B-181242, AUG 19, 1974

B-181242: Aug 19, 1974

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IT IS FOUND THAT SUCH EQUIPMENT DOES NOT COMPLY WITH SPECIFICATIONS. REJECTION OF BID AS NONRESPONSIVE WAS PROPER. CONTRACTING OFFICER WAS NOT REQUIRED BY ASPR 1-705.4(C) TO REFER MATTER TO SBA FOR POSSIBLE CERTIFICATE OF COMPETENCY CONSIDERATION. 2. THE RESPONSIVENESS OF A BID IS DETERMINED FROM FACE OF BID ITSELF AT THE TIME OF BID OPENING AND TO ALLOW A BIDDER AN OPPORTUNITY TO CHANGE OR ALTER BID IN ORDER TO MAKE IT RESPONSIVE IS TANTAMOUNT TO PERMITTING SUBMISSION OF SECOND BID THEREFORE. PROTESTER'S CONTENTION THAT AGENCY WOULD ISSUE ULTIMATUM OR COMPLIANCE DEADLINE AFTER BID OPENING TO PERMIT BIDDER OPPORTUNITY TO ALTER BID IS WITHOUT MERIT AND. REJECTION IS PROPER WHERE BID AS SUBMITTED IS NONRESPONSIVE. 3.

B-181242, AUG 19, 1974

1. WHERE ADVERTISED SOLICITATION REQUIRED THAT "DERRICKBOAT" TO BE RENTED BY ARMY CORPS OF ENGINEERS BE EQUIPPED WITH "SPUD ENGINE" AND WHERE, AFTER INSPECTION AND EVALUATION OF EXISTING EQUIPMENT DESCRIBED IN BID, IT IS FOUND THAT SUCH EQUIPMENT DOES NOT COMPLY WITH SPECIFICATIONS, REJECTION OF BID AS NONRESPONSIVE WAS PROPER. SINCE REJECTION OF BID DID NOT REFLECT ON THE BIDDER'S ABILITY (CAPACITY) TO PERFORM CONTRACT OR IN ANYWAY REFLECT ON ITS OVERALL RESPONSIBILITY, CONTRACTING OFFICER WAS NOT REQUIRED BY ASPR 1-705.4(C) TO REFER MATTER TO SBA FOR POSSIBLE CERTIFICATE OF COMPETENCY CONSIDERATION. 2. BIDDER'S INTENTION TO COMPLY AND BE BOUND BY TERMS AND CONDITIONS OF SOLICITATION MUST BE APPARENT FROM BID AS SUBMITTED. THE RESPONSIVENESS OF A BID IS DETERMINED FROM FACE OF BID ITSELF AT THE TIME OF BID OPENING AND TO ALLOW A BIDDER AN OPPORTUNITY TO CHANGE OR ALTER BID IN ORDER TO MAKE IT RESPONSIVE IS TANTAMOUNT TO PERMITTING SUBMISSION OF SECOND BID THEREFORE, PROTESTER'S CONTENTION THAT AGENCY WOULD ISSUE ULTIMATUM OR COMPLIANCE DEADLINE AFTER BID OPENING TO PERMIT BIDDER OPPORTUNITY TO ALTER BID IS WITHOUT MERIT AND, REJECTION IS PROPER WHERE BID AS SUBMITTED IS NONRESPONSIVE. 3. FACT THAT PROTESTER WAS NOT FURNISHED PREAWARD NOTICE AS TO REJECTION OF ITS BID PROVIDES NO BASIS FOR PROTEST SINCE THERE IS NO ASPR REQUIREMENT THAT SUCH ADVANCE NOTICE BE GIVEN. 4. SINCE PROCUREMENT ACTIVITY HAS RESPONSIBILITY FOR DRAFTING SPECIFICATIONS REFLECTING GOVERNMENT'S MINIMUM NEEDS AND DETERMINING WHETHER PRODUCT OFFERED MEETS THE SPECIFICATIONS AND FURTHER, SINCE AGENCY IS FAMILIAR WITH CONDITIONS UNDER WHICH EQUIPMENT WILL BE USED AND IS IN BEST POSITION TO KNOW GOVERNMENT'S ACTUAL NEEDS, GAO WILL NOT OBJECT TO REJECTION OF PROTESTER'S BID BASED ON AGENCY'S DETERMINATION THAT PROPOSED EQUIPMENT WOULD NOT SATISFY NEEDS OF GOVERNMENT.

