B-173924, MAY 18, 1972

B-173924: May 18, 1972

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IN THE INSTANT CASE IT IS THE OPINION OF THE COMP. THAT THE INVITATION READ IN ITS ENTIRETY CLEARLY INDICATES THAT THE SUCCESSFUL CONTRACTOR WILL BE RESPONSIBLE FOR BOTH DEVELOPMENT AND PROCESSING. THE PROTEST IS DENIED. MINIMUM AND MAXIMUM QUANTITY LIMITATIONS WERE STATED IN PARAGRAPHS "B" AND "C.". THE SECTION CONCLUDED WITH THE FOLLOWING NOTE: "AWARD WILL BE MADE TO LOW RESPONSIVE RESPONSIBLE BIDDER AS TO PART III.A.". THIS JUDGMENT WAS ARRIVED AT BY VIEWING THE $6. JONICS' BID WAS EVALUATED AT $6. SINCE JONICS WAS DETERMINED TO BE THE LOW RESPONSIVE. AWARD WAS MADE TO IT ON AUGUST 12. YOU SUBMITTED TWO SEPARATE BIDS AND THE CONTRACTING OFFICER SHOULD HAVE RECOGNIZED THIS FACT. WE MUST AGREE WITH HUD THAT THE INVITATION READ IN ITS ENTIRETY MAKES IT CLEAR THAT THE SUCCESSFUL CONTRACTOR WILL BE RESPONSIBLE FOR ALL WORK NECESSARY.

B-173924, MAY 18, 1972

BID PROTEST - NONRESPONSIVENESS - ALLEGED AMBIGUOUS SOLICITATION CONCERNING THE PROTEST OF APPLIED DATA SERVICES, INC., AGAINST AWARD OF A CONTRACT TO TRACOR COMPUTING CORPORATION UNDER AN IFB ISSUED BY THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. AS A GENERAL RULE, A BID WHICH CONTAINS TWO OR MORE CONFLICTING STATEMENTS AS TO PRICE OR OTHER MATERIAL INFORMATION MUST BE REJECTED AS NONRESPONSIVE. B-165428, DECEMBER 26, 1968. IN THE INSTANT CASE IT IS THE OPINION OF THE COMP. GEN. THAT THE INVITATION READ IN ITS ENTIRETY CLEARLY INDICATES THAT THE SUCCESSFUL CONTRACTOR WILL BE RESPONSIBLE FOR BOTH DEVELOPMENT AND PROCESSING. ACCORDINGLY, THE PROTEST IS DENIED.

TO APPLIED DATA SERVICES, INC.:

WE REFER TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT ON AUGUST 12, 1971, TO JONICS INTERNATIONAL DIVISION, TRACOR COMPUTING CORPORATION, UNDER INVITATION FOR BIDS NO. H-8-72, ISSUED BY THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD), ON THE GROUND THAT THE CONTRACTING OFFICER IMPROPERLY EVALUATED YOUR BID PRICE. YOU INITIALLY PROTESTED THE AWARD ON AUGUST 23, 1971. HOWEVER, AFTER DEVELOPMENT OF THE PROTEST, WE SUSPENDED CONSIDERATION OF THE PROTEST AT THE REQUEST OF YOUR COUNSEL. ON DECEMBER 22, 1971, YOUR COUNSEL REQUESTED THAT WE PROCEED WITH CONSIDERATION OF THE PROTEST AND RESOLVE IT ON THE RECORD BEFORE US.

FROM OUR REVIEW OF THE RECORD AND FOR THE REASONS SET FORTH BELOW, WE CAN INTERPOSE NO LEGAL OBJECTION TO THE AWARD.

