B-173129, DEC 6, 1971, 51 COMP GEN 352

B-173129, DEC 6, 1971, 51 COMP GEN 352

CONTRACTS - SPECIFICATIONS - TESTS - FIRST ARTICLE - WAIVER ELIGIBILITY MISSTATED THE LOW BIDDER WHO DOES NOT QUALIFY FOR WAIVER OF FIRST ARTICLE REQUIREMENTS OFFERED TO PREVIOUS SUPPLIERS OF FUELING AT SEA PROBES AND RECEIVERS BUT INADVERTENTLY ENTERED BID PRICES IN THE WAIVER SPACE AND INSERTED DASHES IN THE AREA RESERVED TO BIDDERS THAT WERE NOT ELIGIBLE FOR FIRST ARTICLE WAIVER HAS NOT SUBMITTED A NONRESPONSIVE BID PER SE AS DASHES HAVE NO FIRM MEANING APART FROM THE ENTIRE CONTEXT IN WHICH USED AND AN EXAMINATION OF THE ENTIRE BID DEMONSTRATES THE ENTRIES WERE ERRONEOUS AND THAT THE INTENT WAS TO BID ON THE BASIS OF FIRST ARTICLE CONTRACTOR TESTING AND, ALTHOUGH, NOT FOR CORRECTION AS A BID MISTAKE, THE ERROR IS SUPPORTED BY THE FACT THE LOWER BIDDER DID NOT IDENTIFY PRIOR CONTRACTS UNDER WHICH FIRST ARTICLES ON PRODUCTION SAMPLES HAD BEEN FURNISHED OR INDICATE DELIVERY TIME ADVANCEMENT IN THE EVENT OF WAIVER, AND INSERTED SUBITEMS NOT APPLICABLE TO FIRST ARTICLE WAIVER. CONTRACTS - SPECIFICATIONS - TESTS - GOVERNMENT RESPONSIBLE - COST AS AN EVALUATION FACTOR SINCE THE COST OF GOVERNMENT TESTING UNDER AN INVITATION FOR BIDS TO FURNISH FUELING AT SEA PROBES AND RECEIVERS IS INSIGNIFICANT AND CANNOT BE REALISTICALLY ESTIMATED AS AN EVALUATION FACTOR, PARAGRAPH 1 1903(A)(III) OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH PROVIDES THAT IF THE GOVERNMENT IS TO BE RESPONSIBLE FOR FIRST ARTICLE TESTING, THE COST OF SUCH TESTING SHALL BE AN EVALUATION FACTOR "TO THE EXTENT THAT SUCH COST CAN BE REALISTICALLY ESTIMATED," IS NOT APPLICABLE. CONTRACTS - SPECIFICATIONS - DRAWINGS - AMENDMENT IDENTIFICATION DRAWINGS FORWARDED TO BIDDERS WITH AMENDMENTS THAT WERE ACKNOWLEDGED WERE INCORPORATED BY REFERENCE INTO THE INVITATION FOR BIDS (IFB) AND, THEREFORE, THE SUBMISSION OF A BID WITHOUT INQUIRY AS TO THE DRAWINGS IS INCONSISTENT WITH AN ALLEGATION OF NONRECEIPT AT A LATER DATE SINCE THE TIME FOR AIRING AN ISSUE OF THIS NATURE IS PRIOR TO BID SUBMISSION. ANY EVENT, THE NONRECEIPT OF THE DRAWINGS DOES NOT PRESENT A COGENT REASON FOR THE CANCELLATION OF THE IFB AS THE NONRECEIPT HAS NO BEARING ON A BIDDER'S OBLIGATION TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS.

TO FRIED, FRANK, HARRIS, SHRIVER & KAMPELMAN, DECEMBER 6, 1971:

WE REFER TO YOUR LETTER OF OCTOBER 26, 1971, AND PRIOR CORRESPONDENCE PROTESTING ON BEHALF OF THE FUELING DIVISION OF PARKER HANNIFIN CORPORATION (PARKER) AGAINST THE AWARD OF A CONTRACT TO EITHER SUNNYHILL MANUFACTURING COMPANY (SUNNYHILL) OR ABA INDUSTRIES, INC. (ABA), UNDER INVITATION FOR BIDS N00024-71-B-7376, ISSUED BY THE NAVAL SHIP SYSTEMS COMMAND (NSSC), WASHINGTON, D.C. BY LETTER DATED JULY 30, 1971, REAVIS, POGUE, NEAL & ROSE REPLIED ON BEHALF OF SUNNYHILL, AND BY LETTER DATED AUGUST 30, 1971, AND PRIOR CORRESPONDENCE, ABA HAS RESPONDED.

