B-174888, MAY 30, 1972

B-174888, MAY 30, 1972

BID PROTEST - NONRESPONSIVENESS DECISION DENYING THE PROTEST OF CINCINNATI MILACRON COMPANY AGAINST AWARD OF A CONTRACT TO MONARCH MACHINE TOOL COMPANY UNDER AN IFB ISSUED BY EDGEWOOD ARSENAL FOR A MILLING MACHINE. THE COMP. GEN. CANNOT AGREE WITH PROTESTANT'S CONTENTION THAT MONARCH'S BID WAS NONRESPONSIVE, SINCE THE IFB MIGHT REASONABLY BE CONSTRUED AS INDICATING THAT ITEM 2 NEED NOT BE SEPARATELY PRICED. ACCORDINGLY, THE PROTEST IS DENIED.

TO CINCINNATI MILACRON COMPANY

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED JANUARY 5 AND 10, 1972, RESPECTIVELY, PROTESTING AGAINST THE AWARD OF A CONTRACT TO MONARCH MACHINE TOOL COMPANY UNDER DEPARTMENT OF THE ARMY INVITATION FOR BIDS (IFB) NO. DAAA15-72-B-0035, AS AMENDED, ISSUED BY THE EDGEWOOD ARSENAL, MARYLAND.

THE IFB, AS AMENDED, REQUESTED BIDS FOR FURNISHING ONE NUMERICALLY CONTROLLED MILLING MACHINE, INSTALLATION, SET-UP AND DEMONSTRATION, TRAINING AND DATA, ITEMS 1 THROUGH 6, INCLUSIVE. THE INVITATION PROVIDED THAT AWARD OF ALL ITEMS WOULD BE MADE TO ONE OFFEROR WHOSE TOTAL OFFER FOR ALL ITEMS WOULD BE MOST ADVANTAGEOUS TO THE GOVERNMENT.

FIVE BIDDERS QUOTED AGGREGATE BID PRICES RANGING FROM $176,082 TO $214,591. THE LOWEST AGGREGATE BID PRICE FOR THE REQUIRED ITEMS AND SERVICES WAS SUBMITTED BY THE MONARCH MACHINE TOOL COMPANY AND THE NEXT LOWEST AGGREGATE BID PRICE WAS SUBMITTED BY YOUR FIRM.

THE INVITATION SCHEDULE WAS AS FOLLOWS:

UNIT

"ITEM NO. SUPPLIES/SERVICES AND PRICES QUANTITY UNIT PRICE AMOUNT

1. MILL, HORIZONTAL, NUMERICALLY

CONTROLLED, 3-AXIS, CONTINUOUS PATH,

AUTOMATIC TOOL CHANGING (24 POSITIONS

MINIMUM) IN ACCORDANCE WITH THE

PURCHASE DESCRIPTION SET FORTH

IN SECTION F. (3417-M00-7722) 1 EA

2. THE CONTRACTOR SHALL FURNISH ALL

LABOR, MATERIAL, SUPPLIES AND

EQUIPMENT NECESSARY FOR COMPLETE

INSTALLATION (INCLUDING ANY

REQUIRED FOUNDATION) OF THE

ASSEMBLED MACHINE AT EDGEWOOD

ARSENAL, INCLUDING COMPLETION

OF ALL NECESSARY CONNECTIONS,

INCLUDING BUT NOT LIMITED TO

THE RUNNING OF ELECTRICAL WORKS

AND CABLES FROM EXISTING SOURCES

OF POWER.

3. AFTER INSTALLATION HAS BEEN COMPLETED,

THE CONTRACTOR SHALL FURNISH A

QUALIFIED REPRESENTATIVE FOR A MINIMUM

OF FIVE (5) DAYS TO VISIT EDGEWOOD

ARSENAL TO DEMONSTRATE MILL OPERATIONS

AND TO COVER MACHINE CHECKOUT IN THE

OPERATION AND MAINTENANCE OF THE

COMPLETE SYSTEM. 1 JOB LOT $

4. THE CONTRACTOR SHALL FURNISH A MINIMUM

OF FIVE (5) DAYS TRAINING IN MACHINE

PROGRAMMING AT VENDOR'S SITE FOR FIVE

(5) GOVERNMENT EMPLOYEES. 1 JOB LOT $

5. THE CONTRACTOR SHALL FURNISH A MINIMUM

OF FIVE (5) DAYS TRAINING IN MACHINE

AND CONTROL OPERATION AND MAINTENANCE

AT VENDOR'S SITE FOR THREE (3)

GOVERNMENT EMPLOYEES. 1 JOB LOT $

6. THE CONTRACTOR IS REQUIRED TO FURNISH

THE DATA LISTED ON THE DD FORMS) 1423

ATTACHED TO SECTION M, PART IV, IN THE

MANNER PRESCRIBED THEREIN. THE PRICE

OFFERED FOR THE SUPPLIES OR SERVICES

BEING PROCURED UNDER THIS SOLICITATION

SHALL BE DEEMED TO INCLUDE ANY COSTS

ASSOCIATED WITH FURNISHING THE DATA

REQUIREMENTS SET FORTH ON THE DD

FORMS) 1423. *NSP *NSP

*NSP - NOT SEPARATELY PRICED - FOR

ADMINISTRATIVE PURPOSES ONLY."

