B-179265, B-179642, APR 10, 1974

B-179265,B-179642: Apr 10, 1974

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GAO DECIDED THAT DETERMINATION WAS IN ERROR AND GOOD FAITH OR DISCRETION OF CONTRACTING OFFICER IS NOT BASIS FOR ALLOWING CONTRACTING OFFICER'S DETERMINATION TO STAND. 2. CONSIDERATION OF BID AS RESPONSIVE IS NOT INCONSISTENT WITH STATEMENT IN PRIOR DECISION THAT IF INCLUSION OF LITERATURE CREATES AN AMBIGUITY AS TO WHAT BIDDER INTENDED TO OFFER. WHEN MANUAL WAS NOT INTENDED TO FIX BIDDER'S OBLIGATION UNDER CONTRACT BUT RATHER TO DETERMINE WHETHER ANY CHANGES WERE REQUIRED IN PROPOSED MANUALS TO MEET MIL-M-7298 CRITERIA FOR MANUALS. WILL NOT RENDER BID NONRESPONSIVE. SINCE MANUAL SUBMISSION PROVISION MERELY IS INFORMATIONAL. 4. METHOD OF EVALUATION OF BID SET FORTH IN ADMINISTRATIVE REPORT WHICH IS NOT PROTESTED UNTIL AFTER AN ADVERSE GAO DECISION ON OTHER ISSUES IN ADMINISTRATIVE REPORT IS NOT FOR CONSIDERATION.

B-179265, B-179642, APR 10, 1974

1. ALTHOUGH CONTRACTING OFFICER CONSIDERED THAT GENERAL DESCRIPTION IN DESCRIPTIVE LITERATURE FURNISHED WITH BID CREATED AMBIGUITY RENDERING BID NONRESPONSIVE, GAO DECIDED THAT DETERMINATION WAS IN ERROR AND GOOD FAITH OR DISCRETION OF CONTRACTING OFFICER IS NOT BASIS FOR ALLOWING CONTRACTING OFFICER'S DETERMINATION TO STAND. 2. DESCRIPTIVE LITERATURE NOT HAVING CREATED AMBIGUITY, CONSIDERATION OF BID AS RESPONSIVE IS NOT INCONSISTENT WITH STATEMENT IN PRIOR DECISION THAT IF INCLUSION OF LITERATURE CREATES AN AMBIGUITY AS TO WHAT BIDDER INTENDED TO OFFER, BID MUST BE REJECTED AS NONRESPONSIVE. 3. FAILURE TO SUBMIT MANUAL SAMPLE WITH BID, WHEN MANUAL WAS NOT INTENDED TO FIX BIDDER'S OBLIGATION UNDER CONTRACT BUT RATHER TO DETERMINE WHETHER ANY CHANGES WERE REQUIRED IN PROPOSED MANUALS TO MEET MIL-M-7298 CRITERIA FOR MANUALS, WILL NOT RENDER BID NONRESPONSIVE, SINCE MANUAL SUBMISSION PROVISION MERELY IS INFORMATIONAL. 4. METHOD OF EVALUATION OF BID SET FORTH IN ADMINISTRATIVE REPORT WHICH IS NOT PROTESTED UNTIL AFTER AN ADVERSE GAO DECISION ON OTHER ISSUES IN ADMINISTRATIVE REPORT IS NOT FOR CONSIDERATION, SINCE PROTEST IS UNTIMELY.

TO HAMMERMILLS, INC.; THE HEIL CO.:

ON APRIL 13, 1973, THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), COLUMBUS, OHIO, ISSUED INVITATION FOR BIDS (IFB) NO. DSA-700-73-B-2735 FOR THE PURCHASE OF FIVE REFUSE SHREDDERS AND RELATED DATA AND MANUALS. BIDS WERE REQUIRED TO BE SUBMITTED BY MAY 14, 1973. TIMELY BIDS WERE RECEIVED FROM JEFFREY MANUFACTURING COMPANY OF COLUMBUS, OHIO; THE HEIL COMPANY OF MILWAUKEE, WISCONSIN (HEIL); AND HAMMERMILLS, INC., OF CEDAR RAPIDS, IOWA (HAMMERMILLS).

