B-174103(1), NOV 18, 1971

B-174103(1): Nov 18, 1971

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WAS WITHIN THE DISCRETION OF THE PROCURING ACTIVITY AND WILL NOT BE QUESTIONED BY GAO ABSENT A SHOWING OF ARBITRARY OR CAPRICIOUS ACTION OR BAD FAITH. SINCE IT HAS BEEN DETERMINED THAT PROTESTANT'S BID WAS NONRESPONSIVE. IT WAS PROPERLY REJECTED AND THIS PROTEST IS THEREFORE DENIED. YOU ADVISED THAT THE DEPARTMENT OF AGRICULTURE IS ACCEPTING NONCONFORMING GOODS UNDER THE CONTRACT. THE SCHEDULED BID OPENING FOR THIS SOLICITATION WAS JUNE 10. PRIOR TO THE SCHEDULED BID OPENING THE PROCURING ACTIVITY DETERMINED THAT IT WAS UNREASONABLE TO REQUIRE THE SUPPLIER TO PROTECT THE STOCK-PILED MATERIAL FROM THEFT FOR THE ONE-YEAR PERIOD AND ON JUNE 7. PROSPECTIVE BIDDERS WERE ADVISED THAT THE SOLICITATION WAS CANCELLED.

B-174103(1), NOV 18, 1971

BID PROTEST - BID RESPONSIVENESS - RESTRICTIVE SPECIFICATIONS DECISION DENYING PROTEST BY LOW BIDDER AGAINST AWARD OF A CONTRACT TO SECOND LOW BIDDER, CONTRACTORS AGGREGATE TRANSPORTATION, INCORPORATED (CATI) UNDER A SOLICITATION ISSUED BY THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE, FOR AGGREGATE BASE MATERIAL, TO BE USED BY ANOTHER CONTRACTOR AS GOVERNMENT-FURNISHED SUPPLIES FOR ROAD CONSTRUCTION. THE DETERMINATION THAT THE BASE MATERIAL COULD NOT INCLUDE VOLCANIC CINDER, BASED ON A 1968 FOREST SERVICE ENGINEERING MATERIALS INVESTIGATION BRANCH REPORT, WAS WITHIN THE DISCRETION OF THE PROCURING ACTIVITY AND WILL NOT BE QUESTIONED BY GAO ABSENT A SHOWING OF ARBITRARY OR CAPRICIOUS ACTION OR BAD FAITH. THE AGRICULTURE DEPARTMENT HAS BEEN ADVISED, HOWEVER, THAT PROTESTS REGARDING SPECIFICATIONS SHOULD BE FILED AND RESOLVED PRIOR TO BID OPENING. SINCE IT HAS BEEN DETERMINED THAT PROTESTANT'S BID WAS NONRESPONSIVE, IT WAS PROPERLY REJECTED AND THIS PROTEST IS THEREFORE DENIED.

TO SHA-NEVA, INCORPORATED:

YOUR PROTEST OF AUGUST 12, 1971, AGAINST THE AWARD OF CONTRACT NO. 39 4098 TO CONTRACTORS AGGREGATE TRANSPORTATION, INCORPORATED (CATI), HAS BEEN FORWARDED TO OUR OFFICE BY THE DEPARTMENT OF AGRICULTURE. IN YOUR LETTER OF SEPTEMBER 3, 1971, SUPPLEMENTING YOUR PROTEST, YOU ADVISED THAT THE DEPARTMENT OF AGRICULTURE IS ACCEPTING NONCONFORMING GOODS UNDER THE CONTRACT.

