B-182070, NOV 26, 1974

B-182070, NOV 26, 1974

1. ALTHOUGH BIDDERS WERE REQUIRED TO FURNISH WITH THEIR BIDS A "STATEMENT OF EQUIPMENT OWNED OR LEASED" WHICH THE BIDDER PROPOSED TO USE IN PERFORMING THE CONTRACT, IN ORDER TO ASSURE THAT BIDDERS HAD NOT MISCALCULATED THEIR BID PRICES, SUCH A REQUIREMENT RELATES SOLELY TO THE MATTER OF BIDDER RESPONSIBILITY AND MAY NOT BE TREATED AS ONE OF RESPONSIVENESS MERELY BECAUSE OF A STATEMENT TO THAT EFFECT IN THE SOLICITATION. 2. SINCE A LIST OF BIDDER'S EQUIPMENT TO BE USED IN PERFORMING THE CONTRACT SERVICES RELATES TO THE MATTER OF BIDDER RESPONSIBILITY, THE FAILURE OF A BIDDER TO SUBMIT SUCH A LIST WITH ITS BID DID NOT JUSTIFY REJECTION OF THE BID, INASMUCH AS BIDDER RESPONSIBILITY MAY BE DETERMINED ON THE BASIS OF INFORMATION SUBMITTED AFTER THE BID OPENING. HOWEVER, SINCE THE REQUIRED SERVICES HAVE BEEN COMPLETED OR SUBSTANTIALLY COMPLETED UNDER THIS SOLICITATION CORRECTIVE ACTION MAY BE RECOMMENDED ONLY FOR FUTURE SOLICITATIONS.

D & D AERO SPRAYING, INC.:

ON JULY 23, 1974, INVITATION FOR BIDS (IFB) NO. 38-M-APHIS-75, WAS ISSUED BY THE ANIMAL AND PLANT HEALTH INSPECTION SERVICE (APHIS), DEPARTMENT OF AGRICULTURE, SOLICITING BIDS FOR AERIAL SPRAYING OF INSETICIDES FOR THE CONTROL OF BOLL WEEVILS IN VARIOUS COUNTIES OF THE STATE OF TEXAS. THE IFB, AT PAGE 14, ENTITLED, "STATEMENT OF EQUIPMENT OWNED OR LEASED" READ IN PERTINENT PART:

"BIDDERS SHALL INCLUDE WITH THEIR BID A STATEMENT OF EQUIPMENT OWNED OR LEASED, OF ALL EQUIPMENT PROPOSED FOR USE UNDER THE TERMS AND PROVISIONS OF THIS INVITATION FOR BID. *** FAILURE TO INCLUDE THE STATEMENT OF EQUIPMENT OWNED OR LEASED WITH THE BID SHALL RENDER THE BID NONRESPONSIVE."

BIDS WERE OPENED ON AUGUST 12, 1974, WITH THE LOW BID ON ITEM II BEING SUBMITTED BY D & D AERO SPRAYING, INC. (D & D). HOWEVER, ON AUGUST 16, 1974, D & D WAS ADVISED BY THE CONTRACTING OFFICER THAT ITS BID HAD BEEN REJECTED AS NONRESPONSIVE BECAUSE A "STATEMENT OF EQUIPMENT OWNED OR LEASED" HAD NOT BEEN SUBMITTED WITH THE BID. AWARD WAS MADE TO ANOTHER BIDDER ON AUGUST 19, 1974.

BY LETTERS OF AUGUST 20, 1974 AND AUGUST 27, 1974, FROM ITS COUNSEL, D & D PROTESTED THE REJECTION OF ITS BID ON THE GROUND THAT ALTHOUGH IT INADVERTENTLY HAD NOT INCLUDED THE REQUIRED STATEMENT WITH ITS BID, D & D OWNED OR HAD LEASED THE NECESSARY EQUIPMENT AT THE TIME OF BID OPENING TO PERFORM THE REQUIRED SERVICES. THE PROTESTER HAS CONTENDED THAT THE EQUIPMENT PROPOSED TO BE USED IN PERFORMANCE OF THE CONTRACT IS A MATTER OF BIDDER RESPONSIBILITY RATHER THAN BID RESPONSIVENESS WHICH MUST BE ASCERTAINED AT TIME OF AWARD RATHER THAN AT TIME OF BID OPENING.