AFTER A CONSIDERATION OF THE SUBMISSIONS OF THE PARTIES AND THE ADMINISTRATIVE REPORTS FURNISHED OUR OFFICE BY LETTERS, WITH ENCLOSURES, DATED JULY 7 AND SEPTEMBER 22, 1971, FROM THE DEPUTY COMMANDER FOR CONTRACTS, NSSC, AND LETTERS DATED OCTOBER 21, NOVEMBER 12 AND 17, 1971, FROM THE ASSISTANT COUNSEL, NSSC, WE MUST DENY YOUR PROTEST AGAINST THE PROPOSED AWARD OF A CONTRACT TO SUNNYHILL. THE ISSUES, CIRCUMSTANCES AND REASONS REQUIRING THIS CONCLUSION ARE TREATED BELOW.

THE SUBJECT INVITATION REQUESTED BIDS FOR FURNISHING 98 FUELING AT SEA PROBES WITH TROLLEYS (ITEM 0001) AND 65 FUELING AT SEA RECEIVERS WITH ASSOCIATED DATA AND AN OPTION FOR REPAIR PARTS. REQUIREMENTS FOR AT SEA TESTING BY THE NAVY ARE IMPOSED. IN ADDITION, SECTION "J" OF THE INVITATION CONTAINS THE CLAUSE ENTITLED "FIRST ARTICLE APPROVAL - CONTRACTOR TESTING (1969 SEP)" PRESCRIBED BY PARAGRAPH 7-104.55(A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). PARAGRAPH (B) OF THE CLAUSE REQUIRES THE FURNISHING OF A FIRST ARTICLE APPROVAL TEST REPORT WITHIN 150 CALENDAR DAYS FROM THE DATE OF CONTRACT. SECTION "D" OF THE INVITATION PROVIDED FOR GOVERNMENT WAIVER OF FIRST ARTICLE REQUIREMENTS FOR PREVIOUS SUPPLIERS. PARAGRAPH (A) OF SECTION "D" LISTED PARKER AS THE ONLY PROSPECTIVE SOURCE ELIGIBLE FOR WAIVER AND STATED THAT THE GOVERNMENT WILL WAIVE THE FIRST ARTICLE REQUIREMENTS AND ASSOCIATED DATA ITEMS FOR THE OFFEROR LISTED "BUT WILL NOT WAIVE SAID REQUIREMENTS FOR ANY OTHER OFFEROR." WITH RESPECT TO THE METHOD OF BIDDING, PARAGRAPH (B) THEREOF ADVISED THAT:

(B) OFFERORS) LISTED ABOVE MAY OFFER ON THE BASIS OF OFFER A (FIRST ARTICLE REQUIREMENTS AND SAID DATA ITEMS WAIVED AND EXCLUDED), OR OFFER B (FIRST ARTICLE REQUIREMENTS AND SAID DATA ITEMS NOT WAIVED BUT INCLUDED), OR BOTH OFFER A AND OFFER B. OFFERORS) NOT LISTED ABOVE SHOULD OFFER ON THE BASIS OF OFFER B ONLY AS OFFERS BY NON-LISTED OFFERORS) ON THE BASIS OF OFFER A WILL NOT BE CONSIDERED.

OF THE FIVE SOURCES RESPONDING TO THE INVITATION BY THE BID OPENING DATE, MAY 17, 1971, SUNNYHILL SUBMITTED THE LOW BID IN THE AMOUNT OF $279,440. ABA BID $290,880, AND PARKER BID $295,045.

BOTH PARKER AND ABA QUESTION WHETHER SUNNYHILL'S BID IS RESPONSIVE ON THE GROUND THAT SUNNYHILL BID ON AN OFFER "A" BASIS (WAIVER OF FIRST ARTICLE CONTRACTOR TESTING), WHICH WAS AVAILABLE ONLY TO PRIOR PRODUCERS. THE MATERIAL PORTIONS OF THE SCHEDULE OF SUPPLIES AND SERVICES, SECTION "E," TOGETHER WITH SUNNYHILL'S PRICING RESPONSES THERETO, ARE AS FOLLOWS:

CHART OMITTED

(WE HAVE BEEN ADVISED THAT NAVY WILL TAKE APPROPRIATE STEPS TO RESOLVE THE APPARENT DISCREPANCIES IN THE UNIT PRICES AND EXTENDED PRICES FOR ITEMS 0001AA AND 0002AA.)

