B-172907, SEP 22, 1971

B-172907, SEP 22, 1971

BID PROTEST - BID RESPONSIVENESS - ALTERATION OF BID DECISION DENYING PROTEST OF FIRE CONTROL ENGINEERING CO., AGAINST AWARD OF CONTRACT TO ANSUL COMPANY, UNDER IFB ISSUED BY FEDERAL SUPPLY SERVICE, GSA, FOR THREE AIRCRAFT CRASH TRUCKS. FIRE CONTROL WAS LOW BIDDER AS TO TWO ITEMS AND ANSUL AS TO ONE. PROTESTANT'S LOW BIDS WERE REJECTED AS NONRESPONSIVE BECAUSE OF TWO MATERIAL DEVIATIONS FROM THE IFB. THE IFB STATED WIDEBASE TIRES WERE UNACCEPTABLE AND THAT THE GASOLINE TANK WAS TO BE PLACED IN THE CAB; PEN AND INK INSERTIONS ON PROTESTANT'S TYPED BID INDICATES AN INTENTION TO SUPPLY WIDEBASE TIRES AND TO PLACE THE TANK BELOW THE CAB ALONGSIDE THE FRAME. PROCUREMENT PERSONNEL DENY HAVING MADE ANY CHANGE IN PROTESTANT'S BID. PROTESTANT CONTENDS THAT THE INSERTION CANNOT BE TAKEN AS DEVIATION FROM THE IFB BECAUSE THEY WERE NOT INITIALED. EVEN IF THIS WERE THE CASE, REJECTION WAS REQUIRED AS THE INSERTIONS MADE THE BID AMBIGUOUS AT BEST.

TO FIRE CONTROL ENGINEERING CO.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 1, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE ANSUL COMPANY UNDER INVITATION FOR BIDS (IFB) NO. FPNMH-M2-25205-A-2-19-71, ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION.

THE SUBJECT INVITATION, ISSUED ON NOVEMBER 24, 1970, SOLICITED BIDS FOR THREE AIRCRAFT CRASH TRUCKS, 4X4, IN ACCORDANCE WITH INTERIM FEDERAL SPECIFICATION KKK-T-00645E (GSA-FSS), AS AMENDED. BIDS WERE OPENED ON FEBRUARY 19, 1971, AND FIRE CONTROL WAS LOW BIDDER AS TO ITEMS 1-1 AND 1-2 AND THE ANSUL COMPANY WAS LOW AS TO ITEM 1A. HOWEVER, SINCE FIRE CONTROL HAD QUALIFIED ITS BID IN TWO MATERIAL RESPECTS ITS BID WAS REJECTED AS NONRESPONSIVE AND AWARD WAS MADE TO THE ANSUL COMPANY ON APRIL 2, 1971, FOR ALL THREE ITEMS INVOLVED.

SPECIFICALLY, PARAGRAPH 15 OF THE INVITATION STATES, IN PART, WITH RESPECT TO THE SIZE OF THE TIRES TO BE PROVIDED WITH THE VEHICLES, THAT "UNLESS SPECIFIED, WIDEBASE OR LOW-PROFILE TYPE TIRES SHALL NOT BE FURNISHED." HOWEVER, FIRE CONTROL IN ITS BID INDICATED ON THE ORIGINAL COPY OF THE BID BY PEN AND INK INSERTION THAT IT INTENDED TO FURNISH 950 X 16.5 SIZE TIRES. IT HAS BEEN SHOWN THAT THIS SIZE OF TIRE IS KNOWN IN THE TIRE INDUSTRY AS A WIDEBASE TIRE WHICH WAS SPECIFICALLY PRECLUDED BY THE TERMS OF PARAGRAPH 15 OF THE INVITATION. A SECOND DEVIATION NOTED IN THE FIRE CONTROL BID CONCERNS THE REQUIREMENT APPEARING ON PAGE 11 OF THE INVITATION THAT EACH VEHICLE BE PROVIDED WITH A FUEL TANK "MOUNTED INSIDE THE CAB." IN THIS RESPECT, A PEN AND INK INSERTION ABOVE THIS REQUIREMENT IN THE ORIGINAL COPY OF THE FIRE CONTROL BID INDICATED THAT THE FUEL TANK WOULD BE MOUNTED UNDER THE CAB AND ALONGSIDE THE FRAME.

