B-176425, OCT 18, 1972

B-176425, OCT 18, 1972

BID PROTEST - UNIT PRICES - "MINOR" INFORMALITY DENIAL OF PROTEST BY SPACE AGE ENGINEERING, INC., AGAINST THE AWARD OF A CONTRACT TO MDM, INC., UNDER AN IFB ISSUED BY THE U.S. ARMY WEAPONS COMMAND, ROCK ISLAND, ILL., FOR THE PROCUREMENT OF CERTAIN SERVICES TO BE RENDERED AT THE PRESENTLY INOPERATIVE CLEVELAND ARMY TANK AUTOMOTIVE PLANT, CLEVELAND, OHIO. A DEFICIENCY WHICH IS A MATTER OF FORM OR WHICH CONSTITUTES SOME IMMATERIAL DEVIATION FROM THE EXACT REQUIREMENTS OF THE SPECIFICATIONS WHICH WOULD NOT AFFECT EITHER THE PRICE, QUALITY, OR QUANTITY OF THE ARTICLES OFFERED IS A MINOR DEVIATION WHICH CAN BE CURED OR WAIVED. COM. GEN. 190 (1957). THEREFORE, SINCE THE UNIT PRICES WERE NOT TO BE USED FOR EVALUATION PURPOSES AND WERE READILY ASCERTAINABLE FROM THE BID WHEN NEEDED FOR OTHER REASONS, THEIR OMISSION COULD PROPERLY BE DECLARED A MINOR INFORMALITY WITHIN THE MEANING OF ASPR 2-405.

TO SPACE AGE ENGINEERING, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED JULY 3 AND AUGUST 21, 1972, PROTESTING AGAINST THE AWARD OF A CONTRACT TO MDM, INC., UNDER INVITATION FOR BIDS (IFB) NO. DAAF03-72-B-0072, ISSUED APRIL 28, 1972, BY THE U.S. ARMY WEAPONS COMMAND (WECOM), ROCK ISLAND, ILLINOIS.

THE IFB WAS ISSUED IN ORDER THAT WECOM COULD PROCURE THE SERVICES OF A CONTRACTOR TO GUARD, MAINTAIN, AND PREPARE FOR TRANSPORTATION CERTAIN EQUIPMENT, LOCATED AT THE PRESENTLY INOPERATIVE CLEVELAND ARMY TANK AUTOMOTIVE PLANT (CATAP), CLEVELAND, OHIO. THE SERVICES TO BE PROCURED UNDER THE IFB WERE SEPARATED INTO THREE CONTRACT LINE ITEMS (CLINS), AND BIDDERS WERE REQUIRED TO BID ON EACH CLIN. CLIN 0001 SOLICITED BIDS FOR PROTECTION AND MAINTENANCE SERVICES FOR THE CLEVELAND PLANT; CLIN 0002 SOLICITED BIDS FOR PLANT CLEARANCE OF INDUSTRIAL PRODUCTION EQUIPMENT AND SPECIAL TOOLING MACHINES; AND CLIN 0003 SOLICITED BIDS FOR PLANT CLEARANCE OF OTHER LISTED PLANT EQUIPMENT. THE BIDDING WAS RESTRICTED TO SMALL BUSINESS CONCERNS, AND AWARD WAS TO BE MADE TO THE RESPONSIVE, RESPONSIBLE OFFEROR SUBMITTING THE LOWEST TOTAL BID.

BETWEEN MAY 4, 1972, AND MAY 25, 1972, THREE AMENDMENTS WERE ISSUED TO CHANGE VARIOUS ASPECTS OF THE IFB, SUCH AS TONNAGE, QUANTITY, BIDDERS' CONFERENCES, LABOR WAGE DETERMINATIONS, ETC. THE FINAL IFB AS AMENDED REFLECTED QUANTITIES AND TONNAGE INVOLVED AS FOLLOWS:

CLIN 0001 - ONE JOB

CLIN 0002 - 11,033 TONS APPROXIMATELY

(1,436 MACHINES)