THE CONTRACTING OFFICER EXPLAINS THAT THE STATEMENT IN QUESTION WAS REQUIRED FROM BIDDERS FOR THE PURPOSE OF ASSURING THAT A BIDDER HAD, IN FACT, COMPUTED THE COST OF MAJOR PRICES OF EQUIPMENT WHEN SUBMITTING ITS BID AND THAT THE BID WAS VALID. HE FURTHER EXPLAINS THAT:

"AERIAL SPRAYING IS HIGHLY COMPETITIVE, AND MANY COMPANIES HAVE LIMITED FINANCIAL RESOURCES. OUR OWN AGENCY AUDITS HAVE SHOWN THAT FEW COMPANIES MAINTAIN ADEQUATE ACCOUNTING RECORDS AND THAT OPERATIONS ARE RUN BY THE 'SEAT-OF-THE-PANTS.' NUMEROUS SMALL COMPANIES DEPEND ON SECURING PLANES AND OTHER EQUIPMENT FROM OTHERS IN THE INDUSTRY, AND BIDS HAVE BEEN SUBMITTED ON THE ASSUMPTION THAT EQUIPMENT COULD BE LEASED AT A GIVEN PRICE WHEN IN FACT IT WAS NOT AVAILABLE AT A MUCH HIGHER PRICE. INDIVIDUALS WITH ONE OR TWO PLANES, WHO HAVE NEVER CONTRACTED WITH THE GOVERNMENT, ARE MOST PRONE TO MISCALCULATE THE COST OF ADDITIONAL EQUIPMENT. PAST EXPERIENCE ON CONTRACTS HAS SHOWN THAT MISCALCULATIONS ON BIDS HAS BEEN COSTLY TO THE GOVERNMENT AND HAS HAD AN ADVERSE EFFECT ON THE PROGRAM. CONTRIBUTING TO MISCALCULATION IN BIDS IS THE TIME ALLOWED FOR SUBMISSION OF BIDS. DUE TO BIOLOGICAL, ENTOMOLOGICAL AND WEATHER FACTORS, IT IS DIFFICULT TO PREDICT IN ADVANCE THE EXTENT OF A PROGRAM. DATES FOR SPRAYING MAY CHANGE DRASTICALLY AND THERE ARE TIMES WHEN TELEGRAPHIC INVITATION FOR BIDS ARE ISSUED WITH THE VERY MINIMUM TIME ALLOWED FOR COMPUTING AND SUBMITTING A BID. DEPENDING UPON THE PROGRAM AND ITS URGENCY, AS LITTLE AS FIVE DAYS MAY BE ALLOWED BETWEEN ISSUANCE OF THE INVITATION FOR BID AND THE BID OPENING."

