B-173457, NOV 22, 1971, 51 COMP GEN 305

B-173457: Nov 22, 1971

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OF FORM 33 WAS THE CAUSE FOR THE REJECTION OF THE LOW PROPOSAL ON THE BASIS OF FAILURE TO CONFIRM THAT THE LOW QUOTATION WAS A FIRM OFFER AND FAILURE TO SUBMIT A REVISED PROPOSAL. IS NOT REQUIRED. TO AVOID PLACING PROSPECTIVE CONTRACTORS IN A POSITION TO "SECOND GUESS" WHETHER A SOLICITATION WAS REQUESTING A QUOTATION OR A FIRM OFFER. STANDARD FORM 33 SHOULD BE USED IN FUTURE PROCUREMENTS THEREBY ELIMINATING THAT PROSPECTIVE CONTRACTORS GO THROUGH THE ADDITIONAL STEP OF CONFIRMING THAT THEIR INITIAL PROPOSALS ARE FIRM OFFERS. 1971: REFERENCE IS MADE TO THE LETTER OF AUGUST 25. VINNELL'S LOW PROPOSAL WAS REJECTED FOR THE REASONS THAT VINNELL FAILED TO CONFIRM THAT ITS QUOTE WAS A FIRM OFFER AND FAILED TO SUBMIT A REVISED TECHNICAL PROPOSAL AFTER BEING ADVISED THAT AWARD COULD NOT BE MADE ON THE BASIS OF ITS INITIAL PROPOSAL IN VIEW OF THE TECHNICAL DEFICIENCIES THEREIN.

B-173457, NOV 22, 1971, 51 COMP GEN 305

CONTRACTS - NEGOTIATION - REQUEST FOR QUOTATION - FIRM OFFER CONFIRMATION IN ISSUING A REQUEST FOR QUOTATIONS, SINCE THE USE OF STANDARD FORM 18, WHICH CONTAINED INCONSISTENT AND MISLEADING PROVISIONS, INSTEAD OF FORM 33 WAS THE CAUSE FOR THE REJECTION OF THE LOW PROPOSAL ON THE BASIS OF FAILURE TO CONFIRM THAT THE LOW QUOTATION WAS A FIRM OFFER AND FAILURE TO SUBMIT A REVISED PROPOSAL, THE USE OF THE FORM IN THE ABSENCE OF SUBSTANTIVE REASONS, EVEN THOUGH AUTHORIZED BY PARAGRAPH 16 102.1(B)(1) OF THE ARMED SERVICES PROCUREMENT REGULATION, IS NOT REQUIRED. TO AVOID PLACING PROSPECTIVE CONTRACTORS IN A POSITION TO "SECOND GUESS" WHETHER A SOLICITATION WAS REQUESTING A QUOTATION OR A FIRM OFFER, STANDARD FORM 33 SHOULD BE USED IN FUTURE PROCUREMENTS THEREBY ELIMINATING THAT PROSPECTIVE CONTRACTORS GO THROUGH THE ADDITIONAL STEP OF CONFIRMING THAT THEIR INITIAL PROPOSALS ARE FIRM OFFERS.

TO THE SECRETARY OF THE ARMY, NOVEMBER 22, 1971:

REFERENCE IS MADE TO THE LETTER OF AUGUST 25, 1971, FROM THE ASSISTANT DEPUTY FOR PROCUREMENT, OFFICE OF THE ASSISTANT SECRETARY, DEPARTMENT OF THE ARMY, REFERENCE SAOAS (I&L)-PO, WITH ATTACHMENTS, CONCERNING THE PROTEST BY VINNELL CORPORATION AGAINST THE AWARD OF A CONTRACT TO PACIFIC ARCHITECTS AND ENGINEERS UNDER REQUEST FOR QUOTATIONS (RFQ) DAJB11-71-Q- 0217, ISSUED BY THE UNITED STATES ARMY PROCUREMENT AGENCY, VIETNAM (APAV).

BRIEFLY, VINNELL'S LOW PROPOSAL WAS REJECTED FOR THE REASONS THAT VINNELL FAILED TO CONFIRM THAT ITS QUOTE WAS A FIRM OFFER AND FAILED TO SUBMIT A REVISED TECHNICAL PROPOSAL AFTER BEING ADVISED THAT AWARD COULD NOT BE MADE ON THE BASIS OF ITS INITIAL PROPOSAL IN VIEW OF THE TECHNICAL DEFICIENCIES THEREIN.

ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO VINNELL DENYING ITS PROTEST. HOWEVER, PURSUANT TO OUR REVIEW OF THIS PROTEST, THERE ARE SEVERAL MATTERS WHICH WE WISH TO BRING TO YOUR ATTENTION.

PARAGRAPH 10 OF STANDARD FORM 18, THE FORM USED IN THIS SOLICITATION, PROVIDED:

*** THIS IS A REQUEST FOR INFORMATION, AND QUOTATIONS FURNISHED ARE NOT OFFERS. IF YOU ARE UNABLE TO QUOTE, PLEASE SO INDICATE ON THIS FORM AND RETURN IT. THIS REQUEST DOES NOT COMMIT THE GOVERNMENT TO PAY ANY COSTS INCURRED IN THE PREPARATION OR THE SUBMISSION OF THIS QUOTATION, OR TO PROCURE OR CONTRACT FOR SUPPLIES OR SERVICES.

SECTION D-2 OF THE SOLICITATION, ENTITLED "PRICE EVALUATION," PROVIDED:

EACH QUOTER WHOSE TECHNICAL PROPOSAL IS CONSIDERED ACCEPTABLE AFTER TECHNICAL EVALUATIONS WILL BE CONSIDERED FOR AWARD ON THE BASIS OF THEIR PRICE QUOTATION. QUOTERS ARE CAUTIONED TO SUBMIT THEIR LOWEST PRICE QUOTATION WITH THEIR TECHNICAL PROPOSAL SINCE THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD WITHOUT FURTHER NEGOTIATION.

SECTION C-10 TITLED "ORDER OF PRECEDENCE" PROVIDED:

IN THE EVENT OF AN INCONSISTENCY BETWEEN PROVISIONS OF THIS SOLICITATION, THE INCONSISTENCY SHALL BE RESOLVED BY GIVING PRECEDENCE IN THE FOLLOWING ORDER: (A) THE SCHEDULE, (B) SOLICITATION INSTRUCTIONS AND CONDITIONS; (C) OTHER PROVISIONS OF THE CONTRACT; (D) GENERAL PROVISIONS, WHETHER INCORPORATED BY REFERENCE OR OTHERWISE; AND (E) THE SPECIFICATIONS.

ASPR 3-501(B) SEC C (XXXI)

THE CONTRACTING OFFICER HAS STATED THAT VINNELL WAS AWARE OF THE REQUIREMENT FOR CONFIRMING THAT ITS QUOTE WAS A FIRM OFFER SINCE THIS WAS CAREFULLY EXPLAINED TO VINNELL DURING THE NEGOTIATION SESSION AND THAT THIS WAS THE PURPOSE FOR GIVING VINNELL COPIES OF AMENDMENT 0001 (QUOTED IN THE DECISION TO VINNELL) AT THE CLOSE OF SUCH SESSION.

THE LEGAL ARGUMENT ADVANCED BY VINNELL IS THAT IN VIEW OF SECTION D-2 OF THE SOLICITATION, IT IS CLEAR THAT VINNELL SUBMITTED A FIRM OFFER NOTWITHSTANDING THE USE OF STANDARD FORM 18 AND THE ISSUANCE OF AMENDMENT 0001. VINNELL URGES THAT THE LANGUAGE IN AMENDMENT 0001 IN ITSELF SUPPORTS THE ARGUMENT THAT THE RFQ WAS REQUESTING FIRM OFFERS.

THE CONTRACTING OFFICER'S ANSWER TO VINNELL'S ARGUMENT IS THAT UNDER THE "ORDER OF PRECEDENCE" CLAUSE, THE PROVISIONS OF PARAGRAPH 10 OF STANDARD FORM 18, WHICH IS PART OF THE "SOLICITATION INSTRUCTIONS AND CONDITIONS," TAKES PRECEDENCE OVER THE PROVISIONS OF SECTION D-2, WHICH IS PART OF THE OTHER PROVISIONS. IN THE ALTERNATIVE IT IS THE CONTRACTING OFFICER'S VIEW THAT EVEN IF PARAGRAPH 10 OF STANDARD FORM 18 WERE NOT GIVEN PREFERENCE OVER CLAUSE D-2, THE TWO PROVISIONS WOULD THEN BE OF AN EQUIVALENT STATURE AND TO ARRIVE AT A CONSISTENT RESULT, IT MUST BE CONSIDERED THAT VINNELL'S QUOTATION WAS NOT AN OFFER.