ON AUGUST 15, 1973, HEIL PROTESTED TO DCSC AGAINST THE AWARD OF CONTRACT UNDER THE ABOVE-REFERENCED IFB TO ANY BIDDER OTHER THAN ITSELF. DCSC DENIED THE PROTEST ON AUGUST 28, 1973, ON THE BASIS THAT THE HEIL BID WAS NONRESPONSIVE. DCSC DETERMINED THAT HAMMERMILLS WAS THE LOWEST RESPONSIVE BIDDER AND NOTIFIED HEIL. ON SEPTEMBER 7, 1973, HEIL PROTESTED THE DCSC DETERMINATION TO OUR OFFICE. IN DECISION 53 COMP. GEN. (B-179642, DECEMBER 3, 1973), OUR OFFICE CONSIDERED THE PROTEST AND DETERMINED THAT THE HEIL BID WAS RESPONSIVE TO THE IFB.

BY LETTERS OF DECEMBER 3 AND 13, 1973, HAMMERMILLS REQUESTED RECONSIDERATION OF THE DECISION ON THREE BASES: (1) THE CONTRACTING OFFICER NEITHER EXERCISED HIS JUDGMENT OF THE RESPONSIVENESS OF THE HEIL BID IN BAD FAITH NOR ABUSED HIS DISCRETION, AND THEREFORE, OUR OFFICE SHOULD NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICER; (2) HEIL'S FAILURE TO SUBMIT ANY TECHNICAL MANUALS WITH ITS BID WAS NOT IN STRICT ACCORDANCE WITH THE REQUIREMENT OF THE IFB; AND (3) HEIL'S BID WAS AMBIGUOUS AS TO WHETHER IT WAS FOREIGN OR DOMESTIC FOR THE PURPOSE OF EVALUATION UNDER THE BUY AMERICAN ACT, AND THEREFORE THE BID MUST BE TREATED AS NONRESPONSIVE. ADDITIONALLY, HAMMERMILLS HAS INSTITUTED A PROTEST AGAINST AN AWARD TO HEIL ON THE BASIS THAT REGARDLESS OF WHETHER HEIL IS RESPONSIVE OR NOT, IT IS NOT THE LOWEST EVALUATED BIDDER. IT IS HAMMERMILLS' CONTENTION THAT UNTIL DECEMBER 3, WHEN OUR OFFICE UPHELD THE HEIL PROTEST, IT WAS THE ONLY BIDDER DETERMINED TO BE RESPONSIVE AND RESPONSIBLE UNDER THE IFB AND AS A RESULT, EVALUATION DID NOT BECOME AN ISSUE UNTIL THAT TIME.

WITH REGARD TO THE FIRST POINT ABOVE, IN OUR OPINION, THE GOOD FAITH OR DISCRETION OF THE CONTRACTING OFFICER IS NOT IN ISSUE. THE QUESTION IS WHETHER THE RESPONSIVENESS OF THE HEIL BID WAS AFFECTED BY THE DESCRIPTIVE DATA THAT WAS FURNISHED WITH THE BID. ALTHOUGH THE CONTRACTING OFFICER CONSIDERED THAT THE GENERAL DESCRIPTION IN THE DATA CREATED AN AMBIGUITY, FOR REASONS INDICATED IN THE DECEMBER 3 DECISION, WHICH WILL NOT BE REPEATED HERE, IT WAS OUR VIEW THAT THERE WAS NO AMBIGUITY OR QUALIFICATION IN THE MATERIAL AND THAT THE INTENT TO COMPLY WITH THE PURCHASE DESCRIPTION WAS APPARENT. IN THE CIRCUMSTANCES, OUR OFFICE COULD NOT LET STAND THE CONTRACTING OFFICER'S DETERMINATION WHICH OBVIOUSLY WAS IN ERROR.

MOREOVER, HAMMERMILLS QUESTIONS THE RATIONALE EMPLOYED IN THE DECEMBER 3 DECISION FOR DISTINGUISHING B-160474, FEBRUARY 27, 1967. HAMMERMILLS QUOTES FROM 49 COMP. GEN. 851 (1970), AT PAGE 852, AS FOLLOWS:

"*** THE INTENT OF THE BID MUST BE DETERMINED FROM A REASONABLE CONSTRUCTION OF ITS ENTIRE CONTENTS INCLUDING ANY UNSOLICITED LITERATURE. IF THE CIRCUMSTANCES ARE REASONABLY SUSCEPTIBLE OF A CONCLUSION THAT THE LITERATURE WAS INTENDED TO QUALIFY THE BID OR IF THE INCLUSION OF THE LITERATURE CREATES AN AMBIGUITY AS TO WHAT THE BIDDER INTENDED TO OFFER, THEN THE BID MUST BE REJECTED AS NONRESPONSIVE TO THE INVITATION FOR BIDS. ***"