WHEN YOUR ORIGINAL BID WAS SUBMITTED, A PRICE WAS NOT ENTERED FOR ITEM 2 BUT BEFORE THE OPENING OF BIDS, YOU AMENDED THE BID BY PLACING THE WORD "INCLUDED" NEXT TO THE DESCRIPTION OF ITEM 2. IT IS REPORTED THAT NONE OF THE FOUR OTHER BIDDERS INSERTED SEPARATE PRICES OR INFORMATION REGARDING ITEM 2 IN THEIR BIDS NOR DID THEY REQUEST EXPLANATIONS WITH RESPECT TO ITEM 2 PRICING BEFORE OPENING. AWARD WAS MADE TO THE MONARCH MACHINE TOOL COMPANY ON DECEMBER 30, 1971.

YOU CONTEND THAT MONARCH'S FAILURE TO INSERT SEPARATE PRICE INFORMATION REGARDING ITEM 2 - A COSTLY AND MATERIAL ITEM - WAS A MATERIAL OMISSION WHICH RENDERED ITS BID NONRESPONSIVE AND INELIGIBLE FOR AWARD. ALSO, YOU MAINTAIN THAT THE CONTRACTING OFFICER ERRONEOUSLY CONCLUDED THAT THE PRICE FOR ITEM 2 WAS INCLUDED IN ITEM 1 AND THAT IF MONARCH HAD WANTED TO INCLUDE THE COST OF ITEM 2 IN THE PRICE FOR ITEM 1, IT SHOULD HAVE SO AFFIRMATIVELY INDICATED IN ITS BID BY MEANS OF PHRASES SUCH AS "NOT SEPARATELY PRICED," "INCLUDED," ETC. FINALLY, YOU CONTEND THAT IT IS AGAINST THE SPIRIT OF ADVERTISED COMPETITIVE PROCUREMENTS TO ALLOW AN OFFEROR, AFTER BIDS HAVE BEEN OPENED, TO EXPLAIN AWAY AN AMBIGUITY IN THE BID; RATHER, THE PROPER COURSE OF ACTION WAS TO DECLARE SUCH BID NONRESPONSIVE.

THE QUESTION IS WHETHER THE WORDING AND THE FORMAT OF THE INVITATION SCHEDULE SHOULD BE READ AS REQUIRING THE INSERTION OF SEPARATE PRICE INFORMATION FOR ITEM 2.

WE ARE AWARE OF THE FACT THAT A POTENTIAL BIDDER, IN THE EXERCISE OF DUE CAUTION, MIGHT WELL ACT AS YOUR FIRM DID TO AVOID EVEN THE REMOTE POSSIBILITY OF BID REJECTION. HOWEVER, UPON EXAMINATION OF THE WORDING AND FORMAT OF THE ABOVE-QUOTED IFB PAGE, WE ARE OF THE OPINION THAT THE INVITATION REASONABLY CANNOT BE CONSTRUED TO REQUIRE THE INSERTION OF SEPARATE PRICING INFORMATION FOR ITEM 2. NO QUANTITY OR UNIT WAS DESIGNATED NEXT TO THE DESCRIPTION OF ITEM 2 NOR WAS ANY HORIZONTAL LINE AND DOLLAR SIGN SHOWN UNDER THE "AMOUNT" COLUMN. ALSO, IT SHOULD BE NOTED THAT QUANTITIES AND UNITS WERE SHOWN FOR ALL ITEMS OTHER THAN ITEM 2 WITH THE EXCEPTION OF THE DATA REQUIREMENTS UNDER ITEM 6 WHICH WERE NOT TO BE SEPARATELY PRICED. FURTHERMORE, ITEMS 3, 4 AND 5 CONTAIN A HORIZONTAL LINE AND A DOLLAR SIGN UNDER THE "AMOUNT" COLUMN INDICATING THAT PRICING WAS EXPECTED. WE BELIEVE THAT THE FORMAT OF THE PAGE IN QUESTION MAY BE REASONABLY CONSTRUED AS INDICATING THAT THE COST OF ITEM 2 WAS NOT TO BE SEPARATELY PRICED. IN THAT CONNECTION, WE OBSERVE THAT ITEM 3 IN ADDITION TO PROVIDING FOR DEMONSTRATION OF THE MILL OPERATION REFERRED TO THE INSTALLATION OF THE EQUIPMENT AND THE PRICING COLUMN IMMEDIATELY ADJACENT TO ITEM 3 SOLICITED A BID ON A "JOB" BASIS WHICH, IN THE CIRCUMSTANCES, WOULD APPEAR TO BE BROAD ENOUGH TO COVER THE INSTALLATION WORK UNDER ITEM 2.

THEREFORE, MONARCH MACHINE TOOL WAS NOT REQUIRED TO SUBMIT SEPARATE PRICING INFORMATION FOR ITEM 2 IN ORDER TO BE CONSIDERED RESPONSIVE TO THE SUBJECT INVITATION SCHEDULE. ACCORDINGLY, THE PROTEST IS DENIED.