B-247639, May 12, 1992

B-247639: May 12, 1992

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Bid for ship repair was properly rejected as nonresponsive where language in unsolicited milestone schedule included in the bid imposed a condition on the government to complete fuel on-load by a specific date where solicitation provided the government the unilateral right to schedule fuel on-load on 48 hours advance notice. Each procurement is a separate transaction and the action taken on any one procurement does not govern the conduct of all similar procurements. The IFB was issued on December 26. The completion of the contract and redelivery of the vessel were to occur on May 8. Item No. 042-01-001 provided the following: "3.2.11 Fuel On-Load: Include in the production schedule 2 work days consideration for fuel on-load which will affect HOT WORK and access to the specified areas aboard ship.

B-247639, May 12, 1992

PROCUREMENT - Sealed Bidding - Bids - Responsiveness - Terms - Deviation DIGEST: 1. Bid for ship repair was properly rejected as nonresponsive where language in unsolicited milestone schedule included in the bid imposed a condition on the government to complete fuel on-load by a specific date where solicitation provided the government the unilateral right to schedule fuel on-load on 48 hours advance notice. PROCUREMENT - Sealed Bidding - Bids - Responsiveness - Determination criteria 2. Each procurement is a separate transaction and the action taken on any one procurement does not govern the conduct of all similar procurements. Prior acceptance of bids with allegedly similar discrepancies does not require continued acceptance under other solicitations.

Attorneys

Southwest Marine, Inc.:

Southwest Marine, Inc.(SWM) protests the rejection of its bid as nonresponsive and the award of a contract to National Steel and Shipbuilding Company (NASSCO), under invitation for bids (IFB) No. N62791- 92-B-0039, issued by the Department of the Navy, Supervisor of Shipbuilding, San Diego (SUPSHIP San Diego), for repairs and alterations to the USS CHANCELLORSVILLE.

We deny the protest.

The IFB was issued on December 26, 1991, and solicited fixed prices for various repairs and alterations to the USS CHANCELLORSVILLE. The IFB specified a production period of March 23, 1992, to May 8, 1992. The completion of the contract and redelivery of the vessel were to occur on May 8. The IFB included specification item No. 042-01-001, which specified dates by which a contractor must complete different tasks and identified the timing of government activities which might interfere with the contractor's work. With respect to the on-loading of fuel, a government activity to be performed during the vessel availability, item No. 042-01-001 provided the following:

"3.2.11 Fuel On-Load: Include in the production schedule 2 work days consideration for fuel on-load which will affect HOT WORK and access to the specified areas aboard ship. The contractor will be apprised by the Supervisor of the dates and specific areas aboard ship no later than 48 hours prior to the scheduled fuel on-load."

SWM, the low bidder at the February 5, 1992, bid opening, included in its bid an unsolicited milestone schedule setting forth completion dates for the significant events and milestones identified in item No. 042-01-001. The fuel on-load completion date was set forth by SWM as follows:

"3.2.11 COMPL FUEL ON-LOAD 04-17-92"

On February 5, SWM contacted SUPSHIP San Diego by telephone and stated that it had mistakenly included in its bid a milestone date for "Crew Move -Ashore," a significant event deleted by amendment No. 0007 to the IFB and wanted permission to correct this error by submitting a revised milestone schedule deleting the "Crew Move-Ashore" date.

As a result, the contracting officer reviewed SWM's bid and noted that SWM was proposing a specific date for the completion of fuel on loading, in contravention of the requirements of paragraph 3.2.11 of item No. 042- 01-001.

By letter dated February 7, the contracting officer sought confirmation from SWM of the alleged mistake in accordance with the procedures set forth at Federal Acquisition Regulation (FAR) 14.406-1 (FAC 90-5). response, SWM stated that there was no mistake in its bid and that the milestone schedule included in its bid had nothing to do with its bid price. SWM further stated that the milestone schedule was inadvertently included in its bid and should be ignored. After further investigation, the contracting officer determined that SWM's bid must be rejected because it took exception to an essential requirement of the IFB. On February 14, the contracting officer rejected SWM's bid as nonresponsive, and award was made to NASSCO as the low, responsive, responsible offeror. On February 18, SWM filed its protest with our Office.

SWM basically argues that the rejection of its bid as nonresponsive was improper because listing of milestone dates for fuel on-load was not an exception to an essential or material requirement of the IFB. In this regard, SWM maintains that "milestones" are at most suggestions for intermediate events, for planning purposes, and thus are not essential or material requirements because changes are contemplated.