CLIN 0003 - 148 TONS APPROXIMATELY

(2,260 ITEMS)

THE NINE BIDS RECEIVED WERE OPENED ON THE SCHEDULED OPENING DATE, JUNE 6, 1972. THE THREE CLINS OF EACH BID WERE TOTALLED, AND THE THREE LOWEST BIDS WERE AS FOLLOWS:

BIDDER AGGREGATE BID

(1) MDM, INC. $1,505,142.00

(2) VOSS MACHINERY COMPANY 1,790,000.00

(3) SPACE AGE ENGINEERING, INC. 1,906,079.80

AS THE DIFFERENCE IN TOTAL PRICE BETWEEN THE LOW BID, SUBMITTED BY MDM AND THE NEXT-LOW BID, SUBMITTED BY VOSS MACHINERY COMPANY WAS SIGNIFICANT, THE CONTRACTING OFFICER, ON JUNE 8, 1972, REQUESTED THAT MDM REVIEW AND CONFIRM ITS BID. ON JUNE 12, 1972, MDM INFORMED THE CONTRACTING OFFICER THAT ITS AGGREGATE BID HAD BEEN REVIEWED AND THAT IT WAS CONFIRMED AS CORRECT.

BY LETTER DATED JUNE 7, 1972, YOU PROTESTED TO THE CONTRACTING OFFICER THAT SINCE THE BIDS OF THE TWO LOWEST BIDDERS FAILED TO SET FORTH UNIT PRICES FOR CLINS 0002 AND 0003, SUCH BIDS WERE NONRESPONSIVE AND AN AWARD SHOULD NOT BE MADE TO EITHER OF THE TWO LOWEST BIDDERS. YOU BASED YOUR PROTEST ON PARAGRAPH 2(C) OF THE IFB'S SOLICITATION INSTRUCTIONS AND CONDITIONS (STANDARD FORM 33A, MARCH 1969), WHICH STATES:

"2. PREPARATION OF OFFERS

(C) UNIT PRICE FOR EACH UNIT OFFERED SHALL BE SHOWN AND SUCH PRICE SHALL INCLUDE PACKING UNLESS OTHERWISE SPECIFIED. A TOTAL SHALL BE ENTERED IN THE AMOUNT COLUMN OF THE SCHEDULE FOR EACH ITEM OFFERED. IN CASE OF DISCREPANCY BETWEEN A UNIT PRICE AND EXTENDED PRICE, THE UNIT PRICE WILL BE PRESUMED TO BE CORRECT, SUBJECT, HOWEVER, TO CORRECTION TO THE SAME EXTENT AND IN THE SAME MANNER AS ANY OTHER MISTAKE."

BETWEEN JUNE 12 AND JUNE 21, 1972, PREAWARD SURVEYS RELATING TO THE TWO LOW BIDDERS WERE REQUESTED AND ACCOMPLISHED AND, AS A RESULT OF THESE SURVEYS, BOTH BIDDERS WERE RECOMMENDED FOR COMPLETE AWARD. THE CONTRACT SPECIALIST ASSIGNED TO THE PROCUREMENT TELEPHONED MDM ON JUNE 16, 1972, TO ADVISE THAT ANY AWARD TO MDM WOULD INCLUDE A UNIT PRICE PER TON ON CLINS 0002 AND 0003. SUCH UNIT PRICES WERE DETERMINED BY DIVIDING THE APPROPRIATE TONNAGE FOR EACH CLIN INTO THE TOTAL AMOUNT BID BY MDM FOR EACH CLIN, RESULTING IN A UNIT PRICE FOR CLIN 0002 ($580,450) OF $52.61035 PER TON AND A UNIT PRICE FOR CLIN 0003 ($44,400) OF $300 PER TON. MDM CONCURRED IN THIS ACTION ON JUNE 17, 1972.