WITH RESPECT TO THE TWO DEVIATIONS ENTERED ON THE ORIGINAL COPY OF THE FIRE CONTROL BID, IT IS REPORTED THAT THE PROHIBITION AGAINST WIDEBASE TIRES WAS NECESSARY IN ORDER TO PROVIDE ADEQUATE GROUND CLEARANCE FOR THE VEHICLES AND THE USE OF WIDEBASE TIRES WOULD PLACE THE UNDERSIDE OF THE VEHICLE MORE THAN 2 INCHES CLOSER TO THE GROUND, SINCE THE DISTANCE FROM THE OUTSIDE TO THE CENTER OF THE 950 X 16.5 TIRE IS 15.49 INCHES AS OPPOSED TO 17.77 INCHES FOR THE 900 X 16 SIZE. MOREOVER, THE REQUIREMENT WITH RESPECT TO THE LOCATION OF THE FUEL TANK WAS NECESSARY AS A SAFETY MEASURE SINCE THE CRASH TRUCKS CAN REASONABLY BE EXPECTED TO BE USED IN THE VICINITY OF AIRCRAFT ON FIRE AND A FUEL TANK LOCATED BENEATH THE VEHICLE WOULD BE MORE HAZARDOUS.

YOU CONTEND THAT THE PEN AND INK INSERTIONS ON YOUR ORIGINAL BID DID NOT APPEAR ON YOUR CARBON COPIES AND THAT, IN ANY EVENT, THE PEN AND INK INSERTIONS ON THE FIRE CONTROL ORIGINAL BID COPY WERE NOT INITIALED AND, THEREFORE, SHOULD NOT BE CONSIDERED AS NOTING DEVIATIONS TO THE REQUIRED SPECIFICATIONS. IN LINE WITH THE FOREGOING, YOU HAVE FURNISHED A LETTER FROM THE INTERNATIONAL HARVESTER COMPANY DATED APRIL 12, 1971, INDICATING THAT INTERNATIONAL HARVESTER WILL FURNISH 900 X 16, 8-PLY TIRES AND WHICH LETTER ALSO GOES ON TO STATE AS FOLLOWS:

"THE FUEL TANK ON THIS TRUCK IS MOUNTED ALONG THE FRAME, OUTSIDE AND UNDERNEATH THE CAB, RATHER THAN INSIDE THE CAB. THIS IS FOR SAFETY REASONS. THERE CAN BE NO RAW GASOLINE FUMES IN THE CAB AND ALSO IN CASE OF UPSET OR ACCIDENT, YOU ARE NOT SITTING ON TOP OF THE GASOLINE TANK INSIDE THE CAB WITH YOU. THERE HAVE BEEN MANY MANY CASES OF LOSS OF LIFE DUE TO THE FUEL TANK EXPLODING OR CATCHING FIRE INSIDE THE CAB. THIS POSSIBILITY IS GREATLY DIMINISHED WITH THE OUTSIDE MOUNTING OF THE FUEL TANK."

YOU HAVE STATED THAT NOTWITHSTANDING THE QUOTED PORTION FROM THE INTERNATIONAL HARVESTER LETTER YOU INTENDED TO PURCHASE A SUITABLE GASOLINE TANK FROM FORD OR GMC AND INSTALL IT BEHIND THE SEAT IN THE CAB. HOWEVER, THE BID MUST BE CONSIDERED AS SUBMITTED AND EXPLANATIONS SUBMITTED AFTER THE FACT MAY NOT BE UTILIZED TO MAKE A NONRESPONSIVE BID RESPONSIVE. 40 COMP. GEN. 393 (1961). FURTHER, THE PEN AND INK ADDITIONS APPEARING ON THE ORIGINAL COPY OF YOUR BID HAVE BEEN REVIEWED WITH THE PROCURING ACTIVITY PERSONNEL AND THE PROCUREMENT PERSONNEL INVOLVED DENY MAKING ANY ADDITIONS TO THE FIRE CONTROL BID. THE FACT THAT YOU MAY HAVE BEEN ERRONEOUSLY ADVISED BY THE BUYER IN THIS PROCUREMENT THAT THE HANDWRITTEN INSERTIONS TO THE SPECIFICATIONS IN YOUR ORIGINAL BID SHOULD HAVE BEEN INITIALED DOES NOT OPERATE TO NEGATE THE EFFECT OF THESE HANDWRITTEN INSERTIONS. 49 COMP. GEN. 541 (1970). IN FACT, AT ITS BEST, THESE INSERTIONS CREATED AN AMBIGUITY ON THE FACE OF YOUR BID REQUIRING ITS REJECTION AS NONRESPONSIVE.