SUBSEQUENT TO BID OPENING THE CONTRACTING AGENCY CONTACTED SUNNYHILL AND SUGGESTED THAT ITS BID WAS NONRESPONSIVE BECAUSE ITS RESPONSE TO ITEMS 0001 AND 0002 INDICATED THAT IT BID ON AN OFFER "A" BASIS. BY LETTER DATED MAY 21, 1971, SUNNYHILL ADVISED THAT ITS INTENT WAS TO BID ON AN OFFER "B" BASIS, AS DEMONSTRATED BY AN EXAMINATION OF ITS PRICING RESPONSES, BUT THAT IN THE HASTE OF PREPARING ITS BID, DUE TO THE LATE RECEIPT OF DRAWINGS, "SUMMARY PRICES WERE INADVERTENTLY SHOWN UNDER OFFER A." ALSO, BY LETTER DATED JUNE 4, 1971, SUNNYHILL SUBMITTED QUOTATIONS RECEIVED FROM SUPPLIERS TO VERIFY ITS INTENT. IT IS NOW THE COMMAND'S POSITION THAT SUNNYHILL'S BID IS RESPONSIVE.

THE EVIDENCE OFFERED BY SUNNYHILL SUBSEQUENT TO BID OPENING TO VERIFY ITS INTENT MAY NOT, OF COURSE, BE CONSIDERED. FOR, IN RESOLVING QUESTIONS OF RESPONSIVENESS, A BIDDER'S INTENTION MUST BE DETERMINED FROM THE BID ITSELF. SEE 45 COMP. GEN. 221, 222 (1965), AND 42 ID. 502, 504 (1963). FOCUSING ON THE FACT THAT SUNNYHILL INSERTED PRICES FOR BOTH ITEMS 0001 AND 0002 OPPOSITE OFFER "A" AND DASHES OPPOSITE OFFER "B," PARKER ASSERTS THAT THE PRICES INDICATE AN OFFER "A" BID AND THE DASHES CLEARLY INDICATE A "NO BID" FOR OFFER "B," CITING 48 COMP. GEN. 757 (1969). THE CITED CASE INVOLVED THE QUESTION OF WHETHER A BID WAS NONRESPONSIVE BY REASON OF A BIDDER'S INSERTION OF DASHES OPPOSITE TWO DATA ITEMS IN THE BIDDER'S SCHEDULE, RATHER THAN PRICES OR A CLEAR STATEMENT THAT NO CHARGE WAS INTENDED FOR THE ITEMS. IT WAS CONTENDED THAT BY INSERTING THE DASHES, THE BIDDER HAD THE OPTION TO CLAIM IT DID NOT INTEND TO BE BOUND TO FURNISH THE ITEMS, OR THAT IT MEANT TO FURNISH THEM AT NO CHARGE, OR THAT IT MADE A MISTAKE AND INTENDED TO CHARGE FOR THE ITEMS. AFTER CONCLUDING THAT UNDER THE TERMS OF THE INVITATION THE BIDDER WAS BOUND TO FURNISH THE DATA ITEMS, WE ADDRESSED THE QUESTION OF THE MEANING OF THE DASHES:

ABSENT A SPECIFIC REQUIREMENT THAT IF AN ITEM IS TO BE FURNISHED AT NO COST IT SHOULD BE (SO) STATED *** , WE DO NOT THINK THAT THE RENICK BID WAS NONRESPONSIVE PER SE BECAUSE OF THE " " NEXT TO THE DATA ITEMS.

