B-173729, NOV 3, 1971, 51 COMP GEN 255

B-173729: Nov 3, 1971

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THE FACT THAT OTHER BIDDERS CONSTRUED THE INVITATION AS REQUIRING SEPARATE PRICES FOR THE SUBITEMS IS EXTRANEOUS EVIDENCE THAT MAY NOT BE CONSIDERED. NOTWITHSTANDING THE ERRONEOUS STATEMENT OF A CONTRACTING OFFICER THAT VERIFICATION OF A LOW BID MADE IT A RESPONSIVE BID SINCE THE BID WAS RESPONSIVE ON ITS FACE. REJECTION OF THE BID IS NOT REQUIRED. REMEDIAL ACTION IS RECOMMENDED TO INSURE THE BID MISTAKE PROCEDURE IS NOT USED FOR DETERMINING WHETHER A BID IS RESPONSIVE. BIDS - PRICES - UNPROFITABLE AN ALLEGATION THAT THE LOW BIDDER SUBMITTED A BID ON WHICH HE WILL INCUR A LOSS IS FOR REFERRAL TO THE SECRETARY OF THE DEPARTMENT INVOLVED WITH ADVICE THAT IT SHOULD BE CONSIDERED BY THE PROCURING ACTIVITY IN DETERMINING WHETHER THE BIDDER IS A RESPONSIBLE BIDDER FOR THE PROCUREMENT.

B-173729, NOV 3, 1971, 51 COMP GEN 255

BIDS - AGGREGATE V SEPARABLE ITEMS, PRICES, ETC. - SUBITEM PRICING THE LOW BID ON AN INDEFINITE TYPE CONTRACT THAT FAILED TO QUOTE SEPARATE PRICES ON THE SUPPLY AND SERVICE SUBLINE ITEMS - IDENTIFIED AS 0001AA THROUGH 0001AE - TO ACCOMPANY ELECTRIC COUNTERS - 0001 - SOLICITED UNDER AN INVITATION THAT SCHEDULED THE SUBLINE ITEMS PURSUANT TO PARAGRAPH 20- 304.2(B) OF THE ARMED SERVICES PROCUREMENT REGULATION AS ALPHABETICAL SUFFIXES OF THE BASIC CONTRACT ITEM, AND REQUESTED BIDDERS TO QUOTE PRICES ON THE "TOTAL ITEM" AND NOT SUBLINE ITEM QUANTITIES MAY BE CONSIDERED FOR A CONTRACT AWARD AS THE BIDDER WOULD BE OBLIGATED TO FURNISH ALL LISTED REQUIREMENTS OF THE SCHEDULE AT THE PRICE QUOTED FOR THE BASIC ITEM, NOTWITHSTANDING CONFUSING "SHORTHAND REFERENCES" TO THE SUBITEMS - REFERENCES THAT SHOULD BE AVOIDED IN FUTURE PROCUREMENTS. FURTHERMORE, THE FACT THAT OTHER BIDDERS CONSTRUED THE INVITATION AS REQUIRING SEPARATE PRICES FOR THE SUBITEMS IS EXTRANEOUS EVIDENCE THAT MAY NOT BE CONSIDERED. BIDS - MISTAKES - NONRESPONSIVE BID - MISTAKE PROCEDURE USE TO CORRECT ALTHOUGH UNDER PARAGRAPH 2-406.1 OF THE ARMED SERVICES PROCUREMENT REGULATION AN APPARENT MISTAKE IN BID MUST BE VERIFIED, CONFIRMATION OF THE BID CANNOT MAKE A NONRESPONSIVE BID RESPONSIVE. HOWEVER, NOTWITHSTANDING THE ERRONEOUS STATEMENT OF A CONTRACTING OFFICER THAT VERIFICATION OF A LOW BID MADE IT A RESPONSIVE BID SINCE THE BID WAS RESPONSIVE ON ITS FACE, REJECTION OF THE BID IS NOT REQUIRED, BUT REMEDIAL ACTION IS RECOMMENDED TO INSURE THE BID MISTAKE PROCEDURE IS NOT USED FOR DETERMINING WHETHER A BID IS RESPONSIVE. BIDS - PRICES - UNPROFITABLE AN ALLEGATION THAT THE LOW BIDDER SUBMITTED A BID ON WHICH HE WILL INCUR A LOSS IS FOR REFERRAL TO THE SECRETARY OF THE DEPARTMENT INVOLVED WITH ADVICE THAT IT SHOULD BE CONSIDERED BY THE PROCURING ACTIVITY IN DETERMINING WHETHER THE BIDDER IS A RESPONSIBLE BIDDER FOR THE PROCUREMENT.