BASED ON THE FOREGOING, WE CANNOT CONCLUDE THAT THE REJECTION OF THE FIRE CONTROL BID AS NONRESPONSIVE WAS IMPROPER. IT IS A WELL-SETTLED RULE THAT A BID WHICH TAKES EXCEPTION TO AN INVITATION PROVISION HAVING A MATERIAL EFFECT ON PRICE OR QUALITY IS NONRESPONSIVE AND, THEREFORE, MUST BE REJECTED. 43 COMP. GEN. 209 (1963); B-166656, JUNE 9, 1969.

IT IS REPORTED, AS YOU CONTEND, THAT A PLANT FACILITIES SURVEY HAD BEEN INITIATED FOR THE PURPOSE OF DETERMINING WHETHER FIRE CONTROL HAD THE CAPACITY TO PERFORM SHOULD IT BE AWARDED THE CONTRACT. THAT SURVEY WAS REQUESTED, HOWEVER, PRIOR TO THE TIME THAT THE HANDWRITTEN INSERTIONS ON PAGE 11 OF THE FIRE CONTROL BID WERE NOTED AND, IN THIS REGARD, IT IS REPORTED THAT THE BUYER IN CHARGE OF THE PROCUREMENT HAD BEEN WORKING WITH COPIES OF THE BID SUBMITTED RATHER THAN THE ORIGINAL COPY WHICH HAD THE DEVIATIONS NOTED. ALSO, YOU ARE CORRECT IN YOUR ASSERTION THAT YOU SHOULD HAVE BEEN ALLOWED THE OPPORTUNITY TO EXAMINE YOUR BID INVITATION UPON YOUR REQUEST. IN THIS RESPECT, GSA REPORTS THAT IT IS STANDARD PROCEDURE AFTER BID OPENING TO LEAVE A COPY OF EACH BID IN THE BID OPENING ROOM FOR PUBLIC REVIEW UNTIL AFTER BIDS HAVE BEEN TABULATED. WHEN THE BIDS ARE TABULATED, THE BID COPIES ARE WITHDRAWN AND AN UNMARKED COPY OF THE BID TABULATION IS PLACED ON FILE FOR PUBLIC REVIEW. AFTER AWARD, THE UNMARKED COPY OF THE TABULATION IS REPLACED WITH A MARKED COPY TO SHOW THE FIRMS TO WHICH AWARDS HAVE BEEN MADE AND THAT PROCEDURE WAS FOLLOWED IN THIS PROCUREMENT. GSA REGRETS THAT THE BUYER FURNISHED YOU ERRONEOUS ADVICE IN THIS REGARD AND DID NOT MAKE YOUR BID AVAILABLE UPON YOUR REQUEST. ATTENTION HAS BEEN DIRECTED TO THE ERROR COMMITTED BY THE BUYER IN THIS INSTANCE AND APPROPRIATE INSTRUCTIONS HAVE BEEN ISSUED TO AVOID RECURRENCES. THE ERRORS ADMITTED BY GSA CONSTITUTE A MATTER OF FORM RATHER THAN A MATTER OF SUBSTANCE AND DO NOT OPERATE TO INVALIDATE THE AWARD MADE UNDER THIS PROCUREMENT.

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, YOUR PROTEST IS DENIED.