B-174663, MAR 7, 1972

B-174663: Mar 7, 1972

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IT IS THE OPINION OF THE COMP. UPON WHICH THE AWARD TO DYNETERIA IS BASED. WAS CLEARLY STATED. THE PROTEST IS DENIED. TO MILLAR & FALLEN: REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 1. THE BIDS WERE OPENED ON NOVEMBER 16. AWARD WAS MADE TO DYNETERIA. AFTER THE LOW BIDDER WAS REJECTED AS NONRESPONSIVE. BIDS WERE INVITED ON ITEM 0001 FOR GUARD SERVICES AND/OR ITEM 0002 FOR OTHER LABOR SERVICES FOR A 7-MONTH PERIOD. THE BID SUBMITTED BY DYNETERIA OFFERED A 5 PERCENT DISCOUNT FOR PAYMENT MADE WITHIN 20 DAYS IN THE EVENT THAT THEY WERE AWARDED EITHER ITEM 0001 OR ITEM 0002. DYNETERIA OFFERED A 20 PERCENT DISCOUNT FOR PAYMENT MADE WITHIN 20 DAYS IN THE EVENT THEY WERE AWARDED BOTH ITEMS. BIDS WERE EVALUATED FOR AWARD BY INDIVIDUAL ITEM AND ALSO ON THE BASIS OF AWARD TO A CONTRACTOR FOR BOTH ITEMS 0001 AND 0002.

B-174663, MAR 7, 1972

BID PROTEST - PROMPT PAYMENT DISCOUNTS - USE AS EVALUATION FACTOR DECISION DENYING PROTEST OF UNITED SECURITY SERVICES, INC., AGAINST AWARD OF A CONTRACT TO DYNETERIA, INC., UNDER AN IFB ISSUED BY THE NAVY SUPPLY CENTER, CHARLESTON, S.C., FOR GUARD SERVICES AND/OR OTHER LABOR SERVICES FOR A 7-MONTH PERIOD. IT IS THE OPINION OF THE COMP. GEN. THAT THE 20 PERCENT DISCOUNT, UPON WHICH THE AWARD TO DYNETERIA IS BASED, WAS CLEARLY STATED, AND THE EFFECT OF ANY SUBSEQUENT CHANGES OR DELETIONS IN THE CONTRACT MAY ONLY BE CONSIDERED AS THEY OCCUR AND NOT IN THE EVALUATION OF BIDS. 41 COMP. GEN. 203 (1961). ACCORDINGLY, THE PROTEST IS DENIED.

TO MILLAR & FALLEN:

REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 1, 1971, PROTESTING ON BEHALF OF UNITED SECURITY SERVICES, INCORPORATED, AGAINST THE AWARD OF A CONTRACT TO DYNETERIA, INCORPORATED, UNDER INVITATION FOR BIDS NO. N00612- 72-B-0023, ISSUED OCTOBER 19, 1971, BY THE UNITED STATES NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA.

THE BIDS WERE OPENED ON NOVEMBER 16, 1971, AND AWARD WAS MADE TO DYNETERIA, INCORPORATED, AFTER THE LOW BIDDER WAS REJECTED AS NONRESPONSIVE. BIDS WERE INVITED ON ITEM 0001 FOR GUARD SERVICES AND/OR ITEM 0002 FOR OTHER LABOR SERVICES FOR A 7-MONTH PERIOD. THE IFB CONTAINED THE USUAL PROVISION (PARAGRAPH 9 OF SF-33A) PERMITTING EVALUATION OF PROMPT PAYMENT DISCOUNTS OFFERED FOR PAYMENT WITHIN 20 DAYS. THE BID SUBMITTED BY DYNETERIA OFFERED A 5 PERCENT DISCOUNT FOR PAYMENT MADE WITHIN 20 DAYS IN THE EVENT THAT THEY WERE AWARDED EITHER ITEM 0001 OR ITEM 0002. IN ADDITION, DYNETERIA OFFERED A 20 PERCENT DISCOUNT FOR PAYMENT MADE WITHIN 20 DAYS IN THE EVENT THEY WERE AWARDED BOTH ITEMS.

BIDS WERE EVALUATED FOR AWARD BY INDIVIDUAL ITEM AND ALSO ON THE BASIS OF AWARD TO A CONTRACTOR FOR BOTH ITEMS 0001 AND 0002.

YOUR CLIENT'S BID IS LOW ON EACH OF THE ITEMS SEPARATELY AND IS REPLACED ONLY IF DYNETERIA'S 20 PERCENT DISCOUNT FOR BOTH ITEMS IS CONSIDERED. IS YOUR POSITION THAT DYNETERIA'S 20 PERCENT DISCOUNT ON AWARD OF BOTH ITEMS IS VAGUE, AMBIGUOUS AND NONRESPONSIVE AND SUBJECT TO BEING LOST BECAUSE OF POSSIBLE CONTRACT ADDITIONS, DELETIONS, OR CHANGES IN QUANTITY, OR DELETION OF EITHER ITEM. CONSEQUENTLY, IT IS YOUR FEELING THAT DYNETERIA'S 20 PERCENT DISCOUNT ON BOTH ITEMS SHOULD NOT BE EVALUATED IN DETERMINING THE LOW BIDDER.

DYNETERIA'S 20 PERCENT DISCOUNT WAS OFFERED ON THE BASIS THAT "BOTH ITEM #0001 AND ITEM 0002 ARE AWARDED TO DYNETERIA *** . THE DISCOUNT IS APPLICABLE TO THE ENTIRE CONTRACT." WE THINK THE DISCOUNT IS CLEARLY STATED, AND THE BIDDER DID NOT INDICATE THAT THE DISCOUNT WILL BE CONTINGENT ON ANY FUTURE EVENTS UNDER THE CONTRACT. FURTHER, WE ARE INFORMED BY THE NAVY THAT NO CHANGES ARE FORESEEN DURING THE 7-MONTH CONTRACT PERIOD. IN ANY CASE, CHANGES OR DELETIONS IN THE CONTRACT SUCH AS YOU CITE ARE CONSIDERED AS THEY OCCUR AND ARE NOT NORMALLY CONSIDERED IN THE EVALUATION OF BIDS. SEE 41 COMP. GEN. 203 (1961).

IT IS OUR OPINION THAT THE ACTION TAKEN BY THE CONTRACTING OFFICER IN THE PRESENT CASE WAS FULLY IN ACCORD WITH THE REQUIREMENTS OF THE PROCUREMENT REGULATIONS AND WITH THE TERMS OF THE SUBJECT INVITATION FOR BIDS. VIEW OF THE FOREGOING, OUR OFFICE FINDS NO PROPER BASIS FOR OBJECTING TO THE AWARD OF THE CONTRACT TO DYNETERIA, INCORPORATED, UNDER THE INSTANT INVITATION AND YOUR PROTEST IS THEREFORE DENIED.