TO THE DYNASCIENCES CORPORATION, NOVEMBER 3, 1971:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 30, 1971, AND SUBSEQUENT CORRESPONDENCE CONCERNING YOUR PROTEST AGAINST AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS (IFB) NO. N00126 71-B -0363, ISSUED BY THE NAVY ELECTRONICS SUPPLY OFFICE, GREAT LAKES, ILLINOIS, ON JUNE 10, 1971. BIDS WERE REQUESTED FOR AN INDEFINITE QUANTITY TYPE CONTRACT FOR A REQUIREMENT OF ELECTRONIC COUNTERS, WITH ASSOCIATED SUBLINE ITEMS (SUBITEMS), WHICH WAS SET FORTH ON PAGE 13 OF THE IFB, IN PERTINENT PART, AS FOLLOWS:

SECTION E - SUPPLIES/SERVICES & PRICES:

ITEM NO.

OFFERORS/BIDDERS TO QUOTE PRICES ON "TOTAL ITEM" AND/OR "ALTERNATE QUANTITY" ONLY. DO NOT QUOTE PRICES ON SUB-LINE ITEM QUANTITIES.

0001 FSN (WILL BE ASSIGNED AT TIME OF AWARD) ELECTRONIC COUNTER, DIGITAL READOUT: MILITARY TYPE AN/USM-207 IN ACCORDANCE WITH SPECIFICATION MIL-C- 24165(SHIPS) AND AMENDMENT #3 AND THE CLAUSE ENTITLED "EQUIPMENT REQUIREMENTS AND SPECIFICATIONS."

TOTAL ITEM 0001 1100 EA.

(ESTIMATED)

PURCHASE REQUEST: #OE0054 (PRIORITY 09)

" " #1YWA15

" " #1YWA46

" " #1YWA53

0001AA RUNNING SPARES: ONE SET OF RUNNING SPARES SHALL BE SUPPLIED WITH EACH EQUIPMENT UNDER ITEM 0001. THE RUNNING SPARES SHALL BE IN ACCORDANCE WITH THE GENERALIZED LIST SIGNAL CORP DRAWING SC-D-93392. SEE NOTE A

TOTAL ITEM 0001AA 1100 EA.

(ESTIMATED)

0001AB REPAIR PARTS KIT: (OPTION ITEM). A KIT OF PARTS SHALL BE SUPPLIED WITH THE EQUIPMENT IN THE EVENT CONCURRENT SPARE PARTS CANNOT BE SUPPLIED AT THE TIME OF DELIVERY OF THE EQUIPMENT UNDER ITEM 0001. THE PARTS FOR THE KIT SHALL BE SELECTED BY THE USAECOM FROM THE PROVISIONING PARTS LIST. THE COST OF THIS KIT SHALL NOT EXCEED 10% OF THE COST OF ITEM 0001. "PRICE SHALL BE NEGOTIATED AT THE TIME PARTS ARE SELECTED."

0001AC TECHNICAL MANUALS: IN ACCORDANCE WITH THE CLAUSE ENTITLED "GOVERNMENT-FURNISHED LITERATURE." SEE NOTE C AND CLAUSE 204A (INCL. 2).

