B-175554, AUG 23, 1972

B-175554: Aug 23, 1972

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IT IS THE COMP. GEN.'S OPINION THAT THE TIME TO ASCERTAIN THE EXTENT AND TYPE OF TESTING WAS BEFORE BID OPENING. PETTIBONE IS DEEMED TO HAVE ACQUIESCED IN PERFORMING WHATEVER REASONABLE TESTS WOULD BE REQUIRED BY THE PROCURING ACTIVITY. THE PRINCIPAL REASON THE PETTIBONE BID WAS REJECTED WAS THAT IT REFUSED TO CONSENT TO TESTING OF AN UNSPECIFIED DURATION AND SEVERITY TO SHOW COMPLIANCE WITH THE SPECIFICATION REQUIREMENT (SECTION 2.3.9) THAT THE TRUCKS OPERATE CONTINUOUSLY AT 95 DEGS FAHRENHEIT AND 60 PERCENT RELATIVE HUMIDITY WITHOUT MALFUNCTION OR DAMAGE FROM OVERHEATING. THIS CLAUSE WAS NOT EXPRESSLY PROVIDED FOR IN THE IFB PAPERS. THE CERTIFICATE OF COMPLIANCE WAS NOT APPLICABLE. EXCEPT WHERE SPECIALIZED INSPECTIONS OR TESTS ARE SPECIFIED FOR PERFORMANCE SOLELY BY THE GOVERNMENT.

B-175554, AUG 23, 1972

BID PROTEST - TESTING REQUIREMENTS - UNTIMELY PROTEST DENIAL OF PROTEST ON BEHALF OF THE PETTIBONE CORPORATION AGAINST THE REJECTION OF THEIR BID UNDER AN IFB ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, SAN BRUNO, CALIF., FOR 12 FORK-LIFT TRUCKS AND SUPPORTING DATA. SINCE PARAGRAPH 56 OF THE IFB PROVIDED SPECIFICALLY THAT TESTS WOULD BE REQUIRED TO SUBSTANTIATE THAT THE TRUCKS WOULD CONFORM TO THE SPECIFICATIONS, IT IS THE COMP. GEN.'S OPINION THAT THE TIME TO ASCERTAIN THE EXTENT AND TYPE OF TESTING WAS BEFORE BID OPENING. HAVING FAILED TO DO SO, PETTIBONE IS DEEMED TO HAVE ACQUIESCED IN PERFORMING WHATEVER REASONABLE TESTS WOULD BE REQUIRED BY THE PROCURING ACTIVITY. SEE 50 COMP. GEN. 193 (1970).

TO SELLERS, CONNER & CUNEO:

WE REFER TO YOUR LETTER OF JUNE 28, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE REJECTION OF THE PETTIBONE CORPORATION (PETTIBONE) BID UNDER INVITATION FOR BIDS (IFB) NO. N63008-72-B-0055, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, SAN BRUNO, CALIFORNIA, FOR 12 FORK- LIFT TRUCKS AND SUPPORTING DATA, TO BE SHIPPED OVERSEAS TO THE PACIFIC AREA.

THE PRINCIPAL REASON THE PETTIBONE BID WAS REJECTED WAS THAT IT REFUSED TO CONSENT TO TESTING OF AN UNSPECIFIED DURATION AND SEVERITY TO SHOW COMPLIANCE WITH THE SPECIFICATION REQUIREMENT (SECTION 2.3.9) THAT THE TRUCKS OPERATE CONTINUOUSLY AT 95 DEGS FAHRENHEIT AND 60 PERCENT RELATIVE HUMIDITY WITHOUT MALFUNCTION OR DAMAGE FROM OVERHEATING. IN LIEU THEREOF, PETTIBONE INSISTED THAT THE TRUCKS SHOULD BE ACCEPTED ON THE BASIS OF A CERTIFICATE OF CONFORMANCE WHICH WOULD BE BASED UPON PREVIOUS TESTING THAT ALLEGEDLY PROVED COMPLIANCE IN EXCESS OF THE SPECIFICATION REQUIREMENTS. HOWEVER, PARAGRAPH 57 OF THE "ADDITIONS TO ADDITIONAL PROVISIONS" IN THE IFB PROVIDED THAT THE CERTIFICATE OF CONFORMANCE CLAUSE CONTAINED THEREIN WOULD BE APPLICABLE ONLY IF EXPRESSLY STATED IN THE SCHEDULE, SPECIFICATIONS, IFB OR WHEN SPECIFICALLY AUTHORIZED IN WRITING BY THE GOVERNMENT. THIS CLAUSE WAS NOT EXPRESSLY PROVIDED FOR IN THE IFB PAPERS; HENCE, THE CERTIFICATE OF COMPLIANCE WAS NOT APPLICABLE. RATHER, PARAGRAPH 56 OF THE "ADDITIONS TO ADDITIONAL PROVISIONS" PROVIDED:

