTIONS OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) ARE INCORPORATED INTO THE CONTRACT WHEN CHECKED. ASPR 7-104.28 REFERENCES SPECIFICATION MIL-Q-9858A WHILE ASPR 7-104.33 REFERENCES SPECIFICATION MIL -I-45208A. BOTH OF THESE CLAUSES WERE CHECKED, WITHOUT RESTRICTION OF EITHER TO ANY PARTICULAR ITEM OR ITEMS. MIL-Q-9858A, ENTITLED "QUALITY PROGRAM REQUIREMENTS", ENTAILS MORE STRINGENT STANDARDS AND CONSEQUENTLY GREATER EXPENSE TO CONTRACTORS THAN DOES MIL-I-45208A WHICH IS ENTITLED "INSPECTION SYSTEM REQUIREMENTS."

FOLLOWING A REQUEST THAT YOU VERIFY YOUR BID PRICE, YOUR LETTER OF JANUARY 11, 1971, TO THE U.S. ARMY MOBILITY EQUIPMENT COMMAND (ARMY MOBILITY COMMAND) CONFIRMED YOUR PRICES ON ITEMS 0001, 0002 AND 0003, WITH THE NOTATION THAT THE BID WAS PREDICATED UPON AN INSPECTION SYSTEM CONFORMING TO MIL-I-45208A AND THAT THIS INTERPRETATION WAS CONFIRMED BY THE PREAWARD SURVEY TEAM.

TO AVOID THE POSSIBILITY OF A MISTAKE IN YOUR BID, A FORMAL REQUEST FOR CONFIRMATION, PURSUANT TO ASPR 2-406.3(E)(1), WAS ISSUED ON JANUARY 20, 1971, BY WHICH YOU WERE INFORMED THAT YOUR BID PRICE WAS SO LOW IN RELATION TO THE GOVERNMENT ESTIMATE OF MATERIAL COSTS THAT A MISTAKE WAS SUSPECTED. YOUR LETTER OF JANUARY 11, 1971, WAS ACKNOWLEDGED AND YOU WERE ADVISED THAT THE IFB AND RESULTING CONTRACT WOULD INCLUDE BOTH SPECIFICATIONS. YOU WERE REQUESTED TO VERIFY YOUR BID IN WRITING AS SOON AS POSSIBLE.

YOUR LETTER DATED JANUARY 21, 1971, CONFIRMED YOUR BID PRICE ON ITEMS 0001, 0002 AND 0003 BUT APPLIED THE MIL-I-45208A SPECIFICATION TO THEM. HOWEVER, YOU STATED THAT YOU WOULD IMPLEMENT THE HIGHER STANDARDS OF MIL-Q -9858A, IF AWARDED ALL SIX ITEMS.

FOLLOWING UNSUCCESSFUL ATTEMPTS TO CLARIFY THE MATTER BY TELEPHONE, THE CONTRACTING OFFICER ISSUED A TWX DATED FEBRUARY 17, 1971, BY WHICH YOU WERE ADVISED THAT THE PROCURING ACTIVITY MUST HAVE EITHER AN ABSOLUTE CONFIRMATION OF THE BID AS SUBMITTED, OR A CLAIM OF MISTAKE REQUESTING WITHDRAWAL. YOU WERE FURTHER ADVISED THAT THE REQUIREMENTS OF THE SOLICITATION WOULD NOT BE ALTERED TO ACCOMMODATE YOUR INTERPRETATION SINCE THAT WOULD PERMIT A LESSER STANDARD THAN WAS SOLICITED FROM ALL BIDDERS.

ALSO, ON FEBRUARY 17, 1971, YOUR UNDATED MEMO WAS FORWARDED TO THE ARMY MOBILITY COMMAND IN WHICH YOU CONTENDED, INTER ALIA, THAT THE TWO SPECIFICATIONS ARE CITED ONLY IN THE FIXED-PRICE SUPPLY CLAUSES; THAT THERE WAS NO MENTION OF THESE SPECIFICATIONS IN THE PURCHASE DESCRIPTIONS OF THE ITEMS; AND THAT IF REQUIRED TO COMPLY WITH MIL-Q 9858A ON ITEMS 0001, 0002 AND 0003, THE ADDED COSTS WOULD AMOUNT TO APPROXIMATELY $18,000.00 AND WOULD RESULT IN A LOSS TO YOUR FIRM.