0001AD CONTRACT DATA REQUIREMENTS LIST:

SEE DD FORM 1423 (ENCL. 4)

0001AE MAINTENANCE REPAIR PARTS (CONCURRENT REPAIR PARTS): (OPTION ITEM). IN ACCORDANCE WITH SPECIFICATION MIL-P-21873 AND ESO PUBLICATION 24. SEE NOTE B.

NOTE B:

OFFERORS SHOULD NOT QUOTE A PRICE FOR THIS ITEM. IT IS AN OPTION ITEM WHICH IS TO BE SUPPLIED ONLY IF AND TO THE EXTENT SAID OPTION IS EXERCISED, IN WHICH CASE ESTIMATED AND FIRM PRICES WILL BE NEGOTIATED.

THE IFB ALSO CONTAINED THE FOLLOWING PERTINENT PROVISIONS:

MAXIMUM AND MINIMUM QUANTITY

THE MAXIMUM QUANTITY UNDER THE INDEFINITE QUANTITY ITEMS IS THE TOTAL ESTIMATED QUANTITY SET FORTH FOR EACH SUCH CONTRACT ITEM. THE MINIMUM QUANTITY UNDER THE INDEFINITE QUANTITY ITEM, IS AS FOLLOWS:

ITEM QUANTITY

0001 536

0001AA 536

SLIDING SCALE BIDS

SLIDING SCALE BIDS UNDER THE INDEFINITE QUANTITY ITEMS WILL BE CONSIDERED NONRESPONSIVE. UNIT PRICES BID UNDER THE INDEFINITE QUANTITY ITEMS ARE TO COVER TOTAL ESTIMATED QUANTITY SET FORTH FOR EACH SUCH CONTRACT ITEMS AND BIDS WILL BE EVALUATED ON THE BASIS OF SUCH TOTAL ESTIMATED QUANTITY.

INDEFINITE QUANTITY (AUG. 1965)

(A) THIS IS AN INDEFINITE QUANTITY CONTRACT FOR THE SUPPLIES OR SERVICES SPECIFIED IN THE SCHEDULE AND FOR THE PERIOD SET FORTH THEREIN. DELIVERY OR PERFORMANCE SHALL BE MADE ONLY AS AUTHORIZED BY ORDERS ISSUED IN ACCORDANCE WITH THE "ORDERING" CLAUSE OF THIS CONTRACT. THE QUANTITIES OF SUPPLIES OR SERVICES SPECIFIED HEREIN ARE ESTIMATES ONLY AND ARE NOT PURCHASED HEREBY.

WHEN BIDS WERE OPENED ON JULY 15, 1971, IT WAS NOTED THAT AEL-EMTECH CORPORATION (AEL) HAD SUBMITTED THE LOWEST BID FOR ITEM NO. 0001, BUT HAD NOT QUOTED PRICES FOR THE OTHER SUBITEMS LISTED IN THE SCHEDULE. IT WAS ALSO NOTED THAT YOUR CONCERN AND HICKOCK ELECTRONIC CORPORATION HAD SUBMITTED BIDS FOR SUBITEMS 0001AA AND 0001AD, IN ADDITION TO PRICING ITEM 0001.

SINCE THE AEL BID FOR ITEM 0001 WAS MUCH LOWER THAN THE OTHER TWO BIDS RECEIVED, THE PROCURING ACTIVITY REQUESTED THE CORPORATION TO VERIFY ITS BID, AND TO VERIFY THAT THE PRICES OF ITEMS 0001AA, "RUNNING SPARES," AND 0001AD "CONTRACT DATA REQUIREMENTS LIST" WERE INCLUDED IN THE PRICE OF ITEM 0001.

ON JULY 28, 1971, AEL CONFIRMED ITS PRICE FOR ITEM 0001 AND STATED THAT SUCH PRICE INCLUDED THE PRICES FOR SUBITEMS 0001AA AND 0001AD. IN THIS REGARD THE CORPORATION STATED THAT IT INTERPRETED THE BIDDING INSTRUCTIONS SET FORTH IN THE SCHEDULE TO REQUIRE A TOTAL BID PRICE FOR THE MAIN LINE ITEM (ITEM 0001); THAT NO SEPARATE PRICES WERE REQUIRED TO BE QUOTED AGAINST THE SUBITEM QUANTITIES OF THE IFB; AND THAT THE PRICES FOR THE SUBITEMS WERE TO BE INCLUDED IN THE PRICE OF ITEM 0001.

