B-182363, MAR 26, 1975

B-182363: Mar 26, 1975

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LOW BID SUBMITTED IN ACCORDANCE WITH IFB TERMS AND TAKING NO EXCEPTION TO SPECIFICATIONS WAS RESPONSIVE. 2. CORRECTION OF BID MISTAKE IS NOT ERRONEOUS IN FACE OF PROTEST THAT LOW BIDDER DID NOT INTEND AT TIME BID WAS SUBMITTED TO INCLUDE EXHAUST MUFFLER IN NOISE SUPPRESSOR SYSTEM. BECAUSE CONTRACTING OFFICER CONCLUDED BIDDER'S WORKSHEETS SUBSTANTIATE ALLEGATION THAT COST OF MUFFLER WAS OMITTED IN PROCESS OF TOTALING BID PRICE. AFTER REVIEW OF RECORD IT CANNOT BE CONCLUDED THAT REASONABLE BASIS FOR DETERMINATION IS LACKING. 3. WHETHER CONTRACTOR LACKS TECHNICAL CAPABILITY TO SUPPLY NOISE SUPPRESSOR SYSTEM IS NOT FOR CONSIDERATION. BECAUSE PROTESTS AGAINST AFFIRMATIVE RESPONSIBILITY DETERMINATIONS WHICH TURN UPON CONTRACTING OFFICER'S GENERAL BUSINESS JUDGMENT ARE NO LONGER REVIEWED BY GAO.

B-182363, MAR 26, 1975

1. LOW BID'S OMISSION OF COMPONENT PRICE DOES NOT RENDER IT NONRESPONSIVE IN CIRCUMSTANCES WHERE IFB CALLED FOR BIDS GIVING UNIT PRICE FOR NOISE SUPPRESSOR SYSTEM BUT DID NOT ESTABLISH REQUIREMENT TO QUOTE PRICES OF INDIVIDUAL COMPONENTS. LOW BID SUBMITTED IN ACCORDANCE WITH IFB TERMS AND TAKING NO EXCEPTION TO SPECIFICATIONS WAS RESPONSIVE. 2. CORRECTION OF BID MISTAKE IS NOT ERRONEOUS IN FACE OF PROTEST THAT LOW BIDDER DID NOT INTEND AT TIME BID WAS SUBMITTED TO INCLUDE EXHAUST MUFFLER IN NOISE SUPPRESSOR SYSTEM, BECAUSE CONTRACTING OFFICER CONCLUDED BIDDER'S WORKSHEETS SUBSTANTIATE ALLEGATION THAT COST OF MUFFLER WAS OMITTED IN PROCESS OF TOTALING BID PRICE, AND AFTER REVIEW OF RECORD IT CANNOT BE CONCLUDED THAT REASONABLE BASIS FOR DETERMINATION IS LACKING. 3. WHETHER CONTRACTOR LACKS TECHNICAL CAPABILITY TO SUPPLY NOISE SUPPRESSOR SYSTEM IS NOT FOR CONSIDERATION, BECAUSE PROTESTS AGAINST AFFIRMATIVE RESPONSIBILITY DETERMINATIONS WHICH TURN UPON CONTRACTING OFFICER'S GENERAL BUSINESS JUDGMENT ARE NO LONGER REVIEWED BY GAO, ABSENT ALLEGATIONS OF FRAUD. ALSO, DOUBTS EXPRESSED AS TO WHETHER CONTRACTOR CAN PROFITABLY PERFORM CONTRACT FURNISH NO BASIS FOR OBJECTION TO AWARD, AND QUESTIONS CONCERNING CONTRACTOR'S QUALIFICATION AS "MANUFACTURER" OR "REGULAR DEALER" UNDER WALSH-HEALEY ACT ARE FOR CONSIDERATION BY DEPARTMENT OF LABOR. 4. OBJECTIONS THAT CONTRACTING OFFICER IGNORED PREAWARD ORAL PROTEST AND FAILED TO GIVE NOTICE OF AWARD CANNOT BE SUBSTANTIATED WHERE CONTRACTING OFFICER HAS STATED FIRST NOTICE OF PROTEST WAS AFTER AWARD, AND RECORD INDICATES NOTICE OF AWARD WAS GIVEN IN ACCORDANCE WITH ASPR SEC. 2-408.1 (1973 ED.). EVEN IF OBJECTIONS WERE SOUND, SUCH PROCEDURAL DEPARTURES FROM REGULATIONS WOULD NOT IMPACT ON VALIDITY OF AWARD OTHERWISE FOUND TO BE UNOBJECTIONABLE.

ENVIRONMENTAL ELEMENTS CORPORATION:

ENVIRONMENTAL ELEMENTS CORPORATION (EEC) HAS PROTESTED TO OUR OFFICE AGAINST THE AWARD OF A CONTRACT TO I.D.E. PROCESSES CORPORATION UNDER INVITATION FOR BIDS (IFB) NO. F08651-74-B-0258, ISSUED BY THE DEPARTMENT OF THE AIR FORCE.