IN ADDITION TO PARAGRAPH D-2, WHICH CERTAINLY SUPPORTS VINNELL'S POSITION, WE HAVE FOUND SEVERAL OTHER PROVISIONS WHICH INDICATE THAT THE SOLICITATION DID NOT PRECLUDE THE SUBMISSION OF FIRM OFFERS. THE "TABLE OF CONTENTS" IMMEDIATELY BELOW PARAGRAPH 10 ON STANDARD FORM 18 USES THE TERMS "OFFEROR" AND "OFFERORS" IN TWO DIFFERENT SECTIONS. PARAGRAPH C-11 OF THE SOLICITATION STATES "IT IS CONTEMPLATED THAT THIS SOLICITATION WILL RESULT IN A *** CONTRACT." PARAGRAPH C-13 STATES THAT THE QUOTER AGREES TO FURNISH THE GOVERNMENT WITH CERTAIN INFORMATION RELATING TO HIS CAPABILITIES "TO PERFORM ANY CONTRACT RESULTING FROM THIS SOLICITATION." AMENDMENT 0001, AS INDICATED BY VINNELL, ALSO SUPPORTS THE AGRUMENT THAT THE RFQ WAS REQUESTING OFFERS. FOR EXAMPLE, PARAGRAPH 9 OF AMENDMENT 0001 STATES THE "OFFERORS MUST ACKNOWLEDGE RECEIPT OF THIS AMENDMENT *** . IF, BY VIRTUE OF THIS AMENDMENT YOU DESIRE TO CHANGE AN OFFER ALREADY SUBMITTED *** ." PARAGRAPH 13 OF AMENDMENT 0001 STATES "CONTRACTOR/OFFEROR IS REQUIRED TO SIGN THIS DOCUMENT."

THE ONLY LANGUAGE THE CONTRACTING OFFICER CAN POINT TO IN SUPPORT OF HIS POSITION IS THE STANDARD PROVISION IN PARAGRAPH 10 OF STANDARD FORM 18 THAT THE SOLICITATION DID NOT REQUEST FIRM OFFERS. THE VARIOUS PROVISIONS OF THE SOLICITATION WAS OBVIOUSLY INCONSISTENT AND MISLEADING AND THE CONTRACTING OFFICER'S RELIANCE ON THE "ORDER OF PRECEDENCE" CLAUSE OR THE EQUIVALENT STATURE ARGUMENT IS A STRAINED RESOLUTION OF THE APPARENT INCONSISTENCY. IF WE ACCEPTED THE CONTRACTING OFFICER'S ARGUMENTS WE WOULD, IN EFFECT, BE SANCTIONING A PROCEDURE WHEREBY A PROSPECTIVE CONTRACTOR WOULD HAVE TO "SECOND GUESS" WHETHER THE SOLICITATION WAS REQUESTING A QUOTATION OR A FIRM OFFER. ATTEMPTING TO RESOLVE THE MATTER BY GIVING INSTRUCTIONS DURING NEGOTIATIONS THAT PROPOSERS WERE EXPECTED TO CONFIRM THAT THEIR QUOTES WERE FIRM OFFERS BEFORE AN ESTABLISHED DEADLINE ALSO LEAVES MUCH TO BE DESIRED AS THE PRESENT PROTEST INDICATES. WHILE THE LANGUAGE ON AN AMENDMENT TO A SUBSEQUENT PROCUREMENT FURNISHED TO OUR OFFICE BY VINNELL'S COUNSEL (AMENDMENT OF SOLICITATION NO. DAJB11-71-Q- 0213), DOES MORE CLEARLY STATE WHAT IS EXPECTED FROM QUOTERS, IT STILL DOES NOT SEEM THE BEST SOLUTION.