BY LETTER DATED JUNE 21, 1972, THE CONTRACTING OFFICER INFORMED YOU THAT, DURING A JUNE 20, 1972, MEETING ATTENDED BY THE CONTRACT SPECIALIST, THE CONTRACTING OFFICER, LEGAL COUNSEL AND THE CHIEF OF WECOM PROCUREMENT DIVISION, THE AFOREMENTIONED PERSONNEL DETERMINED THAT THE BID SUBMITTED BY MDM WAS RESPONSIVE, AND THAT YOUR PROTEST WAS WITHOUT MERIT. THE CONTRACTING OFFICER SPECIFICALLY ADVISED YOU THAT HE CONSIDERED THE FAILURE OF THE TWO LOWEST BIDDERS TO SPECIFY UNIT PRICES TO BE A MINOR INFORMALITY, AND THAT SUCH AN INFORMALITY COULD BE WAIVED AND/OR CURED AS IT DID NOT AFFECT PRICE, QUALITY, OR PERFORMANCE OF THE SERVICES UNDER THE PROPOSED CONTRACT. AWARD OF THE CONTRACT WAS MADE TO MDM ON JUNE 23, 1972.

IN YOUR LETTERS DATED JULY 3 AND AUGUST 21, 1972, TO THIS OFFICE, YOU PROTEST AGAINST THE AWARD OF THE CONTRACT TO MDM. IN ADDITION TO ALLEGING THAT THE LOW BIDDER'S FAILURE TO INCLUDE A UNIT PRICE FOR CLINS 0002 AND 0003 RENDERED ITS BID NONRESPONSIVE, YOU ARGUE THAT THE CONTRACTING OFFICER'S ACTIONS IN COMPUTING THE UNIT PRICES FOR CLINS 0002 AND 0003 WERE UNWARRANTED.

AS EMPHASIZED IN THE CONTRACTING OFFICER'S LETTER OF JUNE 21, THE IFB CONTAINED THE FOLLOWING PERTINENT PROVISIONS:

"AWARD

AWARD ON LINE ITEMS (CLINS) SET FORTH IN PART II SECTION E WILL BE MADE TO ONE OFFEROR. OFFERORS ARE REQUIRED TO SUBMIT BIDS ON ALL LINE ITEMS (CLINS) SET FORTH IN PART II, SECTION E. OFFERS WHICH DO NOT CONTAIN BIDS ON ALL LINE ITEMS (CLINS) WILL NOT BE CONSIDERED FOR AWARD. AWARD WILL BE MADE TO THE RESPONSIVE, RESPONSIBLE OFFEROR SUBMITTING THE LOWEST TOTAL BID.

"PAYMENT

PAYMENT WILL BE ON A MONTHLY BILLING BASIS FOR CLIN 0001 AND A MONTHLY SHIPPING DOCUMENT TONNAGE BASIS FOR CLINS 0002 AND 0003."

THE DETERMINATION OF A CONTRACTING OFFICER INVOLVING INTERPRETATIONS OF AN INVITATION, BID AND PERTINENT PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) HAS BEEN HELD TO BE A LEGAL QUESTION WHICH IS SUBJECT TO REVIEW BY THIS OFFICE. 49 COMP. GEN. 541, 542 (1970). THE PROVISIONS OF ASPR CONCERNING THE WAIVING OR CURING OF MINOR INFORMALITIES OR IRREGULARITIES IN BIDS ARE SET FORTH IN PARAGRAPH 2-405, WHICH PROVIDES, IN PART, AS FOLLOWS:

"A MINOR INFORMALITY OR IRREGULARITY IS 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. THE CONTRACTING OFFICER SHALL EITHER GIVE TO THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID, OR, WAIVE ANY SUCH DEFICIENCY WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT."