THE IFB CALLED FOR BIDS QUOTING UNIT PRICES ON SEVERAL ITEMS: A NOISE SUPPRESSOR SYSTEM (ITEM 0001) AND ASSOCIATED REPORTS AND DOCUMENTS (ITEMS 0002 AND 0003). I.D.E. BID $110,000 ON ITEM 0001 AND EEC BID $303,497. BECAUSE OF THE SUBSTANTIAL DIFFERENCE IN THE PRICES SUBMITTED BY THE ONLY TWO BIDDERS, THE CONTRACTING OFFICER SUSPECTED A MISTAKE BY I.D.E. AND REQUESTED THE LOW BIDDER TO VERIFY ITS BID. I.D.E. ALLEGED A MISTAKE ARISING FROM OMISSION OF THE COST OF AN EXHAUST MUFFLER IN ITS BID ON ITEM 0001. FOLLOWING THE MISTAKE IN BID PROCEDURES PRESCRIBED BY SECTION 2-406 OF THE ARMED SERVICES PROCUREMENT REGULATION (1973 ED.) (ASPR), THE CONTRACTING OFFICER FOUND CLEAR AND CONVINCING EVIDENCE BOTH OF THE MISTAKE AND THE INTENDED BID PRICE, AND I.D.E.'S BID PRICE ON ITEM 0001 WAS CORRECTED TO $166,700.

EEC FIRST CONTENDS THAT I.D.E.'S BID SHOULD HAVE BEEN FOUND NONRESPONSIVE. THE ARGUMENT IS ESSENTIALLY THAT I.D.E. BID'S OMISSION OF A COMPONENT PRICE FOR THE EXHAUST MUFFLER RENDERS THE BID NONRESPONSIVE. EEC ARGUES THAT BECAUSE THE I.D.E. BID WAS NONRESPONSIVE, THE MISTAKE IN BID CORRECTION PROCEDURES MAY NOT BE USED TO RENDER RESPONSIVE A BID WHICH IS OTHERWISE NONRESPONSIVE, CITING 38 COMP. GEN. 819 (1959).

WE NOTE THAT THE IFB DID NOT REQUIRE BIDDERS TO QUOTE A PRICE FOR AN EXHAUST MUFFLER, OR FOR OTHER COMPONENTS OF THE NOISE SUPPRESSOR SYSTEM. RATHER, THE IFB REQUIRED BIDDERS TO STATE A UNIT PRICE FOR THE SYSTEM AS A WHOLE, WHICH WAS TO BE IN ACCORDANCE WITH CERTAIN SPECIFICATIONS. THE SPECIFICATIONS DESCRIBE VARIOUS COMPONENTS OF THE SYSTEM, INCLUDING AN EXHAUST MUFFLER. IN LIGHT OF THESE FACTS, THE I.D.E. BID - WHICH QUOTED A UNIT PRICE FOR THE SYSTEM AND TOOK NO EXCEPTION TO THE SPECIFICATIONS - WAS RESPONSIVE. OUR DECISION RELIED UPON BY EEC IS CLEARLY DISTINGUISHABLE SINCE, THERE, THE IFB REQUIRED THE SUBMISSION OF ESSENTIAL INFORMATION, AND THE BIDDER ATTEMPTED TO CORRECT THE NONRESPONSIVE FAILURE TO SUBMIT THE INFORMATION THROUGH THE MISTAKE IN BID PROCEDURES.

EEC NEXT CONTENDS THAT THE CORRECTION OF THE MISTAKE WAS ERRONEOUS, BECAUSE A BIDDER CANNOT BE PERMITTED TO RECALCULATE ITS BID SO AS TO INCLUDE A FACTOR WHICH IT HAD OMITTED AND WHICH IT DID NOT INTEND TO INCLUDE IN ITS BID AT THE TIME THE BID WAS SUBMITTED, CITING 37 COMP. GEN. 706 (1958). EEC'S ARGUMENT IS THAT I.D.E. DID NOT SIMPLY FAIL TO INCLUDE THE COST OF THE EXHAUST MUFFLER IN ITS BID; RATHER, IT HAD NO INTENTION OF INCLUDING AN EXHAUST MUFFLER IN THE SYSTEM AT THE TIME ITS BID WAS MADE.

