B-181771, MAR 26, 1975

B-181771: Mar 26, 1975

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FACT THAT ORIGINAL SPECIFICATION MAY HAVE BEEN AMBIGUOUS AND BIDDER WAS UNABLE TO OBTAIN CLARIFICATION FROM CONTRACTING ACTIVITY PERSONNEL IS NOT SIGNIFICANT. SINCE AMBIGUITIES SUBSEQUENTLY WERE CORRECTED BY AMENDMENT PRIOR TO BID OPENING. 2. WHICH WAS RECEIVED 4 DAYS PRIOR TO BID OPENING. WAS ISSUED IN SUFFICIENT TIME TO ALLOW BIDDER TO CONSIDER CONTENTS IN SUBMITTING OR MODIFYING BID. AMENDMENT PERMITTED TELEGRAPHIC ACKNOWLEDGEMENT AND BID REVISION SO BIDDER COULD HAVE TAKEN SEVERAL DAYS TO CONSIDER. 3. WHERE IFB WAS CHANGED BY AMENDMENT TO DELETE WATER COOLING REQUIREMENT AFTER BIDDER COMPLAINED THAT IT WAS CONTRADICTORY TO REFRIGERATION REQUIREMENT. REJECTION OF BID AS NONRESPONSIVE WAS PROPER NOTWITHSTANDING STATEMENT THAT EQUIPMENT WOULD MEET SPECIFICATION.

B-181771, MAR 26, 1975

1. FACT THAT ORIGINAL SPECIFICATION MAY HAVE BEEN AMBIGUOUS AND BIDDER WAS UNABLE TO OBTAIN CLARIFICATION FROM CONTRACTING ACTIVITY PERSONNEL IS NOT SIGNIFICANT, SINCE AMBIGUITIES SUBSEQUENTLY WERE CORRECTED BY AMENDMENT PRIOR TO BID OPENING. 2. AMENDMENT, WHICH WAS RECEIVED 4 DAYS PRIOR TO BID OPENING, WAS ISSUED IN SUFFICIENT TIME TO ALLOW BIDDER TO CONSIDER CONTENTS IN SUBMITTING OR MODIFYING BID, SINCE, NOTWITHSTANDING BIDDER CONTENDS ACKNOWLEDGEMENT HAD TO BE RETURNED DAY OF RECEIPT TO ARRIVE BEFORE BID OPENING, AMENDMENT PERMITTED TELEGRAPHIC ACKNOWLEDGEMENT AND BID REVISION SO BIDDER COULD HAVE TAKEN SEVERAL DAYS TO CONSIDER. 3. WHERE IFB WAS CHANGED BY AMENDMENT TO DELETE WATER COOLING REQUIREMENT AFTER BIDDER COMPLAINED THAT IT WAS CONTRADICTORY TO REFRIGERATION REQUIREMENT, BUT BID OFFERED EQUIPMENT COOLED BY WATER, REJECTION OF BID AS NONRESPONSIVE WAS PROPER NOTWITHSTANDING STATEMENT THAT EQUIPMENT WOULD MEET SPECIFICATION, SINCE OVERALL OFFER TO CONFORM WILL CURE SPECIFIC DEVIATION ONLY WHERE OFFER IN BID MAKES IT PATENTLY CLEAR THAT OFFEROR DID IN FACT INTEND TO CONFORM. 4. NOTHING IN PROCUREMENT REGULATION REQUIRES THAT BIDDER BE NOTIFIED OF UNACCEPTABILITY OF BID PRIOR TO AWARD AND LACK OF PROMPT NOTIFICATION AFTER AWARD, AS PROVIDED IN ASPR SEC. 2-408.1, IS AT MOST PROCEDURAL DEFECT NOT AFFECTING VALIDITY OF AWARD. 5. ALTHOUGH CONTRACTING ACTIVITY TREATED BID WHICH OFFERED LONGER DELIVERY SCHEDULE THAN ONE REQUIRED IN IFB AS APPARENT CLERICAL MISTAKE WHICH WAS CORRECTED, NO AWARD SHOULD HAVE BEEN MADE ON BID, SINCE BID WHICH FAILS TO MEET IFB DELIVERY SCHEDULE CANNOT BE MADE RESPONSIVE BY CHANGING OFFERED SCHEDULE AND MUST BE REJECTED FOR MATERIAL DEVIATION.