THE ENTRY OF A " " IS CERTAINLY LESS CLEAR AN INDICATION OF INTENT THAN EITHER A DOLLAR PRICE ENTRY OR A STATEMENT LIKE "NO CHARGE." BUT IT IS A MORE MEANINGFUL EXPRESSION OF INTENT THAN A MERE BLANK SPACE. THE " ," IT SEEMS TO US, SHOWS TWO THINGS. FIRST, THE BIDDER WAS AWARE OF THE NECESSITY TO INSERT SOMETHING NEXT TO THE ITEM; IN OTHER WORDS, THE BIDDER HAD NOT OVERLOOKED THE ITEM. SECOND, AFTER CONSIDERING THE MATTER, THE BIDDER DECIDED NOT TO INSERT A PRICE FOR THE ITEM. THE AFFIRMATIVE COROLLARY IS THAT THE BIDDER OBLIGATED ITSELF TO FURNISH THE DATA WITHOUT COST TO THE GOVERNMENT. THEREFORE, WHILE THERE IS NO EXPLICIT INDICATION THAT THE DATA WAS TO BE SUPPLIED AT NO COST, THE BIDDER'S INTENT TO DO SO WAS CLEAR AND THE FAILURE TO STATE THIS INTENT IN A MORE POSITIVE FASHION DID NOT RENDER THE BID NONRESPONSIVE.

WE AGREE WITH COUNSEL FOR SUNNYHILL'S REJOINDER THAT THE FACTUAL DIFFERENCES BETWEEN THAT CASE AND THIS ONE ARE CRITICAL - AS ARE ALL FACTUAL VARIATIONS WHEN QUESTIONS OF BID RESPONSIVENESS ARE INVOLVED. ORDER TO EQUATE THE DASHES IN SUNNYHILL'S BID WITH A "NO BID" ON THE FAITH OF 48 COMP. GEN., SUPRA, AS YOU WOULD HAVE US DO, IT WOULD BE NECESSARY TO IGNORE THE OTHER ENTRIES MADE ON SUNNYHILL'S BID. WE MUST NOTE THAT THE CITED CASE MAKES IT CLEAR THAT THE CONCLUSIONS REACHED THERE WERE BASED ON A REVIEW AND CONSIDERATION OF THE ENTIRE BID. MOREOVER, AS THE QUOTED PORTIONS OF THE CITED CASE AMPLY DEMONSTRATE, DASHES HAVE NO FIRM MEANING APART FROM THE CONTEXT IN WHICH THEY ARE USED - THE ENTIRE CONTEXT.

COUNSEL FOR SUNNYHILL URGES THAT AN EXAMINATION OF THE ENTIRE BID DEMONSTRATES THAT THE ENTRIES ARE AN OBVIOUS CLERICAL ERROR. IN THIS CONNECTION, COUNSEL SUGGESTS THAT SUNNYHILL INVERTED THE DASHES AND PRICES IN RESPONDING TO ITEMS 0001 AND 0002. AS YOU POINT OUT, WE HAVE HELD IN NUMEROUS CASES THAT THE MISTAKE IN BID CORRECTION PROCEDURES MAY NOT BE USED TO RENDER RESPONSIVE A BID WHICH IS OTHERWISE NONRESPONSIVE, CITING, INTER ALIA, 40 COMP. GEN. 432 (1961); 38 ID. 819 (1959). STILL, THE IDENTIFICATION OF A MISTAKE DOES NOT END THE INQUIRY INTO THE RESPONSIVENESS OF SUNNYHILL'S BID. GIVEN THE FACT OF THE MISTAKE, THE QUESTION REMAINS WHETHER IT CAN BE SAID THAT SUNNYHILL'S BID NEVERTHELESS EVIDENCES A LEGALLY ENFORCEABLE INTENT TO FURNISH ITEMS 0001 AND 0002 WITH FIRST ARTICLE CONTRACTOR TESTING.

COUNSEL FOR SUNNYHILL HAS ALSO DRAWN TO OUR ATTENTION A NUMBER OF DECISIONS OF OUR OFFICE WHICH HAVE RECOGNIZED THE LEGAL ENFORCEABILITY OF A BIDDER'S INTENT AND HENCE THE RESPONSIVENESS OF ITS BID, DESPITE THE EXISTENCE OF AN ERROR OR OMISSION. OF THESE CASES, B-157429, AUGUST 19, 1965, IS INSTRUCTIVE.