ON JUNE 2, 1971, THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE, ISSUED INVITATION FOR BIDS NO. R5 17-71-37 FOR AN ESTIMATED QUANTITY OF 11,500 TONS OF CLASS "B", AGGREGATE BASE MATERIAL, TO BE USED BY ANOTHER CONTRACTOR AS GOVERNMENT-FURNISHED SUPPLIES FOR CONSTRUCTION OF A ROAD FOR HAULING TIMBER. THE SOLICITATION PROVIDED THAT THE AGGREGATE MATERIAL SHALL BE STOCK-PILED AT THE YARD OF THE SUPPLIER WHO SHALL PRESERVE AND PROTECT IT FROM THEFT OR CONTAMINATION FOR A PERIOD OF ONE YEAR FROM THE DATE OF ACCEPTANCE OF THE CONTRACT. THE SCHEDULED BID OPENING FOR THIS SOLICITATION WAS JUNE 10, 1971. PRIOR TO THE SCHEDULED BID OPENING THE PROCURING ACTIVITY DETERMINED THAT IT WAS UNREASONABLE TO REQUIRE THE SUPPLIER TO PROTECT THE STOCK-PILED MATERIAL FROM THEFT FOR THE ONE-YEAR PERIOD AND ON JUNE 7, 1971, PROSPECTIVE BIDDERS WERE ADVISED THAT THE SOLICITATION WAS CANCELLED.

ON JULY 2, 1971, THE FOREST SERVICE ISSUED INVITATION FOR BIDS NO. R5 17- 72-1 FOR AN ESTIMATED QUANTITY OF 12,950 TONS OF THE CLASS "B" AGGREGATE BASE MATERIAL. THE JULY 2 SOLICITATION MADE CERTAIN CHANGES SUCH AS DELETING THE REQUIREMENTS FOR STOCK-PILING AND CONTRACTOR PROTECTION OF THE MATERIAL.

A FOREST SERVICE ENGINEERING MATERIALS INVESTIGATION BRANCH (EMIB) REPORT ISSUED IN JUNE 1968 POINTED OUT CERTAIN LIMITATIONS ON THE USE OF VOLCANIC CINDERS IN AGGREGATE MATERIALS AND SPECIFICALLY RECOMMENDED AGAINST USING DUST OIL ON VOLCANIC CINDERS. AS INDICATED, THE AGGREGATE MATERIAL PURCHASED UNDER THE INSTANT SOLICITATION WAS TO BE GOVERNMENT-FURNISHED MATERIAL UNDER A TIMBER CONTRACT WHICH REQUIRED THE CONTRACTOR TO USE DUST OILS ON THE MATERIAL. FOR THIS REASON, THE SPECIFICATIONS IN THE JULY 2 SOLICITATION STATED ON PAGE 2 THAT "VOLCANIC CINDERS ARE NOT ACCEPTABLE AS BASE MATERIAL IN THIS CONTRACT." WE ARE ADVISED THAT THE PROHIBITION AGAINST THE USE OF VOLCANIC CINDERS WAS INADVERTENTLY OMITTED FROM THE PRIOR SOLICITATION.

THE BID OPENING DATE AS EXTENDED WAS JULY 20, 1971. PRIOR TO OPENING OF THIS SOLICITATION YOUR REPRESENTATIVES VISITED THE FOREST SERVICE IN AN EFFORT TO HAVE THE RESTRICTION AGAINST THE VOLCANIC CINDERS REMOVED FROM THE SOLICITATION. THE CONTRACTING OFFICER'S REPORT STATES THAT YOUR REPRESENTATIVES WERE ADVISED THAT VOLCANIC CINDER MATERIAL WAS EXCLUDED UNDER THE TERMS OF THE SOLICITATION SINCE THE USE OF DUST OIL REQUIRED UNDER THE TIMBER CONTRACT WAS NOT COMPATIBLE WITH THE VOLCANIC CINDER MATERIAL. IN ANSWER TO AN INQUIRY ABOUT PROTEST PROCEDURES, YOUR REPRESENTATIVES WERE INSTRUCTED TO PRESENT A WRITTEN PROTEST TO THE BID OPENING OFFICER AT THE CONCLUSION OF THE BID OPENING.

BIDS WERE OPENED ON JULY 20, 1971. YOUR BID AT $21,885.50 WAS LOW AND THE BID FROM CATI AT A NET PRICE AFTER DISCOUNT OF $24,999.98 WAS SECOND LOW. ON PAGE 2 OF YOUR BID YOU INSERTED AN UNDERLINED NOTATION "PLEASE NOTE ATTACHED PAGE" OPPOSITE THE REFERENCE TO PART III OF THE SPECIFICATIONS. THE ATTACHED PAGE INCLUDED WITH YOUR BID STIPULATED THAT YOU WOULD USE "VOLCANIC ORIGIN" MATERIAL AS PART OF THE AGGREGATE BASE OFFERED IN YOUR BID. AFTER BEING ADVISED AT BID OPENING BY AN OFFICIAL OF THE PROCURING ACTIVITY THAT YOUR BID WAS APPARENTLY NONRESPONSIVE, YOU GAVE THIS OFFICIAL A LETTER OF PROTEST DATED JULY 20, 1971.

