B-181147, SEP 12, 1974

B-181147: Sep 12, 1974

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BIDDER WHO IS PROVIDED WITH ORAL INTERPRETATION OF SPECIFICATIONS IS NOT PLACED AT COMPETITIVE DISADVANTAGE WITH OTHER BIDDERS. NOTWITHSTANDING INTERPRETATION WAS NOT DISPATCHED TO OTHER BIDDERS. SINCE INTERPRETATION WAS CONSISTENT WITH ONLY REASONABLE EXPLANATION. FJB ENGINEERING COMPANY: INVITATION FOR BIDS (IFB) N60921-74-B-0194 WAS ISSUED FEBRUARY 20. WERE ISSUED TO CLARIFY CERTAIN SPECIFICATIONS OF THE IFB. BID OPENING WAS SCHEDULED FOR APRIL 2. CONTACTED THE NAVY CONTRACT NEGOTIATOR TO REQUEST INFORMATION REGARDING CERTAIN SPECIFICATIONS WHICH IT ALLEGED WERE INADEQUATE. NO ANSWER WAS PROVIDED UNTIL APRIL 2. FJB CONTENDS THAT WHEN IT WAS GIVEN THE REQUESTED INFORMATION ORALLY ON APRIL 2.

B-181147, SEP 12, 1974

BIDDER WHO IS PROVIDED WITH ORAL INTERPRETATION OF SPECIFICATIONS IS NOT PLACED AT COMPETITIVE DISADVANTAGE WITH OTHER BIDDERS, NOTWITHSTANDING INTERPRETATION WAS NOT DISPATCHED TO OTHER BIDDERS, SINCE INTERPRETATION WAS CONSISTENT WITH ONLY REASONABLE EXPLANATION.

FJB ENGINEERING COMPANY:

INVITATION FOR BIDS (IFB) N60921-74-B-0194 WAS ISSUED FEBRUARY 20, 1974, BY THE NAVAL ORDNANCE LABORATORY (NAVY), SILVER SPRINGS, MARYLAND, TO PROCURE A HIGH-SPEED MOTION PICTURE CAMERA, 16MM, WITH UNDERWATER HOUSING. AMENDMENT NO. 1 DATED MARCH 4, 1974, AMENDMENT NO. 2 DATED MARCH 8, 1974, AND AMENDMENT NO. 3 DATED MARCH 26, 1974, WERE ISSUED TO CLARIFY CERTAIN SPECIFICATIONS OF THE IFB. BID OPENING WAS SCHEDULED FOR APRIL 2, 1974.

FJB ENGINEERING COMPANY (FJB), ONE OF THREE BIDDERS RESPONDING TO THE IFB, CONTACTED THE NAVY CONTRACT NEGOTIATOR TO REQUEST INFORMATION REGARDING CERTAIN SPECIFICATIONS WHICH IT ALLEGED WERE INADEQUATE, MISLEADING AND INCOMPLETE AS A RESULT OF THE AMENDMENTS TO THE IFB. THREE OCCASIONS, MARCH 29, APRIL 1, AND APRIL 2, 1974, FJB INQUIRED AS TO THE MEANING OF THE SPECIFICATIONS REGARDING THE UNDERWATER STRESSES THE CAMERA MUST BE ABLE TO WITHSTAND. HOWEVER, NO ANSWER WAS PROVIDED UNTIL APRIL 2, THE DAY OF BID OPENING.

FJB CONTENDS THAT WHEN IT WAS GIVEN THE REQUESTED INFORMATION ORALLY ON APRIL 2, IT DECIDED THAT CERTAIN MODIFICATIONS TO ITS CAMERA WOULD BE NECESSARY TO COMPLY WITH THE GOVERNMENT'S REQUIREMENTS AND IT THEREFORE INCREASED ITS BID PRICE.