THE FACT THAT THE STATEMENT IN QUESTION WAS REQUIRED IN ORDER TO ASSURE THAT BIDDERS HAD NOT MISCALCULATED THEIR BID PRICES DOES NOT CONSTITUTE A VALID JUSTIFICATION FOR REQUIRING SUCH INFORMATION AS A CONDITION OF BID RESPONSIVENESS. WHILE WE APPRECIATE THE DESIRE OF APHIS TO ASSURE THAT UNREALISTICALLY LOW BID PRICES WERE NOT RECEIVED FOR THESE SERVICES, IT IS CLEAR THAT THE REQUIREMENT FOR A LIST OF THE EQUIPMENT TO BE USED BY THE BIDDER IN PERFORMING THE REQUIRED SERVICES SOLELY RELATED TO THE MATTER OF BIDDER RESPONSIBILITY. THE QUESTION OF A BIDDER'S ABILITY TO PERFORM A PROPOSED CONTRACT, AS OPPOSED TO ITS COMPLIANCE WITH THE MATERIAL TERMS AND CONDITIONS OF AN INVITATION FOR BIDS, IS A QUESTION OF BIDDER REAPONSIBILITY RATHER THAN OF BID RESPONSIVENESS. B-166144, MARCH 20, 1969. SUCH INFORMATION AS THE EQUIPMENT OWNED OR LEASED BY THE BIDDER WHICH WILL BE USED IN THE PERFORMANCE OF THE CONTRACT, GENERALLY RELATES TO A PROSPECTIVE CONTRACTOR'S ABILITY TO PERFORM IN ACCORDANCE WITH THE CONTRACT TERMS AND NOT TO ITS LEGAL OBLIGATION TO PERFORM THE REQUIRED SERVICES IN EXACT CONFORMITY WITH THE SPECIFICATIONS INCLUDED IN THE INVITATION. SEE 53 COMP. GEN. , B-179060, DECEMBER 3, 1973.

FURTHERMORE, WE HAVE CONSISTENTLY HELD THAT WHERE A REQUIREMENT FOR THE SUBMISSION OF DATA IS FOR THE PURPOSE OF DETERMINING THE CAPACITY OR RESPONSIBILITY OF A BIDDER RATHER THAN WHETHER THE PROPERTY OR SERVICES OFFERED CONFORM TO THE GOVERNMENT'S NEEDS AS STATED IN THE SOLICITATION, THE FAILURE OF THE BIDDER TO SUBMIT DATA IN ACCORDANCE WITH THE SOLICITATION'S DATA SUBMISSION REQUIREMENT IS NOT FATAL TO THE CONSIDERATION OF ITS BID, INASMUCH AS A BIDDER'S CAPACITY OR RESPONSIBILITY MAY BE DETERMINED ON THE BASIS OF INFORMATION SUBMITTED AFTER THE BID OPENING. MATER OF STARR ELECTRIC COMPANY, B-181042, AUGUST 2, 1974. THIS RESULT IS THE SAME EVEN IN CASES WHERE BIDDERS ARE WARNED THAT FAILURE TO CONFORM TO A DATA SUBMISSION REQUIREMENT MAY RESULT IN REJECTION OF THEIR BIDS. 53 COMP. GEN. , B-178969, JULY 19, 1973. MATTER OF RESPONSIBILITY MAY NOT BE TREATED AS ONE OF RESPONSIVENESS MERELY BECAUSE OF A STATEMENT TO THAT EFFECT IN THE SOLICITATION. COMP. GEN. 389, 391 (1972).

THEREFORE, SINCE THE INFORMATION REQUIRED BY THE SOLICITATION PARAGRAPH AND RELIED ON BY APHIS TO JUSTIFY REJECTION OF D & D'S BID, DID NOT RELATE TO THE OBLIGATION OF THE BIDDER TO PERFORM THE RESULTING CONTRACT IN ACCORDANCE WITH ITS TERMS, BUT RATHER, DEALT WITH THE CAPACITY OR ABILITY OF THE BIDDER TO PERFORM, THE FAILURE BY D & D TO SUBMIT THE DATA DID NOT JUSTIFY REJECTION OF ITS BID AS NONRESPONSIVE. SINCE IT IS REPORTED THAT THE CONTRACT SERVICES HAVE BEEN COMPLETED OR SUBSTANTIALLY COMPLETED, CORRECTIVE ACTION IS NOT POSSIBLE FOR THIS PROCUREMENT. HOWEVER, WE ARE RECOMMENDING TO THE SECRETARY OF AGRICULTURE THAT CORRECTIVE ACTION BE TAKEN TO ELIMINATE THE REQUIREMENT FOR SUBMISSION OF SUCH INFORMATION AS A CONDITION FOR BID RESPONSIVENESS IN FUTURE SOLICITATIONS.