HAMMERMILLS STATES THAT IF THE INCLUSION OF LITERATURE WITH THE BID CREATES AN AMBIGUITY, IT IS IMMATERIAL WHETHER A MODEL NUMBER IS CITED ON THE BID FORM, WHICH WAS USED TO DISTINGUISH B-160474 FROM THE IMMEDIATE CASE. WE DO NOT DISAGREE. IN THE PRIOR DECISION, THE BIDDER CITED A MODEL NUMBER IN THE BID AND FURNISHED WITH THE BID DESCRIPTIVE LITERATURE ON THE MODEL WHICH WAS INCOMPLETE SO IT COULD NOT BE ASCERTAINED FROM THE INFORMATION FURNISHED WITH THE BID WHETHER THE MODEL OFFERED IN RESPONSE TO THE IFB MET THE GOVERNMENT'S REQUIREMENTS. IT WAS OUR CONCLUSION THAT THE BIDDER'S OBLIGATION WAS LIMITED BY THE MODEL NUMBER SUBMITTED. IN THE IMMEDIATE CASE, THE DESCRIPTIVE LITERATURE, WHICH DID NOT INCLUDE A MODEL NUMBER, WAS CLEARLY NOT INTENDED TO FULLY DESCRIBE THE OFFERED ITEM. THEREFORE, UPON ACCEPTANCE, THE BIDDER WOULD BE OBLIGATED TO PERFORM IN ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS. THUS, THIS CASE IS NOT INCONSISTENT WITH THE STATEMENT QUOTED FROM 49 COMP. GEN., SUPRA.

THE SECOND BASIS FOR RECONSIDERATION IS THAT THE IFB DID NOT PROVIDE FOR MANUALS BEING SUBMITTED AFTER BID OPENING AND SINCE HEIL DID NOT SUBMIT ANY MANUALS WITH THE BID IT SHOULD NOT HAVE BEEN CONSIDERED RESPONSIVE. HAMMERMILLS STATES THAT SINCE HEIL DID NOT SUBMIT ANY MANUALS WITH ITS BID, IT WAS IMPOSSIBLE FOR THE CONTRACTING OFFICER TO PROPERLY EVALUATE THE SUFFICIENCY AND ACCEPTABILITY OF THE MANUALS, IF THEY REALLY EXISTED AT ALL.

IT IS OUR POSITION, HOWEVER, THAT THE FAILURE TO INCLUDE MANUALS IN THIS INSTANCE SHOULD NOT RENDER HEIL'S BID NONRESPONSIVE. THE LANGUAGE OF AFAD 71-531-(13) DESCRIBING THE "TECHNICAL MANUAL REQUIREMENTS FOR VEHICLES" IS EXTREMELY PERMISSIVE IN THE QUALITY OF THE SAMPLE SUBMITTED. ANY MANUAL SUBMITTED COULD BE ALTERED TO MEET THE GOVERNMENT'S REQUIREMENTS AFTER SUBMISSION OF A BID. IT DOES NOT APPEAR FROM THE AFAD THAT THE PURPOSE FOR THE SUBMISSION OF MANUALS WAS TO FIX THE BIDDER'S OBLIGATION UNDER THE CONTRACT, BUT RATHER TO DETERMINE WHETHER ANY CHANGES WERE REQUIRED IN PROPOSED MANUALS TO MEET THE MIL-M-7298 CRITERIA FOR MANUALS. WE NOTE IN THAT REGARD THAT THE AFAD DID NOT REQUIRE THAT PRECISE SUPPLEMENTAL INFORMATION BE INDICATED, BUT ONLY AN "OUTLINE" OF THE DATA WAS REQUESTED. THE MIL SPECIFICATION DOES NOT CONTEMPLATE BID REJECTION BASED ON INSUFFICIENCY OF MANUAL SAMPLES. RATHER, THE MIL SPECIFICATION PROVIDES THAT THE DETAILS OF MANUAL CONTENTS SHALL BE COVERED BY THE CONTRACT. IN THIS LIGHT, THE IFB MANUAL SUBMISSION PROVISION IS INFORMATIONAL IN NATURE, SERVING TO CLARIFY FOR CONTRACT DEFINITION PURPOSES THE CONTENT AND MAKEUP OF TECHNICAL COMMERCIAL-TYPE MANUALS.

