B-173643, NOV 23, 1971

B-173643: Nov 23, 1971

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ALL WERE INCORPORATED BY REFERENCE THROUGH SUBMISSION OF THE SOLICITATION'S FIRST PAGE CONTAINING A TABLE OF CONTENTS. THE CONTRACTOR IS BOUND BY ALL TERMS AND CONDITIONS OF THE INVITATION. WHICH IS THE DETERMINATIVE FACTOR ON QUESTIONS OF RESPONSIVENESS. SANDER'S FAILURE TO SUBMIT AN AFFIDAVIT CONCERNING AFFILIATES WAS A MINOR INFORMALITY WHICH COULD BE PROPERLY WAIVED UNDER ASPR 2- 405(V). THE PROTEST IS DENIED. INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 19. THE INVITATION WAS THE SECOND STEP IN A TWO-STEP FORMALLY ADVERTISED PROCUREMENT AND WAS ISSUED TO FOUR CONCERNS WHICH WERE DETERMINED TO BE TECHNICALLY ACCEPTABLE UNDER STEP ONE (REQUEST FOR QUOTATIONS N00178-71 Q- 0161). THE IFB CONSISTED OF 19 PAGES AND WAS ISSUED ON STANDARD FORM (SF) 33 WHICH COMPRISED THE FIRST TWO PAGES OF THE IFB.

B-173643, NOV 23, 1971

BID PROTEST - BID RESPONSIVENESS - MISSING PAGES OF IFB DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO SANDERS ASSOCIATES, INC., LOW BIDDER UNDER AN IFB ISSUED BY THE NAVAL WEAPONS LABORATORY, DAHLGREN, VA. WHILE SUCCESSFUL LOW BIDDER DID NOT RETURN ALL PAGES OF THE IFB, ALL WERE INCORPORATED BY REFERENCE THROUGH SUBMISSION OF THE SOLICITATION'S FIRST PAGE CONTAINING A TABLE OF CONTENTS. THUS, THE CONTRACTOR IS BOUND BY ALL TERMS AND CONDITIONS OF THE INVITATION, WHICH IS THE DETERMINATIVE FACTOR ON QUESTIONS OF RESPONSIVENESS. SEE 49 COMP. GEN. 538 (1970). FINALLY, SANDER'S FAILURE TO SUBMIT AN AFFIDAVIT CONCERNING AFFILIATES WAS A MINOR INFORMALITY WHICH COULD BE PROPERLY WAIVED UNDER ASPR 2- 405(V). THEREFORE, THE PROTEST IS DENIED.

TO COBER ELECTRONICS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 19, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF CONTRACT TO SANDERS ASSOCIATES, INC. (SANDERS), UNDER INVITATION FOR BIDS (IFB) N00178-71-B-0103 ISSUED BY THE U.S. NAVAL WEAPONS LABORATORY, DAHLGREN, VIRGINIA.

THE INVITATION WAS THE SECOND STEP IN A TWO-STEP FORMALLY ADVERTISED PROCUREMENT AND WAS ISSUED TO FOUR CONCERNS WHICH WERE DETERMINED TO BE TECHNICALLY ACCEPTABLE UNDER STEP ONE (REQUEST FOR QUOTATIONS N00178-71 Q- 0161). THE IFB CONSISTED OF 19 PAGES AND WAS ISSUED ON STANDARD FORM (SF) 33 WHICH COMPRISED THE FIRST TWO PAGES OF THE IFB. SF 33 BORE THE NOTATION THAT ALL BIDS WERE SUBJECT TO THE FOLLOWING:

"1. THE ATTACHED SOLICITATION INSTRUCTIONS AND CONDITIONS, SF33-A.

"2. THE GENERAL PROVISIONS, SF32 EDITION, WHICH IS ATTACHED OR INCORPORATED HEREIN BY REFERENCE.

"3. THE SCHEDULE INCLUDED BELOW AND/OR ATTACHED HERETO.

"4. SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED HEREIN BY REFERENCE (ATTACHMENTS ARE LISTED IN THE SCHEDULE)."