SHEFFIELD BUILDING COMPANY, INCORPORATED:

ON APRIL 1, 1974, INVITATION FOR BIDS (IFB) NO. DACW49-74-B-0050, WAS ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, BUFFALO, NEW YORK. THE IFB SOLICITATED BIDS FOR THE RENTAL OF A "DERRICKBOAT", FOR THE PERIOD MAY 1, 1974, OR DATE OF CONTRACT AWARD THRU JUNE 30, 1974, TO PERFORM MAINTENANCE REPAIR WORK TO THE BREAKWATER SYSTEM AT CLEVELAND HARBOR, OHIO. FIVE BIDS WERE RECEIVED AND OPENED ON THE SCHEDULED OPENING DATE, APRIL 25, 1974. THE APPARENT LOW BID OF $88,960 WAS SUBMITTED BY SHEFFIELD BUILDING COMPANY, INCORPORATED (SHEFFIELD).

SECTION F OF THE SPECIFICATIONS READ IN PERTINENT PART:

"READY TO WORK EQUIPMENT SHALL INCLUDE FULLY RIGGED HOISTING, SWING AND SPUD ENGINE AND DECK WINCHES."

IN ADDITION, ITEM 3 OF SECTION F REQUIRED THAT, "*** OPERATING SPUDS

*** SHALL BE IN PLACE UPON DELIVERY OF THE EQUIPMENT.

IN RESPONSE TO THE INVITATION'S REQUIREMENT FOR DESCRIPTIVE DATA, SHEFFIELD'S BID INDICATED THAT IT PROPOSED TO FURNISH A DERRICKBOAT MANUFACTURED BY WILLIAM D. VIRGIN TO PERFORM THE SERVICES REQUIRED BY THE SOLICITATION. AT THE REQUEST OF THE CHIEF, SUPPLY AND PROCUREMENT DIVISION, GOVERNMENT PERSONNEL INSPECTED AND EVALUATED THE EQUIPMENT INTENDED TO BE FURNISHED AND FOUND THAT THE EQUIPMENT DID NOT FULLY CONFORM TO THE SPECIFICATIONS. SHEFFIELD'S BID WAS DETERMINED TO BE NONRESPONSIVE TO SECTION F, SPECIFICALLY ITEM 3, OF THE IFB, IN THAT THE DERRICKBOAT PROPOSED TO BE FURNISHED BY THE BIDDER WAS EQUIPPED WITH "SPUDS" WHICH COULD NOT BE RAISED EXCEPT BY USE OF A BARGE MOUNTED CRANE, WHEREAS THE INVITATION REQUIRED A "SPUD ENGINE." AWARD WAS MADE TO THE SECOND LOW BIDDER, DUNBAR AND SULLIVAN DREDGING COMPANY, AFTER ITS PROPOSED EQUIPMENT WAS INSPECTED AND EVALUATED AND FOUND TO COMPLY WITH THE REQUIREMENTS OF THE INVITATION.

SHEFFIELD FIRST CONTENDS THAT ITS BID WAS IMPROPERLY REJECTED FOR LACK OF CAPACITY WITHOUT A REQUEST TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR THE POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY. IN THIS REGARD, ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-705.4(C) PROVIDES THAT IF THE BID OF A SMALL BUSINESS CONCERN IS TO BE REJECTED SOLELY BECAUSE THE CONTRACTING OFFICER HAS DETERMINED THE CONCERN TO BE NONRESPONSIBLE AS TO CAPACITY OR CREDIT, THE MATTER SHALL BE REFERRED TO SBA. ASPR 1-705.4(A) DEFINES CAPACITY AS THE OVERALL ABILITY OF A PROSPECTIVE SMALL BUSINESS CONTRACTOR TO MEET QUALITY, QUANTITY, AND TIME REQUIREMENTS OF A PROPOSED CONTRACT. THE RECORD OF THE INSTANT PROCUREMENT INDICATES THAT SHEFFIELD'S BID WAS REJECTED BY THE CONTRACTING OFFICIALS BECAUSE IT WAS FOUND TO BE NONRESPONSIVE TO A MATERIAL REQUIREMENT OF THE SOLICITATION. THE DECISION OF THE PROCURING ACTIVITY TO REJECT SHEFFIELD'S BID WAS BASED ON ITS DETERMINATION THAT THE EQUIPMENT PROPOSED TO BE FURNISHED AND IDENTIFIED IN THE BID DID NOT FULLY COMPLY WITH THE SPECIFICATIONS.

