B-222486, JUN 25, 1986

B-222486: Jun 25, 1986

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ALLEGING THAT THE FOUR LOWEST BIDS WERE NONRESPONSIVE DUE TO FAILURE TO PROVIDE THE INFORMATION REQUIRED BY CLAUSE K37 AND THAT TURNER & COLE WAS NONRESPONSIVE BECAUSE IT WAS A DEALER RATHER THAN A MANUFACTURER AS STATED IN ITS BID. THE PRIMARY QUESTION RAISED BY ARO'S PROTEST IS WHETHER THE INFORMATION REQUIRED BY CLAUSE K37 INVOLVES RESPONSIVENESS OR RESPONSIBILITY. WHERE THE DISTINCTION BETWEEN RESPONSIVENESS AND RESPONSIBILITY IS DIFFICULT TO DETERMINE. WHICH IS NORMALLY IN THE BEST POSITION TO SET FORTH WHAT IT INTENDED. TO PROVIDE MATERIAL IN CONFORMITY WITH THE SOLICITATION IS NOT CHANGED BY THE FACT THAT THE INFORMATION IN CLAUSE K37 WAS NOT SUPPLIED WITH THEIR BIDS. THE BIDS THEREFORE WERE RESPONSIVE.

B-222486, JUN 25, 1986

BIDDERS - RESPONSIBILITY V. BID RESPONSIVENESS - INFORMATION DIGEST: 1. BIDDERS' FAILURE TO PROVIDE THE NAME, ADDRESS, AND PART NUMBER OF THE MANUFACTURER OF GREASE GUN ADAPTERS WITH THEIR BIDS DOES NOT RENDER THE BIDS NONRESPONSIVE WHEN THE BIDDERS OTHERWISE TOOK NO EXCEPTION TO THE SOLICITATION. THE INFORMATION CONCERNS THEIR ABILITY TO PROVIDE ADAPTERS MEETING A MILITARY SPECIFICATION AND, AS A MATTER OF RESPONSIBILITY, MAY BE PROVIDED ANY TIME BEFORE AWARD. BIDDERS - RESPONSIBILITY V. BID RESPONSIVENESS - MANUFACTURER OR DEALER DETERMINATION 2. BIDDER'S STATUS AS A MANUFACTURER OR DEALER MAY BE RESOLVED AFTER BID OPENING AND, IF NECESSARY, INFORMATION SUBMITTED MAY BE CORRECTED OR WAIVED AS A MINOR INFORMALITY.

THE ARO CORPORATION:

THE ARO CORPORATION PROTESTS THE AWARD OF A CONTRACT TO ANY FIRM OTHER THAN ITSELF UNDER INVITATION FOR BIDS (IFB) NO. DLA700-86-B-0895, WHICH THE DEFENSE LOGISTICS AGENCY (DLA) ISSUED FOR GREASE GUN COUPLING ADAPTERS. WE DENY THE PROTEST.

THE SOLICITATION, IN CLAUSE K37, REQUESTED INFORMATION AS TO THE NAME, ADDRESS, AND PART NUMBER OF THE MANUFACTURER OF THE ADAPTERS. FAILURE TO PROVIDE SUCH INFORMATION, IT STATED, COULD LEAD TO THE REJECTION OF BIDS. WHEN THE AGENCY OPENED THE SIX BIDS SUBMITTED ON APRIL 8, 1986, IT FOUND THAT THE FOUR LOWEST BIDDERS HAD FAILED TO COMPLETE CLAUSE K37. TURNER & COLE, THE FIFTH LOW BIDDER, AND ARO, THE HIGHEST BIDDER, HAD COMPLETED THE CLAUSE.

ARO FILED A PROTEST WITH OUR OFFICE ON APRIL 11, ALLEGING THAT THE FOUR LOWEST BIDS WERE NONRESPONSIVE DUE TO FAILURE TO PROVIDE THE INFORMATION REQUIRED BY CLAUSE K37 AND THAT TURNER & COLE WAS NONRESPONSIVE BECAUSE IT WAS A DEALER RATHER THAN A MANUFACTURER AS STATED IN ITS BID. THE FIRM SEEKS AWARD TO ITSELF.

THE PRIMARY QUESTION RAISED BY ARO'S PROTEST IS WHETHER THE INFORMATION REQUIRED BY CLAUSE K37 INVOLVES RESPONSIVENESS OR RESPONSIBILITY. RESPONSIVENESS CONCERNS WHETHER A BIDDER HAS UNEQUIVOCALLY OFFERED TO PROVIDE SUPPLIES IN CONFORMITY WITH ALL MATERIAL TERMS AND CONDITIONS OF A SOLICITATION. OLYMPIA USA, INC., B-216509, NOV. 8, 1984, 84-2 CPD PARA. 513. RESPONSIBILITY, ON THE OTHER HAND, REFERS TO A BIDDER'S APPARENT ABILITY AND CAPACITY TO PERFORM ALL CONTRACT REQUIREMENTS. MONTGOMERY ELEVATOR CO., B-220655, JAN. 28, 1986, 86-1 CPD PARA. 98. WHERE THE DISTINCTION BETWEEN RESPONSIVENESS AND RESPONSIBILITY IS DIFFICULT TO DETERMINE, WE CAREFULLY CONSIDER THE INTERPRETATION OF THE AGENCY, WHICH IS NORMALLY IN THE BEST POSITION TO SET FORTH WHAT IT INTENDED. RAYMOND ENGINEERING, INC., B-211046, JULY 12, 1983, 83-2 CPD PARA. 83.