ON AUGUST 6, 1971, THE CONTRACTING OFFICER DENIED YOUR PROTEST AND YOU WERE ADVISED THAT YOUR BID WAS REJECTED AS NONRESPONSIVE. THIS LETTER STATED THAT SERIOUS CONSIDERATION HAD BEEN GIVEN TO THE POSSIBILITY OF REJECTING ALL BIDS AND READVERTISING THE SOLICITATION DELETING THE PROHIBITION AGAINST VOLCANIC CINDERS; HOWEVER, THE PROCURING ACTIVITY DECIDED AGAINST THIS ALTERNATIVE SINCE ADEQUATE COMPETITION HAD BEEN OBTAINED AND THERE WAS AN IMMEDIATE NEED FOR THIS MATERIAL TO MEET THE GOVERNMENT'S OBLIGATIONS TO ANOTHER CONTRACTOR. THE LETTER OF AUGUST 6 CONCLUDED THAT THE EMIB WOULD TEST WHETHER VOLCANIC CINDERS COULD BE USED IN FUTURE PROCUREMENTS BUT THESE TESTS WOULD NOT BE COMPLETED FOR ABOUT 1 OR 2 MONTHS. AWARD WAS MADE TO CATI ON AUGUST 6, 1971.

YOUR LETTER OF AUGUST 12, 1971, ADDRESSED TO OUR OFFICE IN CARE OF THE CONTRACTING OFFICER, PROTESTS AGAINST PROHIBITING THE USE OF VOLCANIC CINDERS AND THE REJECTION OF YOUR BID.

THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS AND FOR DETERMINING WHETHER THE ITEMS OFFERED MEET THE REQUIREMENTS OF THE SPECIFICATIONS IS PRIMARILY THE FUNCTION OF THE PROCURING ACTIVITY, AND SUCH DETERMINATIONS WILL NOT BE QUESTIONED BY OUR OFFICE IN THE ABSENCE OF A SHOWING THAT THE PROCURING ACTIVITY ACTED IN AN ARBITRARY OR CAPRICIOUS MANNER OR NOT IN GOOD FAITH. SEE 17 COMP. GEN. 554 (1938). IN THE CIRCUMSTANCES WE DO NOT FIND THAT THE PROHIBITION AGAINST THE USE OF VOLCANIC CINDERS BASED ON AN EMIB TEST REPORT OF JUNE 1968 WAS ARBITRARY OR CAPRICIOUS. THEREFORE, WE FIND NO BASIS TO OBJECT TO THE ADMINISTRATIVE ACTION. IN THE ENCLOSED LETTER TO THE DEPARTMENT OF AGRICULTURE WE HAVE ADVISED THAT PROTESTS REGARDING SPECIFICATION REQUIREMENTS SHOULD BE FILED AND RESOLVED PRIOR TO BID OPENING.

YOUR LETTER OF SEPTEMBER 3, 1971, COMPLAINS THAT THE AGGREGATE MATERIAL BEING FURNISHED BY CATI UNDER CONTRACT NO. 39-4098 DOES NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS. THE CONTRACTING OFFICER'S SUPPLEMENTAL REPORT ADVISES THAT THE DEFECTIVE MATERIAL HAS BEEN REJECTED AND THE CONTRACTOR HAS BEEN ORDERED TO PROVIDE AGGREGATE BASE MATERIAL CONFORMING TO THE REQUIREMENTS OF THE SPECIFICATIONS. APPARENTLY, A SUBCONTRACTOR HAD SUPPLIED DEFECTIVE MATERIAL TO CATI. HOWEVER, THIS PROBLEM HAS BEEN REMEDIED SINCE CATI HAS OBTAINED A NEW SOURCE AND IS NOW DELIVERING MATERIAL MEETING CONTRACT REQUIREMENTS.

FOR THESE REASONS YOUR PROTEST IS DENIED.