B-180273, MAY 7, 1974

B-180273: May 7, 1974

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CLAIM BY HIGH BIDDER FOR BID PREPARATION COSTS ON BASIS THAT CONTRACT FOR ELECTRONIC SYSTEM FOR LIGHTS AT WOLF TRAP FARM SHOULD NOT HAVE BEEN AWARDED TO LOW BIDDER BECAUSE EQUIPMENT OFFERED DID NOT MEET MINIMUM REQUIREMENTS OF ALTERNATE PROVIDED IN SPECIFICATIONS AND PRIOR INSTALLATIONS LISTED IN BID DID NOT COMPLY WITH BIDDER EXPERIENCE REQUIREMENT IS DENIED. SINCE EQUIPMENT OFFERED WAS NOT REQUIRED TO COMPLY WITH ALTERNATE TO BE ACCEPTABLE AND THERE IS NO INDICATION THAT CONTENTIONS REGARDING ALLEGED FAILURE TO COMPLY WITH BIDDER EXPERIENCE REQUIREMENT. WAS BROUGHT TO ATTENTION OF CONTRACTING OFFICER PRIOR TO AWARD OR THAT CONTRACTING OFFICER WAS OTHERWISE AWARE THAT INSTALLATIONS WERE NONCONFORMING.

B-180273, MAY 7, 1974

CLAIM BY HIGH BIDDER FOR BID PREPARATION COSTS ON BASIS THAT CONTRACT FOR ELECTRONIC SYSTEM FOR LIGHTS AT WOLF TRAP FARM SHOULD NOT HAVE BEEN AWARDED TO LOW BIDDER BECAUSE EQUIPMENT OFFERED DID NOT MEET MINIMUM REQUIREMENTS OF ALTERNATE PROVIDED IN SPECIFICATIONS AND PRIOR INSTALLATIONS LISTED IN BID DID NOT COMPLY WITH BIDDER EXPERIENCE REQUIREMENT IS DENIED, SINCE EQUIPMENT OFFERED WAS NOT REQUIRED TO COMPLY WITH ALTERNATE TO BE ACCEPTABLE AND THERE IS NO INDICATION THAT CONTENTIONS REGARDING ALLEGED FAILURE TO COMPLY WITH BIDDER EXPERIENCE REQUIREMENT, MATTER OF RESPONSIBILITY, WAS BROUGHT TO ATTENTION OF CONTRACTING OFFICER PRIOR TO AWARD OR THAT CONTRACTING OFFICER WAS OTHERWISE AWARE THAT INSTALLATIONS WERE NONCONFORMING.

TO KLIEGL BROS. UNIVERSAL ELECTRIC STAGE LIGHTING CO., INC.:

ON NOVEMBER 9, 1973, NATIONAL CAPITAL PARKS (NCP) ISSUED INVITATION FOR BIDS (IFB) NO. INV-3000-4-0054 FOR FURNISHING AN ELECTRONIC SYSTEM TO CONTROL STAGE, HOUSE AND WORK LIGHTS FOR WOLF TRAP FARM PARK, VIENNA, VIRGINIA.

THREE BIDS WERE RECEIVED AND OPENED AS SCHEDULED ON NOVEMBER 27, 1973. SKIRPAN LIGHTING CONTROL CORPORATION (SKIRPAN), LEHIGH ELECTRIC PRODUCTS COMPANY, AND KLIEGL BROS. UNIVERSAL ELECTRIC STAGE LIGHTING CO., INC. (KLIEGL), WERE THE LOW, NEXT LOW AND HIGH BIDDERS, RESPECTIVELY. AWARD WAS MADE TO SKIRPAN ON DECEMBER 14, 1973. BY TELEGRAM DATED DECEMBER 15, 1973, AND LETTER OF JANUARY 7, 1974, THE ATTORNEYS FOR KLIEGL PROTESTED TO OUR OFFICE AGAINST AN AWARD TO SKIRPAN ON SEVERAL GROUNDS. ADMINISTRATIVE REPORT ON THE PROTEST SUBSEQUENTLY WAS PROVIDED TO KLIEGL'S ATTORNEYS FOR COMMENT. BY LETTER OF MARCH 27, 1974, THE ATTORNEYS ADVISED THAT SINCE RESCISSION OF THE CONTRACT WOULD POSE CONSIDERABLE DIFFICULTY FOR THE GOVERNMENT BECAUSE OF THE ADVANCED STATE OF COMPLETION, CLAIM WAS BEING MADE FOR BID PREPARATION COSTS. THE CLAIM FOR BID PREPARATION COSTS IS BASED ON TWO GROUNDS.