DIRECTLY BELOW THE ABOVE-QUOTED LANGUAGE, A TABLE OF CONTENTS WAS SET OUT WHICH CARRIED THE FOLLOWING LANGUAGE: "THE FOLLOWING CHECKED SECTIONS ARE CONTAINED IN THE CONTRACT." BELOW THIS IN PART III, "GENERAL PROVISIONS," SECTION L WAS CHECKED INDICATING THAT THERE WERE GENERAL PROVISIONS ON PAGE 13 OF THE IFB. UNDER THAT HEADING ON THE DESIGNATED PAGE, PARAGRAPH L.1, ENTITLED "CLAUSES INCORPORATED BY REFERENCE," STATED:

"CLAUSES INCORPORATED BY REFERENCE

"THE CONTRACT PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) IDENTIFIED HEREINAFTER IN THE LIST ENTITLED 'CLAUSES INCORPORATED BY REFERENCE' AS PART I, ARE HEREBY INCORPORATED IN THIS CONTRACT BY REFERENCE WITH THE SAME FORCE AND EFFECT AS IF SET FORTH IN FULL. ONLY THOSE CONTRACT PROVISIONS OF ASPR IN PART II OF THE LIST AS ARE CHECKED IN THE BLOCK TO THE LEFT OF THE LISTED CLAUSE ARE HEREBY INCORPORATED BY REFERENCE WITH THE SAME FORCE AND EFFECT AS IF SET FORTH IN FULL. THE WORDS 'THE GENERAL PROVISIONS, SF32 EDITION, WHICH IS ATTACHED OR INCORPORATED HEREIN BY REFERENCE' ARE HEREBY DELETED FROM BLOCK 9 OF STANDARD FORM 33, SOLICITATION, OFFER, AND AWARD."

FOUR BIDS WERE OPENED ON JULY 13, 1971. THE LOWEST BID RECEIVED WAS FROM SANDERS. THE BID FAILED TO INCLUDE PAGES 11 THROUGH 19 OF THE IFB. THE CONTRACTING OFFICER DETERMINED THAT THE BID WAS RESPONSIVE IN VIEW OF RECENT DECISIONS OF OUR OFFICE CONCERNING THE INCORPORATION BY REFERENCE OF PAGES OMITTED FROM BIDS. ON AUGUST 20, 1971, SUBSEQUENT TO THE PROTEST, THE CONTRACTING OFFICER MADE AWARD OF THE CONTRACT BECAUSE OF THE URGENCY OF THE PROCUREMENT.

THE DECISIONS OF OUR OFFICE CONCERNING THE RESPONSIVENESS OF BIDS SUBMITTED WITH MISSING PAGES HAVE HELD THAT, IN THE ABSENCE OF A REQUIREMENT THAT BIDDERS RETURN WITH THEIR BIDS ALL PORTIONS OF AND ATTACHMENTS TO THE IFB, THE BID MUST BE IN SUCH FORM THAT ACCEPTANCE WOULD CREATE A VALID AND BINDING CONTRACT REQUIRING THE BIDDER TO PERFORM IN ACCORDANCE WITH ALL THE MATERIAL TERMS AND CONDITIONS OF THE INVITATION. SEE 49 COMP. GEN. 538 (1970) AND 49 ID. 289 (1969).

YOU HAVE CONTENDED THAT THE SANDERS' BID SHOULD HAVE BEEN CONSIDERED NONRESPONSIVE DUE TO ITS FAILURE TO SUBMIT ALL THE PAGES IN THE IFB. WHILE YOU HAVE CONCEDED THAT PAGES NOT RETURNED ARE NONETHELESS BINDING IF INCORPORATED BY REFERENCE, YOU HAVE ASSERTED THAT THE FAILURE OF SANDERS TO RETURN PAGE 13 OF THE IFB, WHICH DELETES THE SF32 GENERAL PROVISIONS ORIGINALLY INCORPORATED BY REFERENCE BY BLOCK 9 ON THE FACE PAGE OF THE IFB, CREATES AN INCONSISTENCY INASMUCH AS THE SF32 GENERAL PROVISIONS AND THE PARAGRAPH L.1 GENERAL PROVISIONS ARE BOTH INCORPORATED BY REFERENCE WITH NO INDICATION AS TO WHICH IS TO TAKE PRECEDENCE OVER THE OTHER.