HERE, NONE OF THE FOUR LOWEST BIDDERS TOOK EXCEPTION TO THE REQUIREMENT THAT THEY SUPPLY A PRODUCT MEETING THE MILITARY SPECIFICATION REFERENCED IN THE IFB. THEIR OBLIGATION, IF AWARDED THE CONTRACT, TO PROVIDE MATERIAL IN CONFORMITY WITH THE SOLICITATION IS NOT CHANGED BY THE FACT THAT THE INFORMATION IN CLAUSE K37 WAS NOT SUPPLIED WITH THEIR BIDS. NOR DID TURNER & COLE TAKE EXCEPTION TO THE SOLICITATION REQUIREMENTS. THE BIDS THEREFORE WERE RESPONSIVE. OLYMPIA USA, INC., B-216509, SUPRA.

MOREOVER, DLA STATES THAT IT REQUESTED THE INFORMATION IN QUESTION TO DETERMINE BIDDERS' ABILITY AND CAPACITY TO PROVIDE ADAPTERS MEETING THE MILITARY SPECIFICATION. THE AGENCY THUS REGARDED THE INFORMATION AS TO THE NAME OF THE MANUFACTURER AND THE PART NUMBER AS A MATTER OF RESPONSIBILITY. WE SEE NO REASON TO DISAGREE WITH THIS INTERPRETATION. ALTHOUGH THE IFB STATED THAT IF THE INFORMATION WAS NOT PROVIDED WITH BIDS, THE AGENCY MIGHT REJECT THE BID, IT WAS NOT REQUIRED TO DO SO. /1/ A CONTRACTING AGENCY CANNOT CHANGE A MATTER OF RESPONSIBILITY INTO ONE OF RESPONSIVENESS MERELY BY THE TERMS OF THE SOLICITATION. AVIATION SPECIALISTS, INC., ET AL., B-218597 ET AL., AUG. 15, 1985, 85-2 CPD PARA. 174.

BEFORE THE CONTRACTING OFFICER CAN MAKE AN AWARD, HE OR SHE MUST MAKE AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY. SEE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 9.105-2(A)(1) (1985). THE AWARD OF A CONTRACT CONSTITUTES SUCH A DETERMINATION. MERRET SQUARE, INC., B-220526.2, MAR. 17, 1986, 86-1 CPD PARA. 259. OUR OFFICE WILL NOT REVIEW A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS. SCIPAR, INC., B-220645, FEB. 11, 1986, 86-1 CPD PARA. 153. NEITHER IS ALLEGED HERE.

SINCE THE INFORMATION REQUIRED BY CLAUSE K37 IS A MATTER OF BIDDER RESPONSIBILITY, THE INFORMATION MAY BE SUPPLIED ANY TIME BEFORE AWARD. METZ, INC., B-213518, APR. 6, 1984, 84-1 CPD PARA. 386. AFTER IT IS SUPPLIED, IF THE CONTRACTING OFFICER FINDS ONE OF THE FOUR LOWEST BIDDERS TO BE RESPONSIBLE, WE WILL NOT REVIEW THAT DETERMINATION. ARO'S PROTEST AS TO TURNER & COLE WOULD THEN BE ACADEMIC. SHOULD TURNER & COLE BE FOUND TO BE THE LOW, RESPONSIVE BIDDER, THE INFORMATION AS TO ITS STATUS AS A MANUFACTURER OR DEALER MAY BE CORRECTED, IF NECESSARY, OR WAIVED, SINCE IT CONSTITUTES A MINOR INFORMALITY THAT DOES NOT AFFECT THE RESPONSIVENESS OF THE BID AS SUBMITTED. JERSEY MAID DISTRIBUTERS, INC., B-217307, MAR. 13, 1985, 85-1 CPD PARA. 307.

ONLY IF THE FIVE LOWER BIDDERS ARE FOUND NONRESPONSIBLE WILL THE PROTESTER BE ENTITLED TO AWARD. SINCE WE HAVE NO EVIDENCE THAT THIS IS LIKELY TO OCCUR, WE DENY THE PROTEST.

/1/ CLAUSE K37(B) OF THE IFB STATED, "THE FOREGOING INFORMATION (NAME, ADDRESS, AND PART NUMBER OF MANUFACTURER) MUST BE FURNISHED. ... THE FAILURE TO FURNISH THE REQUIRED INFORMATION MAY PRECLUDE THE CONSIDERATION OF OFFERS."