B-181962, NOV 26, 1974

B-181962: Nov 26, 1974

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PROTEST BY OFEROR THAT WORDS "NO CHARGE" INSERTED FOR THE SECOND OF THE TWO CATEGORIES WAS MEANT TO APPLY TO BOTH ITEMS BECAUSE CATEGORIES WERE JOINED BY WORD "AND" IS WITHOUT MERIT INASMUCH AS ITEMS WERE SEPARATE AND OFFEROR WAS REQUIRED BY SOLICITATION INSTRUCTIONS TO SUBMIT A PRICE ON SECOND ITEM WHILE NOT NECESSARILY ON FIRST. SOLICITATION IS NOT SUBJECT TO TWO REASONABLE INTERPRETATIONS SO AS TO CREATE AN AMBIGUITY AS TO ITS MEANING. MDA903-74-R-0164 WAS ISSUED BY THE DEFENSE SUPPLY SERVICE-WASHINGTON (DSS) FOR AN AUTOMATED DATA STORAGE AND RETRIEVAL SYSTEM. THE PROCUREMENT WAS NEGOTIATED PURSUANT TO 10 U.S.C. SHOULD AN OFFER NOT BE RECEIVED ON THESE ITEMS THE EVALUATION PRICE WILL BE THE GENERAL SERVICES ADMINISTRATION FEDERAL SUPPLY SERVICE CONTRACT PRICE.

B-181962, NOV 26, 1974

WHERE RFP TREATED TWO CARD CATEGORIES AS SEPARATE LINE ITEMS BY LABELING THEM WITH DISTINCT ITEM NUMBERS AND PROVIDED EACH WITH SEPARATE BLANKS FOR PRICING, PROTEST BY OFEROR THAT WORDS "NO CHARGE" INSERTED FOR THE SECOND OF THE TWO CATEGORIES WAS MEANT TO APPLY TO BOTH ITEMS BECAUSE CATEGORIES WERE JOINED BY WORD "AND" IS WITHOUT MERIT INASMUCH AS ITEMS WERE SEPARATE AND OFFEROR WAS REQUIRED BY SOLICITATION INSTRUCTIONS TO SUBMIT A PRICE ON SECOND ITEM WHILE NOT NECESSARILY ON FIRST; AND SOLICITATION IS NOT SUBJECT TO TWO REASONABLE INTERPRETATIONS SO AS TO CREATE AN AMBIGUITY AS TO ITS MEANING.

ACCESS CORPORATION:

REQUEST FOR PROPOSALS NO. MDA903-74-R-0164 WAS ISSUED BY THE DEFENSE SUPPLY SERVICE-WASHINGTON (DSS) FOR AN AUTOMATED DATA STORAGE AND RETRIEVAL SYSTEM, SYSTEM MAINTENANCE SERVICES, AND THE NECESSARY 40,000 CAMERA AND 40,000 STORAGE CARDS. THE PROCUREMENT WAS NEGOTIATED PURSUANT TO 10 U.S.C. SEC. 2304(A)(2) (1970) SINCE THE EXIGENCY OF THE REQUIREMENT DID NOT PERMIT THE DELAY INCIDENT TO PUBLIC ADVERTISING. SECTION D. EVALUATION AND AWARD FACTORS, OF THE SOLICITATION INSTRUCTIONS, CONDITIONS AND NOTICES TO OFFERORS ADVISED THAT:

"D-2. TO BE RESPONSIVE OFFERORS MUST SUBMIT AN OFFER ON EACH ITEM EXCEPT 0002AA AND 0002AC. SHOULD AN OFFER NOT BE RECEIVED ON THESE ITEMS THE EVALUATION PRICE WILL BE THE GENERAL SERVICES ADMINISTRATION FEDERAL SUPPLY SERVICE CONTRACT PRICE, F.O.B. DESTINATION."

IT IS THE IMPLEMENTATION OF THIS INSTRUCTION WHICH GIVES RISE TO THE ACCESS CORPORATION PROTEST.

TWO FIRMS SUBMITTED OFFERS BY THE JUNE 28 DEADLINE FOR RECEIPT OF PROPOSALS. SUBSEQUENT THERETO, EACH OFFEROR WAS GIVEN THE OPPORTUNITY TO SUBMIT ITS BEST AND FINAL OFFER. THE GAF CORPORATION OFFER TOTALED $65,562. GAF OFFERED A QUANTITY DISCOUNT AND A PROMPT PAYMENT DISCOUNT. IT DID NOT SUBMIT PRICES FOR THE CAMERA AND STORAGE CARDS. THE DISCOUNTS OFFERED WERE COMPUTED TO EQUAL $2,602.81 FOR EVALUATION PURPOSES. THE EVALUATION PRICE FOR THE 80,000 CARDS WAS COMPUTED TO EQUAL $3,602 ($9.39 PER THOUSAND FOR THE STORAGE CARDS; $80.66 PER THOUSAND FOR THE CAMERA CARDS). THUS THE GAF EVALUATED PRICE TOTALED $66,561.19.

