B-173733(1), NOV 17, 1971

B-173733(1): Nov 17, 1971

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WHERE BIDDERS WERE REQUIRED TO SPECIFY A UNIT PRICE PER SQUARE FOOT AND A TOTAL PRICE PER YEAR FOR STRIPPING AND REWAXING TO BE PROVIDED EVERY FOUR MONTHS. SUCCESSFUL BIDDER SUBMITTED THE ONLY UNAMBIGUOUS AND STRICTLY RESPONSIVE BID AND EVALUATION ON THE BASIS OF TOTAL ANNUAL PRICE WAS THE ONLY MANNER IN WHICH BIDS COULD BE EVALUATED ON A COMMON BASIS. THE PROTEST IS THEREFORE DENIED. SHRIVER & KAMPELMAN: REFERENCE IS MADE TO YOUR LETTERS OF JULY 30. INCLUDED IN EACH GROUP WERE ITEMS 0002 AND 0006. AFTER RESOLUTION OF AN UNSUCCESSFUL PROTEST FROM SPACE BUILDING MAINTENANCE CORPORATION THAT THE OTHER THREE BIDDERS WERE NOT SMALL BUSINESS CONCERNS AS REQUIRED BY THE IFB. AWARDS WERE MADE ON JULY 30.

B-173733(1), NOV 17, 1971

BID PROTEST - AMBIGUOUS BID - EVALUATION PROCEDURE DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO KENTUCKY BUILDING MAINTENANCE, INC., UNDER AN IFB ISSUED BY THE PICATINNY ARSENAL, DOVER, NEW JERSEY, FOR CUSTODIAL SERVICES FOR A PERIOD FROM JULY 1, 1971 TO JUNE 30, 1972. WHERE BIDDERS WERE REQUIRED TO SPECIFY A UNIT PRICE PER SQUARE FOOT AND A TOTAL PRICE PER YEAR FOR STRIPPING AND REWAXING TO BE PROVIDED EVERY FOUR MONTHS, THE FACT THAT BIDDERS OTHER THAN KENTUCKY STATED UNIT PRICES ON THE BASIS OF UNIT PRICE PER OCCURANCE RATHER THAN "AS MANY TIMES" AS PROVIDED FOR IN THE SCHEDULE (3 TIMES), DOES NOT RENDER KENTUCKY'S BID NONRESPONSIVE. SUCCESSFUL BIDDER SUBMITTED THE ONLY UNAMBIGUOUS AND STRICTLY RESPONSIVE BID AND EVALUATION ON THE BASIS OF TOTAL ANNUAL PRICE WAS THE ONLY MANNER IN WHICH BIDS COULD BE EVALUATED ON A COMMON BASIS. THE PROTEST IS THEREFORE DENIED.

TO FRIED, FRANK, HARRIS, SHRIVER & KAMPELMAN:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 30, AUGUST 3, AND AUGUST 25, 1971, ON BEHALF OF CLEAN, INC., PROTESTING AN AWARD TO KENTUCKY BUILDING MAINTENANCE, INC. (KENTUCKY) ON "GROUP 2" UNDER INVITATION FOR BIDS (IFB) DAAA21-71-B-0297, ISSUED JUNE 9, 1971, BY THE DEPARTMENT OF THE ARMY, PICATINNY ARSENAL, DOVER, NEW JERSEY.

THE SUBJECT IFB SOLICITED CUSTODIAL SERVICES FOR BUILDINGS AT THE REFERENCED ACTIVITY FOR A PERIOD OF ONE YEAR COMMENCING JULY 1, 1971, AND TERMINATING JUNE 30, 1972.

THE IFB PROVIDED THAT TWO AWARDS WOULD BE MADE THEREUNDER; ONE TO THE LOWEST BIDDER ON GROUP 1 AND THE OTHER TO THE LOWEST BIDDER ON GROUP 2, EXCEPT THAT IF THE SAME BIDDER SHOULD BE LOW ON BOTH GROUPS, THE AWARD WOULD BE MADE TO THE SECOND LOW BIDDER ON GROUP 1 OR GROUP 2 ON THE BASIS OF THE LOWEST OVERALL COST TO THE GOVERNMENT.

