B-182307, MAR 24, 1975

B-182307: Mar 24, 1975

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F38610-75-09001 WAS ISSUED BY THE CHARLESTON AIR FORCE BASE FOR THE PROCUREMENT ON A REQUIREMENTS-TYPE BASIS OF WASHING. THE ISSUE BEFORE OUR OFFICE IS WHETHER THE BID SUBMITTED BY BOB'S AIRCRAFT & INDUSTRIAL CLEANING CO. WAS CORRECTLY DETERMINED TO BE NONRESPONSIVE BY THE CONTRACTING ACTIVITY. AS REGARDS THE MANNER IN WHICH BIDS WERE TO BE EVALUATED. AGGREGATE AWARD: AWARD WILL BE MADE ON AN ALL OR NONE BASIS TO THAT RESPONSIVE AND RESPONSIBLE BIDDER WHOSE BID REPRESENTS THE LOW AGGREGATE OFFER.". USING THE COMPLETE WASH SERVICE AS AN EXAMPLE: "EST EST QNTY UNIT UNIT PRICE AMOUNT COMPLETE WASH *A01 C-141 600 EA *A02 NOT USED A03 T-29 26 EA A04 NOT USED THE BIDDING SCHEDULE OF THE INVITATION WAS FILLED OUT IN THE BID SUBMITTED BY BOB'S.

B-182307, MAR 24, 1975

BIDDER FOR REQUIREMENTS CONTRACT FOR VARIOUS SERVICES ON AIRCRAFT HAS SUBMITTED NONRESPONSIVE BID WHERE BID CONTAINS PRICES FOR FIRST PORTION OF ESTIMATED QUANTITY ON PARTICULAR ITEM AND "NO CHARGE" FOR BALANCE OF ESTIMATED QUANTITY SINCE BIDDER HAS FAILED TO COMMIT ITSELF TO FIRM PRICE AS REGARDS ANY SERVICES THAT WOULD BE REQUIRED BEYOND THE ESTIMATED QUANTITIES.

BOB'S AIRCRAFT & INDUSTRIAL CLEANING CO., INC.:

INVITATION FOR BIDS NO. F38610-75-09001 WAS ISSUED BY THE CHARLESTON AIR FORCE BASE FOR THE PROCUREMENT ON A REQUIREMENTS-TYPE BASIS OF WASHING, CLEANING, AND CORROSION TREATMENT SERVICES ON AIRCRAFT AND AEROSPACE GROUND EQUIPMENT OVER A 1-YEAR PERIOD. THE ISSUE BEFORE OUR OFFICE IS WHETHER THE BID SUBMITTED BY BOB'S AIRCRAFT & INDUSTRIAL CLEANING CO., INC. (BOB'S), WAS CORRECTLY DETERMINED TO BE NONRESPONSIVE BY THE CONTRACTING ACTIVITY.

AS REGARDS THE MANNER IN WHICH BIDS WERE TO BE EVALUATED, THE INVITATION PROVIDED THAT:

"8. AGGREGATE AWARD: AWARD WILL BE MADE ON AN ALL OR NONE BASIS TO THAT RESPONSIVE AND RESPONSIBLE BIDDER WHOSE BID REPRESENTS THE LOW AGGREGATE OFFER."

THE BIDDING SCHEDULE SET FORTH ESTIMATED QUANTITIES FOR THE SERVICES TO BE PERFORMED ON PARTICULAR AIRCRAFT IN THE FOLLOWING MANNER, USING THE COMPLETE WASH SERVICE AS AN EXAMPLE:

"EST EST

QNTY UNIT UNIT PRICE AMOUNT

COMPLETE WASH

*A01 C-141 600 EA

*A02 NOT USED

A03 T-29 26 EA

A04 NOT USED

THE BIDDING SCHEDULE OF THE INVITATION WAS FILLED OUT IN THE BID SUBMITTED BY BOB'S, AS FOLLOWS:

"EST EST

QNTY UNIT UNIT PRICE AMOUNT

COMPLETE WASH

*A01 C-141 600 EA SEE ATTACHED $90,000.00

EXHIBIT 'A'

*A02 NOT USED

A03 T-29 26 EA SEE ATTACHED 1,200.00

EXHIBIT 'A'

A04 NOT USED

WITH THE EXCEPTION OF TWO ITEMS BID AT NO CHARGE, EACH SPACE FOR THE INSERTION OF A UNIT PRICE ON THE BIDDING SCHEDULE CONTAINED THE NOTATION "SEE ATTACHED EXHIBIT 'A'." EXHIBIT A, ENCLOSED WITH THE BID OF BOB'S, READS IN THE FOLLOWING MANNER:

"COMPLETE WASH EST QNTY UNIT UNIT PRICE EST AMOUNT

A01 C-141 600 EA FIRST 300 AT $300.00 $90,000.00

EACH

BALANCE OF EST. QNTY

(300)* N/C

A03 T29 26 EA FIRST 12 AT $1,200.00

$100.00 EACH

BALANCE OF EST. QNTY

(14)* N/C

IT IS THE POSITION OF BOB'S THAT ITS BID SATISFIED ALL OF THE EVALUATION FACTORS AND THAT THE INVITATION DID NOT PROHIBIT THE MANNER IN WHICH IT BID. IT IS NOTED THAT AN INVITATION ISSUED AT NORTON AIR FORCE BASE ON A SIMILAR REQUIREMENTS-TYPE CONTRACT SPECIFICALLY PROHIBITED BIDDING IN THIS MANNER, WHEREAS THE INSTANT INVITATION CONTAINS NO CORRESPONDING PROHIBITION AGAINST SUCH BIDDING. FURTHER, IT IS STATED THAT THE NORTON PROCUREMENT OFFICER AFTER HAVING PERUSED THE INSTANT INVITATION ADVISED THAT BIDDING IN THE MANNER BID WOULD BE PERMISSIBLE. CONSEQUENTLY, IT IS BELIEVED THAT, SINCE BOB'S IS A RESPONSIBLE BIDDER AND SUBMITTED A RESPONSIVE BID, IT SHOULD HAVE RECEIVED THE AWARD UNDER THE INVITATION.

IT IS THE POSITION OF THE CONTRACTING ACTIVITY THAT THE BID OF BOB'S WAS NONRESPONSIVE INASMUCH AS BY NOT SUBMITTING ONE UNIT PRICE FOR EACH ITEM THE BID DID NOT CONFORM TO WHAT THE BIDDING SCHEDULE REQUIRED. RATHER THAN SUBMITTING A BID WITH A FIRM-FIXED PRICE, AS WAS ALLEGEDLY REQUESTED, BOB'S SUBMITTED A BID ON A SLIDING SCALE BASIS. THIS, IT IS CONTENDED, CONSTITUTED AN UNREQUESTED ALTERNATE BID WHICH IS INCAPABLE OF EVALUATION VIS-A-VIS THE OTHER BIDS. EVALUATION OF THAT ALTERNATE BID, IT IS FELT, COULD HAVE BEEN MADE ONLY TO THE PREJUDICE OF THE OTHER BIDDERS. IT IS ALSO BELIEVED THAT BOB'S INTRODUCED A "FIXED," I.E., THAT PORTION UPON WHICH AN ACTUAL PRICE WAS SUBMITTED, RATHER THAN AN "ESTIMATED" QUANTITY INTO THE BIDDING PARAMETERS, THUS REMOVING THE GOVERNMENT'S OPTION TO CONTROL QUANTITIES BELOW THE "FIXED" AMOUNT WITHOUT INCURRING COSTS FOR UNPERFORMED WORK. ALSO, IT IS CONTENDED, IF QUANTITIES GREATER THAN THE "FIXED" QUANTITY, I.E., THOSE QUANTITIES BID AT "NO CHARGE," WERE REQUIRED, THE GOVERNMENT WOULD BE FORCED TO RELY ON GOOD FAITH FOR PERFORMANCE OF THE SERVICES SINCE FULL PAYMENT WOULD HAVE BEEN MADE LEAVING NO FUNDS FOR WITHHOLDING TO ENSURE PERFORMANCE. IT IS FURTHER NOTED THAT THIS DUAL PRICE BID BY BOB'S RESULTS IN AN AVERAGE PRICE PER UNIT, AS OPPOSED TO A FIXED UNIT PRICE, WHICH VARIES DEPENDING UPON THE NUMBER OF UNITS ORDERED.

FOR THE REASONS SET FORTH BELOW WE DO NOT FIND IT NECESSARY TO RESOLVE THIS PROTEST BY DISPOSING OF THE ABOVE ISSUES RAISED BY BOB'S AND THE CONTRACTING ACTIVITY.

AS STATED ABOVE, THE PROCUREMENT WAS FOR A REQUIREMENTS CONTRACT FOR THE SPECIFIED SERVICES OVER A 1-YEAR PERIOD. AS SUCH AND IN ACCORDANCE WITH THE TERMS OF THE INVITATION, THE GOVERNMENT COULD ORDER SERVICES TO BE PERFORMED IN EXCESS OF THE ESTIMATED QUANTITIES. IN THIS REGARD, THE INVITATION PRESCRIBED NO MAXIMUM LIMITATION ON THE CONTRACTOR'S OBLIGATION TO PERFORM THE VARIOUS REQUISITE SERVICES.

WE ARE OF THE OPINION THAT THE BID WAS NONRESPONSIVE AND, THEREFORE, WAS PROPERLY REJECTED. BY BIDDING "NO CHARGE" FOR THE BALANCE OF THE ESTIMATED QUANTITIES, WE BELIEVE THAT BOB'S FAILED TO COMMIT ITSELF TO A FIRM PRICE AS REGARDS ANY SERVICES THAT WOULD BE REQUIRED BEYOND THE ESTIMATED QUANTITIES. THE "NO CHARGE" NOTATION, TAKING BY WAY OF EXAMPLE ITEM A01, THE COMPLETE WASH FOR THE C-141, COVERS THE LAST 301 600 WASHES. CONSEQUENTLY, BOB'S HAS FAILED TO FURNISH A PRICE THAT WOULD BE CHARGED FOR ALL WASHES ORDERED OVER 600.

ACCORDINGLY, THE PROTEST IS DENIED.