B-174192, DEC 29, 1971

B-174192: Dec 29, 1971

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PROTESTANT ARGUES THAT THERE IS NO JUSTIFICATION FOR A CONTRACT PRICE INCREASE SUBSEQUENT TO AWARD. THE PROTEST IS DENIED. INC.: THIS IS IN REPLY TO YOUR TELEFAX DATED SEPTEMBER 27. SCIENTIFIC'S PRICE OF $5860 WAS THE LOWEST RECEIVED WHILE YOUR BID OF $6625 WAS SECOND LOW. AWARD WAS MADE TO SCIENTIFIC ON JUNE 29. AFTER THE CONTRACTING OFFICER DETERMINED THAT ITS BID MET ALL OF THE SOLICITATION'S REQUIREMENTS AND THAT THE BIDDER WAS RESPONSIBLE. THAT CHANGES IN THE DIMENSIONS OF THE COOLER BEING FURNISHED BY SCIENTIFIC WERE REQUIRED TO ACCOMMODATE THE GOVERNMENT'S INTENDED USE. IT IS YOUR POSITION THAT THERE IS NO JUSTIFICATION FOR AN INCREASE IN CONTRACT PRICE SUBSEQUENT TO AWARD. YOU BELIEVE THE CONTRACT SHOULD HAVE BEEN AWARDED TO YOUR FIRM AS THE LOWEST RESPONSIBLE BIDDER MEETING ALL OF THE SPECIFICATIONS.

B-174192, DEC 29, 1971

BID PROTEST - BID RESPONSIVENESS - UNUSUAL SITE CONDITIONS DECISION DENYING PROTEST BY LAB-LINE INSTRUMENTS, INC., OF AN AWARD TO SCIENTIFIC SYSTEMS CORPORATION, LOW BIDDER, UNDER A SOLICITATION ISSUED BY THE AGRICULTURAL RESEARCH SERVICE, FOR THE PURCHASE AND INSTALLATION OF A WALK-IN COOLER. PROTESTANT ARGUES THAT THERE IS NO JUSTIFICATION FOR A CONTRACT PRICE INCREASE SUBSEQUENT TO AWARD. SINCE THE SPECIFICATIONS DID NOT PROVIDE FOR THE NECESSARY CHANGES, AND SINCE THE AMENDED CONTRACT PRICE REMAINS LESS THAN PROTESTANT'S SECOND LOW BID, THE PROTEST IS DENIED.

TO LAB-LINE INSTRUMENTS, INC.:

THIS IS IN REPLY TO YOUR TELEFAX DATED SEPTEMBER 27, 1971, AND SUBSEQUENT CORRESPONDENCE DATED SEPTEMBER 30, OCTOBER 5 AND 11, 1971, PROTESTING THE CONTRACT AWARD TO SCIENTIFIC SYSTEMS CORPORATION (SCIENTIFIC) UNDER SOLICITATION NO. 162-RN-ARS-71, ISSUED BY THE U.S. DEPARTMENT OF AGRICULTURE, AGRICULTURAL RESEARCH SERVICE (ARS), FOR THE PURCHASE AND INSTALLATION OF A WALK-IN COOLER.

IN RESPONSE TO THIS SOLICITATION THE GOVERNMENT RECEIVED FOUR BIDS. SCIENTIFIC'S PRICE OF $5860 WAS THE LOWEST RECEIVED WHILE YOUR BID OF $6625 WAS SECOND LOW. AWARD WAS MADE TO SCIENTIFIC ON JUNE 29, 1971, AFTER THE CONTRACTING OFFICER DETERMINED THAT ITS BID MET ALL OF THE SOLICITATION'S REQUIREMENTS AND THAT THE BIDDER WAS RESPONSIBLE, AS INDICATED BY THE COMPANY'S PERFORMANCE ON PAST AND CURRENT CONTRACTS WITH ARS. SUBSEQUENT TO AWARD IT BECAME APPARENT, FOR THE REASONS STATED BELOW, THAT CHANGES IN THE DIMENSIONS OF THE COOLER BEING FURNISHED BY SCIENTIFIC WERE REQUIRED TO ACCOMMODATE THE GOVERNMENT'S INTENDED USE. SEPTEMBER 17, 1971, THE CONTRACTING OFFICER ISSUED A MODIFICATION TO THE CONTRACT'S REQUIREMENTS AND INCREASED THE AGREED CONTRACT PRICE TO COMPENSATE FOR THE MODIFIED REQUIREMENTS.

