B-173327, JUL 26, 1971

B-173327: Jul 26, 1971

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

BECAUSE A FACTOR OF NOT LESS THAN 1.3 WAS REQUIRED BETWEEN THE CROSS SECTIONAL AREA OF THE SUCTION CUPS AND THE CROSS SECTIONAL AREA OF THE PUMP DISCHARGE. PROTESTANT'S OFFER OF PIPES WHICH CALCULATED TO A FACTOR OF 1.2656 WAS PROPERLY REJECTED. WHERE THE FIGURE IS DESIGNATED AS A MINIMUM RATIO FACTOR. BLACKBURN & SMITH: REFERENCE IS MADE TO YOUR LETTER OF JUNE 16. WENT ON TO STATE: " *** THE FOREGOING ARE MINIMUM REQUIREMENTS FOR A DREDGE HAVING A 14- INCH DIAMETER DISCHARGE. DREDGES EQUIPPED WITH LARGER PUMPS AND DISCHARGES SHALL HAVE THE CROSS SECTIONAL AREA OF THE SUCTION PIPE GREATER THAN THE CROSS SECTIONAL AREA OF THE PUMP DISCHARGE BY A FACTOR OF NOT LESS THAN 1.3. *** " THE BID FORM SUBMITTED BY CARTER STATED THAT THE DREDGE PUMP BEING OFFERED HAD A SUCTION PIPE DIAMETER OF 18 INCHES AND A DISCHARGE PIPE DIAMETER OF 16 INCHES.

B-173327, JUL 26, 1971

BID PROTEST - BID RESPONSIVENESS - MINIMUM REQUIREMENTS DECISION DENYING PROTEST BY CARTER CONSTRUCTION CO., INC., AGAINST REJECTION OF ITS BID AS NONRESPONSIVE TO AN IFB ISSUED BY THE ARMY ENGINEER DISTRICT, MEMPHIS, TENNESSEE, COVERING THE HIRE OF A DREDGE. BECAUSE A FACTOR OF NOT LESS THAN 1.3 WAS REQUIRED BETWEEN THE CROSS SECTIONAL AREA OF THE SUCTION CUPS AND THE CROSS SECTIONAL AREA OF THE PUMP DISCHARGE, PROTESTANT'S OFFER OF PIPES WHICH CALCULATED TO A FACTOR OF 1.2656 WAS PROPERLY REJECTED. WHILE ROUNDING OFF FIGURES MAY BE A PLAUSIBLE ACTION ORDINARILY, WHERE THE FIGURE IS DESIGNATED AS A MINIMUM RATIO FACTOR, SUCH REQUIREMENT MUST BE MET IN ORDER FOR AN OFFER TO BE RESPONSIVE.

TO DANN, BLACKBURN & SMITH:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1971, WITH ENCLOSURES, PROTESTING ON BEHALF OF CARTER CONSTRUCTION CO., INC. (CARTER), AGAINST THE REJECTION OF YOUR CLIENT'S LOW BID UNDER INVITATION FOR BIDS (IFB) DACW66-71-B-0108, ISSUED BY THE ARMY ENGINEER DISTRICT, MEMPHIS, TENNESSEE.

THE IFB COVERED THE HIRE OF A DREDGE. PARAGRAPH 2.2 OF THE TECHNICAL PROVISIONS OF THE IFB, AFTER ADVISING OF CERTAIN REQUIREMENTS, WENT ON TO STATE:

" *** THE FOREGOING ARE MINIMUM REQUIREMENTS FOR A DREDGE HAVING A 14- INCH DIAMETER DISCHARGE. DREDGES EQUIPPED WITH LARGER PUMPS AND DISCHARGES SHALL HAVE THE CROSS SECTIONAL AREA OF THE SUCTION PIPE GREATER THAN THE CROSS SECTIONAL AREA OF THE PUMP DISCHARGE BY A FACTOR OF NOT LESS THAN 1.3. *** "