THE INVITATION REQUESTED BIDS FOR FURNISHING "ALL THE PERSONNEL, COMPUTER PROGRAM, MATERIAL AND FACILITIES NECESSARY FOR THE COLLECTION OF DATA, VALIDITY EDITING (AUDIT) OF DATA, CONSOLIDATION OF DATA AND PRINTED REPORTS FOR THE FEDERAL INSURANCE ADMINISTRATION *** IN THE IMPLEMENTATION OF THE FEDERAL CRIME INSURANCE PROGRAM" ON AN INDEFINITE QUANTITY CONTRACT BASIS. PARAGRAPH "A" OF SECTION III OF THE SCHEDULE REQUIRED BIDDERS TO INSERT A PRICE PER 1,000 CARD/RECORD UNIT. MINIMUM AND MAXIMUM QUANTITY LIMITATIONS WERE STATED IN PARAGRAPHS "B" AND "C." IN ADDITION, PARAGRAPH "D" REQUESTED UNIT PRICES FOR TWO 1-YEAR OPTIONS. THE SECTION CONCLUDED WITH THE FOLLOWING NOTE: "AWARD WILL BE MADE TO LOW RESPONSIVE RESPONSIBLE BIDDER AS TO PART III.A."

YOUR FIRM SUBMITTED A UNIT PRICE PER THOUSAND OF $15 FOR THE BASIC TERM AND OPTION PRICES OF $18 FOR THE FIRST YEAR AND $21 FOR THE SECOND YEAR. IN ADDITION, YOUR FIRM MADE THE FOLLOWING HANDWRITTEN ENTRIES IN COLUMNS 12, 14 AND 15 OF THE SCHEDULE, PAGE 1 OF STANDARD FORM 33 (NOV. 1969):

"11. 12. 13. 14. 15.

SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT

"INDEFINITE QUANTITY CONTRACT FOR

STATISTICAL SERVICES TO PROVIDE

FOR THE COLLECTION OF DATA,

VALIDITY EDIT (AUDIT) OF DATA 1000.00 15.00 6,100.00

AND CONSOLIDATION OF DATA FOR

THE FEDERAL INSURANCE

ADMINISTRATION, DEPARTMENT OF

HOUSING AND URBAN DEVELOPMENT.

IN ADDITION, YOUR FIRM'S BID INCLUDED A DOCUMENT ENTITLED "PROJECT DEFINITION AND ESTIMATE," WHICH INCLUDED THE FOLLOWING COST BREAKDOWN:

SYSTEMS: $1,000

PROGRAMMING: 4,000

COMPUTER: 600

KEY PUNCH: 200

MISC. TAB: 300

TOTAL DEVELOPMENT COST $6,100

IN LIGHT OF THE FOREGOING, HUD DETERMINED YOUR BID TO BE $7,600 FOR PURPOSES OF EVALUATION. THIS JUDGMENT WAS ARRIVED AT BY VIEWING THE $6,100 PRICE ENTRY AS DEVELOPMENT COSTS (AS OPPOSED TO PROCESSING COSTS) AND ADDING TO THAT SUM $1,500, WHICH REPRESENTS THE UNIT PRICE OF $15 INSERTED IN SECTION IIIA MULTIPLIED BY THE MINIMUM GUARANTEED UNITS. JONICS' BID WAS EVALUATED AT $6,900 IN VIEW OF ITS INSERTION IN SECTION IIIA OF A $69 UNIT PRICE. SINCE JONICS WAS DETERMINED TO BE THE LOW RESPONSIVE, RESPONSIBLE BIDDER, AWARD WAS MADE TO IT ON AUGUST 12, 1971.

YOU MAINTAIN THAT THE INVITATION FAILED TO "CLEARLY SPECIFY" WHETHER THE SUCCESSFUL CONTRACTOR WOULD BE RESPONSIBLE FOR BOTH THE TOTAL DEVELOPMENT AND PROCESSING. SPECIFICALLY, YOU VIEWED SECTION IIIA AS CALLING FOR PROCESSING PRICES ONLY AND, ACCORDINGLY, YOUR $15 ENTRY IN THIS SECTION REPRESENTED ONLY UNIT PRICE PROCESSING RATE; AND TO CLARIFY THE INVITATION, YOU QUOTED A PRICE OF $6,100 FOR BOTH DEVELOPMENT AND PROCESSING. YOU URGE THAT, IN EFFECT, YOU SUBMITTED TWO SEPARATE BIDS AND THE CONTRACTING OFFICER SHOULD HAVE RECOGNIZED THIS FACT.