INCLUDED IN EACH GROUP WERE ITEMS 0002 AND 0006, WHICH SET FORTH IN THE SCHEDULE COLUMN ENTITLED "QUANTITY" A SQUARE FOOTAGE FIGURE AND REQUIRED THE BIDDER TO SPECIFY A UNIT PRICE PER SQUARE FOOT AND A TOTAL PRICE PER YEAR. EACH OF SAID ITEMS SPECIFIED THAT SERVICES AND MATERIAL TO STRIP AND REWAX WOULD BE PROVIDED EVERY FOUR MONTHS IN ACCORDANCE WITH INSTRUCTIONS OUTLINED IN THE SPECIFICATIONS. ON PAGE 27 OF THE SUBJECT IFB A NOTE APPLICABLE ONLY TO ITEMS 0002 AND 0006 STATED THAT THE UNIT PRICE SHALL BE THE PRICE PER SQUARE FOOT CLEANED AND WAXED AS MANY TIMES AS PROVIDED FOR IN THE SCHEDULE FOR THE DURATION OF THE CONTRACT.

BID OPENING AT 3:00 P.M., JUNE 24, 1971, REVEALED BIDS FROM FOUR FIRMS, AND AFTER RESOLUTION OF AN UNSUCCESSFUL PROTEST FROM SPACE BUILDING MAINTENANCE CORPORATION THAT THE OTHER THREE BIDDERS WERE NOT SMALL BUSINESS CONCERNS AS REQUIRED BY THE IFB, AWARDS WERE MADE ON JULY 30, 1971, TO ATLANTIC MAINTENANCE CO., INC., AND KENTUCKY AS THE RESPONSIVE BIDDERS EVALUATED LOWEST ON GROUPS 1 AND 2, RESPECTIVELY.

WITH REGARD TO THE PRICE QUOTATIONS ON ITEMS 0002 AND 0006, KENTUCKY WAS THE ONLY FIRM TO QUOTE THESE PRICES IN STRICT, LITERAL COMPLIANCE WITH THE PROVISIONS OF THE IFB APPLICABLE TO THESE ITEMS. KENTUCKY'S BID STATED A UNIT PRICE PER SQUARE FOOT (AS SPECIFIED BY THE IFB) WHICH, WHEN MULTIPLIED BY THE QUANTITY OF SQUARE FEET SPECIFIED BY THE IFB EQUALED ITS FIGURE IN THE COLUMN ENTITLED "TOTAL PRICE PER YEAR." THE OTHER THREE BIDDERS' UNIT PRICES PER SQUARE FOOT, WHEN MULTIPLIED BY THE QUANTITY OF SQUARE FEET SPECIFIED BY THE IFB, TOTALLED ONLY ONE THIRD OF THE SUM INSERTED IN THE "TOTAL PRICE PER YEAR" COLUMN.

THE RECORD INDICATES THAT THE CONTRACTING OFFICER VERIFIED, BY MATHEMATICAL COMPUTATION, THAT THE UNIT PRICES SUBMITTED BY THE OTHER THREE BIDDERS WERE PREDICATED UPON THE UNIT COST OF EACH CLEANING AND WAXING INSTEAD OF ALL ("AS MANY TIMES") AS SPECIFIED IN THE SCHEDULE. WHEN THE SQUARE FOOTAGE WAS MULTIPLIED BY THREE, THE NUMBER OF OCCASIONS REQUIRED BY THE IFB, THE UNIT PRICES OF THE OTHER THREE BIDDERS THEN CORRESPONDED WITH THE PRICES THEY HAD INSERTED IN THE COLUMN ENTITLED "TOTAL PRICE PER YEAR."

THE CONTRACTING OFFICER, ACCORDING TO THE RECORD, THEN REQUESTED KENTUCKY TO CONFIRM ITS UNIT PRICE FOR ITEMS 0002 AND 0006. BY LETTER OF JUNE 28, 1971, KENTUCKY'S PRESIDENT VERIFIED HIS UNIT PRICE, STATING THAT IT WAS RESPONSIVE TO THE NOTE ON PAGE 27 OF THE IFB REQUIRING THE UNIT PRICE TO BE STATED IN TERMS OF PRICE PER SQUARE FOOT CLEANED AND WAXED AS MANY TIMES AS PROVIDED FOR IN THE SCHEDULE.