THE THIRD CONTENTION OF HAMMERMILLS IS THAT OUR OFFICE ASSUMED AN AMBIGUITY EXISTED AS TO THE BUY AMERICAN ISSUE AND THEN RESOLVED IT IN FAVOR OF HEIL, CONTRARY TO A FORMER DECISION. HAMMERMILLS CITES B 163740, MAY 24, 1968 (47 COMP. GEN. 676), FOR THE PROPOSITION THAT "WHERE AN AGENCY CANNOT DETERMINE THE STATUS OF THE BID AS FOREIGN OR DOMESTIC FOR THE PURPOSES OF EVALUATION UNDER THE BUY AMERICAN ACT, THE BID MUST BE TREATED AS NONRESPONSIVE."

HOWEVER, THERE WAS NO AMBIGUITY IN THE CITED CASE. IT WAS CLEAR FROM THE PERCENTAGE OF COST STIPULATED IN THE LETTER THAT WAS A PART OF THE BID THAT FOREIGN ITEMS WERE OFFERED. THE DECISION THEREFORE DOES NOT STAND FOR THE PROPOSITION CITED. IN THE IMMEDIATE CASE, THERE LIKEWISE IS NO AMBIGUITY. HEIL STATED NO EXCEPTION TO THE BUY AMERICAN CERTIFICATE AND IT INDICATED THAT AN IMPORT DUTY WOULD BE PAID ONLY ON SOME OF THE PARTS OF THE END ITEM. IT IS POSSIBLE FOR A CONTRACTOR TO PAY DUTY ON PARTS AND FOR THE END ITEM TO REMAIN A DOMESTIC ITEM. ACCORDINGLY, WE FAIL TO SEE WHERE AN AMBIGUITY HAS ARISEN OR WHERE WE RESOLVED AN AMBIGUITY IN FAVOR OF HEIL.

THE BASIS FOR THE HAMMERMILLS PROTEST WITH RESPECT TO THE EVALUATION OF BIDS IS THAT THE IFB STATED THE WRONG DESTINATION WITH RESPECT TO CLIN 0001 AND THAT OUT OF FAIRNESS TO HAMMERMILLS AND HEIL BIDS SHOULD BE EVALUATED ON THE F.O.B. ORIGIN BASIS PROVIDED IN THE IFB INSTEAD OF THE F.O.B. DESTINATION BASIS PROVIDED THEREIN. HOWEVER, THIS ISSUE HAS NOT BEEN TIMELY RAISED. HAMMERMILLS SHOULD HAVE BEEN AWARE OF THE TRANSPORTATION COSTS, METHOD OF EVALUATION, AND THE RESULTANT TOTAL EVALUATED BID PRICE OF BOTH HEIL'S AND ITS OWN BID AS A RESULT OF THE CONTENTS (PARAGRAPHS 5 AND 14) OF THE REPORT OF THE CONTRACTING OFFICER, DATED SEPTEMBER 24, 1973. UPON RECEIPT OF THE REPORT, IT WAS INCUMBENT UPON HAMMERMILLS TO PROTEST THE EVALUATION OF BIDS RATHER THAN TO LET THE PROTEST PROCEED TO A FINAL DECISION AND WAIT TO SEE WHICH PARTY PREVAILED. WHILE HAMMERMILLS MAY NOT HAVE RECOGNIZED ALL OF THE POSSIBLE RAMIFICATIONS AT THE TIME OF RECEIPT OF THE CONTRACTING OFFICER'S REPORT, WE BELIEVE THAT SUCH REPORT MUST BE FAIRLY REGARDED AS PROVIDING THE PRIMARY BASIS FOR HAMMERMILLS' PROTEST. ACCORDINGLY, THE FAILURE TO QUESTION OR PROTEST THE PROVISIONS OF THAT REPORT WITHIN FIVE DAYS AFTER ITS RECEIPT DOES NOT PERMIT CONSIDERATION OF THIS ISSUE OF THE PROTEST UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS. SEE B-177656, APRIL 26, 1973.

IN VIEW OF THE FOREGOING, THE DECISION OF DECEMBER 3 IS SUSTAINED AND THE SUBSEQUENT PROTEST IS DISMISSED AS UNTIMELY.