B-175165, APR 6, 1972

B-175165, APR 6, 1972

BID PROTEST - ALLEGED NONRESPONSIVENESS - MINOR INFORMALITY - WAIVER DECISION DENYING THE PROTEST OF BERMITE DIVISION, TASKER INDUSTRIES, AGAINST AWARD OF A CONTRACT TO FLARE NORTHERN DEPARTMENT, ATLANTIC RESEARCH DIVISION OF SUSQUEHANNA CORPORATION, UNDER A SOLICITATION ISSUED BY THE NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PA., FOR A PROCUREMENT OF BOMB IGNITERS. IT IS THE OPINION OF THE COMP. GEN. THAT FLARE'S FAILURE TO INDICATE WHETHER OR NOT IT WOULD REQUIRE THE USE OF GOVERNMENT PROPERTY MEANS THAT ITS LOW BID WAS NOT CONDITIONED ON SUCH USE. IN ANY EVENT, NO GOVERNMENT PROPERTY OR SPECIAL TOOLING WAS AVAILABLE UNDER THE SUBJECT PROCUREMENT. CONSEQUENTLY, WAIVER OF THE BIDDER'S ERROR AS A MINOR INFORMALITY WAS PROPER UNDER THE PROVISIONS OF ASPR 2-405 AND THE PROTEST IS DENIED.

TO TASKER INDUSTRIES:

FURTHER REFERENCE IS MADE TO YOUR PROTEST RECEIVED FEBRUARY 9, 1972, AGAINST THE AWARD OF A CONTRACT TO FLARE NORTHERN DEPARTMENT, ATLANTIC RESEARCH DIVISION OF SUSQUEHANNA CORPORATION, BY THE NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA, PURSUANT TO SOLICITATION NO. N00104-72-B-0724.

THE SOLICITATION WAS ISSUED ON DECEMBER 28, 1971, WITH AN OPENING DATE OF JANUARY 27, 1972, FOR THE PROCUREMENT OF 60,630 BOMB IGNITERS, WITH HALF OF THE STATED QUANTITY SET-ASIDE FOR LABOR SURPLUS AREA CONCERNS. EIGHT BIDS WERE RECEIVED. FLARE SUBMITTED THE LOW BID OF $17,265 PER UNIT ON THE NON-SET-ASIDE PORTION OF THE PROCUREMENT AND WAS AWARDED A CONTRACT ON FEBRUARY 9, 1972, IN THE AMOUNT OF $523,388.48.

YOU CONTEND THAT FLARE'S BID WAS NONRESPONSIVE BECAUSE OF ITS FAILURE TO COMPLETE THE REPRESENTATION ON PAGE 16 OF THE SOLICITATION AS TO WHETHER IT WOULD REQUIRE GOVERNMENT-OWNED RESEARCH AND PRODUCTION PROPERTY AND SPECIAL TOOLING IN EITHER ITS OR ITS SUBCONTRACTOR'S POSSESSION IN PERFORMING THE WORK BID UPON. IN THIS CONNECTION, YOU STATE THAT TO ALLOW A BIDDER TO MAKE THIS DECISION AFTER BID OPENING IS DESTRUCTIVE OF THE COMPETITIVE BIDDING SYSTEM AS IT AFFORDS HIM AN OPPORTUNITY TO MAKE AN IMPORTANT PRICING DECISION AFTER OTHER BID PRICES AND RELATIVE STANDINGS ARE KNOWN. THEREFORE, YOU CONTEND THAT AWARD SHOULD HAVE BEEN MADE TO YOUR FIRM AS THE NEXT LOW RESPONSIVE BIDDER.

IT IS THE NAVY'S POSITION THAT FLARE'S FAILURE TO COMPLETE THE APPLICABLE CLAUSE DID NOT RENDER ITS BID NONRESPONSIVE BECAUSE SUCH NONCOMPLIANCE WAS A MINOR INFORMALITY OR IRREGULARITY PROPERLY WAIVABLE UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-405. THE NAVY'S POSITION IS BASED UPON THE FACT THAT THERE IS NO GOVERNMENT-OWNED PROPERTY OR SPECIAL TOOLING FOR THE ITEM BEING PROCURED EITHER IN THE POSSESSION OF FLARE OR ANY OTHER PROSPECTIVE CONTRACTOR, OR OTHERWISE AVAILABLE FOR USE IN THIS PROCUREMENT.

THE CERTIFICATION AT PAGE 16 OF THE IFB READS AS FOLLOWS:

"OFFEROR REPRESENTS THAT HE WILL WILL NOT REQUIRE GOVERNMENT OWNED RESEARCH AND PRODUCTION PROPERTY AND SPECIAL TOOLING HEREINAFTER REFERRED TO AS GOVERNMENT PROPERTY IN THE POSSESSION OF THE OFFEROR OR ITS ANTICIPATED SUBCONTRACTORS IN PERFORMING THE WORK BID UPON.

"IF THE OFFEROR INDICATES GOVERNMENT PROPERTY CURRENTLY IN ITS OR ITS SUBCONTRACTORS' POSSESSION WILL BE REQUIRED, THE DATA REQUESTED BY THE FOLLOWING CLAUSE MUST BE PROVIDED WITH THE OFFER. FAILURE TO PROVIDE THIS DATA WITH THE BID IN A FORMALLY ADVERTISED SOLICITATION MAY RESULT IN REJECTION OF THE BID AS NONRESPONSIVE."

IF THE OFFEROR OR SUBCONTRACTOR REQUIRES THE USE OF GOVERNMENT PROPERTY, THE BIDDER IS DIRECTED TO FURNISH DATA INCLUDING THE DESCRIPTION OF THE ITEM, QUANTITY, COST, AND OTHER INFORMATION.

WE BELIEVE THAT THE FAILURE TO CHECK EITHER BLOCK IN THE CERTIFICATION TOGETHER WITH THE LACK OF INFORMATION CALLED FOR IF GOVERNMENT PROPERTY IS REQUIRED, MEANS THAT THE LOW BID WAS NOT CONDITIONED ON THE USE OF ANY GOVERNMENT PROPERTY, WHICH APPARENTLY IS NOT AVAILABLE IN ANY CASE. THE CIRCUMSTANCES THE LEGAL EFFECT OF WHAT THE LOW BIDDER SUBMITTED IS THE SAME AS IF HE HAD CHECKED THE SECOND BLOCK INDICATING NO REQUIREMENT FOR THE PROPERTY. THEREFORE, THE FAILURE TO CHECK THE BLOCK DID NOT GIVE THE LOW BIDDER ANY OPTION OR OTHER UNDUE ADVANTAGE.

UNDER THE APPLICABLE PROCUREMENT STATUTE, 10 U.S.C. 2305, BIDS ARE REQUIRED TO CONFORM TO THE TERMS AND ESSENTIAL REQUIREMENTS OF THE ADVERTISED INVITATION TO BE ELIGIBLE FOR AWARD. HOWEVER, BOTH PARAGRAPH 10(B) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS (STANDARD FORM 33A, MARCH 1969, GENERAL SERVICES ADMINISTRATION) AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-405, PERMIT WAIVER OF MINOR INFORMALITIES OR IRREGULARITIES IN BIDS. ASPR 2-405 DEFINES A MINOR INFORMALITY OR IRREGULARITY AS ONE "WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO, BIDDERS." IN THE CIRCUMSTANCES, IT IS OUR VIEW THAT FLARE'S FAILURE TO COMPLETE THE APPLICABLE CLAUSE WAS PROPERLY WAIVED AS A MINOR INFORMALITY.

ACCORDINGLY, YOUR PROTEST IS DENIED.