B-200680, MAR 6, 1981

B-200680: Mar 6, 1981

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WHERE BIDDERS ARE ADVISED IN INVITATION THAT ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE AWARD OF CONTRACT WOULD NOT BE BINDING ON CONTRACTING AGENCY. BID CONTAINING "NO CHARGE" INSTEAD OF PRICES FOR SOME SUBITEMS WAS RESPONSIVE SINCE BIDDER THEREBY INDICATED WILLINGNESS TO PROVIDE SERVICES AT NO CHARGE OR COST TO GOVERNMENT. AARDVARK CONTENDS THAT IT WAS NOT AFFORDED AN OPPORTUNITY TO SUBMIT A COMPETITIVE BID BECAUSE PRIOR TO THE SUBMISSION OF ITS BID IT WAS ADVISED BY THE CONTRACTING OFFICER THAT A BID OF "NO CHARGE" ON THE TWO SUBITEMS FOR SUPERVISOR SERVICES WOULD RENDER ITS BID NONRESPONSIVE. THAT ITS BID WAS HIGHER THAN WOULD HAVE BEEN THE CASE HAD IT BEEN PERMITTED TO BID "NO CHARGE.".

B-200680, MAR 6, 1981

DIGEST: 1. WHERE BIDDERS ARE ADVISED IN INVITATION THAT ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE AWARD OF CONTRACT WOULD NOT BE BINDING ON CONTRACTING AGENCY, BIDDERS RELY ON ORAL ADVICE AT THEIR OWN RISK. 2. BID CONTAINING "NO CHARGE" INSTEAD OF PRICES FOR SOME SUBITEMS WAS RESPONSIVE SINCE BIDDER THEREBY INDICATED WILLINGNESS TO PROVIDE SERVICES AT NO CHARGE OR COST TO GOVERNMENT.

AARDVARK/KEITH MOVING COMPANY:

THE AARDVARK/KEITH MOVING COMPANY (AARDVARK) PROTESTS THE AWARD OF A CONTRACT FOR MOVING, PACKING, CRATING, AND INCIDENTAL SERVICES TO MCNAMARA VANS & WAREHOUSES, INC. (MCNAMARA), BY THE GENERAL SERVICES ADMINISTRATION (GSA) (FORT WORTH) UNDER INVITATION FOR BIDS NO. 17-80 TPUS(7TT). FIRST, AARDVARK CONTENDS THAT IT WAS NOT AFFORDED AN OPPORTUNITY TO SUBMIT A COMPETITIVE BID BECAUSE PRIOR TO THE SUBMISSION OF ITS BID IT WAS ADVISED BY THE CONTRACTING OFFICER THAT A BID OF "NO CHARGE" ON THE TWO SUBITEMS FOR SUPERVISOR SERVICES WOULD RENDER ITS BID NONRESPONSIVE. AARDVARK, ALLEGEDLY, ALSO INTENDED TO BID "NO CHARGE" ON OTHER SUBITEMS. CONSEQUENTLY, AARDVARK STATES, THAT ITS BID WAS HIGHER THAN WOULD HAVE BEEN THE CASE HAD IT BEEN PERMITTED TO BID "NO CHARGE." SECOND, AARDVARK CONTENDS THAT THE MCNAMARA BID WAS NONRESPONSIVE BECAUSE MCNAMARA BID "NO CHARGE" INSTEAD OF PRICES ON THE TWO SUBITEMS FOR SUPERVISOR SERVICES.

GSA INFORMS US THAT AARDVARK ASKED THE CONTRACTING OFFICER ABOUT SUBMITTING A "NO BID" ON THE SUBITEMS FOR SUPERVISOR SERVICES; THAT DURING THIS CONVERSATION AARDVARK USED THE TERMS "NO BID," "NO CHARGE," AND "LEAVE BLANK" SYNONYMOUSLY; THAT AARDVARK WAS MERELY ADVISED THE TERMS OF THE INVITATION REQUIRED A BIDDER TO BID ON ALL ITEMS AND SUBITEMS; AND THAT AARDVARK WAS INFORMED A "NO CHARGE" FOR THE SUBITEMS IN QUESTION WOULD BE SUBMITTED FOR THE OPINION OF AGENCY LEGAL COUNSEL AS REGARDS THE QUESTION OF ITS RESPONSIVENESS. GSA ALSO ADVISES THAT THE MCNAMARA BID WAS CONSIDERED RESPONSIVE UNDER APPLICABLE PRECEDENT EVEN THOUGH THE COMPANY ENTERED "NO CHARGE" FOR THE TWO SUBITEMS.

THE INVITATION (STANDARD FORM 33-A, PARAGRAPH 3) SPECIFICALLY WARNED PROSPECTIVE BIDDERS THAT:

"*** ANY EXPLANATION DESIRED BY AN OFFEROR REGARDING THE MEANING OR INTERPRETATION OF THE SOLICITATION, DRAWINGS, SPECIFICATIONS, ETC., MUST BE REQUESTED IN WRITING AND WITH SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH OFFERORS BEFORE THE SUBMISSION OF THEIR OFFERS. ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF A CONTRACT WILL NOT BE BINDING. ***"

WE HAVE FREQUENTLY HELD THAT BIDDERS RELY ON ORAL ADVICE AT THEIR OWN RISK. E.G., NASCO PRODUCTS COMPANY, B-192116, NOVEMBER 27, 1978, 78-2 CPD 364; DELORA HAIDLE, B-194154, APRIL 6, 1979, 79-1 CPD 243. THEREFORE, EVEN IF THE CONTRACTING OFFICER'S ORAL ADVICE MISLED THE PROTESTER, THE ERRONEOUS ADVICE DOES NOT BIND GSA OR REQUIRE THE SUBMISSION OF NEW BIDS.

AS REGARDS THE QUESTION WHETHER THE MCNAMARA BID WAS RESPONSIVE, WE BELIEVE THAT IT WAS. BIDDERS WERE ADVISED IN THE INVITATION PROVISION ENTITLED "METHOD OF AWARD" THAT:

"AWARD WILL BE MADE IN THE AGGREGATE TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER. *** TO BE CONSIDERED RESPONSIVE, BIDDER MUST BID ON ALL ITEMS AND SUB-ITEMS AS OUTLINED ABOVE."

THE RATIONALE FOR THIS PROVISION IS THAT WHEN A BIDDER FAILS TO SUBMIT A PRICE FOR AN ITEM, THE BIDDER GENERALLY CANNOT BE OBLIGATED TO PERFORM THAT SERVICE AS PART OF OTHER SERVICES FOR WHICH PRICES WERE SUBMITTED. GENERAL ENGINEERING AND MACHINE WORKS, INC., B-190379, JANUARY 5, 1978, 78-1 CPD 9. HOWEVER, TO INDICATE THAT THE BIDDER INTENDS TO BE OBLIGATED TO PROVIDE A SERVICE, A BIDDER MAY ALSO INSERT NEXT TO THE SERVICE AN INDICATION THAT THE PRICE WILL BE AT "NO COST" OR "NO CHARGE" TO THE GOVERNMENT. YONKER, INC., B-189869, DECEMBER 22, 1977, 77-2 CPD 495.

ACCORDINGLY, THE PROTEST IS DENIED.