IN THAT CASE, THE GOVERNMENT PRINTING OFFICE ISSUED A PAR BID INVITATION FOR VARIOUS CATEGORIES AND QUANTITIES OF BUSINESS FORMS. THE INVITATION PROVIDED PAR PRICES FOR EACH OF THE CATEGORIES AND QUANTITIES THEREIN, AND BIDDERS WERE REQUIRED TO ENTER EITHER A "MINUS PERCENTAGE," OR "NO PERCENTAGE," A "PLUS PERCENTAGE," OR A "NO BID" IN RESPONSE TO EACH OF THE CATEGORIES AND QUANTITIES THEREIN. THE BID IN QUESTION FAILED TO ENTER EITHER A PLUS OR MINUS SIGN WITH ITS PERCENTAGE BID FIGURES TO INDICATE WHETHER THE PAR PRICES WOULD BE INCREASED OR DECREASED BY THE CONTRACTING AGENCY'S CONCLUSION THAT THIS WAS INDEED THE BIDDER'S INTENT WAS BUTTRESSED BY THE FACTS THAT IT BID MINUS PERCENTAGES ON A CURRENT CONTRACT; THAT IT WAS NORMAL PRACTICE FOR ALL BIDDERS TO INCREASE PERCENTAGES PROGRESSIVELY AS QUANTITIES INCREASED, THEREBY INDICATING GREATER DISCOUNTS FOR GREATER QUANTITIES; THAT HAD THE BIDDER INTENDED TO INCREASE THE PAR PRICES BY PLUS PERCENTAGES, THE LARGER PERCENTAGES WOULD NORMALLY BE APPLIED TO THE SMALLER QUANTITIES AND THE LOWER PERCENTAGES APPLIED TO THE HIGHER QUANTITIES; THAT ALL PERCENTAGES INCREASED PROGRESSIVELY FROM THE LOWER QUANTITIES TO THE HIGHEST QUANTITIES; AND THAT UNLESS THE PERCENTAGES WERE IN FACT INTENDED TO BE MINUS, THE PRICES WOULD BE SO EXCESSIVE THAT THE BIDDER COULD NOT HAVE EXPECTED TO RECEIVE AN ORDER.

UPON AN EXAMINATION OF THE BID, WE CONCLUDED THAT:

*** THE OMISSION OF THE MINUS SIGNS DID NOT AFFECT THE RESPONSIVENESS OF ITS BID SINCE THE BIDDER SUBMITTED PRICES BASED ON A PERCENTAGE OF THE PAR PRICES AND OTHERWISE COMPLIED WITH THE PROPOSAL REQUIREMENTS QUOTED ABOVE. THIS APPEARS TO BE A CASE WHERE THE BID AS SUBMITTED IS SUSCEPTIBLE OF NO OTHER INTERPRETATION THAN ON A MINUS PERCENTAGE BASIS. TO HOLD OTHERWISE WOULD CONVERT AN OBVIOUS CLERICAL ERROR TO ONE OF NONRESPONSIVENESS PATENTLY INCONSISTENT WITH THE REPORTED FACTS. GENERALLY, OBVIOUS ERRORS IN BID ARE FOR CORRECTION WHERE THERE IS NO DOUBT THAT THE ERROR WAS MADE AS ALLEGED. HERE, THE CONSISTENCY OF THE BIDDING PATTERN FOLLOWED BY LEWIS LOGICALLY ESTABLISHES BOTH THE EXISTENCE OF THE ERROR AND THE BID ACTUALLY INTENDED. CF. 38 COMP. GEN. 177; SEE 41 COMP. GEN. 160; ID. 192; ID. 469.

IN OTHER WORDS, IN THE CONTEXT OF THIS CASE SUNNYHILL'S BID IS RESPONSIVE IF IT CAN BE SAID THAT THE ONLY REASONABLE CONCLUSION TO BE DRAWN FROM AN EXAMINATION OF ITS BID IS THAT IT INTENDED TO BID ON THE BASIS OF FIRST ARTICLE CONTRACTOR TESTING. CF. 46 COMP. GEN. 77 (1966). IN OUR VIEW, THIS IS THE ONLY CONCLUSION TO BE DRAWN.