AFTER BID OPENING, FJB PROTESTED TO THE PROCUREMENT OFFICE THAT SINCE IT WAS THE ONLY BIDDER PRESENT AT BID OPENING, THE OTHER BIDDERS HAVING MAILED IN THEIR BIDS, IT WAS THE ONLY COMPANY WHICH RECEIVED NAVY'S INTERPRETATION OF THE SPECIFICATION AND WAS THEREFORE PLACED AT A COMPETITIVE DISADVANTAGE. THE PROTESTER, THEREFORE, REQUESTED THAT THE IFB BE CANCELED AND READVERTISED.

THE CONTRACTING OFFICER REJECTED FJB'S CONTENTION. THE CONTRACTING OFFICER MAINTAINED THAT THE SPECIFICATIONS WERE ADEQUATE AS EVIDENCED BY THE FACT THAT NO QUESTION CONCERNING LACK OF CLARITY HAD BEEN RAISED BY ANY OTHER BIDDER PRIOR TO BID OPENING. FURTHER, THE CONTRACTING OFFICER HAS STATED THAT THE INFORMATION PROVIDED FJB WAS SIMPLY FURNISHED AS A CLARIFICATION OF ITS OWN UNDERSTAND OF THE SPECIFICATIONS RATHER THAN AS NEW INFORMATION WHICH SHOULD HAVE BEEN PROVIDED TO ALL BIDDERS. IN THAT CONNECTION, THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PARAGRAPH 2- 208(C) ONLY REQUIRES INFORMATION GIVEN TO A PROSPECTIVE BIDDER TO BE PROVIDED TO ALL PROSPECTIVE BIDDERS "IF SUCH INFORMATION IS NECESSARY TO THE BIDDERS IN SUBMITTING BIDS ON THE INVITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED BIDDERS."

FJB ALLEGES THAT ITS PROBLEM WITH THE SPECIFICATION CLARITY WAS PRECIPITATED BY THE CHANGES INCORPORATED IN THE IFB BY AMENDMENT NO. 1. THE NUMBER AND SIZE OF LENSES TO BE SUPPLIED WITH THE CAMERA WAS SPECIFIED ORIGINALLY IN SECTION F.1.7 OF THE IFB. SECTION F.1.10 STATED THAT THE CAMERA SHOULD BE OPERATIONAL TO WITHSTAND A 20G LOADING ON ALL AXES. AMENDMENT NO. 1 DELETED SECTION F.1.7 AND INCLUDED THE INFORMATION CONCERNING THE NUMBER AND SIZE OF LENSES REQUIRED UNDER A NEW SECTION, F.3.1. SECTION F.1.10 REMAINED UNCHANGED. FJB THEN RAISED THE QUESTION AS TO WHETHER THE CAMERA WOULD STILL BE REQUIRED TO WITHSTAND A 20G LOADING OPERATION WITH THE LENSES ATTACHED AS PROVIDED IN F.1.10. FJB WAS ADVISED THAT THE CAMERA SHOULC BE OPERATIONAL IN THIS ENVIRONMENT WITH THE LENS ATTACHED.

UNDER THE TERMS OF THE IFB AND AMENDMENT NO. 1, THERE IS ONLY ONE REASONABLE INTERPRETATION OF THE REQUIREMENTS. WHERE THE AMENDMENT HAS NOT SPECIFICALLY REVISED A PARTICULAR SECTION OF THE ORIGINAL IFB, IT MUST BE PRESUMED THAT NO REVISION WAS INTENDED, AND THAT THE ORIGINAL PROVISION IS STILL APPLICABLE UNDER THE AMENDMENT. THEREFORE, SINCE AMENDMENT NO. 1 DID NOT REVISE SECTION F.1.10 IT WAS STILL APPLICABLE IN ITS ORIGINAL FORM.

ON THE BASIS OF THE FOREGOING, WE ARE UNABLE TO CONCLUDE THAT FJB WAS PLACED AT A COMPETITIVE DISADVANTAGE BECAUSE THE INTERPRETATION PROVIDED TO IT CONSISTENT WITH SPECIFICATION REQUIREMENTS WAS NOT DISPATCHED TO OTHER BIDDERS. SEE B-173504, SEPTEMBER 12, 1972.

ACCORDINGLY, THE PROTEST IS DENIED.