Bid Rejection Protest

B-179060, DEC 3, 1973, 53 COMP GEN 396

BIDDERS - RESPONSIBILITY V. BID RESPONSIVENESS - BID REJECTION ERRONEOUS THE FAILURE OF THE LOW BIDDER TO LIST THE BUSES IT WOULD USE IN PERFORMING TRANSPORTATION SERVICE CONTRACTS DID NOT RENDER THE BID NONRESPONSIVE AS THE OMISSION RELATES TO THE RESPONSIBILITY OF THE BIDDER RATHER THAN TO THE RESPONSIVENESS OF THE BID, SINCE THE PROCUREMENT REQUIREMENT WAS FOR THE FURNISHING OF SERVICES AND NOT FOR FURNISHING BUSES, EXCEPT AS AN INCIDENT TO FURNISHING THE SERVICES, AND SINCE THE BIDDER IS LEGALLY OBLIGATED TO FURNISH BUSES HAVING ACCEPTABLE MINIMUM CHARACTERISTICS. THEREFORE, THE BID SHOULD NOT HAVE BEEN REJECTED WITHOUT A SPECIFIC DETERMINATION THAT THE COMPANY WAS NONRESPONSIVE. BIDS - REJECTION - ERRONEOUS BASIS WHERE THE CONTRACTING OFFICER IMPROPERLY FOUND THAT THE LOW BID WAS NONRESPONSIVE AND AWARDED CONTRACTS FOR SHUTTLE BUS SERVICES IN ALASKA TO OTHER BIDDERS PURSUANT TO THE ERRONEOUS DETERMINATION, HE SHOULD, UPON FINDING THAT THE LOW BID IS STILL FOR ACCEPTANCE, MAKE A CURRENT DETERMINATION OF THE RESPONSIBILITY OF THE REJECTED BIDDER, AND IF FOUND RESPONSIBLE, TERMINATE EXISTING CONTRACTS) FOR THOSE SCHEDULES) ON WHICH THE REJECTED COMPANY WAS THE LOW BIDDER AND MAKE AWARD TO THE COMPANY, IF ITS BID IS OTHERWISE ACCEPTABLE FOR AWARD.

TO THE SECRETARY OF THE ARMY, DECEMBER 3, 1973:

WE REFER TO REPORT SAOASI&L)-MO DATED AUGUST 22, 1973, FROM THE ACTING ASSISTANT DEPUTY FOR MATERIAL ACQUISITION, RESPONDING TO THE PROTEST OF TRANSPORTATION SERVICES, INC., UNDER IFB DAFA03-73-B-0129, WHICH WAS ISSUED FOR SHUTTLE BUS SERVICE BETWEEN CERTAIN POINTS IN ALASKA.

THE COMPANY MAINTAINS THAT ITS APPARENT LOW BID FOR THE REQUIRED TRANSPORTATION SERVICES SHOULD NOT HAVE BEEN CONSIDERED NONRESPONSIVE FOR FAILING TO CONTAIN A LIST OF THE BUSES THAT THE COMPANY WOULD USE IN PERFORMANCE OF THE CONTRACT. WE MUST AGREE FOR THE REASONS STATED BELOW.

THE REQUIRED SERVICES WERE SET FORTH IN SCHEDULES "A," "B," AND "C" OF THE IFB, AS PERTINENT:

ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT

SCHEDULE "A"

0001 FURNISH SHUTTLE BUS SERVICE IN ACCORDANCE365 DA

WITH SECTION "F". *** (FROM JULY 1, 1973,

0001AA *** FROM FORT GREELY TO THROUGH JUNE 30,

FAIRBANKS, ALASKA AND RETURN *** 1974)

SCHEDULE "B"

0001 FURNISH SHUTTLE BUS SERVICE IN ACCORDANCE 365 DA

WITH SECTION "F". *** (FROM JULY 1, 1973,

0001AA *** FROM FORT GREELY TO DELTA THROUGH JUNE 30,

JUNCTION AND RETURN *** 1974)

SCHEDULE "C"

0001 FURNISH SCHOOL BUS SERVICES *** AT FORT 106 DA

GREELY IN ACCORDANCE WITH SECTION "F". (FROM NOVEMBER 1,

*** 1973 THROUGH

0001AA *** PLACE OF RESIDENCE TO FORT APRIL 15, 1974)

GREELY SCHOOL AND RETURN.

SECTION "F" OF THE IFB DESCRIBED IN DETAIL THE TYPES OF BUSES THAT WOULD MEET ACCEPTABLE MINIMUM STANDARDS FOR THE SERVICE UNDER EACH SCHEDULE. THE LAST SENTENCE OF PARAGRAPH 5 OF THAT SECTION STATED: "CONTRACTOR STATES THE FOLLOWING BUSES WILL BE USED IN PERFORMANCE OF THIS CONTRACT."

FOUR BIDDERS, STURGEON TRANSPORTATION COMPANY, ALASKA MOTOR COACHES, TRANSPORTATION SERVICES, AND TRANS STUDENT LINES SUBMITTED BIDS BY BID OPENING ON JUNE 7, 1973. TRANSPORTATION SERVICES WAS APPARENT LOW BIDDER ON SCHEDULE "A" AND ON SCHEDULES "B" AND "C," COMBINED. THE COMPANY DID NOT, HOWEVER, LIST THE BUSES IT WOULD USE IN PERFORMING THE CONTRACT. OBSERVE FROM THE ABSTRACT OF BIDS THAT TRANS STUDENT LINES ALSO DID NOT FURNISH SUCH A LIST. BECAUSE THE CONTRACTING OFFICER DECIDED THAT THIS OMISSION RENDERED TRANSPORTATION SERVICES' BID NONRESPONSIVE, HE REJECTED ITS BID AND MADE SEPARATE AWARDS FOR SCHEDULE "A" AND FOR SCHEDULES "B" AND "C," COMBINED, TO THE NEXT LOWEST BIDDERS ON JUNE 21, 1973.

