B-175684, JUN 30, 1972

B-175684: Jun 30, 1972

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INCORPORATED: REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 13 AND LETTER OF APRIL 20. 682 UNITS WERE TO BE INSERTED ON PAGE 19 OF THE SOLICITATION. THE OPTION CLAUSE ON PAGE 33 OF THE SOLICITATION STATED: "OFFERS WILL BE EVALUATED ON THE BASIS OF THE QUANTITY TO BE AWARDED EXCLUSIVE OF THE OPTION QUANTITY.". OFFERORS ARE REQUESTED TO TAKE THESE FACTORS INTO CONSIDERATION AND SET FORTH THE UNIT PRICE IN THE SPACE PROVIDED BELOW FOR THE OPTION QUANTITIES.". BIDS WERE OPENED ON APRIL 5. 682 WAS SHOWN AS $2.84. YOU STATE THAT THE BID PRICE ON THE BASIC QUANTITY WAS OMITTED DUE TO A CLERICAL ERROR. IN SUPPORT OF YOUR POSITION YOU HAVE SUBMITTED A FILE COPY OF THE BID WHICH SHOWS A UNIT PRICE ON THE BASIC QUANTITY OF $2.84 WITH FIRST ARTICLE APPROVAL.

B-175684, JUN 30, 1972

BID PROTEST - NONRESPONSIVENESS - FAILURE TO SUBMIT BASIC QUANTITY PRICE DECISION DENYING THE PROTEST OF ROMARK INDUSTRIES, INC. UNDER AN IFB ISSUED BY THE ARMY WEAPONS COMMAND, ROCK ISLAND, ILL. PROTESTANT'S FAILURE TO SUBMIT A BID PRICE ON THE BASIC QUANTITY CANNOT BE CURED BY RETROACTIVELY APPLYING THE UNIT PRICE SUBMITTED FOR THE OPTION QUANTITY. ACCEPTANCE OF SUCH A BID WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW OFFER AND WOULD BE DETRIMENTAL TO THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO ROMARK INDUSTRIES, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 13 AND LETTER OF APRIL 20, 1972, WITH ENCLOSURES, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS (IFB) DAAF03-72-B-1322, ISSUED BY THE UNITED STATES ARMY WEAPONS COMMAND, ROCK ISLAND, ILLINOIS, FOR THE PROCUREMENT OF CONVEYOR ELEMENT ASSEMBLIES.

UNIT AND TOTAL BID PRICES FOR THE BASIC QUANTITY OF 26,682 UNITS WERE TO BE INSERTED ON PAGE 19 OF THE SOLICITATION. PRICES COULD BE OFFERED WITH FIRST ARTICLE APPROVAL, WITHOUT SUCH APPROVAL OR BOTH. THE SOLICITATION ALSO INCLUDED PROVISION FOR AN ADDITIONAL OPTION QUANTITY NOT TO EXCEED 50 PERCENT OF THE BASIC QUANTITY. THE OPTION CLAUSE ON PAGE 33 OF THE SOLICITATION STATED:

"OFFERS WILL BE EVALUATED ON THE BASIS OF THE QUANTITY TO BE AWARDED EXCLUSIVE OF THE OPTION QUANTITY."

THE OPTION CLAUSE ALSO STATED:

"INASMUCH AS THE UNIT PRICE FOR THE BASIC QUANTITY MAY CONTAIN STARTING LOAD, TESTING, TOOLING, AND OTHER COSTS NOT APPLICABLE TO OPTION QUANTITIES, OFFERORS ARE REQUESTED TO TAKE THESE FACTORS INTO CONSIDERATION AND SET FORTH THE UNIT PRICE IN THE SPACE PROVIDED BELOW FOR THE OPTION QUANTITIES."