YOU MAINTAIN THAT THE IFB REQUIRED SEPARATE PRICE QUOTATIONS FOR SUBITEMS 0001AA, "RUNNING SPARES," AND 0001AD, "CONTRACT DATA REQUIREMENTS LIST," AS WELL AS ITEM 0001, AND THAT THE FAILURE OF AEL TO QUOTE SUCH SEPARATE PRICES RENDERED ITS BID NONRESPONSIVE. IN THIS REGARD, THE ESSENTIAL GROUNDS OF YOUR PROTEST MAY BE SUMMARIZED AS FOLLOWS:

1. THE PROVISIONS ENTITLED "MAXIMUM AND MINIMUM QUANTITY" AND "SLIDING SCALE BIDS," AS WELL AS THE PHRASE "TOTAL ITEM" SET FORTH WITHIN THE LISTING OF SUBITEM 0001AA IN THE SCHEDULE, REFER TO THE "RUNNING SPARES" AS A SEPARATE TOTAL ITEM, NOT A SUBITEM, AND THEREFORE THIS SUPPLY WAS REQUIRED TO BE SEPARATELY PRICED IN ACCORDANCE WITH THE DIRECTIVE OF THE SCHEDULE TO QUOTE PRICES ON THE "TOTAL ITEM";

2. THE DIRECTIVE TO BIDDERS IN THE SCHEDULE NOT TO QUOTE PRICES ON SUBLINE ITEM QUANTITIES MEANT ONLY THAT THE BIDDERS WERE NOT TO QUOTE PRICES ON ANY QUANTITY OTHER THAN THE TOTAL ESTIMATED QUANTITIES SET FORTH FOR EACH SUPPLY OR SERVICE IN THE SCHEDULE, AND THAT BIDDERS WERE REQUIRED, THEREFORE, TO PRICE THE INDEFINITE QUANTITY SUPPLY SET FORTH IN SUBITEM 0001AA;

3. THERE WOULD HAVE BEEN NO PURPOSE TO THE NOTE ATTACHED TO SUBITEM 0001AE, WHICH DIRECTED BIDDERS NOT TO QUOTE A PRICE ON THE SUBITEM, IF BIDDERS WERE NOT UNDER A GENERAL DUTY TO QUOTE PRICES ON ALL OTHER SUBITEMS UNLESS DIRECTED OTHERWISE;

4. THE SCHEDULE REQUIRED A SEPARATE PRICE FOR THE DATA REQUIREMENT, SINCE NO STATEMENT WAS MADE THAT THE PRICE OF THIS SUBITEM SHOULD BE INCLUDED IN THE TOTAL ITEM PRICE FOR THE PROCUREMENT UNLIKE THE CASE IN EARLIER PROCUREMENTS ISSUED BY THE PROCURING ACTIVITY.

THE CONTRACTING OFFICER STATES THAT THE SCHEDULE WAS STRUCTURED IN ACCORDANCE WITH THE GENERAL REQUIREMENTS SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) SECTION XX, PART 3, UNIFORM CONTRACT LINE ITEM NUMBERING SYSTEM, AND, SPECIFICALLY, ASPR 20-304.2(B), WHICH PROVIDES THAT SUBLINE ITEMS MAY BE ESTABLISHED BY ATTACHING AN ALPHABETICAL SUFFIX IN SEQUENTIAL ORDER TO THE BASIC CONTRACT LINE ITEM NUMBER IN THE MANNER SET FORTH IN THE INSTANT SOLICITATION; THAT THE PHRASE "SUB-LINE ITEM QUANTITY" IN THE SENTENCE IMMEDIATELY PRECEDING ITEM NO. 0001, AND THE REFERENCES TO SUBITEM 0001AA, "RUNNING SPARES," AS "TOTAL ITEM 0001AA" IN THE SUPPLIES/SERVICES SECTION OF THE SCHEDULE AND AS AN "INDEFINITE QUANTITY ITEM" IN THE OTHER ABOVE-QUOTED PROVISIONS OF THE SCHEDULE WERE MERELY "SHORTHAND" REFERENCES TO THE SUBITEM STATUS OF THIS PART OF THE PROCUREMENT; AND THAT THE BIDDERS WERE NOT EXPECTED TO SUBMIT SEPARATE PRICES FOR ANY OF THE SUBITEMS.