UNLESS SOMETHING ON THE FACE OF THE BID LIMITS, REDUCES, OR MODIFIES THE OBLIGATION OF A PROSPECTIVE CONTRACTOR TO PERFORM IN ACCORDANCE WITH THE TERMS OF THE INVITATION, THE BID MUST BE CONSIDERED RESPONSIVE. 49 COMP. GEN. 553 (1970), AND CASES CITED THEREIN. HERE, TRANSPORTATION SERVICES UNQUALIFIEDLY OFFERED TO MEET ALL REQUIREMENTS FOR THE SERVICE, INCLUDING MINIMUM REQUIREMENTS FOR THE BUSES TO BE USED IN FURNISHING THE SERVICE. ITS BID MUST, THEREFORE, BE CONSIDERED RESPONSIVE.

FURTHER, WE THINK THE REQUIREMENT FOR LISTING BUSES TO BE USED IN THE SERVICE RELATED TO THE CAPACITY AND ABILITY OF PROSPECTIVE CONTRACTORS TO SUPPLY THE REQUIRED BUSES AND, THUS, WAS A MATTER OF RESPONSIBILITY. SEE 53 COMP. GEN. 36 (1973); B-168396, FEBRUARY 2, 1970. THIS RELATION IS CONFIRMED BY THE FACT THAT THE CONTRACT IS ONE FOR THE FURNISHING OF SERVICES AND NOT FOR THE FURNISHING OF BUSES, EXCEPT AS AN INCIDENT TO FURNISHING THE SERVICES. SO LIMITED, THE FAILURE OF A BIDDER TO LIST BUSES TO BE USED IN THE SERVICE DOES NOT AFFECT THE OBLIGATION TO FURNISH THE SERVICE WITH BUSES MEETING THE MINIMUM PRESCRIBED REQUIREMENTS. WHETHER A BIDDER CAN FURNISH THE BUSES HE IS OTHERWISE OBLIGED TO FURNISH IS A SEPARATE QUESTION TO BE ANSWERED IN DECIDING THE RESPONSIBILITY OF THE BIDDER.

THIS CASE IS THEREFORE DISTINGUISHABLE FROM THE SITUATION IN B-166255, AUGUST 1, 1969, CITED IN THE ADMINISTRATIVE REPORT, WHEN BIDDERS WERE REQUIRED, AS PART OF THEIR BIDS, TO IDENTIFY OFFERED PRODUCTS HAVING "QUALIFIED PRODUCTS LIST" STATUS. THE CONTRACT WAS ONE FOR FURNISHING "QUALIFIED PRODUCTS LIST" PRODUCTS, NOT SERVICES. THUS, THE FAILURE OF THE APPARENT LOW BIDDER IN THAT CASE TO IDENTIFY IN SOME WAY THE QUALIFIED PRODUCT IT WAS INTENDING TO OFFER AFFECTED ITS OBLIGATION TO DELIVER A QUALIFIED PRODUCT, AND ITS BID WAS PROPERLY REJECTED AS NONRESPONSIVE.

IT IS THEREFORE OUR CONCLUSION THAT TRANSPORTATION SERVICES' BID SHOULD NOT HAVE BEEN REJECTED WITHOUT A SPECIFIC DETERMINATION THAT THE COMPANY WAS NONRESPONSIBLE. SEE B-168396, SUPRA.

CONSEQUENTLY, WE RECOMMEND THAT THE CONTRACTING OFFICER IMMEDIATELY REQUEST TRANSPORTATION SERVICES TO CONFIRM, IN WRITING, THAT IT WILL ACCEPT AWARD AT THE PRICES AND ON THE TERMS SET FORTH IN ITS ORIGINAL BID FOR THE SERVICES IF MADE WITHIN 30 CALENDAR DAYS FROM THE DATE OF THIS DECISION, OR WITHIN THE TIME DEEMED NECESSARY BY THE CONTRACTING OFFICER TO: (1) MAKE RESPONSIBILITY DETERMINATIONS ON THE COMPANY BOTH FOR THE CURRENT PERIOD AND THE ORIGINAL AWARD DATE; (2) TERMINATE FOR CONVENIENCE THE EXISTING SERVICE CONTRACTS) FOR THOSE SCHEDULES) ON WHICH THE COMPANY WAS LOW BIDDER, UPON A FINDING THAT TRANSPORTATION IS RESPONSIBLE FOR BOTH POINTS IN TIME; AND (3) MAKE AWARD, IF OTHERWISE PROPER, TO THE COMPANY. IF THIS ASSURANCE IS OBTAINED AND THE COMPANY UNDER APPROPRIATE PROCEDURES IS FOUND TO BE RESPONSIBLE FOR BOTH POINTS IN TIME, THE CONTRACTING OFFICER SHOULD IMMEDIATELY CARRY OUT THE ADDITIONAL STEPS IN THE SEQUENCE LISTED.

OUR OFFICE WOULD APPRECIATE BEING ADVISED AS TO THE ACTION TAKEN WITH RESPECT TO THIS RECOMMENDATION.