B-177684(1), FEB 28, 1973

B-177684(1): Feb 28, 1973

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AN IFB PROVISION REQUIRING PURELY FACTUAL INFORMATION OVER WHICH A BIDDER HAS NO CONTROL AND WHICH IS UNRELATED TO THE BIDDER'S OBLIGATIONS TO FURNISH SPECIFIC DATA AT THE OFFERED PRICE MAY BE COMPLIED WITH AFTER BID OPENING. A DIESEL ENGINE DRIVEN POWER PLANT IS DEFINED AS CONSISTING OF THE FOLLOWING: DIESEL ENGINE PRIME MOVER. THE FIRM OFFERING A BID TO THIS SOLICITATION SHALL HAVE AVAILABLE BY OWNERSHIP. WE HAVE HELD THAT MATTERS CONCERNING THE EXPERIENCE OF A BIDDER. WE HAVE HELD THAT INFORMATION CONCERNING A BIDDER'S RESPONSIBILITY MAY BE PROVIDED SUBSEQUENT TO BID OPENING WITHOUT PREJUDICE TO THE CONSIDERATION OF THE BID. PARAGRAPH 102 OF THE ADDITIONS TO ADDITIONAL GENERAL PROVISIONS (SUPPLY CONTRACT) PROVIDES: THE OFFEROR SHALL SUBMIT WITH HIS OFFER A CERTIFICATION AS TO WHETHER HE HAS DELIVERED OR IS OBLIGATED TO DELIVER TO THE GOVERNMENT UNDER ANOTHER CONTRACT OR SUBCONTRACT THE SAME DATA.

B-177684(1), FEB 28, 1973

BID PROTEST - EXPERIENCE REQUIREMENTS - RESPONSIBILITY DECISION DENYING THE PROTEST OF WORTHINGTON SERVICE CORPORATION AGAINST AWARD OF A CONTRACT TO EITHER THE FIRST OR SECOND LOW BIDDERS UNDER AN IFB ISSUED BY THE DEPARTMENT OF THE NAVY. ALL MATTERS CONCERNING THE EXPERIENCE OF A BIDDER RELATE TO RESPONSIBILITY NOT RESPONSIVENESS, AND AN OTHERWISE ACCEPTABLE BID MAY NOT BE REJECTED MERELY FOR FAILURE TO MEET LITERAL REQUIREMENTS OF THE IFB DESIGNED TO FACILITATE THE GOVERNMENT'S DETERMINATION OF BIDDER RESPONSIBILITY. 45 COMP. GEN. 4, 7 (1965). ALSO, AN IFB PROVISION REQUIRING PURELY FACTUAL INFORMATION OVER WHICH A BIDDER HAS NO CONTROL AND WHICH IS UNRELATED TO THE BIDDER'S OBLIGATIONS TO FURNISH SPECIFIC DATA AT THE OFFERED PRICE MAY BE COMPLIED WITH AFTER BID OPENING.

TO WORTHINGTON SERVICE CORPORATION:

BY LETTER DATED DECEMBER 27, 1972, AND PRIOR CORRESPONDENCE, YOU PROTESTED THE AWARD OF A CONTRACT TO EITHER THE FIRST OR SECOND LOW BIDDERS BECAUSE SUCH BIDDERS FAILED TO SUBMIT DATA WHICH SATISFIED THE EXPERIENCE AND CONTRACTOR'S DATA CERTIFICATION REQUIREMENTS OF PARAGRAPHS 1A.12 AND 102, RESPECTIVELY, OF INVITATION FOR BIDS (IFB) N62742-73-B- 6002, ISSUED BY THE DEPARTMENT OF THE NAVY.

PARAGRAPH 1A.12, EXPERIENCE REQUIREMENTS, PROVIDES:

(A) THE FIRM OFFERING A BID IN RESPONSE TO THIS INVITATION SHALL BE AN ESTABLISHED SUPPLIER, ENGAGED WITHIN THE PAST FIVE YEARS, IN THE FURNISHING OF SUPERVISION, LABOR AND MATERIALS IN CONNECTION WITH EITHER THE INSPECTION, REPAIR, MODIFICATION AND OVERHAUL OF DIESEL ENGINE DRIVEN POWER PLANTS OF NOT LESS THAN 500 KW RATED CAPACITY, OR IN THE DESIGN, FABRICATION AND ASSEMBLY OF SUCH PLANTS. FOR PURPOSES OF THIS SOLICITATION, A DIESEL ENGINE DRIVEN POWER PLANT IS DEFINED AS CONSISTING OF THE FOLLOWING: DIESEL ENGINE PRIME MOVER, AC GENERATOR, ENGINE AND PLANT CONTROL SYSTEMS, COOLING AND LUBRICATING SYSTEMS, FUEL SYSTEMS, AND SPEED GOVERNING SYSTEMS.