THIS OFFICE HAS CONSISTENTLY HELD THAT A DEFICIENCY OR DEVIATION WHICH GOES TO THE SUBSTANCE OF THE BID BY AFFECTING THE PRICE, QUANTITY OR QUALITY OF THE ARTICLE OFFERED, SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, IS A MAJOR DEVIATION AND MAY NOT BE WAIVED. 30 COMP. GEN. 179. CONVERSELY, A DEFICIENCY WHICH IS A MATTER OF FORM, OR WHICH CONSTITUTES SOME IMMATERIAL DEVIATION FROM THE EXACT REQUIREMENTS OF THE SPECIFICATIONS WHICH WOULD NOT AFFECT EITHER THE PRICE, QUALITY OR QUANTITY OF THE ARTICLES OFFERED, IS A MINOR INFORMALITY WHICH CAN BE CURED OR WAIVED. 37 COMP. GEN. 190, 192 (1957); B-172227, MAY 13, 1971. WHAT DOES, IN FACT, CONSTITUTE A MINOR INFORMALITY IS DEPENDENT ON THE PARTICULAR CIRCUMSTANCES PRESENT IN EACH CASE.

WITH RESPECT TO YOUR ARGUMENT THAT THE OMISSION OF THE UNIT PRICE IN THE INSTANT CASE CONSTITUTES A MAJOR DEVIATION FROM THE PROVISIONS OF THE INVITATION, WE HAVE HELD IN A SOMEWHAT SIMILAR SITUATION THAT WHERE THE INVITATION "BOILER PLATE" CONTEMPLATED A PRICE FOR EACH ITEM, BUT OTHER PROVISIONS OF THE IFB PROVIDED FOR AWARD ON AN AGGREGATE TOTAL BASIS, AND THE ITEM PRICES WERE NOT MATERIAL TO THE EVALUATION OF BIDS, THE OMISSION OF ITEM PRICES COULD BE CONSIDERED A MINOR DEVIATION WHICH COULD BE WAIVED. B-161012, JUNE 13, 1965. SUCH HOLDING IS IN RECOGNITION OF THE PRINCIPLE THAT OTHER BIDDERS ARE NOT PREJUDICED WHEN THE LOW BID IS DETERMINED AS SPECIFIED IN THE IFB AND ON A BASIS COMMON TO ALL BIDS. LACK OF PREJUDICE SEEMS PARTICULARLY APPARENT IN THE INSTANT CASE SINCE THE OMITTED UNIT PRICES (ON WHICH PAYMENT WILL BE BASED) ARE SUBJECT TO ASCERTAINMENT MERELY BY DIVIDING THE CLIN PRICES BY THE NUMBER OF UNITS SHOWN FOR THE CLINS IN THE BIDDING DOCUMENTS.

THE "AWARD" PROVISION QUOTED ABOVE EXPRESSLY STATES THAT AWARD WOULD BE MADE ON THE BASIS OF THE "LOWEST TOTAL BID", AND NO MENTION IS MADE IN THE IFB OF THE UNIT PRICE IN TERMS OF BID EVALUATION. THEREFORE, AS THE UNIT PRICES WERE NOT TO BE USED FOR EVALUATION PURPOSES, AND WERE READILY ASCERTAINABLE FROM THE BID WHEN NEEDED FOR OTHER REASONS, THEIR OMISSION COULD PROPERLY BE DECLARED A MINOR INFORMALITY BY THE CONTRACTING OFFICER WITHIN THE PURVIEW OF ASPR 2-405. WHERE A BID, ALTHOUGH OMITTING TO SPECIFICALLY SET OUT CERTAIN ESSENTIAL DATA, LEAVES NO DOUBT AS TO WHAT THE REQUESTED DATA SHOULD BE, IT IS NOT IMPROPER TO CONSIDER THE OMISSION AS A MINOR INFORMALITY WHICH CAN BE WAIVED. 50 COMP. GEN. 295 (1970); 49 COMP. GEN. 541, 542 (1970).

WITH RESPECT TO YOUR ARGUMENT THAT THE CONTRACTING OFFICER IS PRECLUDED FROM WAIVING THE REQUIREMENT THAT UNIT PRICES BE SUBMITTED BECAUSE PARAGRAPH 2(C) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS REQUIRES THAT THE UNIT PRICE FOR EACH ITEM "SHALL" BE SHOWN, A REQUIREMENT IN AN IFB IS NOT NECESSARILY MATERIAL SIMPLY BECAUSE IT IS EXPRESSED IN MANDATORY TERMS, EVEN WITH A WARNING THAT NONOBSERVANCE THEREOF WILL RESULT IN REJECTION OF THE BID AS NONRESPONSIVE. B 175243, JUNE 16, 1972.