The Navy maintains that the requirement for the government to have flexibility in determining the fuel on-load date is an essential requirement of the IFB and that SWM's bid of a specific milestone date by which the government was to complete fuel on-loading materially altered a requirement of the IFB. The Navy states that in scheduling the fuel on- load event, SUPSHIP San Diego must consider not only the availability of refueling barges and the priority access given to Navy vessels in an operational status, but also the need to integrate refueling operations with Navy and third party contractor repair activities, which will be ongoing during the vessel availability. The Navy contends that by restricting fuel on-loading to the period stated in its bid, SWM was effectively limiting its potential liability to the government should delays caused by refueling at a time other than the date specified by SWM resulted in late redelivery of the vessel.

Generally, to be responsive, a bid must be an unequivocal offer to perform without exception the exact thing called for in the solicitation so that acceptance of the bid will bind the contractor to perform in accordance with all the IFB's material terms and conditions. Stay, Inc. B-237073, Dec. 22, 1989, 89-2 CPD Para. 586, aff'd, 69 Comp.Gen. 296 (1990), 90-1 CPD Para. 225. Deficiencies or deviations which go to the substance of a bid by affecting, in more than a trivial way, price, quality, quantity, or delivery are material and require that the bid be rejected. Seaboard Elecs. Co., B-237352, Jan. 26, 1990, 90-1 CPD Para. 115. Deviations or defects in a bid that change or call into question the legal relationship between the parties that is envisioned by the IFB are also material and justify rejection of the bid as nonresponsive. Mid-East Contractors, Inc., 70 Comp.Gen. 383 (1991), 91-1 CPD Para. 342; 50 Comp.Gen. 11 (1970); Tennier Indus., Inc., 69 Comp.Gen. 588 (1990), 90-2 CPD Para. 25.

In our view, the Navy correctly rejected SWM's bid as nonresponsive because of the language contained in the unsolicited milestone schedule SWM included in its bid. As previously quoted, paragraph 3.2.11 of item No. 042-01-001 specifically advised the bidder that "the contractor will be apprised by the Supervisor of the dates and specific areas aboard ship no later than 48 hours prior to the scheduled fuel on load." The IFB clearly affords SUPSHIP San Diego the right to specify, on 48 hours advance notice, the dates when fuel on-loading will occur. Notwithstanding SWM's argument otherwise, the only reasonable interpretation of SWM's bid is that SWM, in its bid, required the government to perform fuel on-loading by a specific date. SWM's bid effectively restricts the government's right to schedule fuel on loading at its discretion and in accordance with the availability of the necessary facilities and thus is inconsistent with the requirement of the IFB. While SWM argues that nothing in the listing of the milestone states or reasonably implies anything about liability, limitations, or increase, or decrease of either, the record clearly shows that while the government is conducting fuel on-loading, other solicitation requirements, such as "HOT WORK," cannot be performed and access to specified areas aboard ship will be affected. /1/ Should the government fail to complete fuel on-load as specified by SWM and should SWM fail to redeliver the vessel in a timely manner, SWM may possibly attempt to limit its liability because of the government's failure to meet the specified fuel on-load date. Since SWM's bid significantly affected the rights of the government to schedule fuel on load with 48 hour advance notice, its bid was properly rejected as nonresponsive. Power Ten, Inc., B-236725, Dec. 18, 1989, 89-2 CPD Para. 563.

SWM argues that for several years it has included similar or identical milestone schedules with all of its bids to the Navy in response to specification items that included "fuel on-board" milestone. SWM maintains that the Navy's acceptance of its bid for repair of another vessel establishes the fact that milestones cannot constitute an exception or impose a condition of performance.

The Navy's acceptance of bids with similar discrepancies under previous procurements are not persuasive evidence that would contradict our decision since each procurement is a separate transaction, and action taken on any one procurement does not govern the conduct of all similar procurements. Rack Eng'g Co., B-208554, Mar. 7, 1983, 83-1 CPD Para. 224.

Accordingly, the protest is denied.

/1/ SWM also initially argued that the IFB required a bidder to propose some date for fuel on-load in a production schedule. However, the protester subsequently acknowledged that the IFB did not require the submission of a production schedule with the bid; consequently, SWM's inclusion of one in its bid, at best, made its bid ambiguous.