YOUR LETTER OF FEBRUARY 18, 1971, TO THE ARMY MOBILITY COMMAND, IN RESPONSE TO THEIR TELEGRAM OF THE PREVIOUS DAY, MERELY REITERATED YOUR PAST POSITION AND STATED THAT NO MISTAKE HAD BEEN MADE IN YOUR BID.

THE CONTRACTING OFFICER ISSUED A LETTER DATED FEBRUARY 24, 1971, EXPLAINING THAT WHILE THE ITEM DESCRIPTIONS FOR ITEMS 0001, 0002, 0004 AND 0005, MAKE NO REFERENCE TO EITHER STANDARD, BOTH ITEMS 0003 AND 0006 REFER TO ATTACHMENTS C AND D, RESPECTIVELY, WHICH INCLUDE A DATA ITEM DESCRIPTION, NO. DI-R-1724, CONTAINING A REFERENCE TO MIL-Q 9858A. ONCE MORE YOU WERE EXTENDED THE OPPORTUNITY TO SUBMIT EVIDENCE OF A MISTAKE IN BID.

BY LETTER OF MARCH 1, 1971, YOU REPLIED THAT AMENDMENT 0003 DELETED DI-R- 1724 FROM ATTACHMENTS C AND D AND SUBSTITUTED DI-R-1700. FURTHERMORE, YOU CLAIMED, ANY AMBIGUITY IN THE IFB ITSELF ON THIS MATTER WAS RESOLVED BY THE ORAL REPRESENTATION OF THE PREAWARD SURVEY TEAM.

WITH REGARD TO THE ALLEGATION IN YOUR LETTER THAT DI-R-1724 WAS DELETED FROM ATTACHMENTS C AND D BY THE REFERENCED AMENDMENT, IT IS NOTED THAT DI- R-1700 WAS SUBSTITUTED, AND THE LATTER ALSO LISTED MIL-Q 9858A AS A REFERENCE. SUBSEQUENTLY, A TWX AMENDMENT DATED DECEMBER 2, 1970, REINSTATED DI-R-1724 WITH CERTAIN CHANGES WHICH DID NOT PERTAIN TO THE REFERENCED MIL-Q-9858A.

BY WIRE OF MARCH 25, ALL BIDDERS WERE REQUESTED TO EXTEND THEIR BIDS IN ORDER TO PROVIDE THE TIME NECESSARY TO RESOLVE TWO PROTESTS TO GAO PLUS THE SBA REFERRAL ACTION IN INFLATED'S CASE. YOU EXTENDED YOUR BID ONLY UNTIL APRIL 15, 1971. IT IS REPORTED THAT YOU REFUSED TO EXTEND YOUR PERIOD FOR BID ACCEPTANCE BEYOND THAT DATE WITH THE CONSEQUENCE THAT YOUR BID EXPIRED ON APRIL 15.

YOU CONTEND THAT SINCE THE IFB INCORPORATED CLAUSES CALLING FOR SEPARATE PROCEDURES, YOUR BID WAS BASED ON THE ASSUMPTION THAT THE LESSER SPECIFICATION, MIL-I-45208A, WAS THE ONLY ONE WHICH APPLIED TO ITEMS 0001, 0002 AND 0003. YOUR REASONING IS THAT SINCE THE MORE STRINGENT SPECIFICATION, MIL-Q-9858A, ENCOMPASSES THE LESSER SPECIFICATION, IT WOULD BE REDUNDANT TO INCLUDE BOTH SPECIFICATIONS FOR EACH ITEM. WHILE, YOU HAVE CITED ORAL REPRESENTATIONS BY THE PREAWARD SURVEY TEAM THAT ITEMS 0001, 0002 AND 0003 WERE NOT COMPLEX ITEMS AND THAT MIL-I-45208A THEREFORE APPLIED, IT IS REPORTED THAT THE SURVEY TEAM'S STATEMENTS WERE DUE TO THE PRODUCT ASSURANCE REPRESENTATIVE'S BELIEF THAT SINCE HIS RECORDS SHOWED A RECOMMENDATION OF THE LESSER SPECIFICATION FOR ALL IFB ITEMS, THE IFB WOULD HAVE BEEN SO WRITTEN. HOWEVER, THE CONTRACTING OFFICER'S RECORDS, WHICH INCLUDE THE MINUTES OF THE SOLICITATION REVIEW BOARD, SHOW THAT THE RECOMMENDATION FROM THE PRODUCT ASSURANCE DIRECTORATE WAS FOR THE HIGHER SPECIFICATION, AND THAT THE IFB WAS INTENTIONALLY WRITTEN TO REFLECT THAT SPECIFICATION FOR ALL ITEMS. IT IS ALSO REPORTED THAT ALTHOUGH A MISTAKE WAS COMMITTED WHEN BOTH SPECIFICATIONS WERE INCLUDED IN THE IFB, IT IS ONLY A MATTER OF REDUNDANCE SINCE MIL-Q-9858A ENCOMPASSES THE REQUIREMENTS OF MIL-I-45208A.