THE BID FORM SUBMITTED BY CARTER STATED THAT THE DREDGE PUMP BEING OFFERED HAD A SUCTION PIPE DIAMETER OF 18 INCHES AND A DISCHARGE PIPE DIAMETER OF 16 INCHES. THE RELATIVE AREAS OF THESE PIPES COMPUTE, BY YOUR OWN CALCULATIONS, TO A FACTOR OF 1.2656. SINCE THE CONTRACTING OFFICER WAS OF THE OPINION THAT THE 1.3 CRITERION WAS A MATERIAL REQUIREMENT BECAUSE OF THE CONDITIONS AT THE WORK SITE, AND SINCE THE CARTER BID, ON ITS FACE, DEVIATED FROM THAT REQUIREMENT, THE BID WAS REJECTED AS NONRESPONSIVE.

SUBSEQUENT TO THE RECEIPT OF NOTICE THAT ITS BID HAD BEEN REJECTED, CARTER HAD ACTUAL MEASUREMENTS TAKEN OF THE SUCTION AND DISCHARGE PIPES OF THE DREDGE PUMP. AS A RESULT OF THOSE MEASUREMENTS, IT DETERMINED THAT THE ACTUAL DIAMETER OF THE SUCTION PIPE WAS 18.5 INCHES WHICH RESULTS IN A FAVORABLE FACTOR OF 1.336, ACCORDING TO THE ADMINISTRATIVE REPORT ON THIS MATTER. CARTER CONTENDS THAT ITS BID SHOULD NOT HAVE BEEN REJECTED BECAUSE THE DREDGE DID, IN FACT, MEET THE STATED FACTOR, AND THAT THE FACTOR WHICH WAS DERIVED FROM THE DIAMETER FIGURES SHOWN ON ITS BID FORM SHOULD HAVE BEEN ROUNDED OFF TO 1.3. WE DO NOT AGREE.

WE ARE ENCLOSING PORTIONS OF THE FILE SUBMITTED BY THE CORPS OF ENGINEERS. THESE DOCUMENTS ESTABLISH THE BASIS FOR REQUIRING A MINIMUM RATIO FACTOR OF 1.3. WHILE THE CORPS RECOGNIZES THAT ROUNDING OFF MAY BE A PLAUSIBLE ACTION ORDINARILY, IT MAINTAINS THAT A DIFFERENT SITUATION IS PRESENT HERE SINCE THE SPECIFICATION PRESCRIBES A MINIMUM RATIO FACTOR. IN VIEW OF THE FOREGOING AND THE WORDING OF THE SPECIFICATION, IT DOES NOT APPEAR THAT THE MINIMUM RATIO REQUIREMENT WOULD BE SATISFIED IF A ROUNDING OFF PROCESS WAS EMPLOYED.

IT HAS BEEN OUR POSITION THAT THE RESPONSIVENESS OF A BID MUST BE JUDGED FROM THE INFORMATION CONTAINED IN THE BID ITSELF AND THAT A NONRESPONSIVE BID CANNOT BE MADE RESPONSIVE AFTER BID OPENING. SEE 38 COMP. GEN. 819 (1959); 49 ID. 749 (1970). HERE, THE NONRESPONSIVENESS OF THE CARTER BID IS CLEAR ON ITS FACE, GIVEN THE PIPE DIAMETERS STATED THEREIN. ALTHOUGH THE DREDGE PUMP MAY MEET THE REQUIREMENTS OF THE IFB, THAT ASSURANCE IS NOT REFLECTED IN THE CARTER BID. NO BASIS EXISTS THEN FOR OUR OFFICE TO RAISE A LEGAL OBJECTION TO THE DETERMINATION OF THE CONTRACTING OFFICER THAT YOUR CLIENT WAS A NONRESPONSIVE BIDDER. MOREOVER, IN CONSONANCE WITH THE FOREGOING PRINCIPLES, INFORMATION AS TO THE TRUE DIAMETER OF THE PUMP'S SUCTION PIPE OBTAINED SUBSEQUENT TO BID OPENING CANNOT BE USED TO CURE THE INITIAL NONRESPONSIVENESS OF THE CARTER BID.

ACCORDINGLY, THE PROTEST IS DENIED.