B-225571, JAN 9, 1987, 87-1 CPD 47

B-225571: Jan 9, 1987

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PROTEST ALLEGING THAT LOW OFFER IN TWO-STEP SEALED BIDDING PROCUREMENT WAS BELOW COST CONCERNS RESPONSIBILITY. SINCE IT IS SOLELY THE RESPONSIBILITY OF THE CONTRACTING PARTIES TO ASSERT RIGHTS AND BRING FORTH THE NECESSARY EVIDENCE TO RESOLVE MISTAKE QUESTIONS. AMERICAN MAID ALLEGES THAT FIRST MAINTENANCE SUBMITTED A BID THAT WAS BELOW COST AND THEREFORE NONRESPONSIVE AND THAT THE PROPOSED PRICE WAS SO LOW AS TO CONSTITUTE AN APPARENT MISTAKE. AMERICAN MAID CONCLUDES FROM THIS THAT FIRST MAINTENANCES' OFFER IS NONRESPONSIVE AND THAT THE ALLEGED DISCREPANCY BETWEEN THE ACTUAL COST TO PERFORM AND THE OFFERED PRICE CONSTITUTES AN APPARENT MISTAKE. THE PROTESTER CONTENDS THAT THE AGENCY WAS REQUIRED IN THESE CIRCUMSTANCES TO NOTIFY FIRST MAINTENANCE OF ITS MISTAKE AND GIVE THE OFFEROR AN OPPORTUNITY TO WITHDRAW OR CORRECT ITS BID.

B-225571, JAN 9, 1987, 87-1 CPD 47

PROCUREMENT - CONTRACTOR QUALIFICATION - RESPONSIBILITY/RESPONSIVENESS DISTINCTIONS PROCUREMENT - CONTRACTOR QUALIFICATION - RESPONSIBILITY - CONTRACTING OFFICER FINDINGS - AFFIRMATIVE DETERMINATION - GAO REVIEW DIGEST: 1. PROTEST ALLEGING THAT LOW OFFER IN TWO-STEP SEALED BIDDING PROCUREMENT WAS BELOW COST CONCERNS RESPONSIBILITY, NOT RESPONSIVENESS, AND GENERAL ACCOUNTING OFFICE DOES NOT REVIEW AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY IN THE ABSENCE OF CONDITIONS NOT PRESENT HERE. PROCUREMENT - SEALED BIDDING - TWO-STEP SEALED BIDDING - BIDS - ERROR ALLEGATION - STANDING 2. A PROTESTER HAS NO STANDING TO CLAIM AN ERROR IN A COMPETITOR'S OFFER, SINCE IT IS SOLELY THE RESPONSIBILITY OF THE CONTRACTING PARTIES TO ASSERT RIGHTS AND BRING FORTH THE NECESSARY EVIDENCE TO RESOLVE MISTAKE QUESTIONS.

AMERICAN MAID MAINTENANCE:

AMERICAN MAID MAINTENANCE PROTESTS THE PROPOSED AWARD OF A CONTRACT FOR JANITORIAL SERVICES TO FIRST MAINTENANCE COMPANY BY THE DEPARTMENT OF TRANSPORTATION UNDER SOLICITATION NO. DTFA-02-86-B-00565. AMERICAN MAID ALLEGES THAT FIRST MAINTENANCE SUBMITTED A BID THAT WAS BELOW COST AND THEREFORE NONRESPONSIVE AND THAT THE PROPOSED PRICE WAS SO LOW AS TO CONSTITUTE AN APPARENT MISTAKE. AMERICAN MAID, AS THE FOURTH LOW BIDDER, ALSO CHALLENGES THE ELIGIBILITY OF THE SECOND AND THIRD LOW BIDDERS.

WE DISMISS THE PROTEST.

THE DEPARTMENT OF TRANSPORTATION ISSUED THE SOLICITATION USING TWO-STEP SEALED BIDDING PROCEDURES. AMERICAN MAID CONTENDS THAT FIRST MAINTENANCE'S PRICING PROPOSAL UNDER STEP TWO OF THE PROCUREMENT OFFERED A LOWER PRICE THAN THE LOWEST POSSIBLE COST OF PERFORMANCE CONSISTENT WITH THE TECHNICAL PROPOSAL FIRST MAINTENANCE HAD SUBMITTED UNDER STEP ONE. AMERICAN MAID CONCLUDES FROM THIS THAT FIRST MAINTENANCES' OFFER IS NONRESPONSIVE AND THAT THE ALLEGED DISCREPANCY BETWEEN THE ACTUAL COST TO PERFORM AND THE OFFERED PRICE CONSTITUTES AN APPARENT MISTAKE. THE PROTESTER CONTENDS THAT THE AGENCY WAS REQUIRED IN THESE CIRCUMSTANCES TO NOTIFY FIRST MAINTENANCE OF ITS MISTAKE AND GIVE THE OFFEROR AN OPPORTUNITY TO WITHDRAW OR CORRECT ITS BID.