THE ESSENTIAL QUESTION FOR CONSIDERATION IS WHETHER AEL HAS SUBMITTED ITS BID IN SUCH A FORM THAT IT WOULD BE CLEARLY OBLIGATED, IF A CONTRACT WAS AWARDED TO THE FIRM, TO FURNISH ALL LISTED REQUIREMENTS OF THE SCHEDULE AT THE PRICE WHICH THE CONCERN QUOTED FOR ITEM 0001. SEE B-166603, MAY 16, 1969. IN THIS CONNECTION, IT IS CLEAR THAT SUCH OBLIGATION MUST BE ASCERTAINED FROM THE FACE OF THE BID ITSELF WITHOUT RESORTING TO EXTRANEOUS DATA. 45 COMP. GEN. 221 (1965).

WE NOTE THAT THE ALPHABETICAL AND NUMERICAL DESIGNATIONS FOR THE SUPPLIES AND SERVICES UNDER THE COLUMN ENTITLED "ITEM NUMBER" IN THE SCHEDULE ARE SO ARRANGED THAT, WHILE THE NUMERICAL DESIGNATION REMAINS THE SAME FOR EACH SUPPLY OR SERVICE, THE ALPHABETICAL DESIGNATION INCREASES IN SEQUENTIAL ORDER. IT IS CLEAR, THEREFORE, THAT THE ITEM NUMBER OF ALL THE SUPPLIES OR SERVICES IN THE SCHEDULE IS THE SAME. ACCORDINGLY, THERE IS ONLY ONE NUMBERED ITEM IN THE SCHEDULE. IF THERE WAS MORE THAN ONE ITEM IT WOULD BE DESIGNATED BY ANOTHER NUMERICAL DESIGNATION, FOR EXAMPLE, 0002, 0003, ETC. THIS INTERPRETATION IS OBVIOUSLY IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN THE ASPR PROVISIONS, CITED ABOVE.

WHILE THE SUBITEM ENTITLED "RUNNING SPARES," DESIGNATED BY THE INDEX 0001AA IN THE ITEM NUMBER COLUMN, CONTAINS A REFERENCE TO "TOTAL ITEM 0001AA," WE DO NOT BELIEVE SUCH REFERENCE OPERATES TO MAKE "RUNNING SPARES" A SEPARATELY NUMBERED ITEM. SIMILARILY, THE REFERENCES IN THE CLAUSES ENTITLED "MAXIMUM AND MINIMUM QUANTITY" AND "SLIDING SCALE BIDS" OF THE IFB TO SUPPLY 0001AA AS AN "ITEM" DOES NOT CONVERT THAT SUBITEM INTO A SEPARATELY NUMBERED ITEM IN THE SUPPLY/SERVICES SECTION OF THE IFB IN THE ABSENCE OF A SEPARATE NUMBER FOR THE SUBITEM IN THAT SECTION.

SINCE THERE IS ONLY ONE NUMBERED ITEM, NO. 0001, IT IS CLEAR THAT THIS ITEM MUST BE THE "TOTAL ITEM" REFERRED TO IN THE DIRECTIVE TO BIDDERS TO QUOTE PRICES ON "TOTAL ITEM." IN THIS REGARD, THE DIRECTIVE TO QUOTE PRICES ON THE "TOTAL ITEM" MERELY MEANS THAT THE BIDDERS ARE TO CALCULATE PRICES FOR ALL THE SUPPLIES AND SERVICES LISTED IN SECTION E IN ORDER TO ARRIVE AT ONE TOTAL PRICE FOR THE TOTAL ITEM, NO. 0001.

