B-174297, OCT 27, 1971

B-174297: Oct 27, 1971

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE REASONABLE INTERPRETATION OF PROTESTANT'S BID WAS THAT THEY WERE IMPOSING A MATERIAL CONDITION NOT IN THE SOLICITATION. THE BID WAS PROPERLY REJECTED. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 4. YOUR TELEGRAM TO THE BUREAU OF INDIAN AFFAIRS STATED "OUR BID AS SUBMITTED IS BASED ON WATER REQUIRED FOR CONSTRUCTION BEING AVAILABLE AT STONE LAKE AND LA JARA LAKE.". YOU WERE FURTHER ADVISED THAT SINCE THE TRIBE HAD BY RESOLUTION NO. 72-49 DATED SEPTEMBER 3. SPECIFICALLY THAT NO WATER WILL BE AVAILABLE FROM STONE LAKE AND LA JARA LAKE. YOU POINT OUT THAT YOUR BID WAS LOW AT $1. IT IS YOUR CONTENTION THAT THIS $36. YOU ALSO INDICATE THAT YOUR TELEGRAM WAS NOT INTENDED TO MEAN THAT YOU WOULD NOT ACCEPT THE BID IF WATER WAS NOT AVAILABLE.

B-174297, OCT 27, 1971

BID PROTEST - RESPONSIVENESS - MATERIAL DEVIATION DECISION DENYING PROTEST AGAINST THE REJECTION OF A LOW BID, DUE TO ITS NONRESPONSIVENESS, UNDER AN IFB ISSUED BY THE DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS, COVERING WORK ON SEVERAL PROJECTS. THE REASONABLE INTERPRETATION OF PROTESTANT'S BID WAS THAT THEY WERE IMPOSING A MATERIAL CONDITION NOT IN THE SOLICITATION, I.E., THAT WATER WOULD BE AVAILABLE FROM A GIVEN SOURCE - STONE LAKE AND LA JORA LAKE, WHEN IN FACT THE SOLICITATION PLACED THE RESPONSIBILITY ON THE CONTRACTOR FOR NEGOTIATING WITH THE TRIBAL COUNCIL FOR THE USE OF WATER SOURCES AND THE TRIBE, BY RESOLUTION, HAD AUTHORIZED THE USE OF WATER FROM HAYDEN LAKE ONLY. UNDER THE CIRCUMSTANCES, THE BID WAS PROPERLY REJECTED.

TO NIELSONS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 4, 1971, WITH ENCLOSURES, PROTESTING REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. BIA-M00-72-03, ISSUED BY THE DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS, ALBUQUERQUE AREA OFFICE, ALBUQUERQUE, NEW MEXICO, COVERING PROJECTS J15(1)2&4, J8(1)2&4, J15(2)2&4 AND J60(1)4, VIGIL ROAD, STONE LAKE ROAD AND LODGE DRIVE.

ARTICLE 10 OF THE SPECIFICATIONS SPECIAL PROVISIONS PLACED THE RESPONSIBILITY ON THE CONTRACTOR FOR NEGOTIATING WITH THE TRIBAL COUNCIL AND OTHERS FOR THE USE OF WATER SOURCES. ON SEPTEMBER 23, 1971, YOUR TELEGRAM TO THE BUREAU OF INDIAN AFFAIRS STATED "OUR BID AS SUBMITTED IS BASED ON WATER REQUIRED FOR CONSTRUCTION BEING AVAILABLE AT STONE LAKE AND LA JARA LAKE." THE CONTRACTING OFFICER DETERMINED THAT THIS CONDITION RENDERED YOUR BID NONRESPONSIVE. HE THEREFORE REJECTED IT IN ACCORDANCE WITH FEDERAL PROCUREMENT REGULATION 1-2.404 2. YOU WERE FURTHER ADVISED THAT SINCE THE TRIBE HAD BY RESOLUTION NO. 72-49 DATED SEPTEMBER 3, 1971, AUTHORIZED THE USE OF WATER FROM HAYDEN LAKE ONLY, YOUR TELEGRAPHIC STATEMENT HAD IMPOSED A CONDITION THAT NOT ONLY VARIES FROM THE TERMS AND CONDITIONS OF THE SPECIFICATIONS, BUT ALSO VARIES FROM THE WISHES OF THE TRIBE, SPECIFICALLY THAT NO WATER WILL BE AVAILABLE FROM STONE LAKE AND LA JARA LAKE.

YOU STATE THAT THE INSTRUCTIONS TO BIDDERS PROVIDES THAT "THE GOVERNMENT MAY, WHEN IN ITS INTEREST, REJECT ANY OR ALL BIDS OR WAIVE ANY INFORMALITY IN BIDS RECEIVED." YOU POINT OUT THAT YOUR BID WAS LOW AT $1,004,299.05, WHILE THE NEXT LOW BID AMOUNTED TO $1,040,677. IT IS YOUR CONTENTION THAT THIS $36,000 DIFFERENCE WOULD BE JUSTIFICATION TO WAIVE THE INFORMALITY IN YOUR BID. YOU ALSO INDICATE THAT YOUR TELEGRAM WAS NOT INTENDED TO MEAN THAT YOU WOULD NOT ACCEPT THE BID IF WATER WAS NOT AVAILABLE, NOR DID YOU INTEND TO MEAN THAT AN ADDITIONAL INCREASE IN UNIT PRICES WOULD BE REQUIRED IF THE WATER WAS NOT MADE AVAILABLE.

THE RULES GOVERNING PROCUREMENT BY FORMAL ADVERTISING LIMIT ELIGIBILITY FOR AWARD TO THOSE SUBMITTING RESPONSIVE BIDS. A BID IS RESPONSIVE IF IT UNDERTAKES BY ITS TERMS TO MEET ALL OF THE MATERIAL CONDITIONS OF THE SOLICITATION. THE REASONABLE INTERPRETATION OF YOUR TELEGRAM IS THAT YOU WERE IMPOSING A MATERIAL CONDITION NOT IN THE SOLICITATION, I.E., THAT WATER WOULD BE AVAILABLE FROM A GIVEN SOURCE EVEN THOUGH THE IFB DID NOT PROVIDE THAT SUCH SOURCE WOULD BE AVAILABLE. THEREFORE, YOUR BID COULD NOT HAVE BEEN ACCEPTED WITHOUT VARYING THE TERMS OF THE IFB.

HOWEVER, THE CONTRACT AWARDED TO A SUCCESSFUL BIDDER MUST BE THE CONTRACT OFFERED TO ALL BIDDERS. IT IS CLEAR THAT A CONTRACT AWARDED ON THE BASIS OF YOUR BID WOULD NOT BE THE CONTRACT OFFERED TO ALL PROSPECTIVE CONTRACTORS.

THEREFORE, WE MUST CONCLUDE THAT THE REJECTION OF YOUR BID WAS PROPER UNDER THE CIRCUMSTANCES.