INITIALLY, WE MUST AGREE WITH HUD THAT THE INVITATION READ IN ITS ENTIRETY MAKES IT CLEAR THAT THE SUCCESSFUL CONTRACTOR WILL BE RESPONSIBLE FOR ALL WORK NECESSARY. SEE, E.G., SECTION I, SCOPE OF WORK, MOREOVER, SECTION III OF THE INVITATION IS THE ONLY SECTION IN WHICH PRICES ARE REQUESTED AND BIDDERS WERE SPECIFICALLY CAUTIONED THAT THE UNIT PRICES SUBMITTED FOR IIIA WOULD BE THE BASIS UPON WHICH AWARD WOULD BE MADE. VIEWING SECTION III IN LIGHT OF THE ENTIRE INVITATION, A CONCLUSION THAT A QUOTE FOR ONLY PART OF THE WORK CALLED FOR SEEMS UNREASONABLE TO US. WE REGRET THAT ANY QUESTIONS YOU MAY HAVE HAD CONCERNING THIS MATTER WERE NOT RAISED WITH THE CONTRACTING OFFICER IN ACCORDANCE WITH PARAGRAPH 3 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, STANDARD FORM 33A (MARCH 1969) PRIOR TO BID SUBMISSION. SEE 48 COMP. GEN. 757, 760 (1969).

WE CANNOT SAY THAT HUD'S INTERPRETATION OF YOUR BID WAS AN UNREASONABLE ONE. WE NOTE THAT IT CORRESPONDS WITH YOUR OWN TO THE EXTENT THAT IT RECOGNIZES THAT THE PRICE YOU QUOTED FOR SECTION IIIA ONLY COVERED PROCESSING. YOUR INTERPRETATIONS DIFFER IN THAT HUD RELIES ON THE PROJECT DEFINITION AND ESTIMATE DOCUMENT, WHICH SUGGESTS THAT THE $6,100 QUOTE REPRESENTS THE TOTAL DEVELOPMENT COST, WHILE YOU MAINTAIN THAT THE INSERTION OF $6,100 IN COLUMN 15 ON PAGE 1 OF STANDARD FORM 33 IS INDICATIVE OF AN INTENT TO QUOTE $6,100 FOR BOTH DEVELOPMENT AND PROCESSING. HOWEVER, IN VIEW OF THE PROJECT DEFINITION AND ESTIMATE DOCUMENT, WE BELIEVE THAT YOUR INTENTION AS MANIFESTED IN THE BID AND SUPPORTING DOCUMENTS WAS AMBIGUOUS.

WHERE, AS HERE, A BID CONTAINS TWO OR MORE CONFLICTING STATEMENTS AS TO PRICE OR OTHER MATERIAL INFORMATION, OUR POSITION HAS BEEN THAT THE BID MUST BE REJECTED. B-165428, DECEMBER 26, 1968, CITING 40 COMP. GEN. 393, 397 (1961). FOR, AS WE STATED IN THE LATTER CITED CASE -

" *** WHERE EACH OF TWO POSSIBLE MEANINGS CAN BE REACHED FROM THE TERMS OF A BID, THE BIDDER SHOULD NOT BE ALLOWED TO EXPLAIN HIS MEANING WHEN HE IS IN A POSITION THEREBY TO PREJUDICE OTHER BIDDERS OR TO AFFECT THE RESPONSIVENESS OF HIS BID. SUCH ACTION WOULD SERVE TO UNDERMINE THE INTEGRITY OF THE BIDDING SYSTEM AND CAUSE OVERALL HARM TO THE SYSTEM OF COMPETITIVE BIDDING DESPITE THE IMMEDIATE ADVANTAGE GAINED BY A LOWER PRICE IN THE PARTICULAR PROCUREMENT."

ACCORDINGLY, YOUR PROTEST IS DENIED.