COLLINS MACHINERY CORPORATION:

INVITATION FOR BIDS (IFB) NO. F33615-74-B-0166 WAS ISSUED ON APRIL 26, 1974, AT WRIGHT-PATTERSON AIR FORCE BASE FOR THE PROCUREMENT OF AN ULTRASONIC CLEANER AND A VAPOR DEGREASER. THE ITEMS WERE ADVERTISED ON A BRAND NAME OR EQUAL BASIS WITH THE SUBMISSION OF DESCRIPTIVE LITERATURE BEING REQUIRED TO SUPPORT AN "OR EQUAL" BID. AMENDMENT NO. 1, MAKING VARIOUS CHANGES TO THE SPECIFICATION AND EXTENDING THE BID OPENING DATE TO JUNE 7, WAS ISSUED ON MAY 28, 1974. COLLINS MACHINERY CORPORATION (COLLINS) PROTESTS THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER THE INVITATION.

THE COLLINS PROTEST IS GROUNDED UPON SEVERAL BASES. THE FIRST BASIS DEALS WITH THE SPECIFICATION AND THE DIFFICULTIES ENCOUNTERED WITH IT. THE IFB SCHEDULE ORIGINALLY CALLED FOR A "REFRIGERATED WESTINGHOUSE ELECTRIC MODEL #3DG1K24161-TWD2K2416 FREON, OR EQUAL IN ACCORDANCE WITH ATTACHMENT #1 ATTACHED HERETO." ATTACHMENT NO. 1, SETTING FORTH THE SALIENT CHARACTERISTICS OF THE PRODUCT, WAS CONTRADICTORY TO THE ABOVE DESCRIPTION, HOWEVER, INASMUCH AS IT CALLED FOR "COOLING WATER 60-75 DEGS. F," INSTEAD OF REFRIGERATION. ALSO, THE BRAND NAME SET FORTH IN THE SPECIFICATION PROVIDED 1,000 WATTS OF ULTRASONIC POWER WHEREAS THE SALIENT CHARACTERISTICS REQUIRED A 2,000-WATT UNIT. IN VIEW OF THIS, COLLINS ON VARIOUS OCCASIONS CONTACTED THE CONTRACTING ACTIVITY BUYER TO OBTAIN CLARIFICATION AND TO GET IN TOUCH WITH THE PROCUREMENT ENGINEER. COLLINS ALLEGEDLY NEVER RECEIVED ANY SATISFACTION AS REGARDS ITS QUESTIONS, AND, CONSEQUENTLY, SUBMITTED A BID ON A UNIT BOTH WITH AND WITHOUT REFRIGERATION, AS WAS STATED IN THE COLLINS DRAWING, SPECIFICATION, BID AND COVER LETTER.

IN THIS RESPECT, WE NOTE THAT AMENDMENT NO. 1 TO THE IFB DELETED MODEL NO. 3DG1K24161 FROM THE ATTACHMENT IN ITS ENTIRETY AND INSERTED IN ITS PLACE MODEL NO. 3DG2K2416. THE BRAND NAME SPECIFICATION FOR THE LATTER MODEL SHOWS IT TO GENERATE 2,000 WATTS, THEREBY CORRECTING THE DISCREPANCY BETWEEN THE MODEL ORIGINALLY CITED AND THAT SALIENT CHARACTERISTICS REQUIREMENT. ALTHOUGH THE AMENDMENT DID NOT SPECIFICALLY AMEND THE BRAND NAME DESCRIPTION FOUND IN THE IFB SCHEDULE, IT WOULD SEEM THAT IT SHOULD HAVE BEEN APPARENT TO BIDDERS THAT THE INTENT WAS TO SUBSTITUTE THE MODEL NUMBER IN THE AMENDMENT FOR THAT IN THE SCHEDULE IN VIEW OF THE REFERENCE TO THE ATTACHMENT IN THE SCHEDULE. THE AMENDMENT ALSO MODIFIED THE SALIENT CHARACTERISTICS FOR THE MODEL NUMBERS 3DG2K2416 AND TWD2K2416 FREON BY DELETING THE "COOLING WATER" PROVISION. THUS, IT APPEARS THAT THE SPECIFICATION CONTRADICTIONS WERE CORRECTED BY THE AMENDMENT. CONSEQUENTLY, THE FACT THAT THE BUYER DID NOT HAVE THE PROCUREMENT ENGINEER CONTACT COLLINS IS NOT SIGNIFICANT INASMUCH AS IT IS OBVIOUS THAT THE BUYER DISCUSSED THE CONTRADICTING SPECIFICATION REQUIREMENTS WITH THE ENGINEER AND THAT THESE WERE SUBSEQUENTLY CORRECTED BY ISSUANCE OF THE AMENDMENT.