OUR EXAMINATION OF THE INVITATION FAILS TO REVEAL ANY INSTANCE IN WHICH MIL-I-45208A ONLY WAS DESIGNATED FOR ANY OF THE SIX REFERENCED ITEMS. NOTE THAT SECTION L1., CONTRACT CLAUSES, AT PAGE 46 STIPULATES:

"THE PROVISIONS OF THE CONTRACT CLAUSES SET FORTH IN THE FOLLOWING PARAGRAPHS OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), ARE INCORPORATED IN THIS CONTRACT BY REFERENCE (MARKED (X) WHEN APPLICABLE) WITH THE SAME FORCE AND EFFECT AS THOUGH HEREIN SET FORTH IN FULL TEXT."

BOTH ASPR PARAGRAPH 7-104.28, REQUIRING MIL-Q-9858A, AND PARAGRAPH 7 104.33, REQUIRING MIL-I-45208A, WERE CHECKED. NOWHERE IN THE INVITATION IS THERE ANY INDICATION THAT EITHER STANDARD WAS RESTRICTED TO LESS THAN ALL OF THE SIX ITEMS.

THE CRUX OF THE MATTER IS DEMONSTRATED BY YOUR STATEMENT THAT YOUR BID WAS "BASED ON THE ASSUMPTION" THAT ITEMS 0001, 0002 AND 0003 WERE BASED ON MIL-I-45208A ONLY. SINCE THE IFB DID NOT CONFINE OR RESTRICT APPLICATION OF MIL-Q-9858A TO ANY PARTICULAR ITEM OR ITEMS, AND A REFERENCE TO THAT SPECIFICATION WAS MADE IN THE ITEM DESCRIPTION ATTACHMENTS FOR BOTH THE PASSAGEWAYS AND THE SHELTER SECTIONS, WE BELIEVE THAT YOU SHOULD HAVE HAD, AT THE VERY LEAST, SOME QUESTION AS TO MIL-Q-9858A BEING APPLICABLE TO ONLY THE SHELTER SECTIONS AND NOT TO THE PASSAGEWAYS. UNDER SUCH CIRCUMSTANCES, IT IS OUR OPINION THAT YOU WERE NOT WARRANTED IN ASSUMING, AND BIDDING ON THE ASSUMPTION WITHOUT INQUIRY FROM THE APPROPRIATE CONTRACTING OFFICIALS, THAT MIL-Q-9858A DID NOT APPLY TO THE PASSAGEWAY ITEMS. EVEN IF WE WERE TO CONCEDE THAT THE INCLUSION OF BOTH SPECIFICATIONS IN THE IFB CREATED AN OBVIOUS INCONSISTENCY, RATHER THAN MERE DUPLICITY, AND THAT THERE WAS A REASONABLE BASIS FOR YOUR INTERPRETATION, YOU STILL WOULD HAVE HAD THE AFFIRMATIVE DUTY TO MAKE INQUIRY AS TO THE INCONSISTENCY BEFORE SUBMITTING YOUR BID ON THE BASIS OF THE INTERPRETATION THAT WAS MOST FAVORABLE TO YOU. SEE JAMSAR, INC. V UNITED STATES, CT. CL. NO. 205-68 (DECIDED MAY 14, 1971) AND CASES CITED THEREIN.

ACCORDINGLY, SINCE WE CAN FIND NO PROVISION IN THE IFB INDICATING THAT MIL-Q-9858A DOES NOT APPLY TO THE PASSAGEWAYS AND DATA CALLED FOR UNDER ITEMS 0001, 0002 AND 0003, YOUR CONTENTION THAT YOU WERE ENTITLED TO THE AWARD OF THOSE ITEMS UNDER THE LESS STRINGENT SPECIFICATION, AND THAT THE CONTRACT SHOULD NOT BE AWARDED AT A HIGHER PRICE ON THE BASIS OF CONFORMANCE WITH MIL-Q-9858A ON THOSE ITEMS, IS DENIED.