YOU ALSO CONTEND THAT MDM COULD HAVE ALLEGED, IN RESPONSE TO THE CONTRACT SPECIALIST'S CALL OF JUNE 16, THAT THE APPLICABLE UNIT PRICES WERE OTHER THAN THE ONES COMPUTED BY THE CONTRACTING OFFICER, AND THAT SUCH A PROCEDURE COULD HAVE BEEN USED BY MDM TO EVADE THE AWARD IF IT HAD BEEN ADVANTAGEOUS TO DO SO.HOWEVER, SINCE SUCH AN ALLEGATION BY MDM WOULD NECESSARILY HAVE AFFECTED THE CLIN PRICES UPON WHICH THE BID WAS EVALUATED, THE ALLEGATION WOULD HAVE HAD THE EFFECT OF RESCINDING MDM'S PRIOR VERIFICATION OF ITS AGGREGATE BID PRICE, WHICH WOULD HAVE REQUIRED CONSIDERATION OF THE ALLEGATION UNDER THE "MISTAKES IN BIDS" PROCEDURES SET OUT IN ASPR 2-406.3. AS SHOWN IN THAT REGULATION, AN ALLEGATION OF A MISTAKE IN BID IS NOT AUTOMATICALLY ACCEPTED AS A FACT, AND EITHER A WITHDRAWAL OR A CORRECTION OF A BID PURSUANT TO AN ALLEGED MISTAKE REQUIRES THE ESTABLISHMENT OF THE MISTAKE BY CLEAR AND CONVINCING EVIDENCE. WHERE THE EVIDENCE IS NOT CLEAR AND CONVINCING THAT THE BID AS SUBMITTED WAS NOT THE BID INTENDED, A DETERMINATION MAY BE MADE REQUIRING THAT THE BID BE CONSIDERED FOR AWARD IN THE FORM SUBMITTED. ALTHOUGH MDM COULD HAVE INVOKED THE "MISTAKES IN BIDS" PROCEDURES AS OUTLINED ABOVE, SUCH WAS NOT THE CASE AND, IN THE ABSENCE OF ANY INDICATION THAT MDM'S CLIN PRICES WERE INCORRECT AND THAT THE COMPUTED UNIT PRICES WERE NOT THOSE INTENDED BY MDM, WE ARE NOT PERSUADED BY YOUR ARGUMENTS THAT THE OMISSION OF THE UNIT PRICES WAS IMPROPERLY CONSIDERED BY THE CONTRACTING OFFICER TO BE A MINOR INFORMALITY.

FINALLY, RELYING ON PARAGRAPH 2(C) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, YOU ARGUE THAT THE OMISSION OF THE UNIT PRICES BY MDM CAUSES ITS CLIN PRICES TO CHANGE TO ZERO SINCE THE PARAGRAPH PROVIDES THAT THE UNIT PRICE WILL BE PRESUMED TO BE CORRECT IN CASE OF DISCREPANCY BETWEEN A UNIT PRICE AND EXTENDED PRICE. YOU CONTEND THAT SUCH ZERO PRICES WOULD RENDER MDM'S BID NONRESPONSIVE. WE BELIEVE THIS PROVISION, AS CONTENDED BY THE CONTRACTING OFFICER, IS INAPPLICABLE IN THE INSTANT CASE. DISCREPANCY CONNOTES A DIFFERENCE ARISING FROM A COMPARISON BETWEEN TWO THINGS. I. S. JOSEPH COMPANY V. GOLDE, 185 F. SUPP. 521, 523 (D. MINN. 1960). SINCE MDM'S BID OMITTED THE UNIT PRICES, A DISCREPANCY WAS NOT INVOLVED BECAUSE THERE WERE NO OTHER PRICES IN THE BID AS SUBMITTED WITH WHICH THE CLIN PRICES COULD BE COMPARED.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.