A SECOND BASIS FOR THE PROTEST IS THE SHORT AMOUNT OF TIME AFFORDED COLLINS FOR CONSIDERATION OF AMENDMENT NO. 1. IT IS ALLEGED THAT THE AMENDMENT WAS MAILED LATE TO THE BIDDERS, AND, CONSEQUENTLY, WHEN IT WAS RECEIVED BY COLLINS IT HAD TO BE SIGNED AND RETURNED THE SAME DAY IN ORDER TO ASSURE ITS TIMELY RETURN TO THE ACTIVITY. THIS COLLINS CONTENDS DID NOT PROVIDE SUFFICIENT TIME FOR A THOROUGH CONSIDERATION OF THE AMENDMENT.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) SEC. 2-208(C) (1974 ED.) REQUIRES THAT AN AMENDMENT BE ISSUED IN "SUFFICIENT TIME" TO ALLOW BIDDERS TO CONSIDER ITS CONTENTS IN SUBMITTING OR MODIFYING THEIR BIDS. COLLINS' ACKNOWLEDGEMENT OF THE AMENDMENT WAS MADE BY LETTER OF JUNE 3, 1974. COLLINS' ORIGINAL BID IS DATED MAY 24, 1974. AS INDICATED ABOVE, THE AMENDMENT EXTENDED THE BID OPENING DATE TO JUNE 7, 1974. COLLINS SEEMS TO CONTEND THAT THERE WAS NOT SUFFICIENT TIME TO CONSIDER THE AMENDMENT BECAUSE IT HAD TO RETURN THE ACKNOWLEDGEMENT THE SAME DAY IT RECEIVED THE AMENDMENT FOR IT TO ARRIVE BEFORE BID OPENING. HOWEVER, THAT CONTENTION PRESUPPOSES THAT THE AMENDMENT HAD TO BE ACKNOWLEDGED BY MAIL AND IGNORES THE FACT THAT THE AMENDMENT PERMITTED TELEGRAPHIC ACKNOWLEDGEMENT AND BID REVISION SO THAT COLLINS COULD HAVE TAKEN SEVERAL DAYS TO CONSIDER THE AMENDMENT. THEREFORE, WE ARE UNABLE TO CONCLUDE THAT THE TIME WAS INSUFFICIENT FOR THE CONSIDERATION OF THE AMENDMENT AND THE MODIFICATION OF BIDS.

THE ORIGINAL BID SUBMITTED BY COLLINS, IN VIEW OF THE CONFUSION AT THAT TIME IN THE SPECIFICATION, OFFERED A UNIT BOTH WITH AND WITHOUT REFRIGERATION, AS WAS STATED IN THE COLLINS DRAWING, SPECIFICATION, BID AND COVER LETTER. THE REFRIGERATED UNIT WAS REFERRED TO IN THE COVER LETTER OF THE BID AS A "WATER CHILLER" OPTION. THE COLLINS ACKNOWLEDGEMENT OF AMENDMENT NO. 1 INCLUDED A COVER LETTER STATING THAT COLLINS WOULD PROVIDE THE UNIT AS SHOWN ON THE DRAWING AND WOULD MEET THE IFB SPECIFICATION. IN THIS LETTER, THE DRAWING REFERRED TO IS THE COLLINS DRAWING D700, WHICH HAD BEEN FURNISHED BY COLLINS WITH ITS ORIGINAL BID. DRAWING D700 DESCRIBES A UNIT FURNISHING "COOLING WATER 60-75 DEGS. F," ONE OF THE INVITATION'S ORIGINAL SALIENT CHARACTERISTICS. THE DRAWING ALSO NOTES AS OPTIONAL "REFRIGERATED WATER." BECAUSE EQUIPMENT COOLED BY WATER HAD BEEN DELETED FROM THE SALIENT CHARACTERISTICS, THE COLLINS BID WAS REJECTED AS NONRESPONSIVE. SINCE THE IFB SCHEDULE REFERRED TO REFRIGERATION AND COLLINS HAS CONTENDED THAT REFRIGERATION IS CONTRADICTORY TO COOLING WATER, THE REJECTION OF THE COLLINS BID FOR OFFERING EQUIPMENT COOLED BY WATER DOES NOT APPEAR TO HAVE BEEN INCORRECT. ALSO, WE HAVE HELD THAT AN OVERALL OFFER TO CONFORM TO THE SPECIFICATION WILL CURE A SPECIFIC DEVIATION ONLY WHERE THE OFFER IN THE BID MAKES IT PATENTLY CLEAR THAT THE OFFEROR DID IN FACT INTEND TO CONFORM. MATTER OF ELECTRON RESEARCH, INC., B-179076, JANUARY 28, 1974. THAT WAS NOT THE CASE HERE. CONSEQUENTLY, THE BID PROPERLY WAS FOR REJECTION NOTWITHSTANDING COLLINS' STATEMENT THAT THE EQUIPMENT WOULD MEET THE SPECIFICATION.