WITH RESPECT TO YOUR ARGUMENT THAT THE DIRECTIVE TO BIDDERS NOT TO QUOTE PRICES ON SUBLINE ITEMS QUANTITIES DID NOT REFER TO ANY SEPARATE CATEGORY AND ONLY DIRECTED THE BIDDERS NOT TO QUOTE PRICES ON LESS THAN THE TOTAL INDEFINITE QUANTITIES LISTED FOR THE COUNTERS AND THE RUNNING SPARES, WE BELIEVE SUCH ARGUMENT IS NECESSARILY PREDICATED ON THE ERRONEOUS ASSUMPTION THAT THE PREFIX "SUB" IN THE DIRECTIVE IS APPENDED TO "QUANTITIES" RATHER THAN "LINE." HOWEVER, THE PREFIX IS CLEARLY APPENDED TO "LINE" SO THAT YOUR INTERPRETATION OF THIS PART OF THE DIRECTIVE CANNOT BE REGARDED AS REASONABLE. RATHER, WE BELIEVE THE DIRECTIVE NOT TO QUOTE PRICES ON SUBLINE ITEMS QUANTITIES DIRECTED BIDDERS NOT TO QUOTE PRICES ON QUANTITIES AT LESS THAN THE NUMBERED LINE ITEM LEVEL, THAT IS, AT THE CATEGORIES IDENTIFIED BY THE ADDITION OF THE ALPHABETICAL SUFFIXES TO THE LINE ITEM NUMBER. ACCORDINGLY, THERE WAS NO OBLIGATION FOR A BIDDER TO SPECIFY SEPARATE PRICES FOR THE FIVE SUPPLIES AND SERVICES LISTED IN SECTION E OF THE SCHEDULE WHICH WERE IDENTIFIED BY THE ADDITION OF THE ALPHABETICAL SUFFIXES TO THE LINE ITEM NUMBER.

WHILE YOU STATE THAT THERE WOULD HAVE BEEN NO PURPOSE FOR RESTATING THE ESTIMATED QUANTITY FOR SUBITEM 0001AA IF THE IFB DID NOT REQUEST A SEPARATE UNIT PRICE AT THAT LEVEL, IT IS OUR OPINION THAT THE QUANTITY WAS MERELY RESTATED IN ORDER TO EMPHASIZE THE QUANTITY OF COUNTERS AND SPARES WHICH WERE REQUIRED FOR THE PROCUREMENT, BUT NOT TO REQUIRE A SEPARATE PRICE AT THAT INFERIOR LEVEL.

WITH RESPECT TO YOUR ARGUMENT THAT NOTE B, QUOTED ABOVE, WOULD NOT HAVE BEEN ATTACHED TO SUBLINE ITEM 0001AE IF THE IFB DID NOT IMPOSE A DUTY TO BID ON ALL OTHER SUBITEMS, UNLESS SPECIFICALLY EXCLUDED, AS WITH SUBITEMS 0001AB, 0001AC AND 0001AE, WE NOTE THAT YOUR ARGUMENT ASSUMES THAT THERE WAS A SPECIFIC DIRECTION TO BID ON SUBITEM 0001AC. WHILE YOU STATE THAT SUBITEM 0001AC "OBVIOUSLY" DOES NOT REQUIRE A PRICE, SUCH CONCLUSION IS NOT BASED ON AN EXPRESS STATEMENT APPENDED TO THE SUBITEM IN QUESTION, AS IS THE CASE WITH RESPECT TO SUBITEMS 0001AB AND 0001AE. INSTEAD, WE CAN ONLY PERCEIVE A DIRECTION NOT TO BID ON SUBITEM 0001AC BY NOTING THE GENERAL DIRECTION NOT TO BID ON "SUB-LINE ITEM QUANTITIES." ACCORDINGLY, WE CANNOT AGREE THAT NOTE B DEMONSTRATES A "GENERAL DUTY TO BID ON ALL SUB -ITEMS."