ESSENTIALLY, IT IS YOUR POSITION THAT THERE IS NO JUSTIFICATION FOR AN INCREASE IN CONTRACT PRICE SUBSEQUENT TO AWARD, AND YOU BELIEVE THE CONTRACT SHOULD HAVE BEEN AWARDED TO YOUR FIRM AS THE LOWEST RESPONSIBLE BIDDER MEETING ALL OF THE SPECIFICATIONS.

IT IS REPORTED THAT PURSUANT TO INFORMATION SUBMITTED BY THE REQUISITIONER, THE CONTRACTING OFFICER INCLUDED INFORMATION IN THE INVITATION WHICH STATED: (1) THAT THE INSTALLATION SPACE WAS 10' 8" WIDE BY 19' 9" LONG BY 8' HIGH; (2) THAT THERE SHOULD BE CLEARANCE ON ALL SIDES OF THE COOLER; AND (3) THAT THE COOLER'S OVERALL OUTSIDE DIMENSIONS THEREFORE WERE NOT TO EXCEED 9' 8 1/4" WIDE BY 19' 4 1/4" LONG BY 7' 6" HIGH. HOWEVER, IT APPEARS THAT THE ACTUAL AVAILABLE HEIGHT IN THE PROPOSED INSTALLATION AREA WAS IN FACT TEN FEET, RATHER THAN THE EIGHT FEET STATED IN THE SOLICITATION. BY WAY OF EXPLANATION IN THIS REGARD, THE CONTRACTING OFFICER REPORTS THAT THE REQUISITIONER HAS ADVISED THAT THE HEIGHT AVAILABILITY OF EIGHT FEET AND THE CORRESPONDING MAXIMUM EXTERIOR HEIGHT SPECIFICATION FOR THE COOLER OF SEVEN FEET, SIX INCHES WERE SUBMITTED BECAUSE IT WAS ASSUMED THAT ALL MANUFACTURERS PLACED AIR HANDLING DUCTS ON THE EXTERIOR ROOF OF THE WALK-IN COOLER, AND IT WAS CONTEMPLATED THAT EXTERIOR DUCT WORK COULD BE ACCOMPLISHED IN THE 2 1/2 FOOT SPACE REMAINING ABOVE THE COOLER. ACCORDINGLY, IT WAS FELT THAT THE SEVEN FEET, SIX INCHES SPECIFIED FOR THE EXTERIOR HEIGHT OF THE COOLER SHOULD HAVE PERMITTED SUFFICIENT INTERIOR SPACE FOR THE INTENDED USE, AND NO MINIMUM INTERIOR HEIGHT WAS SET OUT IN THE SPECIFICATIONS.

THE RECORD INDICATES THAT AFTER AWARD OF THIS CONTRACT, THE CONTRACTING OFFICER LEARNED THAT SCIENTIFIC'S COOLER DESIGN WOULD NOT PROVIDE SUFFICIENT INTERIOR WORKING SPACE TO ACCOMMODATE THE TALL CHROMATOGRAPHIC COLUMNS WHICH THE GOVERNMENT INTENDED TO USE IN THE COOLER. SPECIFICALLY, THE COOLER WHICH SCIENTIFIC INTENDED TO PROVIDE INCORPORATED THE USE OF AIR HANDLING DUCTS LOCATED ON THE INTERIOR CEILING OF THE WALK-IN COOLER, AND THIS DESIGN RESTRICTED THE SPACE AVAILABLE FOR THE GOVERNMENT'S USE. IT FURTHER APPEARS THAT THIS INTERIOR HEIGHT PROBLEM COULD NOT BE RESOLVED BY THE PLACEMENT OF AIR HANDLING DUCTS EXTERIOR TO THE COOLER, SINCE THE DESIGN OF SCIENTIFIC'S COOLER WOULD NOT ALLOW FOR SUCH PLACEMENT.