HAVING ASSURED HIMSELF THAT ALL BIDDERS WERE BIDDING WITH THE SAME REQUIREMENT IN MIND, THE CONTRACTING OFFICER DETERMINED THAT IT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT, AND OF ALL THE BIDDERS, TO EVALUATE ALL BIDS ON THE BASIS OF TOTAL PRICE FOR ALL ITEMS RATHER THAN UNIT PRICES SINCE THE UNIT PRICES OF THE OTHER THREE BIDDERS ON ITEMS 0002 AND 0006 WERE NOT STRICTLY RESPONSIVE TO THE IFB IN THAT THEY REQUIRED A FURTHER MATHEMATICAL COMPUTATION (MULTIPLICATION BY THREE) BY THE CONTRACTING OFFICER TO ARRIVE AT THEIR TOTAL ANNUAL PRICES ON THESE TWO ITEMS.

YOU CONTEND THAT KENTUCKY'S BID WAS NONRESPONSIVE TO THE IFB BECAUSE EVERY BIDDER EXCEPT KENTUCKY STATED ITS UNIT PRICE ON THE BASIS OF UNIT PRICE PER OCCURRENCE, AND YOU HAVE ALLEGED THAT THIS PRACTICE IS CUSTOM AND USAGE AT THE PICATINNY ARSENAL. IN VIEW THEREOF, YOU CONTEND THAT KENTUCKY'S BID WAS AMBIGUOUS AS TO PRICE AND THEREFORE THE ACTION OF THE CONTRACTING OFFICER IN ASKING KENTUCKY TO VERIFY ITS PRICE WAS IMPROPER SINCE KENTUCKY WAS EXTENDED AN OPPORTUNITY, AFTER BID OPENING, TO CLARIFY THE PURPORTED AMBIGUITY AND THEREBY AFFECT THE RELATIVE STANDING OF THE BIDDERS. YOU ALSO ALLEGE THAT THE FAILURE OF KENTUCKY TO QUOTE A UNIT PRICE ON THE BASIS OF EACH OCCURRENCE WILL RESULT IN RECEIPT BY THE GOVERNMENT OF ONLY TWO STRIPPINGS AND REWAXINGS, RATHER THAN THREE, UNDER ITEM 0006 SINCE KENTUCKY'S CONTRACT, AWARDED JULY 30, 1971, WILL HAVE A DURATION OF ONLY ELEVEN MONTHS. YOU THEREFORE REQUEST THAT KENTUCKY'S CONTRACT BE CANCELLED, AND THE REMAINDER THEREOF AWARDED TO YOUR CLIENT.

FROM OUR EXAMINATION OF THE INSTRUCTION ON PAGE 27 OF THE IFB APPLICABLE TO ITEMS 2 AND 6, WE MUST CONCLUDE IT SPECIFICALLY STATES THAT THE BIDDER IS TO QUOTE A UNIT PRICE PER SQUARE FOOT CLEANED AND WAXED AS MANY TIMES AS PROVIDED FOR IN THE SCHEDULE FOR THE DURATION OF THE CONTRACT. ATTEMPTING TO SUBSTITUTE THE WORDS "EACH TIME" FOR "AS MANY TIMES," YOU HAVE UNILATERALLY ATTEMPTED TO IMPOSE A BASIS FOR UNIT PRICE QUOTATIONS DIFFERENT THAN THAT LITERALLY SPECIFIED BY THE IFB.

CONCERNING YOUR ASSERTION THAT CUSTOM AND USAGE AT THE PICATINNY ARSENAL DICTATES THE QUOTATION OF UNIT PRICES ON A PER OCCURRENCE BASIS, SUCH A CONCLUSION MAY WELL BE APPROPRIATE WHERE ALL BIDDERS ARE INTERPRETING THE INVITATION IN THE SAME MANNER. CUSTOM AND USAGE CANNOT BE INVOKED, HOWEVER, TO DISREGARD ONE BID WHICH COMPLIES WITH THE LITERAL LANGUAGE OF THE INVITATION AND TO PREFER OTHER BIDS WHICH DO NOT SO COMPLY. UNDER SUCH CIRCUMSTANCES THE RESPONSIVENESS OF A BID MUST BE DETERMINED FROM THE BID ITSELF, WITHOUT REFERENCE TO MATTERS EXTRANEOUS TO THE BID. B-170287, DECEMBER 4, 1970, 50 COMP. GEN. ; 48 COMP. GEN. 593, 601 (1969).