"RESPONSIBILITY FOR INSPECTION (1968 SEP). NOTWITHSTANDING THE REQUIREMENTS FOR ANY GOVERNMENT INSPECTION AND TEST CONTAINED IN SPECIFICATIONS APPLICABLE TO THIS CONTRACT, EXCEPT WHERE SPECIALIZED INSPECTIONS OR TESTS ARE SPECIFIED FOR PERFORMANCE SOLELY BY THE GOVERNMENT, THE CONTRACTOR SHALL PERFORM OR HAVE PERFORMED THE INSPECTIONS AND TESTS REQUIRED TO SUBSTANTIATE THAT THE SUPPLIES AND SERVICES PROVIDED UNDER THE CONTRACT CONFORM TO THE DRAWINGS, SPECIFICATIONS AND CONTRACT REQUIREMENTS LISTED HEREIN ***."

PRIOR TO THE BID OPENING, PETTIBONE DID NOT RAISE ANY OBJECTION TO THE INAPPLICABILITY OF A CERTIFICATE OF COMPLIANCE. IN THIS REGARD, A BIDDER WHO PARTICIPATES IN A PROCUREMENT THROUGH BID OPENING WITHOUT OBJECTION IS CONSIDERED TO HAVE ACQUIESCED IN THE TERMS AND CONDITIONS OF THE IFB. SEE 50 COMP. GEN. 193 (1970); B-173879, OCTOBER 1, 1971. SEE ALSO SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES IN TITLE 4 OF THE CODE OF FEDERAL REGULATIONS PROVIDING THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION APPARENT PRIOR TO BID OPENING SHALL BE FILED PRIOR TO BID OPENING. ALTHOUGH THE IFB DID NOT SPECIFY THE TESTS THAT WOULD BE REQUIRED TO CHECK PERFORMANCE AT THE SPECIFIED TEMPERATURE AND HUMIDITY LEVELS, PARAGRAPH 56 PROVIDED SPECIFICALLY THAT TESTS WOULD BE REQUIRED TO SUBSTANTIATE THAT THE TRUCKS WOULD CONFORM TO THE SPECIFICATIONS. IN THE CIRCUMSTANCES, IT IS OUR OPINION THAT THE TIME TO ASCERTAIN THE EXTENT AND TYPE OF TESTING WAS BEFORE BID OPENING. HAVING FAILED IN THAT REGARD, PETTIBONE IS DEEMED TO HAVE ACQUIESCED IN PERFORMING WHATEVER REASONABLE TESTS WOULD BE REQUIRED BY THE CONTRACTING ACTIVITY TO SUBSTANTIATE SPECIFICATION COMPLIANCE. SEE CITATIONS SUPRA.

PETTIBONE HAS ALSO COMPLAINED THAT THE PROCUREMENT AGENCY DELIBERATELY DELAYED IN SENDING NOTIFICATION THAT ITS BID HAD BEEN REJECTED. HOWEVER, THE PRE-AWARD SURVEY REVIEW BOARD THAT RECOMMENDED AGAINST AN AWARD TO PETTIBONE DID NOT COMPLETE ITS ACTION UNTIL FRIDAY, MARCH 17, AND PETTIBONE WAS NOTIFIED BY LETTER OF MARCH 22 - THE SAME DAY THAT THE CONTRACT WAS AWARDED - THAT ITS BID WAS REJECTED. THUS, THERE DOES NOT APPEAR TO HAVE BEEN AN UNREASONABLE DELAY IN NOTIFYING PETTIBONE. FURTHERMORE, THERE IS NO REQUIREMENT THAT AN AGENCY NOTIFY A BIDDER THAT IT HAS BEEN REJECTED BEFORE AWARDING THE CONTRACT TO THE NEXT LOW BIDDER, ESPECIALLY IN THE CASE OF AN URGENT PROCUREMENT.

THE DETERMINATION TO REJECT THE PETTIBONE BID DOES NOT APPEAR TO HAVE BEEN IMPROPER. ACCORDINGLY, THE PROTEST IS DENIED.