CONSISTENT WITH AN INTENT TO BID ON A NONWAIVER OF FIRST ARTICLE TESTING BASIS, SUNNYHILL DID NOT RESPOND TO THE REQUEST OF PARAGRAPH (C) OF SECTION "D" THAT OFFER "A" BIDDERS IDENTIFY PRIOR CONTRACTS UNDER WHICH FIRST ARTICLES OR PRODUCTION SAMPLES HAD BEEN FURNISHED, NOR DID IT INDICATE AN ADVANCEMENT OF THE STATED DELIVERY TIME IN THE EVENT OF A WAIVER OF FIRST ARTICLE TESTING AND THE RELATED DATA ITEMS, AS PARAGRAPH (F) REQUESTED THOSE BIDDING ON AN OFFER "A" BASIS TO DO. WHILE NOT DECISIVE, THE FAILURE TO RESPOND TO THESE PARAGRAPHS IS CERTAINLY EVIDENCE OF A "BIDDING PATTERN." MOST IMPORTANT, OF COURSE, ARE SUNNYHILL'S OTHER PRICING RESPONSES. AS COUNSEL FOR SUNNYHILL NOTES

*** SUNNYHILL INSERTED PRICES FOR SIX SEPARATE ITEMS NOT APPLICABLE IN THE CASE OF AN OFFER A BID:

(A) ITEMS 0001AB AND 0002AB ARE THE FIRST ARTICLES OF PROBES AND RECEIVERS, RESPECTIVELY.

(B) ITEMS 0001AC AND 0002AC ARE THE FIRST ARTICLE TEST REPORTS FOR THE PROBES AND RECEIVERS RESPECTIVELY.

(C) ITEMS 0001AA AND 0002AA ARE THE REMAINING 97 AND 64 PIECES TO BE SUPPLIED IN THE RESPECTIVE CATEGORIES AFTER APPROVAL OF THE FIRST ARTICLE TEST REPORTS.

ALTHOUGH PRICES FOR THE SUBITEMS DISCUSSED ABOVE WERE NOT REQUIRED, SUNNYHILL'S RESPONSES ARE NOT TO BE IGNORED AND THEY FURTHER EVIDENCE AN INTENT TO BID ON THE BASIS OF NONWAIVER OF FIRST ARTICLE CONTRACTOR TESTING. THE SUBSTANTIALLY HIGHER UNIT PRICES LISTED FOR ITEMS 0001AB AND 0002AB, THE FIRST ARTICLES, REFLECT THE INCLUSION OF CONTRACTOR COSTS ASSOCIATED WITH FIRST ARTICLE TESTING. SIGNIFICANTLY, THE TOTAL OF THE PRICES ENTERED IN THE "AMOUNT" COLUMN FOR ITEMS 0001AA AND 0001AB, 0002AA AND 0002AB EQUALS IN EACH INSTANCE THE PRICE ENTERED, ALBEIT ERRONEOUSLY, IN THE "AMOUNT" COLUMN ADJACENT TO OFFER "A." MOREOVER, THE INFORMATION DATA COSTS IDENTIFIED BY SUNNYHILL IN RESPONSE TO ITEMS 0001AC AND 0002AC, BOTH IDENTIFIED IN THE SCHEDULE AS "DATA (FIRST ARTICLE TEST REPORT)" ARE CONSISTENT ONLY WITH A BID ON AN OFFER "B" BASIS.

TAKEN TOGETHER SUNNYHILL'S RESPONSES CONSTITUTE, AS COUNSEL FOR SUNNYHILL URGES, "CLEAR, UNEQUIVOCAL EVIDENCE" OF AN OFFER "B," THE VALIDITY OF WHICH, WE MIGHT ADD, IS REINFORCED BY THE ABSURDITY OF ATTEMPTING TO BID ON AN OFFER "A" BASIS.