THE FIRST GROUND IS PREMISED ON THE PROVISION IN ITEM 1, SECTION 1, OF THE SPECIFICATIONS WHICH STATED:

"EITHER OF THE TWO (2) FOLLOWING DESCRIPTIONS (DESCRIPTION A OR B) OR EQUIVALENTS WILL BE ACCEPTABLE, NOTING THAT NOTHING LESS THAN THE MINIMUM QUALIFICATIONS LISTED IN EACH WILL HOLD."

IT IS CONTENDED THAT THE FOREGOING PROVISION MEANS THAT ALL BIDDERS MUST MEET THE MINIMUM QUALIFICATIONS OF EITHER DESCRIPTION A OR B, WHICHEVER IS GREATER, AND THAT IN NO EVENT IS A BID WHICH DOES NOT MEET THE "MINIMUM QUALIFICATIONS LISTED IN EACH" ACCEPTABLE. IN THIS REGARD, IT IS STATED THAT SKIRPAN MEETS THE MINIMUM REQUIREMENTS OF DESCRIPTION B, BUT NOT THE MINIMUM REQUIREMENTS OF DESCRIPTION A, AND THEREFORE DOES NOT CONFORM TO THE SPECIFICATIONS.

IN OUR VIEW, WHICH IS CONSONANT WITH THE CONTRACTING AGENCY'S, THE LANGUAGE IN SECTION 1 DOES NOT REQUIRE THE MINIMUM QUALIFICATIONS OF EACH DESCRIPTION (A AND B) TO BE READ INTO THE OTHER. WE INTERPRET THE FIRST PART OF THE LANGUAGE AS PROVIDING FOR OFFERS MEETING EITHER DESCRIPTION A OR B BEING ACCEPTABLE. FURTHER, WE CONSTRUE THE LATTER PART OF THE LANGUAGE AS AN INDICATION THAT, WHEN EITHER ONE DESCRIPTION OR THE OTHER IS SELECTED BY THE BIDDER, NOTHING LESS THAN THE MINIMUM QUALIFICATIONS SPECIFIED FOR THE DESCRIPTION SELECTED WILL BE SATISFACTORY. THAT A BIDDER NEED MEET THE REQUIREMENTS OF EITHER DESCRIPTION A OR B, RATHER THAN OF BOTH, IS REINFORCED BY SPECIAL PROVISIONS SP-01, METHOD OF AWARD, WHICH STATED:

"AWARD WILL BE MADE ON ITEM 1, DESCRIPTION A OR B, WHICHEVER IS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED."

THE SECOND GROUND UPON WHICH THE CLAIM FOR BID PREPARATION COSTS IS BASED IS PREMISED UPON SPECIAL REQUIREMENTS A WHICH PROVIDED:

"BIDDER MUST SUBMIT WITH HIS BID A LIST OF AT LEAST THREE (3) PREVIOUS MEMORY SYSTEM INSTALLATIONS MANUFACTURED BY HIS CONCERN."

IT IS CONTENDED THAT THE FIRST SYSTEM MENTIONED IN THE LIST PROVIDED BY SKIRPAN WAS NOT MANUFACTURED BY SKIRPAN AND THAT THE OTHER TWO SYSTEMS IN THE LIST WERE CONVENTIONAL PRE-SET DIMMING SYSTEMS RATHER THAN MEMORY SYSTEMS WITH THE RESULT THAT THE SKIRPAN BID WAS NOT RESPONSIVE. ASSUMING THAT THE LISTED EQUIPMENT DOES NOT CONFORM FOR THE REASONS STATED, THE FACT STILL REMAINS THAT SPECIAL REQUIREMENT A IS A BIDDER EXPERIENCE REQUIREMENT. OUR OFFICE HAS HELD THAT BIDDER EXPERIENCE REQUIREMENTS ARE MATTERS OF RESPONSIBILITY, RATHER THAN RESPONSIVENESS, AND THAT THE DETERMINATION OF A BIDDER'S OVERALL RESPONSIBILITY IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY. B 172840, JULY 13, 1971; B-172928, AUGUST 18, 1971; AND B-175585, NOVEMBER 8, 1972. THERE IS NO INDICATION THAT THE CONTENTIONS REGARDING SKIRPAN'S FAILURE TO COMPLY WITH SPECIAL REQUIREMENT A WAS BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER PRIOR TO AWARD OR THAT THE CONTRACTING OFFICER WAS OTHERWISE AWARE THAT INSTALLATIONS LISTED IN RESPONSE TO SPECIAL REQUIREMENT A WERE NONCONFORMING. THE EVIDENCE OF RECORD DOES NOT INDICATE THAT THE CONTRACTING OFFICER ACTED ARBITRARILY AND CAPRICIOUSLY IN THE CIRCUMSTANCES.

IN VIEW OF THE FOREGOING, THE CLAIM FOR BID PREPARATION COSTS IS DENIED. SEE KECO INDUSTRIES, INC. V. UNITED STATES, UNITED STATES COURT OF CLAIMS NO. 173-69, DECIDED FEBRUARY 20, 1974.