B-175178, MAY 25, 1972

B-175178, MAY 25, 1972

BID PROTEST - NONRESPONSIVENESS - AMBIGUOUS DATA DECISION DENYING THE PROTEST OF CONNECTICUT INTERNATIONAL CORPORATION AGAINST AWARD OF A CONTRACT TO PHILADELPHIA SCIENTIFIC CONTROLS UNDER AN IFB ISSUED BY THE NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PA. SINCE REQUIRED PART NUMBERS WERE SPECIFICALLY DESIGNATED IN THE INVITATION AND THERE WAS NO PROVISION ALLOWING AN EQUAL OR ALTERNATE ITEM, PROTESTANT'S INSERTION OF AN UNIDENTIFIED PART NUMBER CREATED AN AMBIGUITY FOR WHICH ITS BID WAS PROPERLY REJECTED AS NONRESPONSIVE, NOTWITHSTANDING ITS IGNORANCE OF THE RULE OR IMPROPER AWARDS IN THE PAST. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO CONNECTICUT INTERNATIONAL CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8, 1972, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS (IFB) N00156-72-B-0081, ISSUED BY THE NAVAL AIR ENGINEERING CENTER (NAEC), PHILADELPHIA, PENNSYLVANIA.

THE SOLICITATION WAS ISSUED SEPTEMBER 13, 1971, FOR A QUANTITY OF LIGHT ASSEMBLIES. FORTY BIDS WERE RECEIVED AND OPENED ON OCTOBER 13, 1971. BASED UPON THE ABSTRACT OF BIDS, YOU WERE THE APPARENT LOW BIDDER. HOWEVER, THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE DUE TO AN AMBIGUITY AND A CONTRACT WAS AWARDED TO PHILADELPHIA SCIENTIFIC CONTROLS ON JANUARY 7, 1972. BY LETTER DATED JANUARY 24, 1972, IN RESPONSE TO YOUR LETTER OF PROTEST DATED JANUARY 18, 1972, THE CONTRACTING OFFICER NOTIFIED YOU OF THE REASONS FOR REJECTING YOUR BID. BY LETTER DATED FEBRUARY 8, 1972, YOU PROTESTED THIS DETERMINATION TO OUR OFFICE.

YOUR BID WAS DECLARED NONRESPONSIVE BECAUSE YOU INSERTED "P/N 18611" IN THE SCHEDULE OF THE IFB BENEATH THE NAEC PART NUMBER AND THE FEDERAL STOCK NUMBER PROVIDED FOR PURCHASE DESCRIPTION PURPOSES. NO CLARIFICATION DATA OR EXPLANATORY STATEMENTS WERE PROVIDED AS TO THE MEANING OF THE TERM "P/N 18611." IN THIS CONNECTION, IT IS REPORTED THAT BEFORE REACHING HIS DETERMINATION, THE CONTRACTING OFFICER ATTEMPTED TO ASCERTAIN WHETHER A SEPCO CATALOG LISTED THE PART NUMBER IN QUESTION BUT HE WAS UNABLE TO LOCATE ANY SUCH CATALOG.

THIS OFFICE HAS CONSISTENTLY HELD THAT THE INSERTION OF AN UNIDENTIFIED NUMBER IN THE PURCHASE DESCRIPTION CREATES AN AMBIGUITY AS TO WHAT THE BIDDER INTENDED TO OFFER AND THE BID MUST BE REJECTED AS NONRESPONSIVE. SEE B-171417, MARCH 9, 1971, AND MAY 26, 1971; B 170908, MARCH 5, 1971, AND 50 COMP. GEN. 8 (1970), WHEREIN WE EXPLAINED THE RATIONALE AS FOLLOWS:

"WE HAVE CONSIDERED THE PROBLEM PRESENTED BY FPD'S INSERTIONS IN A NUMBER OF OTHER CASES. SEE B-152808, JANUARY 2, 1964; B-151849, SEPTEMBER 10, 1963; B-143084, JUNE 22, 1960. AND OUR DECISION IN B 152808, SUPRA, IS IN ALL MATERIAL RESPECTS ANALOGOUS TO THE PRESENT SITUATION. IN THAT DECISION, WE QUOTED WITH APPROVAL THE FOLLOWING COMMENTS SUBMITTED BY A CONTRACTING OFFICER IN CONNECTION WITH B 151849, SUPRA:

' *** SOME BIDDERS, WHEN INTENDING TO SUPPLY MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS, HAVE INCLUDED THEIR PART NUMBERS FOR THEIR READY REFERENCE IN THE EVENT OF AN AWARD, WHILE OTHERS HAVE INCLUDED THEIR PART NUMBERS FOR THE PURPOSE OF OFFERING A SIMILAR BUT MATERIALLY DIFFERENT ITEM, WHICH MIGHT OR MIGHT NOT MEET THE APPLICABLE SPECIFICATIONS AND THE NEEDS OF THE GOVERNMENT. WHEN PART NUMBERS ARE INSERTED IN BIDS, THE CONTRACTING OFFICE HAS NO WAY TO DETERMINE WHETHER THE BIDDER IS OFFERING MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS. *** '

"THE FOREGOING APTLY STATES THE PRECISE DIFFICULTY APPARENT FROM AN EXAMINATION OF FPD'S BID, AND WE MUST INITIALLY CONCLUDE, AS WE DID IN B- 151849, THAT, IN THE ABSENCE OF AN EXPRESS STATEMENT BY FPD IN ITS BID THAT THE SPECIFIED PLANT PARTS NUMBERS WOULD COMPLY WITH THE SPECIFICATIONS, THERE IS AN INITIAL AMBIGUITY AS TO WHETHER FPD AGREED TO OFFER AN ITEM WHICH WOULD COMPLY WITH THE SPECIFICATIONS SET FORTH IN THE INVITATION."

THE DECISIONS CITED BY THE CONTRACTING OFFICER, B-171569, AUGUST 9, 1971, AND B-151849, SEPTEMBER 10, 1963, ARE ALSO APPLICABLE SINCE THEY ARE FACTUALLY ANALOGOUS AND BASED UP ON THE SAME RATIONALE.

WE NOTE SEVERAL COMMENTS IN YOUR PROTEST LETTERS TO BOTH OUR OFFICE AND THE NAVY WHICH WE BELIEVE DESERVE SOME COMMENT. ALTHOUGH THE INVITATION CONTAINED NO SPECIFIC WARNING AGAINST A BIDDER INSERTING HIS OWN PART NUMBER, PARAGRAPH 10 OF SECTION C STATED THAT THE CONTRACT WOULD BE AWARDED TO THE OFFEROR WHOSE OFFER CONFORMED TO THE SOLICITATION. SINCE THE PURCHASE DESCRIPTION WAS EXPLICIT IN DESIGNATING THE REQUIRED PART NUMBERS OF THE ITEM AND THE INVITATION INCLUDED NO PROVISION ALLOWING AN EQUAL OR ALTERNATE ITEM, ANY VARIANCE OR QUALIFICATION THEREFROM MUST BE CONSIDERED TO BE AT THE BIDDER'S RISK. THE FACT THAT YOU WERE NOT AWARE OF THE DECISIONS OF OUR OFFICE CITED BY THE CONTRACTING OFFICER AFFORDS NO BASIS FOR VOIDING A VALID AWARD AS THE DECISIONS ARE A MATTER OF PUBLIC RECORD AND BINDING WHETHER OR NOT A BIDDER HAS ACTUAL KNOWLEDGE. ALTHOUGH YOU MAY HAVE RECEIVED AWARDS IN THE PAST UNDER SIMILAR CIRCUMSTANCES, AN IMPROPER AWARD IN ONE OR MORE PROCUREMENTS IS NO JUSTIFICATION FOR A REPETITION OF THE SAME ERRONEOUS ACTION. 36 COMP. GEN. 535, 539 (1957). FINALLY, IT HAS LONG BEEN THE POSITION OF OUR OFFICE THAT TO ALLOW A BIDDER TO CLARIFY AN AMBIGUITY IN HIS BID AFTER BID OPENING WOULD AFFORD HIM THE OPTION TO RECEIVE OR REJECT THE AWARD CONTRARY TO COMPETITIVE BIDDING PRINCIPLES. 37 COMP. GEN. 110 (1957).

ACCORDINGLY, YOUR PROTEST IS DENIED.