COLLINS HAS STATED THAT IT WAS GIVEN NO OPPORTUNITY TO DISCUSS THE FINDING OF ITS TECHNICAL UNACCEPTABILITY PRIOR TO AWARD TO CAL-U-SONIC ON JUNE 28 SINCE IT DID NOT LEARN THAT IT WOULD NOT RECEIVE THE AWARD UNTIL IT CALLED THE CONTRACTING ACTIVITY ON JULY 2. HOWEVER, THERE IS NOTHING IN THE PROCUREMENT REGULATION THAT REQUIRED COLLINS TO BE NOTIFIED OF THE UNACCEPTABILITY OF ITS BID PRIOR TO AWARD. ASPR SEC. 2 408.1 (1974 ED.) PROVIDES FOR THE PROMPT ISSUANCE OF A NOTICE AFTER AWARD TO UNSUCCESSFUL BIDDERS ADVISING THAT THEIR BIDS WERE NOT ACCEPTED. A FAILURE TO GIVE PROMPT NOTIFICATION IS AT MOST A PROCEDURAL DEFECT WHICH DID NOT AFFECT THE VALIDITY OF THE AWARD. B 176766, MARCH 20, 1973. FURTHER, WE ARE UNABLE TO UNDERSTAND COLLINS' CONTENTION THAT AWARD WAS MADE NOTWITHSTANDING ITS PROTEST, SINCE AWARD WAS MADE BEFORE COLLINS KNEW OF THE AWARD AND THE PROTEST WAS LODGED.

THE FINAL BASIS OF THE COLLINS PROTEST GOES TO THE PROPRIETY IN MAKING AWARD TO CAL-U-SONIC. IT IS ALLEGED THAT ON TWO OCCASIONS COLLINS WAS ADVISED BY TELEPHONE THAT CAL-U-SONIC'S BID PRICE WAS $12,513. COLLINS CONTENDS THAT THE AMOUNT WAS CHANGED AFTER BID OPENING FIRST TO $11,513 AND THEN TO A 10-PERCENT DISCOUNTED PRICE OF $10,362.60 TO UNDERCUT COLLINS' BID OF $10,750. FROM AN EXAMINATION OF THE RECORD, IT APPEARS THAT CAL-U-SONIC OFFERED A 10-PERCENT PROMPT PAYMENT DISCOUNT IN ITS ORIGINAL BID PRICE OF $12,513.99 AND THAT BY LETTER OF JUNE 5, 2 DAYS PRIOR TO THE EXTENDED BID OPENING DATE, REDUCED THE BID BY $1,000 BECAUSE OF THE AMENDMENT ISSUED UNDER THE IFB. THEREFORE, IT WOULD APPEAR THAT THE INFORMATION GIVEN BY TELEPHONE WAS ERRONEOUS. HOWEVER, IN OUR VIEW, IT IS NOT IMPORTANT WHETHER CAL-U-SONIC WAS THE LOW BIDDER OR OTHERWISE, SINCE NO AWARD SHOULD HAVE BEEN MADE TO CAL-U-SONIC BY THE CONTRACTING ACTIVITY BECAUSE, AS THE AIR FORCE OBSERVED, CAL-U-SONIC OFFERED A LONGER DELIVERY SCHEDULE THAN THE ONE REQUIRED IN THE IFB. SINCE THE CONTRACT WAS COMPLETED BY THE TIME THE MATTER WAS REPORTED TO OUR OFFICE, THERE WAS NO OPPORTUNITY FOR US TO RECOMMEND CORRECTIVE ACTION.

THE AIR FORCE HAS REPORTED THAT THE MATTER HAS BEEN BROUGHT TO THE ATTENTION OF THE CONTRACTING ACTIVITY TO PRECLUDE A RECURRENCE OF THE SITUATION IN THE FUTURE. FURTHER, WE OBSERVE THAT THE ORIGINAL BID ABSTRACT IN THIS CASE WAS NOT PREPARED UNTIL THE DATE OF AWARD, JUNE 28, WHICH WAS 3 WEEKS AFTER THE OPENING OF BIDS. SINCE ASPR SEC. 2-403 (1974 ED.) PROVIDES THAT THE ABSTRACT SHALL BE COMPLETED AS SOON AS PRACTICAL AFTER THE BIDS HAVE BEEN OPENED, WE ARE RECOMMENDING BY SEPARATE LETTER OF TODAY TO THE SECRETARY OF THE AIR FORCE THAT APPROPRIATE ACTION BE TAKEN TO ALERT THE CONTRACTING ACTIVITY TO THE REQUIREMENT.