CONFRONTED WITH THIS SITUATION, AND THE FACT THAT THE CONTRACTOR COULD DELIVER A COOLER WHICH WOULD FULLY MEET THE REQUIREMENTS OF THE SOLICITATION BUT WOULD BE UNUSABLE FOR ITS INTENDED PURPOSES, THE CONTRACTING OFFICER ISSUED A CHANGE ORDER WHICH, IN PART, REQUIRED SCIENTIFIC TO FURNISH A TALLER UNIT WITH AN EXTERIOR HEIGHT DIMENSION OF NINE FEET, SIX INCHES RATHER THAN THE SEVEN FEET, SIX INCHES PROPOSED IN ITS BID. IT ALSO APPEARS THAT THE LIGHTING ORIGINALLY SPECIFIED FOR THE UNIT WOULD NOT HAVE BEEN ADEQUATE, AND THE CONTRACTING OFFICER THEREFORE INCLUDED IN THE CHANGE ORDER A REQUIREMENT FOR TWO ADDITIONAL LIGHT FIXTURES WITH LAMPS AND BALLASTS FOR AN ADDITIONAL AMOUNT OF $90. COMPENSATE THE CONTRACTOR FOR THE LARGER UNIT AND FOR THE ADDITIONAL LIGHTING AND ADDITIONAL AMOUNT OF $768 WAS PROVIDED.

WE HAVE REVIEWED THE INVITATION ISSUED IN THIS CASE AND WE NOTE THAT THE SPECIFICATIONS DID NOT PROVIDE, IN ANY MANNER, FOR A MINIMUM SIZE FOR THE INTERIOR OF THE UNIT, NOR DID THE USE OF INTERIOR DUCT WORK PRECLUDE COMPLIANCE WITH THE ADVERTISED SPECIFICATIONS. ACCORDINGLY, WE FIND NO BASIS FOR DISAGREEING EITHER WITH THE CONTRACTING OFFICER'S DETERMINATION THAT SCIENTIFIC'S LOW BID WAS RESPONSIVE TO THE ADVERTISED SPECIFICATIONS OR WITH HIS ACTION IN AMENDING THE CONTRACT TO REQUIRE DELIVERY OF A USABLE COOLER.

YOU ALSO TAKE THE POSITION THAT UNDER NO CONDITIONS SHOULD THE CONTRACTING OFFICER HAVE AWARDED SCIENTIFIC ANY ADDITIONAL COMPENSATION. YOU BELIEVE THAT AMPLE WARNING WAS PROVIDED BIDDERS IN THAT THE SOLICITATION CALLED SPECIFIC ATTENTION TO THE FACT THAT UNUSUAL CONDITIONS EXISTED AT THE SITE WITH RESPECT TO INSTALLATION AND THAT BIDDERS WERE INVITED TO VISIT THE SITE TO FULLY INFORM THEMSELVES OF EXISTING CONDITIONS IN WHICH THE WORK WAS TO BE PERFORMED.

AS EXPLAINED ABOVE THE RECORD ESTABLISHES THAT THE JUSTIFICATION FOR THE CHANGE WAS THE GOVERNMENT'S MINIMUM INTERIOR HEIGHT REQUIREMENT, FOR WHICH THERE WAS NO PROVISION IN THE SPECIFICATION. THE INFORMATION OBTAINABLE BY BIDDERS FROM A SITE VISIT WOULD NOT NECESSARILY HAVE PLACED SUCH BIDDERS ON NOTICE OF THE GOVERNMENT'S MINIMUM INTERIOR HEIGHT REQUIREMENTS. MOREOVER, THE APPLICABLE "CHANGES" CLAUSE, UPON WHICH THE CONTRACTING OFFICER RELIED IN THIS CASE, PERMITS CHANGES IN THE SPECIFICATIONS SO LONG AS SUCH CHANGES ARE "WITHIN THE GENERAL SCOPE OF THE CONTRACT", AND THE CLAUSE ALLOWS EQUITABLE ADJUSTMENTS IF ANY SUCH CHANGE CAUSES AN INCREASE OR DECREASE IN THE COST OF, OR THE TIME REQUIRED FOR, PERFORMANCE. IN OUR OPINION THE CHANGE IN QUESTION CLEARLY IS SUCH AS IS CONTEMPLATED BY THE "CHANGES" CLAUSE, AND AN EQUITABLE ADJUSTMENT REPRESENTING INCREASED COST OF PERFORMANCE TO THE CONTRACTOR IS PROPER.

FOR THE REASONS STATED ABOVE, AND SINCE THE AMENDED CONTRACT PRICE (LESS THE $90 ATTRIBUTABLE TO ADDITIONAL LIGHTING) REMAINS LESS THAN THE AMOUNT OF YOUR SECOND LOW BID, WE FIND NO VALID BASIS FOR QUESTIONING EITHER THE VALIDITY OF THE CONTRACT AWARD IN THIS CASE OR THE CHANGES AND PRICE INCREASE AFTER AWARD. ACCORDINGLY, YOUR PROTEST IS DENIED.