IN ADDITION, THE PROTESTER ARGUES THAT THE AGENCY HAS RAISED A QUESTION REGARDING ITS CAPACITY SINCE THE ADMINISTRATIVE REPORT STATES THAT ALTHOUGH THE EQUIPMENT AVAILABLE TO SHEFFIELD MIGHT HAVE BEEN "ABLE TO ACCOMPLISH THE WORK", THE EQUIPMENT'S SLOWER RATE OF PERFORMANCE WAS NOT ACCEPTABLE. IN OUR OPINION IT IS CLEAR THAT THE AGENCY'S OBSERVATION IN THIS REGARD WAS INTENDED MERELY TO INDICATE THAT THE PERFORMANCE OF SUCH EQUIPMENT DEVIATED FROM AND WOULD NOT SATISFY THE AGENCY'S ESSENTIAL REQUIREMENTS. THUS THE CONTRACTING OFFICER DID NOT IMPUGN THE PROTESTER'S ABILITY (CAPACITY) TO PERFORM THE CONTRACT OR IN ANY WAY REFLECT ON ITS OVERALL RESPONSIBILITY. SUCH BEING THE CASE, THE CONTRACTING OFFICER WAS NOT REQUIRED UNDER ASPR 1 705.4(C) TO REFER THE MATTER TO SBA FOR COC CONSIDERATION.

SECONDLY, SHEFFIELD CONTENDS THAT THE PROCURING ACTIVITY'S ACTION IN NOTIFYING IT THREE DAYS AFTER THE REJECTION OF ITS BID WAS NOT JUSTIFIABLE IN VIEW OF ITS DAILY CALLS TO THE CONTRACTING OFFICE REGARDING THE STATUS OF ITS BID. IN THIS REGARD, IT IS OUR POSITION THAT THE PROCURING AGENCY COMPLIED WITH ASPR 2-408.1, WHICH REQUIRES PROMPT NOTIFICATION TO UNSUCCESSFUL BIDDERS THAT THEIR BIDS HAVE NOT BEEN ACCEPTED. THE CORPS OF ENGINEERS COMPLIED WITH THIS REQUIREMENT WHEN IT FORWARDED ON MAY 8, 1974, A LETTER TO SHEFFIELD STATING THAT AWARD HAD BEEN MADE TO THE SECOND LOW BIDDER AND STATING WHY ITS BID WAS REJECTED. THERE IS NO REQUIREMENT IN ASPR THAT BIDDERS BE NOTIFIED IN ADVANCE AS TO THE REJECTION OF THEIR BIDS.

SHEFFIELD ALSO ALLEGES THAT THE AGENCY'S DECISION TO REJECT ITS BID WAS MADE ON THE BASIS OF AN UNSOUND INFERENCE THAT IT COULD NOT OR WOULD NOT COMPLY WITH THE DEFINED SPECIFICATIONS. FURTHERMORE, SHEFFIELD CONTENDS THAT IT DID NOT AMEND ITS BID BECAUSE IT ACTED UNDER THE ASSUMPTION THAT EITHER AN ULTIMATUM OR COMPLIANCE DEADLINE WOULD BE ISSUED BY THE AGENCY BEFORE ITS BID WAS REJECTED AS NONRESPONSIVE. EVEN THOUGH SHEFFIELD MAY WELL HAVE ACTUALLY INTENDED TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THE SOLICITATION, THE DETERMINING FACTOR IS NOT WHETHER THE BIDDER INTENDS TO BE BOUND, BUT WHETHER THIS INTENTION IS APPARENT FROM THE BID AS SUBMITTED. THE FAILURE OF A BID TO COMPLY WITH A MATERIAL REQUIREMENT WILL VITIATE THE BID. 42 COMP. GEN. 502 (1963). IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT THE RESPONSIVENESS OF A BID, THAT IS, THE BIDDER'S INTENTION TO COMPLY WITH ALL IFB SPECIFICATIONS, MUST BE DETERMINED FROM THE FACE OF THE BID ITSELF. B-176699, NOVEMBER 30, 1972. TO ALLOW A BIDDER AN OPPORTUNITY TO CLARIFY OR ALTER HIS BID IN ORDER TO MAKE IT RESPONSIVE WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A SECOND BID. 40 COMP. GEN. 432 (1961). THEREFORE, THE REJECTION OF SHEFFIELD'S BID WAS REQUIRED UNDER THE CIRCUMSTANCES AND THE AGENCY WAS UNDER NO OBLIGATION TO ISSUE EITHER AN ULTIMATUM OR COMPLIANCE DEADLINE IN ORDER TO AFFORD THE PROTESTER THE OPPORTUNITY TO CLARIFY OR CHANGE ITS BID.