(B) ADDITIONALLY, THE FIRM OFFERING A BID TO THIS SOLICITATION SHALL HAVE AVAILABLE BY OWNERSHIP, LEASE, OR OTHER ARRANGEMENT CAPABILITY OF A MAINTENANCE/SERVICE DEPARTMENT STAFFED WITH PERSONNEL EXPERIENCED TO TROUBLESHOOT, REPAIR, OVERHAUL, TEST AND SERVICE DIESEL ENGINE DRIVEN POWER PLANTS OF NOT LESS THAN 500 KW RATED CAPACITY. THIS CAPABILITY SHALL BE PRESENT UNTIL EXPIRATION OF THE WARRANTED PERIOD OF THE POWER PLANTS DELIVERED THE GOVERNMENT UNDER THIS SOLICITATION.

(C) EVIDENCE OF MEETING THE AFORESAID REQUIREMENTS SHALL BE FURNISHED WITH THE BID.

YOU CONTEND, IN VIEW OF THE MANDATORY LANGUAGE OF SUBPARAGRAPH (C), THE FAILURE OF HANNON AND BRUCE TO FURNISH THE REQUIRED INFORMATION WITH THEIR BIDS RENDERS THE BIDS NONRESPONSIVE.

WE HAVE HELD THAT MATTERS CONCERNING THE EXPERIENCE OF A BIDDER, AS HERE, RELATE TO RESPONSIBILITY NOT RESPONSIVENESS, AND THAT AN OTHERWISE ACCEPTABLE BID MAY NOT BE REJECTED MERELY FOR FAILURE TO MEET THE LITERAL REQUIREMENTS OF AN INVITATION PROVISION DESIGNED TO FACILITATE THE GOVERNMENT'S DETERMINATION OF RESPONSIBILITY (CAPABILITY TO PERFORM) OF A BIDDER. 45 COMP. GEN. 4, 7 (1965), AND THE CASES CITED THEREIN. FURTHER, WE HAVE HELD THAT INFORMATION CONCERNING A BIDDER'S RESPONSIBILITY MAY BE PROVIDED SUBSEQUENT TO BID OPENING WITHOUT PREJUDICE TO THE CONSIDERATION OF THE BID. B-171910, AUGUST 13, 1971; B-167203, SEPTEMBER 11, 1969. BELIEVE THAT THE FOREGOING PRINCIPLES DISPOSES OF YOUR CONTENTION REGARDING THE EFFECT OF THE ABOVE-QUOTED CLAUSE.

CONCERNING YOUR SECOND CONTENTION, PARAGRAPH 102 OF THE ADDITIONS TO ADDITIONAL GENERAL PROVISIONS (SUPPLY CONTRACT) PROVIDES:

THE OFFEROR SHALL SUBMIT WITH HIS OFFER A CERTIFICATION AS TO WHETHER HE HAS DELIVERED OR IS OBLIGATED TO DELIVER TO THE GOVERNMENT UNDER ANOTHER CONTRACT OR SUBCONTRACT THE SAME DATA; IF SO, HE SHALL IDENTIFY ONE SUCH OTHER CONTRACT OR SUBCONTRACT FOR EACH ITEM OF DATA AND STATE WHERE HE HAS ALREADY DELIVERED SUCH DATA.

IT APPEARS FROM THE RECORD THAT HANNON FAILED TO SUBMIT A CERTIFICATION WHILE BRUCE SUBMITTED ONLY A PARTIAL CERTIFICATION WITH ITS BID. IN VIEW OF THIS, YOU MAINTAIN THAT BOTH BIDS ARE NONRESPONSIVE.

CONTRARY TO YOUR ASSERTION, WE DO NOT BELIEVE THAT THE FAILURE OF A BIDDER TO SUBMIT ITS DATA CERTIFICATION TIMELY AFFECTS THE RESPONSIVENESS OF THE BID. RATHER, THE PARAGRAPH REQUESTS THE FURNISHING OF INFORMATION WHICH IS UNRELATED TO BIDDERS' OBLIGATIONS TO FURNISH SPECIFIC DATA AT THE OFFERED PRICES. WE NOTE IN THIS CONNECTION THAT BOTH HANNON AND BRUCE RESPONDED TO THE INVITATION BY PRICING THE DATA ITEMS. SINCE THE INFORMATION REQUIRED TO BE FURNISHED UNDER PARAGRAPH 102 IS PURELY FACTUAL OVER WHICH THE BIDDER HAS NO CONTROL, WE SEE NO REASON WHY SUCH INFORMATION CANNOT BE SUBMITTED AFTER BIDS HAVE BEEN OPENED.

IN VIEW OF THE FOREGOING, YOUR PROTEST IS DENIED.