KENTUCKY WAS THE ONLY BIDDER WHOSE UNIT PRICE, WHEN EXTENDED THROUGH MULTIPLICATION BY THE NUMBER OF SQUARE FEET, CORRESPONDED TO THE PRICE INSERTED IN THE "TOTAL PRICE PER YEAR" COLUMN, AND IT SUBMITTED THE ONLY BID WHOSE UNIT PRICES DID NOT REQUIRE A TWO-STEP MULTIPLICATION PROCESS (UNCALLED FOR BY THE IFB) TO ARRIVE AT THE TOTAL ANNUAL PRICES. IT IS THEREFORE OUR CONCLUSION THAT KENTUCKY'S BID WAS THE ONLY BID WHICH WAS UNAMBIGUOUS AND STRICTLY RESPONSIVE TO THE IFB. WE FIND IT SOMEWHAT ANOMALOUS THAT THE CONTRACTING OFFICER WOULD WAIVE THESE DEVIATIONS IN THE OTHER BIDS, WHILE REQUESTING KENTUCKY TO VERIFY A LITERALLY RESPONSIVE AND UNAMBIGUOUS BID. SINCE KENTUCKY VERIFIED ITS PRICE AND STATED THAT IT WAS MERELY COMPLYING WITH THE INSTRUCTIONS OF THE IFB, WE MUST DISAGREE WITH YOU THAT KENTUCKY WAS "CLARIFYING" AN "AMBIGUOUS" BID, AND THEREBY GAINING "TWO BITES AT THE APPLE."

SECTION 2(C) OF STANDARD FORM 33A, INCLUDED IN THE IFB, STATES THAT IN CASE OF A DISCREPANCY BETWEEN A UNIT PRICE AND EXTENDED PRICE, THE UNIT PRICE WILL BE PRESUMED TO BE CORRECT, SUBJECT, HOWEVER, TO CORRECTION TO THE SAME EXTENT AND IN THE SAME MANNER AS ANY OTHER MISTAKE. IN VIEW THEREOF, IT WOULD APPEAR THAT THE CONTRACTING OFFICER MIGHT HAVE BEEN FORCED TO APPLY THE MISTAKE PROCEDURES PROVIDED FOR IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WITH REGARD TO THE UNIT PRICES OF THE BIDDERS OTHER THAN KENTUCKY SINCE THEIR UNIT PRICES AS EXTENDED, EQUALLED ONLY A THIRD OF THEIR TOTAL PRICES. IT APPEARS, HOWEVER, THAT THE CONTRACTING OFFICER EXERCISED HIS PREROGATIVE UNDER 10(B) OF SF 33A TO WAIVE MINOR IRREGULARITIES AND INDEPENDENTLY VERIFIED THE UNIT PRICES WITH TOTAL PRICES THROUGH A MULTIPLICATION FACTOR OF THREE. THEREFORE, THE EVALUATION OF THE BIDS ON THE BASIS OF TOTAL PRICE WAS THE ONLY MANNER IN WHICH THE BIDS COULD BE EVALUATED ON A COMMON BASIS. WE CANNOT CONCLUDE THAT SUCH A PROCEDURE WAS IMPROPER SINCE PAGE 27 OF THE IFB STIPULATED THAT THE AWARD WOULD BE MADE ON THE BASIS OF THE LOWEST OVERALL COST TO THE GOVERNMENT, AND AN EVALUATION ON THE BASIS OF TOTAL ANNUAL COST FOR AN ITEM WAS NOT INCOMPATIBLE WITH THAT EVALUATION STANDARD.

FINALLY, YOUR CONTENTION THAT KENTUCKY WILL BE REQUIRED TO STRIP AND REWAX ONLY TWICE DUE TO THE FACT THAT ITS CONTRACT WILL HAVE A DURATION OF ONLY ELEVEN MONTHS MAY BE MERITORIOUS. HOWEVER, THIS IS A MATTER OF CONTRACT ADMINISTRATION AND, AS SUCH, WOULD BE FOR CONSIDERATION AS AN ADJUSTMENT UNDER THE CHANGES CLAUSE OF THE CONTRACT. WE HAVE THEREFORE SUGGESTED TO THE SECRETARY OF THE ARMY THAT CONSIDERATION BE GIVEN TO SUCH AN ADJUSTMENT IF THE CONTRACTOR IS, IN FACT, ONLY REQUIRED TO REWAX TWICE DURING THE CONTRACT TERM.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.