WITH RESPECT TO YOUR CONTENTION THAT THE IFB REQUIRED THE DATA SUBITEM TO BE SEPARATELY PRICED, WE CANNOT CONCLUDE THAT THE MERE ABSENCE OF A NOTATION APPENDED TO THE SUBITEM DIRECTING BIDDERS TO INCLUDE THE DATA PRICE IN THE TOTAL PRICE, OR THE ABSENCE OF THE NOTATION "NSP," IMPLIED THAT A SEPARATE PRICE WAS TO BE QUOTED FOR THIS SUBITEM. IN THIS RESPECT THE CONTRACTING OFFICER STATES THAT THERE IS MORE THAN ONE WAY TO INFORM BIDDERS NOT TO BID ON DATA ITEMS AND THAT THE DIRECTION SET FORTH IN SECTION E, QUOTED ABOVE, ADEQUATELY INFORMED BIDDERS NOT TO BID ON THE DATA ITEM. WE CONCUR WITH THIS ARGUMENT.

ALTHOUGH YOU POINT OUT THAT THE PROCURING ACTIVITY ISSUED IFB N00126 71-B -0388 FOR A SIMILAR REQUIREMENT OF ELECTRONIC COUNTERS WITHIN 2 WEEKS OF THE SUBJECT IFB, AND THAT IFB-0388 CONTAINED THE SAME BIDDING DIRECTIVE WHICH IS SET FORTH IMMEDIATELY PRECEDING ITEM 0001 IN THE SUBJECT CASE, WITH THE ADDED INSTRUCTION ATTACHED TO EACH OF THE SUBITEMS NOT TO SEPARATELY PRICE THE SUPPLIES, WE CANNOT CONCLUDE THAT THE ABSENCE OF SUCH ADDITIONAL DIRECTIVES IN THE INSTANT SOLICITATION REQUIRED THE PRICING OF THE SUBITEMS, SINCE WE BELIEVE THE DIRECTIVE NOT TO BID ON "SUB-LINE ITEM QUANTITIES" WAS SUFFICIENT IN ITSELF TO INFORM BIDDERS NOT TO PRICE THE SUBITEMS. THE SEVERAL OTHER ARGUMENTS OF YOUR CONCERN REGARDING THE ALLEGED NEED OF THE PROCURING ACTIVITY TO HAVE THE DATA ITEM SEPARATELY PRICED ARE, WE BELIEVE, ADEQUATELY REBUTTED BY THE ADMINISTRATIVE REPORT, A COPY OF WHICH HAS BEEN FURNISHED TO YOU.

IN VIEW OF THE ABOVE ANALYSIS, WE BELIEVE AEL WOULD BE BOUND TO FURNISH ALL THE SUPPLIES AND SERVICES LISTED IN THE SCHEDULE FOR THE PRICE THAT THE CONCERN BID FOR ITEM NO. 0001, AND THAT THE SEVERAL DECISIONS OF OUR OFFICE WHICH YOU CITE AS PRECEDENT FOR REJECTING A BID WHEN A BIDDER NEGLECTS TO PRICE A CERTAIN SUPPLY OR SERVICE ARE DISTINGUISHABLE FROM THE CIRCUMSTANCES HERE, SINCE IN THOSE DECISIONS WE FOUND A SPECIFIC OBLIGATION FOR A BIDDER TO SEPARATELY PRICE A SUPPLY OR SERVICE, UNLIKE THE SITUATION WITH RESPECT TO THE SUBITEMS IN THE SUBJECT PROCUREMENT.