YOU NEXT CONTEND THAT THE INVITATION IS DEFECTIVE BY REASON OF THE NAVY'S FAILURE TO INCLUDE AS AN EVALUATION FACTOR THE COSTS TO THE GOVERNMENT OF SHIPBOARD TESTING OF ITEMS 0001 AND 0002 REQUIRED BY THE SPECIFICATION. YOU ASSERT THAT THESE COSTS WOULD BE "IN THE NEIGHBORHOOD OF $25,000," ENOUGH, IF CONSIDERED, TO DISPLACE SUNNYHILL'S BID. ASPR 1-1903(A)(III) PROVIDES THAT IF THE GOVERNMENT IS TO BE RESPONSIBLE FOR FIRST ARTICLE TESTING, THE COST OF SUCH TESTING SHALL BE AN EVALUATION FACTOR "TO THE EXTENT THAT SUCH COST CAN BE REALISTICALLY ESTIMATED." WE FIND THE REPLY OF THE DEPUTY COMMANDER FOR CONTRACTS, IN HIS LETTER OF JULY 7, 1971, TO BE PERSUASIVE - NOR SHALL WE BE LONG IN ANSWERING PARKER'S ATTEMPT TO MAKE ITS PRICE LOW BY INTERJECTING AN "EVALUATION FACTOR" NOT CONTAINED IN THE SOLICITATION AND, ACCORDINGLY, NOT FOR CONSIDERATION IN EVALUATING BIDS. PARKER POINTS OUT *** THAT PARAGRAPH 4.4.6 OF SHIPS-P-5543, 4 JANUARY 1971, THE GOVERNING SPECIFICATION, REQUIRES THE NAVY TO CONDUCT, AT NAVY EXPENSE, SHIPBOARD TESTS OF FIRST ARTICLE PROBES AND RECEIVERS. *** PARKER NOTES THAT, SINCE THE EQUIPMENTS UNDER PROCUREMENT ARE FOR SHIP TO- SHIP REFUELING AT SEA, TWO SHIPS WILL BE REQUIRED FOR THIS TESTING AND STATES PARKER'S EXPERIENCE, IN TESTS RUN ON ITS EQUIPMENTS, THAT THE SHIPS MUST BE ASSIGNED FOR A PERIOD OF AT LEAST 2 OR 3 DAYS IN ORDER TO SET UP AND COORDINATE THE EQUIPMENT AND MAKE PREPARATIONS FOR THE TESTS. ***

CONTRARY TO PARKER'S CONTENTION, THE AT SEA TESTS WOULD BE CONDUCTED DURING NORMAL FLEET OPERATIONS AND WOULD NOT REQUIRE THE ASSIGNMENT OF TWO SHIPS SOLELY FOR THE PURPOSE OF THE TEST. IN THIS SITUATION, THIS COMMAND CONSIDERS THAT THE COST OF THIS TESTING IS INSIGNIFICANT AND CANNOT BE REALISTICALLY ESTIMATED AND SO WAS PROPERLY NOT CONSIDERED FOR EVALUATION PURPOSES. THUS, THE IFB, PROPERLY IN THIS COMMAND'S OPINION, DOES NOT SET FORTH AN EVALUATION FACTOR FOR SUCH COSTS. CLEARLY THEN THEY CANNOT BE CONSIDERED IN EVALUATING BIDS UNDER THE IFB. IN THIS CONNECTION WE REFER TO YOUR OFFICE'S DECISIONS B-156582, 16 JULY 1965; 45 COMP. GEN. 433, 435 (1966); 47 COMP. GEN. 233, 235 (1967); B-164694, 31 OCTOBER 1968.

WE NOTE FURTHER THAT YOU HAVE MADE NO ATTEMPT TO EXPLAIN THE DERIVATION OF THE $25,000 ESTIMATE. YOU HAVE, HOWEVER, REFERRED TO THE FACT THAT UNDER A PRIOR PROCUREMENT OF THE ITEM, A $5,800 EVALUATION FACTOR FOR THE COST OF GOVERNMENT TESTING WAS INCLUDED AND YOU HAVE ALLEGED THAT TESTING REQUIREMENTS IDENTICAL TO THOSE CONTAINED IN THE INSTANT INVITATION WERE THERE IMPOSED. BY LETTER, WITH ENCLOSURE, OF NOVEMBER 12, 1971, THE ASSISTANT COUNSEL, NSSC, HAS STATED THAT NO SIMILAR FACTOR WAS INCLUDED IN THE INSTANT SOLICITATION BECAUSE UNDER THE PRIOR SOLICITATION THE GOVERNMENT CONDUCTED THE FIRST ARTICLE TESTS WHILE IN THIS PROCUREMENT THE CONTRACTOR WILL BE CONDUCTING THE TESTS. IN ANY EVENT, ASSUMING THAT A $5,800 EVALUATION FACTOR SHOULD HAVE BEEN INCLUDED IN THE INVITATION, ITS OMISSION WOULD NOT CONSTITUE A COGENT OR COMPELLING REASON TO CANCEL BECAUSE THAT AMOUNT WOULD NOT HAVE BEEN SUFFICIENT TO DISPLACE THE LOW BID OF SUNNYHILL. CF. B-170610, FEBRUARY 9, 1971.