BIDS WERE OPENED ON APRIL 5, 1972. YOUR BID SHOWED NO UNIT OR TOTAL PRICES FOR THE BASIC QUANTITY, EITHER WITH OR WITHOUT FIRST ARTICLE APPROVAL, IN THE SCHEDULE ON PAGE 19 OF THE SOLICITATION. HOWEVER, YOU DID INSERT PRICES FOR VARIOUS QUANTITIES UNDER THE OPTION. YOUR UNIT PRICE FOR A QUANTITY BETWEEN 20,000 AND 26,682 WAS SHOWN AS $2.84. YOU URGE THAT THIS SHOULD BE CONSIDERED YOUR PRICE ON THE BASIC QUANTITY. THE CONTRACTING ACTIVITY HAS TAKEN THE POSITION THAT YOUR BID MAY NOT BE CONSIDERED BECAUSE IT DID NOT OFFER A PRICE ON THE BASIC QUANTITY. YOUR BID WOULD BE LOW AT $2.84 PER UNIT FOR THE BASIC QUANTITY.

YOU STATE THAT THE BID PRICE ON THE BASIC QUANTITY WAS OMITTED DUE TO A CLERICAL ERROR. HOWEVER, YOU ASSERT, THE PRICES IN YOUR BID FOR THE OPTIONAL QUANTITIES PROVE YOU INTENDED TO BID A UNIT PRICE OF $2.84 ON THE BASIC QUANTITY. IN SUPPORT OF YOUR POSITION YOU HAVE SUBMITTED A FILE COPY OF THE BID WHICH SHOWS A UNIT PRICE ON THE BASIC QUANTITY OF $2.84 WITH FIRST ARTICLE APPROVAL.

IT IS CLEAR THAT THE COMPETITIVE BID SYSTEM CANNOT FUNCTION PROPERLY IF A BID NOT CLEAR ON ITS FACE MAY BE CONSIDERED FOR AWARD ON THE BASIS OF AN EXPLANATION PROVIDED AFTER OPENING. ALTHOUGH YOU HAVE CLEARLY OFFERED TO PROVIDE AN OPTION QUANTITY AT THE STATED UNIT PRICE, THERE IS NOTHING IN YOUR BID WHICH COULD BE CONSIDERED A BINDING UNQUALIFIED OFFER TO FURNISH THE BASIC QUANTITY AT THAT UNIT PRICE. IN FACT, THERE ARE TWO THINGS WHICH LOGICALLY MILITATE AGAINST SUCH A CONCLUSION. FIRST, THE OPTION CLAUSE ITSELF CONTAINS LANGUAGE ALREADY QUOTED INDICATING THAT THE OPTION QUANTITY PRICE LOGICALLY SHOULD BE LOWER THAN THE BASIC QUANTITY PRICE BECAUSE STARTING LOAD, TESTING TOOLING AND SIMILAR COSTS ARE NOT APPLICABLE TO THE OPTION QUANTITY. SECONDLY, THE OPTION UNITS, BEING ADD- ONES TO BE ORDERED UNDER THE TERMS OF THE OPTION CLAUSE AT SUCH TIME AS TO PERMIT CONTINUITY OF PRODUCTION, PROBABLY SHOULD BE PRICED AT A RATE NO HIGHER FOR SMALLER QUANTITIES THAN THE UNIT PRICE FOR THE BASIC QUANTITY. THEREFORE, WE BELIEVE THAT THE OPTION PRICES OFFERED BY YOU COULD BE USED TO ARGUE THAT YOU INTENDED A HIGHER PRICE ON THE BASIC QUANTITY. IN THESE CIRCUMSTANCES, WE DO NOT BELIEVE THAT YOU COULD BE REQUIRED TO PERFORM THE BASIC PORTION OF THE CONTRACT AT THE UNIT PRICE OF $2.84 ON THE BASIS OF YOUR BID AS SUBMITTED. TO PERMIT YOU TO EXPLAIN YOUR INTENTION NOW WOULD PERMIT YOU AN OPTION WHICH WOULD BE UNFAIR TO THE OTHER BIDDERS AND WOULD TEND TO UNDERMINE THE INTEGRITY OF THE COMPETITIVE BID SYSTEM.