WITH RESPECT TO YOUR ARGUMENT THAT TWO OUT OF THREE OF THE BIDDERS CONSTRUED THE IFB AS REQUIRING SEPARATE PRICES FOR THE RUNNING SPARES AND THE CONTRACT DATA SUBITEMS, AND THAT THIS CIRCUMSTANCE IS HIGHLY PERSUASIVE THAT SUCH INTERPRETATION SHOULD GOVERN, WE HAVE NOTED THAT OUR INTERPRETATION OF THE RESPONSIVENESS OF CERTAIN BIDS WAS SUPPORTED BY THE INTERPRETATION OF OTHER BIDDERS. CF. B-166840, MAY 19, 1969. HOWEVER, IT IS CLEAR THAT THE INTERPRETATION OF OTHER BIDDERS CANNOT BE CONSIDERED TO BE DETERMINATIVE WITH RESPECT TO SUCH QUESTIONS, SINCE THIS WOULD INVOLVE THE ACCEPTANCE OF EXTRANEOUS EVIDENCE IN DETERMINING RESPONSIVENESS, WHICH IS PROHIBITED, AS NOTED ABOVE. IN THE INSTANT CASE OUR ANALYSIS SHOWS THAT AEL WOULD BE BOUND TO FURNISH ALL THE SUBITEMS IN QUESTION, AND WE THEREFORE CANNOT ACCEPT THE EXTRANEOUS EVIDENCE OF THE TWO OTHER BIDS AS DETERMINATIVE OF THE QUESTION OF RESPONSIVENESS OF AEL'S BID IN THE MANNER YOU SUGGEST.

WITH RESPECT TO THE PROPRIETY OF THE CONTRACTING OFFICER'S ACTION IN REQUESTING AEL TO CONFIRM ITS BID, WE CANNOT CONCLUDE THAT SUCH ACTION WAS IMPROPER IN VIEW OF THE MATERIALLY LOWER BID SUBMITTED BY THE COMPANY. THIS CONNECTION, ASPR 2-406.1 PROVIDES THAT IN CASES OF APPARENT MISTAKES IN BID THE CONTRACTING OFFICER SHALL REQUEST FROM THE BIDDER A VERIFICATION OF THE BID. HOWEVER, WE DISAGREE WITH THE APPARENT POSITION OF THE CONTRACTING OFFICER THAT SUCH CONFIRMATION HERE SHOWS THAT AEL'S BID WAS RESPONSIVE. IN THIS REGARD IT IS THE WELL-ESTABLISHED POSITION OF OUR OFFICE THAT A NONRESPONSIVE BID CANNOT BE MADE RESPONSIVE THROUGH THE "MISTAKE" PROCEDURE. 38 COMP. GEN. 819 (1959).

SINCE IT IS OUR OPINION THAT AEL'S BID IS RESPONSIVE ON ITS FACE, WE DO NOT BELIEVE THE CONTRACTING OFFICER'S ERRONEOUS STATEMENT SHOULD REQUIRE REJECTION OF THE BID HERE. HOWEVER, WE ARE ADVISING THE SECRETARY OF THE NAVY BY LETTER OF TODAY THAT REMEDIAL ACTION SHOULD BE TAKEN TO ENSURE THAT THE BID MISTAKE PROCEDURE IS NOT USED IN THE FUTURE IN DETERMINING WHETHER A BID IS RESPONSIVE. WE ARE ALSO SUGGESTING THAT, TO AVOID ANY POSSIBLE SOURCE OF CONFUSION IN FUTURE PROCUREMENTS, WHERE SUBITEMS ARE UTILIZED ALL REFERENCES THERETO IN THE IFB SHALL BE EXPRESSED AS SUBITEMS, AND THAT NO "SHORTHAND REFERENCES" TO THE TOTAL ITEM OR SUBITEM SHOULD BE EMPLOYED.

WITH RESPECT TO YOUR ALLEGATION THAT AEL HAS SUBMITTED A BID ON WHICH IT WILL INCUR A LOSS, WE ARE FORWARDING YOUR ALLEGATION TO THE SECRETARY OF THE NAVY WITH ADVICE THAT IT SHOULD BE CONSIDERED BY THE PROCURING ACTIVITY IN DETERMINING WHETHER AEL IS A RESPONSIBLE BIDDER FOR THIS PROCUREMENT.