YOU HAVE ALSO RAISED A NUMBER OF ASSERTED DEFICIENCIES IN THE SPECIFICATIONS, WHICH YOU CONTEND REQUIRE CANCELLATION AND READVERTISEMENT. YOU HAVE ALSO QUESTIONED WHETHER THE SPECIFICATIONS AND DRAWINGS WERE AVAILABLE TO ALL PARTIES.

WE FIND THESE ISSUES TO BE WITHOUT MERIT. THE DEPUTY COMMANDER FOR CONTRACTS IN HIS LETTER OF SEPTEMBER 22, 1971, HAS APTLY LABELED YOUR OBJECTIONS "BELATED CHARGES." WE HAVE RECOGNIZED IN NUMEROUS CASES THAT THE TIME FOR AIRING ISSUES OF THIS NATURE IS PRIOR TO THE SUBMISSION OF BIDS. FOR EXAMPLE, SEE 48 COMP. GEN., SUPRA; B-156825, JULY 26, 1965; B- 156025, MAY 4, 1965; B-151355, JUNE 25, 1963. (WE MIGHT ADD THAT THIS APPLIES WITH EQUAL VIGOR TO QUESTIONS CONCERNING THE PROPRIETY OF THE PROPOSED METHOD OF BID EVALUATION.)

WE NOTE THAT AMENDMENTS 0001 AND 0002 TO THE INVITATION FORWARDED TO THE BIDDERS DRAWINGS, WHICH THE DEPUTY COMMANDER FOR CONTRACTS IN HIS LETTER OF SEPTEMBER 22, 1971, TERMS THE "COMPLETE SET OF REQUIRED BID DRAWINGS." THESE DRAWINGS WERE INCORPORATED BY REFERENCE INTO THE INVITATION BY SECTION "F" OF THE INVITATION. SIGNIFICANTLY, BOTH SUNNYHILL AND ABA ACKNOWLEDGED RECEIPT OF AMENDMENTS 0001 AND 0002, AND NEITHER HAS RAISED ANY QUESTION. WHILE YOU ASSERT THAT PARKER DID NOT RECEIVE ALL OF THE DRAWINGS, THE ABOVE AMENDMENTS WERE ALSO ACKNOWLEDGED BY PARKER, AND YOUR CRITICISMS OF THE SPECIFICATIONS INDICATE AN ACUTE AWARENESS OF WHAT WAS REQUIRED. MOREOVER, THE STATEMENT WHICH YOU SUBMITTED FROM ANOTHER BIDDER ON THIS PROCUREMENT THAT TO THE BEST OF ITS KNOWLEDGE IT DID NOT RECEIVE DRAWING NO. F61F1463, REVISION "D," "IN ITS BID PACKAGE" COULD BE EXPLAINED BY THE FACT THAT THE DRAWING IN QUESTION WAS SENT BY AMENDMENT. THE SUBMISSION OF A BID WITHOUT INQUIRY IS CERTAINLY INCONSISTENT WITH ALLEGED NONRECEIPT OF DRAWINGS AT A LATER STAGE. IN ANY EVENT, NONRECEIPT WOULD NOT PRESENT A COGENT REASON FOR IFB CANCELLATION SINCE IT WOULD NOT BEAR ON THE BIDDER'S OBLIGATION TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS. CF. B-169838, B-169839, JULY 28, 1970.

INSOFAR AS THE DRAWINGS, WHICH, AS YOU POINT OUT, ARE ERRONEOUSLY IDENTIFIED IN SECTION "F" ARE CONCERNED, SUCH ERRONEOUS IDENTIFICATION LIKEWISE DOES NOT IMPAIR THE SUCCESSFUL BIDDER'S OBLIGATION TO PERFORM IN ACCORDANCE WITH THE REQUIREMENTS OF THE SPECIFICATIONS. IN THIS CONNECTION, BY LETTERS DATED NOVEMBER 12 AND 17, 1971, THE ASSISTANT COUNSEL, NSSC, HAS CONFIRMED THAT THE DRAWINGS ARE CORRECTLY IDENTIFIED ON THE ASSEMBLY DRAWINGS.

WE HAVE ALSO REVIEWED THE CONTRACTING OFFICER'S DETERMINATION THAT SUNNYHILL IS A RESPONSIBLE PROSPECTIVE CONTRACTOR IN LIGHT OF YOUR GENERAL ALLEGATION TO THE CONTRARY AND WE FIND NO BASIS TO INTERPOSE A LEGAL OBJECTION TO THAT DETERMINATION.