IN ADDITION TO THE SF33 LANGUAGE QUOTED ABOVE, THE SF33 SIGNED BY AN APPROPRIATE SANDERS OFFICIAL AND SUBMITTED WITH ITS BID CONTAINED THE FOLLOWING LANGUAGE:

"IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF THIS OFFER IS ACCEPTED WITHIN CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE OFFEROR) FROM THE DATE FOR RECEIPT OF OFFERS SPECIFIED ABOVE, TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED, AT THE PRICE SET OPPOSITE EACH ITEM, DELIVERED AT THE DESIGNATED POINTS) WITHIN THE TIME SPECIFIED IN THE SCHEDULE."

IN 49 COMP. GEN. 289, 291 (1969), REFERRING TO THE BLOCK 9 AND FOREGOING PROVISIONS AND A "COMPOSITION" WHICH WAS A TABLE OF CONTENTS RETURNED WITH THE BID IDENTIFYING THE VARIOUS PROVISIONS OF THE CONTRACT, IT WAS STATED THAT:

" *** IT IS OUR OPINION THAT SUCH REFERENCES IN THE BID SUBMITTED BY THE LOW BIDDER CLEARLY OPERATED TO INCORPORATE ALL OF THE INVITATION DOCUMENTS INTO THE BID, AND THAT AN AWARD TO THE LOW BIDDER WILL THEREFORE BIND HIM TO PERFORMANCE IN FULL ACCORD WITH THE CONDITIONS SET OUT IN THE REFERENCED DOCUMENTS. *** "

IT IS A WELL ACCEPTED PRINCIPLE OF CONTRACT LAW THAT WHEN AN ITEM IS INCORPORATED BY REFERENCE INTO A CONTRACT OR OTHER DOCUMENT, IT IS NOT NECESSARY TO BODILY INSERT SUCH ITEM INTO THE CONTRACT OR DOCUMENT. RATHER IT IS SUFFICIENT TO MERELY REFER TO SUCH ITEM IN THE CONTRACT OR DOCUMENT. BLACK'S LAW DICTIONARY (4TH ED., 1967) INCLUDES IN ITS DEFINITION OF THE WORD "INCORPORATE" THE FOLLOWING: "TO DECLARE THAT ANOTHER DOCUMENT SHALL BE TAKEN AS PART OF THE DOCUMENT IN WHICH THE DECLARATION IS MADE AS MUCH AS IF IT WERE SET OUT AT LENGTH THEREIN."

THE REFERENCING OF PAGE 13, GENERAL PROVISIONS, ON THE FACE PAGE OF THE SOLICITATION WHICH SERVED AS THE BASIS OF THE BID SUBMITTED BY SANDERS OPERATED TO INCORPORATE PARAGRAPH L.1 OF PAGE 13 BY REFERENCE THEREBY MAKING IT A PART OF THE BID PACKAGE. IN SIGNING ITS BID, THEREFORE, SANDERS AGREED TO BE BOUND BY THE ENTIRE BID PACKAGE, INCLUDING PAGE 13. HENCE, STANDARD FORM 32 WAS DELETED FROM THE IFB AND WAS SO DELETED WITH THE SAME FORCE AND EFFECT AS IF SANDERS HAD PHYSICALLY INCLUDED PAGE 13 WITH ITS BID. THEREFORE WE ARE UNABLE TO CONCLUDE THAT THE SANDERS BID IS CONTRADICTORY, AS YOU ALLEGE.

IN REGARD TO YOUR CONTENTION THAT THE SANDERS BID WAS NONRESPONSIVE BECAUSE IT FAILED TO SUBMIT AN AFFIDAVIT CONTAINING INFORMATION WITH RESPECT TO AFFILIATES, AS REQUIRED IN PARAGRAPH B.10 OF THE IFB, ARMED SERVICES PROCUREMENT REGULATION 2-405(V) SPECIFICALLY PROVIDES THAT SUCH A FAILURE MAY BE REGARDED AS A MINOR INFORMALITY OR IRREGULARITY WHICH THE BIDDER MAY BE GIVEN AN OPPORTUNITY TO CURE. THEREFORE, THE FAILURE TO FURNISH THE AFFIDAVIT WITH THE BID WAS NOT A MATERIAL DEVIATION.

ACCORDINGLY, THE PROTEST IS DENIED.