THE ACCESS CORPORATION OFFER TOTALED $65,500. ACCESS OFFERED NO DISCOUNTS AND PRICED THE REQUIREMENT FOR CARDS IN THE FOLLOWING MANNER:

ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE AMOUNT

0002 APERTURE CARDS

0002AA CARDS FOR USE WITH

ACCESS SYSTEM

CAMERA AND 40 M $ $

0002AB CARDS FOR USE WITH

ACCESS SYSTEM NO NO

STORAGE OR 40 M $CHARGE $CHARGE

0002AC CARDS FOR USE WITH

GAF SYSTEM STORAGE

AND CAMERA 80 M $ $ THE CONTRACTING OFFICER INTERPRETED THIS TO MEAN THAT THE "NO CHARGE" WAS OFFERED ONLY FOR THE STORAGE CARDS, AND, CONSEQUENTLY ADDED THE GSA

CONTRACT PRICE OF $3,226.40 FOR THE CAMERA CARDS ($80.66 X 40) TO THE ACCESS PRICE FOR EVALUATION PURPOSES. THUS THE ACCESS EVALUATED PRICE TOTALED $68,726.40, AND AWARD WAS MADE TO THE GAF CORPORATION ON JUNE 28 AS HAVING SUBMITTED THE LOW EVALUATED PRICE.

ACCESS PROTESTED THIS ACTION TO THE CONTRACTING ACTIVITY STATING THAT IN VIEW OF THE "AND" BETWEEN ITEMS 0002AA AND 0002AB IT HAD INTENDED THE WORDS "NO CHARGE" TO APPLY TO BOTH ITEMS. FOLLOWING DENIAL OF ITS PROTEST BY DSS, ACCESS PROTESTED TO OUR OFFICE, STATING AGAIN THAT IN VIEW OF THE "AND" BETWEEN ITEMS 0002AA AND 0002AB IT WAS OBVIOUS THAT THESE TWO CARD GROUPINGS WERE INTENDED AS ONE ITEM AND THAT WAS HOW ACCESS ACCORDINGLY SUBMITTED ITS OFFER. IF NO COST FOR THE CAMERA CARDS HAD BEEN ADDED TO THE ACCESS OFFER FOR EVALUATION PURPOSES, AS IS CONTENDED BY ACCESS, THE ACCESS EVALUATED PRICE WOULD HAVE BEEN LOW.

WE CANNOT AGREE. THE EVALUATION INSTRUCTIONS CLEARLY DESIGNATED 0002AA AS A SEPARATE LINE ITEM. NO MENTION IS MADE IN THE INSTRUCTIONS OF ITEM 0002AB BECAUSE AN OFFER UPON THIS ITEM WAS MANDATORY. WE ARE ADVISED THAT THE 0002AB CARDS ARE MADE BY OR FOR ACCESS FOR PROPRIETARY USE WITH THE ACCESS SYSTEM. THUS THERE WOULD PRESUMABLY BE NO FEDERAL SUPPLY SERVICE CONTRACT FROM WHICH A PRICE FOR EVALUATION PURPOSES MIGHT BE OBTAINED AND THUS THE REASON FOR THE DIFFERENT TREATMENT OF THE TWO ITEMS. FURTHER, EACH ITEM, 0002AA AND 0002AB, WAS PROVIDED WITH SEPARATE BLANKS FOR PRICING PURPOSES. THE USE OF THE WORD "AND" MERELY INDICATED THAT SUPPLY OF BOTH ITEMS WAS REQUIRED WITH AN OFFER ON THE ACCESS SYSTEM, WHEREAS AN OFFER ON THE GAF SYSTEM REQUIRED THE PROCUREMENT ONLY OF ITEM 0002AC.

THE RULE IS THAT AN AMBIGUITY EXISTS ONLY WHEN THE TERMS OF A BID OR OFFER ARE SUBJECT TO TWO OR MORE REASONABLE INTERPRETATIONS. 51 COMP. GEN. 831 (1972). WHERE AN AMBIGUITY IS PATENT UPON THE FACE OF AN OFFER, THE FAILURE TO RESOLVE THE UNCERTAINTY WOULD CONSTITUTE A DEPARTURE FROM PROPER NEGOTIATION PROCEDURES AND WOULD REQUIRE A REOPENING OF NEGOTIATIONS. 52 COMP. GEN. 409 (1973). HOWEVER, SINCE THE QUESTION OF AN AMBIGUITY HERE ARISES FROM THE ALLEGATION OF ACCESS AND NOT FROM THE FACE OF THE SOLICITATION ITSELF, WE BELIEVE THE ACTION TAKEN BY THE CONTRACTING ACTIVITY WAS CORRECT. CONSEQUENTLY, THE PROTEST MUST BE DENIED.