B-172509(1), JUL 2, 1971

B-172509(1): Jul 2, 1971

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CONSEQUENTLY THE CONTRACTING OFFICER WAS UNABLE TO DETERMINE THE PRICE FROM THE BID DOCUMENTS AS REQUIRED BY ASPR 2-406.2. THE SECRETARY OF THE AIR FORCE IS BEING INFORMED THAT FUTURE PROCUREMENTS SHOULD CLEARLY STATE THAT SEPARATE CHARGES FOR DATA. A. MILLER ELECTRONICS CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF APRIL 1. TWENTY-EIGHT BIDS WERE RECEIVED. BIDDERS WERE INSTRUCTED TO ENTER EITHER A PRICE OR A SPECIFIC RESPONSE SUCH AS "NO CHARGE" OR "INCLUDED IN PRICE OF ITEMS .". IT WOULD BE CONSIDERED THAT THE PRICE HE WAS TO BE PAID THEREFOR WAS INCLUDED IN THE TOTAL PRICE SPECIFIED IN THE CONTRACT AWARDED PURSUANT TO HIS BID. IN VIEW THEREOF IT WAS DETERMINED THAT YOUR BID DID NOT CONFORM TO THE INVITATION'S REQUIREMENTS.

B-172509(1), JUL 2, 1971

BID PROTEST - BID RESPONSIVENESS - PRICE QUOTING PROCEDURES DECISION DENYING PROTEST AGAINST REJECTION OF A BID AS NONRESPONSIVE, UNDER AN IFB ISSUED BY KELLY AFB, TEXAS, FOR CIRCUIT CARD ASSEMBLIES WITH ITEMS FOR FIRST ARTICLE TESTING. THE IFB SPECIFIED THE PRICE QUOTING PROCEDURES TO BE USED FOR THE ASSEMBLIES AND THE DATA ITEMS. PROTESTANT FAILED TO FOLLOW THE SPECIFIED PROCEDURES, AND CONSEQUENTLY THE CONTRACTING OFFICER WAS UNABLE TO DETERMINE THE PRICE FROM THE BID DOCUMENTS AS REQUIRED BY ASPR 2-406.2. HOWEVER, THE SECRETARY OF THE AIR FORCE IS BEING INFORMED THAT FUTURE PROCUREMENTS SHOULD CLEARLY STATE THAT SEPARATE CHARGES FOR DATA, OR INDICATIONS OF NO SEPARATE CHARGES THEREFOR, SHOULD BE SHOWN OPPOSITE THE DATA ITEMS LISTED ON THE SCHEDULE.

TO R. A. MILLER ELECTRONICS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1971, PROTESTING THE REJECTION OF YOUR BID AS NONRESPONSIVE UNDER INVITATION FOR BIDS (IFB) F41608-71-B-0531, ISSUED FEBRUARY 4, 1971, BY THE KELLY AIR FORCE BASE, TEXAS.

THE REFERENCED INVITATION CONTAINED REQUIREMENTS FOR 1,924 EACH 5821 949- 0695LS CIRCUIT CARD ASSEMBLIES, THREE ADDITIONAL ITEMS TO BE USED IN FIRST ARTICLE TESTING, AND A REQUIREMENT FOR DATA IN THE FORM OF FIRST ARTICLE TEST REPORTS, PREPRODUCTION TEST REPORTS, AND ACCEPTANCE TEST REPORTS. ADDITIONAL QUANTITY OF 1,923 CIRCUIT CARD ASSEMBLIES HAS BEEN RESERVED FOR AWARD UNDER A 50 PERCENT LABOR SURPLUS AREA SET ASIDE PORTION OF THIS PROCUREMENT.

UPON BID OPENING, FEBRUARY 24, 1971, TWENTY-EIGHT BIDS WERE RECEIVED. YOUR BID INDICATED A UNIT PRICE OF $38.25 EACH FOR THE 1,924 CIRCUIT CARD ASSEMBLIES, FOR A TOTAL AMOUNT OF $73,593.00, AND $500.00 EACH FOR THE THREE FIRST ARTICLES FOR TESTING. THE INVITATION REQUESTED BIDDERS TO ENTER THEIR PRICES (OR AN INDICATION OF NO CHARGE, ETC.) ON THE BID SCHEDULE FOR THE DATA ITEMS ON A LOT BASIS, DESIGNATED BY THE SYMBOL "LO" WHICH APPEARED IN THE "UNIT" COLUMN BESIDE THE DATA ITEMS NOS. 0002AA AND 0002AB. HOWEVER, IN LIEU OF QUOTING ON A LOT BASIS AS SPECIFIED, YOU INSERTED THE FIGURES "1,924" IN THE "QUANTITY" COLUMN, A PRICE OF $38.25 IN THE "UNIT PRICE" COLUMN, AND $73,593.00 IN THE "AMOUNT" COLUMN FOR EACH OF THE TWO DATA ITEMS.