THE CRUX OF THE PROBLEM SEEMS TO BE THAT THE PROCURING ACTIVITY IS USING STANDARD FORM 18 WHEN IT SHOULD BE USING STANDARD FORM 33. IN THE ABSENCE OF SUBSTANTIVE REASONS FOR USING STANDARD FORM 18, WE DO NOT THINK THAT PROSPECTIVE CONTRACTORS SHOULD HAVE TO GO THROUGH THE ADDITIONAL STEP OF CONFIRMING THAT THEIR INITIAL PROPOSALS ARE FIRM OFFERS. IF STANDARD FORM 33 WERE USED IN THE FIRST INSTANCE THIS ADDITIONAL STEP COULD BE ELIMINATED. ARMED SERVICES PROCUREMENT REGULATION (ASPR) 16.102.1(B)(1) DOES NOT REQUIRE THE USE OF STANDARD FORM 18 BUT ONLY AUTHORIZES ITS USE.

WE ARE BRINGING THIS MATTER TO YOUR ATTENTION FOR CONSIDERATION IN FUTURE PROCUREMENTS.

THE FILE ATTACHED TO THE REPORT IS RETURNED AS REQUESTED.

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 21, 1971, REQUESTING ON BEHALF OF ABC MANAGEMENT SERVICES, INC. (ABC), RECONSIDERATION AND CLARIFICATION OF OUR DECISION, 51 COMP. GEN.

, DATED OCTOBER 12, 1971, WHEREIN WE DENIED THE PROTESTS OF YOUR CLIENT UNDER SOLICITATION NOS. N00204-71-R-0037 (0037) AND N00204-71-R 0040 (0040), ISSUED BY THE NAVAL AIR STATION, PENSACOLA, FLORIDA, FOR MESS ATTENDANT SERVICES AT NEW ORLEANS, LOUISIANA, AND GULFPORT, MISSISSIPPI, RESPECTIVELY.

IN THE REFERENCE DECISION WE FOUND, AMONG OTHER THINGS, THAT ONCE IT HAS BEEN DETERMINED THAT AN OFFEROR'S MANNING CHART INDICATES HIS UNDERSTANDING OF, AND HIS ABILITY TO FULFILL, THE CONTRACT REQUIREMENTS (INCLUDING WAGE RATES, NUMBER OF WORKERS AND TOTAL ESTIMATED LABOR HOURS) HE SHOULD BE CONSIDERED TO BE WITHIN THE COMPETITIVE RANGE FOR NEGOTIATION PURPOSES. WE ALSO EXPRESSED THE OPINION THAT TO CONCLUDE OTHERWISE WOULD REQUIRE IGNORING THE FACT THAT MANNING CHARTS ARE USED AS AN AID TO CONTRACTING OFFICERS IN DETERMINING RESPONSIBILITY, NOT RESPONSIVENESS, FOR WHICH THE CONTRACTING OFFICER HAS QUITE BROAD DISCRETION. SINCE THE SUCCESSFUL OFFEROR'S PROPOSAL OFFERED MANNING HOURS APPROXIMATING THE GOVERNMENT'S ESTIMATE UNDER BOTH PROCUREMENTS, AND THE OFFERED PRICES UNDER EACH SOLICITATION WERE SUFFICIENT TO COVER THE PAYMENT OF THE MINIMUM WAGE, PLUS HEALTH AND WELFARE, AND THERE WAS APPROXIMATELY $5,000 LEFT UNDER EACH PROCUREMENT TO COVER THE COST OF OTHER FRINGE BENEFITS, WE CONCLUDED THAT BOTH OFFERS WERE PROPERLY FOUND TO BE WITHIN THE COMPETITIVE RANGE FOR NEGOTIATION PURPOSES. WHILE WE RECOGNIZE THE OFFERED PRICES MIGHT BE BELOW THE AMOUNT REQUIRED TO PAY THE COST OF PERFORMANCE IF ALL THE OFFERED HOURS WERE UTILIZED, WE WERE UNABLE TO FIND THAT THE OFFERED PRICES WERE SO INADEQUATE AS TO PREVENT THE OFFEROR FROM SATISFACTORILY PERFORMING THE CONTRACT.