B-175110, APR 13, 1972

B-175110: Apr 13, 1972

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THE PROTEST IS DENIED SINCE THE SOLICITATION DOES NOT APPEAR AMBIGUOUS AND PROTESTANT'S FAILURE TO QUOTE ON AN ADDITIONAL ITEM. WAS A MATERIAL DEVIATION FOR WHICH THE BID WAS PROPERLY DETERMINED TO BE NONRESPONSIVE. 48 COMP. TO THE BELLMORE-JOHNSON TOOL CO.: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28. CLIN 0001 WAS FOR A FIRST ARTICLE TEST REPORT. CLIN 0004 WAS FOR CERTAIN DATA AND INFORMATION. A ONE LOT QUANTITY WAS SPECIFIED FOR EACH CLIN. CLIN'S 0001 AND 0004 WERE LISTED AS "NOT SEPARATELY PRICED.". PAGE C3 OF THE IFB PROVIDED THAT AWARD OF A CONTRACT "WILL NOT BE MADE FOR LESS THAN THE TOTAL QUANTITIES CITED FOR EACH CLIN. AWARD WILL BE MADE TO ONE (1) BIDDER FOR ALL CLINS CITED IN SECTION E.".

B-175110, APR 13, 1972

BID PROTEST - FAILURE TO SUBMIT REQUIRED DATA - ALLEGED AMBIGUOUS SOLICITATION DECISION DENYING THE PROTEST OF THE BELLMORE-JOHNSON TOOL CO., AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER AN IFB ISSUED BY THE ARMY WEAPONS COMMAND, ROCK ISLAND, ILL., FOR A PROCUREMENT OF RIFLE SIGHTS. THE PROTEST IS DENIED SINCE THE SOLICITATION DOES NOT APPEAR AMBIGUOUS AND PROTESTANT'S FAILURE TO QUOTE ON AN ADDITIONAL ITEM, AS REQUIRED BY THE IFB, WAS A MATERIAL DEVIATION FOR WHICH THE BID WAS PROPERLY DETERMINED TO BE NONRESPONSIVE. 48 COMP. GEN. 757 (1969).

TO THE BELLMORE-JOHNSON TOOL CO.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28, 1972, PROTESTING AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. DAAF03-72-B 0062 ISSUED BY THE UNITED STATES ARMY WEAPONS COMMAND, ROCK ISLAND, ILLINOIS.

THE IFB, FOR 30,000 REAR SIGHTS FOR USE WITH THE M-16 WEAPON, SPECIFIED FOUR ITEMS IN SECTION "E," HEADED "SUPPLIES/SERVICES & PRICES." CLIN 0001 WAS FOR A FIRST ARTICLE TEST REPORT. CLIN 0002 CALLED FOR THE 30,000 REAR SIGHTS. CLIN 0003 STATED:

"INSPECTION AND TEST EQUIPMENT CONFORMING TO THE ACCEPTANCE INSPECTION AND TEST EQUIPMENT DRAWINGS LISTED IN APPENDIX II OF SECTION M AND FURTHER DESCRIBED IN SECTION I HEREOF. THE 'LOT' SHALL CONSIST OF TWO (2) EACH OF ALL ITEMS OF EQUIPMENT AS LISTED IN APPENDIX II."

CLIN 0004 WAS FOR CERTAIN DATA AND INFORMATION. A ONE LOT QUANTITY WAS SPECIFIED FOR EACH CLIN. CLIN'S 0001 AND 0004 WERE LISTED AS "NOT SEPARATELY PRICED." PAGE C3 OF THE IFB PROVIDED THAT AWARD OF A CONTRACT "WILL NOT BE MADE FOR LESS THAN THE TOTAL QUANTITIES CITED FOR EACH CLIN, AND AWARD WILL BE MADE TO ONE (1) BIDDER FOR ALL CLINS CITED IN SECTION E."

YOU SUBMITTED A LOW BID PRICE OF $26,400 ON CLIN 0002 BUT DID NOT SUBMIT A BID PRICE FOR CLIN 0003. THE CONTRACTING OFFICER DETERMINED THAT YOUR FAILURE TO BID ON BOTH ITEMS RENDERED YOUR BID NONRESPONSIVE AND MADE AWARD TO THE SECOND LOW BIDDER AT $26,700 FOR CLIN 0002 AND $300 FOR CLIN 0003 FOR A CONTRACT PRICE OF $27,000. YOU PROTESTED, CLAIMING THAT THE SOLICITATION ITSELF WAS AMBIGUOUS.

IN ORDER TO BE CONSIDERED FOR AWARD A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE INVITATION. 38 COMP. GEN. 819 (1959). THE FAILURE TO QUOTE ON CLIN 0003, AS REQUIRED BY THE IFB SCHEDULE, WAS A MATERIAL DEVIATION IN THAT IT DEPRIVED THE GOVERNMENT OF ITS RIGHTS TO RECEIVE INSPECTION AND TEST EQUIPMENT AND GAVE YOU THE OPTION OF ACCEPTING OR REJECTING AN AWARD. B-161950, NOVEMBER 2, 1967; 46 COMP. GEN. 434 (1966); CF. 48 ID. 757 (1969). THEREFORE, WE BELIEVE THE CONTRACTING OFFICER ACTED PROPERLY IN REJECTING YOUR BID AS NONRESPONSIVE.

WE HAVE CAREFULLY EXAMINED THE INVITATION WITH RESPECT TO YOUR CLAIM THAT IT WAS AMBIGUOUS AND WE CAN FIND NOTHING THAT WOULD WARRANT THE CONCLUSION THAT ITS LANGUAGE WAS REASONABLY SUSCEPTIBLE TO AN INTERPRETATION THAT DID NOT REQUIRE A BID ON BOTH CLIN'S 0002 AND 0003. THE LANGUAGE ITSELF IS CLEAR AND WE THINK THE "NOT SEPARATELY PRICED" NOTATION FOR CLIN'S 0001 AND 0004 PROVIDES A STRONG INDICATION THAT INDIVIDUAL BID PRICES WERE REQUIRED FOR THE OTHER TWO ITEMS. YOUR CONTENTION THAT THE FAILURE OF 11 OUT OF 23 BIDDERS TO SUBMIT A PRICE FOR CLIN 0003 INDICATES THE IFB WAS AMBIGUOUS MIGHT HAVE SOME VALIDITY IN A SITUATION WHERE THE IFB LANGUAGE WAS QUESTIONABLE. HOWEVER, THIS FAILURE, BY ITSELF, DOES NOT ESTABLISH AN AMBIGUITY WHEN THE LANGUAGE IS PLAIN AND PERSPICUOUS ON ITS FACE. FURTHERMORE, THE FACT THAT THE STATEMENT APPEARED ON PAGE C3 OF THE IFB INSTEAD OF PAGE E1 DOES NOT MAKE IT ANY LESS VALID OR ANY LESS CLEAR.

YOUR OTHER POINT, THAT THE ITEMS REPRESENTED BY CLIN 0003 AMOUNT TO ONLY 1 PERCENT OF THE CONTRACT PRICE, DOES NOT NEGATE THE REQUIREMENT THAT A BID BE SUBMITTED FOR IT AND DOES NOT CREATE AN AMBIGUITY IN ANY WAY EVIDENT TO US.

FOR THE FOREGOING REASONS, YOUR PROTEST MUST BE DENIED.