THE PROTESTER'S ALLEGATION THAT THE AWARDEE'S OFFER WAS BELOW COST DOES NOT GIVE RISE TO A RESPONSIVENESS ISSUE. RESPONSIVENESS IN GOVERNMENT PROCUREMENT REFERS TO WHETHER A BID AS SUBMITTED REFLECTS AN UNEQUIVOCAL OFFER TO PROVIDE THE REQUIRED SUPPLIES OR SERVICES SO THAT ACCEPTANCE OF THE BID BINDS THE CONTRACTOR TO MEET THE GOVERNMENT'S NEEDS IN ALL MATERIAL RESPECTS. INDUSTRIAL MAINTENANCE SERVICES, INC., B-223300, JUNE 24, 1986, 86-1 CPD PARA. 588. AMERICAN MAID HAS NOT ALLEGED THAT FIRST MAINTENANCE TOOK EXCEPTION TO THE TERMS AND CONDITIONS OF THE REQUEST FOR TECHNICAL PROPOSALS OR THAT IT MODIFIED ITS TECHNICAL PROPOSAL WHEN IT BID IN THE SECOND STEP OF THIS PROCUREMENT. THE PROTESTER, THEREFORE, HAS PROVIDED NO BASIS ON WHICH WE CAN CONCLUDE THAT THE AWARDEE SUBMITTED A NONRESPONSIVE BID.

MOREOVER, THE FACT THAT THE PROTESTER'S COMPETITORS MAY HAVE SUBMITTED BID PRICES THAT WILL NOT COVER THEIR COSTS PROVIDES NO BASIS FOR A PROTEST. PETER GORDON CO., B-224011, SEPT. 15, 1986, 86-2 CPD PARA. 300. RATHER, A PROSPECTIVE CONTRACTOR'S ABILITY TO PERFORM THE CONTRACT AT THE PRICE IT OFFERED IS A MATTER OF RESPONSIBILITY FOR THE AGENCY TO DETERMINE BEFORE CONTRACT AWARD. ID. OUR OFFICE WILL NOT REVIEW AN AGENCY'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY IN THE ABSENCE OF A SHOWING OF POSSIBLE FRAUD OR BAD FAITH BY THE PROCURING OFFICIALS OR THAT DEFINITIVE RESPONSIBILITY CRITERIA MAY NOT HAVE BEEN MET. ID. NEITHER EXCEPTION HAD BEEN ALLEGED IN THIS CASE.

AMERICAN MAID ALSO CONTENDS THAT FIRST MAINTENANCE'S PRICE WAS SO LOW THAT IT EFFECTIVELY PLACED THE CONTRACTING OFFICER ON NOTICE THAT THERE WAS AN ERROR IN FIRST MAINTENANCE'S BID. THE PROTESTER CONTENDS THAT IN THESE CIRCUMSTANCES, THE AGENCY HAS A DUTY TO CALL SPECIFIC ATTENTION TO THE ALLEGED MISTAKE, AND FURTHER, THAT THE LOW-PRICED OFFER MAY BE REJECTED ON THE BASIS OF THE MISTAKE EVEN IF THE OFFEROR VERIFIED ITS PRICE. AMERICAN MAID SPECULATES, IN THIS CONNECTION, THAT FIRST MAINTENANCE MAY BE PLANNING TO REDUCE ITS ACTUAL PERFORMANCE UNDER THE CONTRACT FROM THE NUMBER OF HOURS IT SPECIFIED IN ITS TECHNICAL PROPOSAL. FURTHERMORE, THE PROTESTER CONTENDS THAT THE AWARDEE MAY NOT BE BOUND TO THE TERMS OF THE CONTRACT IF THE AGENCY DOES NOT VERIFY THE AWARDEE'S OFFERED PRICE.

WE WILL NOT CONSIDER AMERICAN MAID'S ARGUMENT THAT FIRST MAINTENANCE'S PRICE WAS MISTAKEN. IT IS SOLELY THE RESPONSIBILITY OF THE CONTRACTING PARTIES-- THE GOVERNMENT AND THE LOW OFFEROR-- TO ASSERT RIGHTS AND BRING FORTH THE NECESSARY EVIDENCE TO RESOLVE MISTAKE QUESTIONS. A PROTESTER HAS NO STANDING TO CLAIM AN ERROR IN A COMPETITOR'S OFFER. WINDOW SYSTEMS ENGINEERING, B-222600, JUNE 2, 1986, 86-1 CPD PARA. 509.

REGARDING THE PROTESTER'S SPECULATION ABOUT THE AWARDEE'S INTENTION TO PERFORM THE CONTRACT PROPERLY, WE WILL NOT JOIN IN THE ASSUMPTION THAT THE AGENCY WILL FAIL TO ENSURE THAT FIRST MAINTENANCE WILL COMPLY WITH ITS CONTRACTUAL OBLIGATIONS. FURTHERMORE, THIS ISSUE INVOLVES A QUESTION OF CONTRACT ADMINISTRATION, WHICH IS NOT REVIEWABLE UNDER OUR BID PROTEST FUNCTION. 4 C.F.R. SEC. 21.3(F)(1) (1986).

FINALLY, AMERICAN MAID ALSO ALLEGES IMPROPRIETIES IN THE OFFERS SUBMITTED BY THE SECOND AND THIRD-LOW OFFERORS. IN VIEW OF THE FACT THAT AMERICAN MAID HAS NOT SHOWN THAT THE AWARD TO FIRST MAINTENANCE WAS IN ANY WAY IMPROPER, WE NEED NOT CONSIDER THE MERITS OF THIS ALLEGATION. SEE PETER GORDON CO., B-224011, SUPRA.

THE PROTEST IS DISMISSED.