IN REGARD TO THE AGENCY'S REQUIREMENT FOR POWER SPUDS (SPUD ENGINE), OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE PROCURING ACTIVITY HAS THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE RESPONSIBILITY OF DETERMINING WHETHER THE PRODUCT OFFERED MEETS THE SPECIFICATIONS. COMP. GEN. 302 (1964). IN THE ABSENCE OF EVIDENCE CLEARLY INDICATING THAT THE SPECIFICATIONS AS WRITTEN, OR THE PRODUCT BEING OFFERED, DO NOT REFLECT THOSE NEEDS, OUR OFFICE WILL NOT OBJECT THERETO. B-175493, APRIL 20, 1972. WE ALSO RECOGNIZE THAT GOVERNMENT PROCUREMENT OFFICIALS WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH EQUIPMENT WILL BE USED, AND HAVE HAD PAST EXPERIENCE IN THE USE OF SIMILAR EQUIPMENT, ARE GENERALLY IN THE BEST POSITION TO KNOW THE GOVERNMENT'S NEEDS AND BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS. IN THE INSTANT CASE IT IS THE CONSIDERED OPINION OF TECHNICAL PERSONNEL OF THE CORPS OF ENGINEERS THAT SHEFFIELD'S PROPOSED EQUIPMENT DID NOT COMPLY WITH MATERIAL REQUIREMENTS OF THE INVITATION. UNDER THE CIRCUMSTANCES, WE MUST AGREE WITH THE CONCLUSIONS OF THE CONTRACTING AGENCY, AND WITH ITS ACTION IN REJECTING SHEFFIELD'S BID.

FINALLY, THE PROTESTER ALLEGES THAT PRIOR TO THE SUBMISSION OF BIDS, IT CONSULTED WITH AN EMPLOYEE OF THE ARMY CORPS OF ENGINEERS IN BUFFALO (JAMES R. BRADE) REGARDING THE NEED FOR FURNISHING THE SPECIFIED POWER SPUDS AND WAS TOLD TO BID ON THE PROCUREMENT REGARDLESS OF THE FACT THAT ITS DERRICKBOAT WAS NOT EQUIPPED WITH THE REQUIRED "SPUD ENGINE." HOWEVER, WE HAVE BEEN ADVISED BY THE ARMY THAT, CONTRARY TO SHEFFIELD'S REITERATION OF THE ABOVE CONVERSATION, THE PROTESTER WAS INFORMED BY MR. BRADE THAT THE REQUIREMENT FOR THE SPUD ENGINE WAS EXTREMELY IMPORTANT BUT THAT SINCE MR. BRADE WAS NOT A CONTRACTING OFFICER REPRESENTATIVE AND DID NOT POSSESS ANY CONTRACTING AUTHORITY, THE PROTESTER WAS INFORMED THAT IT COULD SUBMIT A BID IF IT SO DESIRED. BASED ON THE REPORTED FACTS, WE DO NOT BELIEVE THAT THE PROTESTER HAD ANY BASIS FOR CONCLUDING THAT POWER SPUDS WERE NOT A MATERIAL REQUIREMENT OF THE SOLICITATION. IN ANY EVENT, PARAGRAPH 3, EXPLANATION TO OFFERORS, IN STANDARD FORM (SF) 33A OF THE SUBJECT IFB SPECIFICALLY PROVIDED THAT EXPLANATIONS CONCERNING THE MEANING OR INTERPRETATION OF THE SOLICITATION MUST BE REQUESTED IN WRITING AND THAT ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WOULD NOT BE BINDING.

IN VIEW OF THE FOREGOING, SHEFFIELD'S PROTEST IS DENIED.