ADDITIONALLY, THE DATA INSTRUCTIONS OF THE IFB, AS SET OUT UNDER ITEM NO. 0002, REQUESTED BIDDERS TO SET FORTH IN BLOCKS 25 AND 26 OF APPENDED DD FORMS 1423 A FIRM FIXED PRICE FOR EACH OF THE TWO DATA ITEMS. BIDDERS WERE INSTRUCTED TO ENTER EITHER A PRICE OR A SPECIFIC RESPONSE SUCH AS "NO CHARGE" OR "INCLUDED IN PRICE OF ITEMS ." IF A BIDDER FAILED TO ENTER A PRICE OR SPECIFIC RESPONSE TO A DATA ITEM, IT WOULD BE CONSIDERED THAT THE PRICE HE WAS TO BE PAID THEREFOR WAS INCLUDED IN THE TOTAL PRICE SPECIFIED IN THE CONTRACT AWARDED PURSUANT TO HIS BID. AN EXAMINATION OF THE DD FORMS 1423 IN YOUR BID FOR EACH OF THE TWO DATA ITEMS REVEALS THAT YOU MADE NO ENTRY WHATSOEVER IN BLOCKS 25 AND 26.

IN VIEW THEREOF IT WAS DETERMINED THAT YOUR BID DID NOT CONFORM TO THE INVITATION'S REQUIREMENTS, AND IT WAS REJECTED PURSUANT TO THE PROVISIONS OF PARAGRAPH 2-404.2(B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THEREAFTER, AWARD OF THE NON-SET-ASIDE PORTION WAS MADE TO OKLAHOMA AEROTRONICS, INC., ON MARCH 22, 1971, AT A TOTAL PRICE OF $80,605.66.

HAD YOU LEFT THE TWO DATA ITEMS, NOS. 0002AA AND 0002AB, BLANK AS YOU HAD WITH BOXES 25 AND 26 OF THE APPENDED DD FORMS 1423, BY OPERATION OF THE PROVISIONS OF ITEM NO. 0002 OF THE IFB THE PRICES FOR THE DATA WOULD HAVE BEEN CONSIDERED AS BEING INCLUDED IN THE PRICES OF THE OTHER ITEMS. ENTERING FIGURES FOR THE DATA ITEMS IN THE MANNER DESCRIBED ABOVE, AND BY NOT SPECIFYING ELSEWHERE THAT DATA WAS INCLUDED IN THE PRICE QUOTED FOR THE ASSEMBLIES, YOU MADE IT IMPOSSIBLE FOR THE PROCURING ACTIVITY TO DETERMINE FROM YOUR BID DOCUMENTS WHAT YOUR ACTUAL INTENTIONS WERE CONCERNING THE DATA ITEMS.

IN YOUR LETTER OF APRIL 1, 1971, YOU CONTEND THAT THE FIGURES WHICH YOU INSERTED IN THE QUANTITY, UNIT PRICE AND AMOUNT COLUMNS FOR THE DATA ITEMS WERE A MISTAKE IN THE TYPING OF YOUR BID, AND SINCE THEY WERE IDENTICAL TO THE FIGURES SHOWN ON THE HARDWARE ITEMS, THIS ERROR SHOULD HAVE BEEN CALLED TO YOUR ATTENTION BY THE CONTRACTING OFFICER AS AN APPARENT MISTAKE UNDER THE PROVISIONS OF ASPR 2-406.2 AND 2 406.3(A)(2).

WHILE ASPR 2-406.2 PERMITS THE CORRECTION OF AN APPARENT CLERICAL MISTAKE IN A BID, SUCH REGULATION CONTEMPLATES THAT THE MISTAKE MUST BE OBVIOUS ON THE FACE OF THE BID AND THE CONTRACTING OFFICER MUST BE ABLE TO ASCERTAIN THE INTENDED BID WITHOUT BENEFIT OF ADVICE FROM THE BIDDER, OTHER THAN A VERIFICATION OF THE INTENDED BID AS ASCERTAINED BY THE CONTRACTING OFFICER. 46 COMP. GEN. 77, 82 (1966); 45 ID. 682 (1966). AS STATED ABOVE, IT WAS NOT POSSIBLE TO DETERMINE FROM YOUR BID DOCUMENTS WHETHER YOU INTENDED TO BID A SEPARATE PRICE FOR THE DATA ITEMS AND, IF SO, THE PRICE INTENDED FOR THOSE ITEMS. THEREFORE, ASPR 2-406.2 WAS NOT FOR APPLICATION TO YOUR SITUATION, AND THERE WAS NO REQUIREMENT UNDER THAT PROVISION FOR THE CONTRACTING OFFICER TO CALL THE MATTER TO YOUR ATTENTION PRIOR TO THE AWARD, AS YOU CONTEND.

WITH REFERENCE TO ASPR 2-406.3(A)(2), THIS PARAGRAPH PERTAINS TO MISTAKES ALLEGED BY THE BIDDER AFTER OPENING OF BIDS AND PRIOR TO THE AWARD, WHEREAS YOUR ALLEGATION OF MISTAKE AND EXPLANATION THEREOF WERE NOT MADE TO THE CONTRACTING OFFICER UNTIL AFTER THE AWARD OF THE CONTRACT.

ACCORDINGLY, SINCE WE CANNOT CONCLUDE THAT THE ACTIONS OF THE CONTRACTING OFFICER IN REJECTING YOUR BID WERE VIOLATIVE OF THE REGULATIONS WHICH YOU CITE, YOUR PROTEST IS DENIED.