I.D.E. SUBMITTED CONTEMPORANEOUS WORKSHEETS AND OTHER EVIDENCE TO THE CONTRACTING OFFICER TO SUBSTANTIATE ITS MISTAKE IN BID CLAIM. THESE WORKSHEETS SHOW A $56,700 ITEM WHICH I.D.E. ALLEGED WAS THE OMITTED COST OF AN EXHAUST MUFFLER. THE CONTRACTING OFFICER FOUND THAT THE WORKSHEETS APPEARED TO SUBSTANTIATE THIS ALLEGATION. THE WEIGHT TO BE GIVEN SUCH EVIDENCE IS A QUESTION OF FACT FOR DETERMINATION BY THE ADMINISTRATIVELY DESIGNATED EVALUATOR OF THE EVIDENCE. 51 COMP. GEN. (1971). AFTER REVIEW OF THE RECORD WE CANNOT CONCLUDE THERE WAS NO REASONABLE BASIS FOR THE DETERMINATION. IN 37 COMP. GEN., SUPRA, CORRECTION OF A BID PRICE WAS NOT PERMITTED WHERE, UNLIKE HERE, THE EVIDENCE SUBMITTED BY THE BIDDER DID NOT SHOW THAT OMITTED COMPONENT STEPS AND PRICES WERE INTENDED TO BE INCLUDED IN THE BID PRICE AT THE TIME THE BID WAS MADE.

EEC FURTHER CONTENDS THAT I.D.E.'S TECHNICAL CAPABILITY TO PERFORM THE CONTRACT IS DOUBTFUL. IN THIS REGARD, ABSENT ALLEGATIONS OF FRAUD, OUR OFFICE NO LONGER REVIEWS PROTESTS AGAINST AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY WHICH TURN UPON THE GENERAL BUSINESS JUDGMENT OF THE CONTRACTING OFFICER. SEE MATTER OF UNITED HATTERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION, 53 COMP. GEN. 931 (1974); AND MATTER OF YARDNEY ELECTRIC CORPORATION, B-180988, DECEMBER 24, 1974, 54 COMP. GEN.

. ALSO, EEC'S ALLEGATION THAT I.D.E. MAY INCUR A SUBSTANTIAL LOSS IN PERFORMANCE OF THE CONTRACT DOES NOT AFFORD A BASIS FOR OBJECTION TO THE AWARD. MATTER OF R & R INVENTORY SERVICE, INC., B-181264, SEPTEMBER 12, 1974, 54 COMP. GEN. .

EEC'S DOUBTS CONCERNING WHETHER I.D.E. QUALIFIES AS "MANUFACTURER" OR "REGULAR DEALER" UNDER THE WALSH-HEALEY ACT IS A MATTER FOR CONSIDERATION BY THE DEPARTMENT OF LABOR, NOT OUR OFFICE. SEE MATTER OF LEASCO INFORMATION PRODUCTS, INC., ET AL., 53 COMP. GEN. 932 (1974).

LASTLY, EEC HAS MADE SEVERAL ALLEGATIONS CONCERNING THE AIR FORCE'S FAILURE TO FOLLOW PROPER PROTEST PROCEDURES. EEC CLAIMS THAT A PREAWARD ORAL PROTEST WAS FILED WITH THE AIR FORCE BY TELEPHONE ON SEPTEMBER 24, 1974, BUT THAT THE CONTRACTING OFFICER IGNORED IT AND FAILED TO FOLLOW THE PROCEDURES REQUIRED BY ASPR SEC. 2-407.8 (1973 ED.). ALSO, EEC CLAIMS THAT, IN A TELEPHONE CONVERSATION WITH THE CONTRACTING OFFICER ON OCTOBER 1, 1974, THE CONTRACTING OFFICER FAILED TO ADVISE EEC THAT AWARD HAD BEEN MADE. EEC BELIEVES THESE CIRCUMSTANCES INDICATE AN ATTEMPT BY THE AIR FORCE TO HINDER AND DELAY ITS PROTEST.

EEC'S ALLEGATIONS ARE IN CONFLICT WITH STATEMENTS BY THE AIR FORCE IN THE RECORD. THE CONTRACTING OFFICER STATES THAT THE FIRST NOTICE RECEIVED OF INTENT TO PROTEST WAS ON OCTOBER 1, 1974, AND THAT IN THIS TELEPHONE CONVERSATION EEC WAS ADVISED OF THE FACT THAT AN AWARD HAD BEEN MADE. ALSO, WRITTEN NOTICE OF AWARD PURSUANT TO ASPR SEC. 2-408.1 (1973 ED.) WAS SENT AT THE TIME OF THE AWARD. ON THE RECORD BEFORE US, THEN, WE CANNOT SAY THAT EEC'S CONTENTIONS HAVE BEEN SUBSTANTIATED. EVEN ASSUMING THAT THE PROTESTER'S OBJECTIONS WERE SOUND, SUCH PROCEDURAL DEPARTURES FROM THE REGULATORY REQUIREMENTS WOULD NOT IMPACT ON THE VALIDITY OF AN AWARD WHICH, AS DISCUSSED, SUPRA, HAS NOT BEEN FOUND TO BE OBJECTIONABLE.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.