Balantine's South Bay Caterers, Inc.

B-250223: Jan 13, 1993

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The bid was properly rejected as nonresponsive. Agency should allow the period to run until the end of the next working day for purposes of suspension of performance is denied where regulations clearly state that suspension of contract performance is only required when agency receives notice within 10 calendar days of award. The IFB was issued on May 21. Whichever was later. Section M instructed that the government intended to make award to the responsible low offeror whose bid was completely responsive to all of the requirements of the solicitation. Seven bids were received. BSBC was the apparent second low bidder. Whichever was later. BSBC states that the purpose of its submission of the unsolicited literature was to expedite the pre-award responsibility evaluation.

Matter of: Balantine's South Bay Caterers, Inc. File: B-250223 Date: January 13, 1993

PROCUREMENT Sealed Bidding Invitations for bids Responsiveness Descriptive literature Agency could not properly disregard unsolicited descriptive literature in a sealed bid procurement where the cover letter included with the bid referenced the solicitation number and expressly included the literature as pertinent information; since the phase-in schedule contained in the unsolicited literature reasonably raised a question whether the bid complied with a material solicitation requirement, the bid was properly rejected as nonresponsive. PROCUREMENT Bid Protests Moot allegation GAO review Contention that, when tenth calendar day after award falls on a federal holiday, agency should allow the period to run until the end of the next working day for purposes of suspension of performance is denied where regulations clearly state that suspension of contract performance is only required when agency receives notice within 10 calendar days of award.

Attorneys

DECISION Balantine's South Bay Caterers, Inc. (BSBC) protests the rejection of its bid as nonresponsive and award of a contract to Food Services, Inc., under invitation for bids (IFB) No. N68836-92-B-0098, issued by the Department of the Navy for mess attendant services at two naval stations in Guantanamo Bay, Cuba. BSBC argues that the agency misinterpreted unsolicited descriptive literature submitted with its bid as taking exception to the solicitation's requirements.

We deny the protest.

The IFB was issued on May 21, 1992, and contemplated award of a firm, fixed-price contract for 1 base year with up to 2 option years. Section F of the solicitation stated that the resulting contract would be effective on October 1, 1992, or the date of award, whichever was later; it did not allow for a phase-in period. Section M instructed that the government intended to make award to the responsible low offeror whose bid was completely responsive to all of the requirements of the solicitation. The IFB did not require the submission of descriptive literature or data.

On the July 6 bid opening date, seven bids were received; BSBC was the apparent second low bidder, with a price of $1,085,572. Along with its bid, BSBC submitted two title pages to the bid package, a cover letter, promotional and background materials describing the firm, a list of prior government contracts performed by the firm, its quality control plan, and its start-up and phase-in schedule.

On the basis of the information BSBC submitted with its bid, the Navy determined that the bid took exception to the performance schedule specified in section F of the solicitation: that services begin on October 1 or the date of award, whichever was later, with no phase-in period provided. Specifically, BSBC's unsolicited descriptive literature included a 4-week phase-in plan with contract tasking set to begin in the fourth week. The agency thus rejected BSBC's bid as nonresponsive and made award to Food Services; this protest followed.

BSBC states that the purpose of its submission of the unsolicited literature was to expedite the pre-award responsibility evaluation.

BSBC argues that the literature is generically-written promotional and background information and does not show a clear intent by BSBC to qualify its bid; consequently, the agency should not have considered it in determining the responsiveness of its bid. BSBC also argues that, to the extent the Navy properly considered its unsolicited literature, the Navy's interpretation of that literature as imposing a 4-week phase-in period is unreasonable.

Consideration of unsolicited literature in a bid is governed by Federal Acquisition Regulation (FAR) Secs. 14.202-5(f) and 14.202-4(g), which provide that unsolicited descriptive literature generally should not be considered as qualifying a bid and should be disregarded. However, the FAR also provides that where it is clear from the bid or accompanying papers that the bidder's intention was to qualify the bid, the literature may not be disregarded. Id.; Benthos, Inc.; Cygnus Eng'g, B-237454; B-237454.2, Feb. 20, 1990, 90-1 CPD Para. 295. Where the bid expressly incorporates the unsolicited descriptive literature, there is a sufficient relationship between the bid and the literature to require that the literature be considered in determining whether the bid is responsive. See Marco Equip., Inc.; Scientific Supply Co., 70 Comp.Gen. 219 (1991), 91-1 CPD Para. 107, aff'd, Midwest Ophthalmic Instruments, Inc.--Recon., B-241329.3, May 21, 1991, 91-1 CPD Para. 490.

The literature BSBC submitted with its bid contains two title pages referencing this solicitation number, as well as a cover letter addressed to the contracting activity. The cover letter also references this solicitation number, and states that "[s]ubmitted is all pertinent information regarding this Request for Proposal[] in the order directed." Behind the cover letter are six separate sections, each consisting of a title page with the relevant information directly following. The first two sections contain the completed bid itself and various staffing charts. The remaining four sections (background materials describing the firm; a list of prior government contracts; a quality control plan; and a start-up and phase-in schedule) consist of what BSBC now refers to as its supplemental material.

A cover letter is considered part of the bid for purposes of determining the bid's responsiveness. General Elec. Co., 65 Comp.Gen. 377 (1986), 86-1 CPD Para. 223. BSBC's cover letter expressly incorporates its descriptive literature into its bid by stating it is submitting all pertinent information "in the order directed"; the implication is that the attached material is pertinent information. See Marco Equip. Co.; Scientific Supply Co., supra. Further, nothing in BSBC's cover letter makes any distinction between the required and supplemental materials sections, and the entire package of documents appears as one comprehensive package. As a result, there is a sufficient relationship between the bid and the literature to require the agency to consider the literature in determining whether BSBC's bid was responsive. Id.

To be responsive, a bid must be an unequivocal offer to provide the exact thing called for in the solicitation, so that, upon acceptance, the contractor will be bound to perform in accordance with all of the IFB's material terms and conditions. An IFB performance period is a material requirement, a bidder's unequivocal agreement to which must be clear in order for the bid to be deemed responsive. See Northwest Pesticide Enters., Inc., B-235982, Sept. 28, 1989, 89-2 CPD Para. 284. If any substantial doubt exists as to whether a bidder upon award could be required to provide the services as specified in the IFB, the integrity of the competitive bidding system requires rejection of the bid as nonresponsive. David Grimaldi Co., B-244572, Oct. 28, 1991, 91-2 CPD Para. 381. Thus, where unsolicited descriptive literature submitted with a bid reasonably raises a question as to whether the services offered comply with a material requirement of the IFB, the bid should be rejected as nonresponsive. See International Mailing Sys., Inc., B-246214, Feb. 25, 1992, 92-1 CPD Para. 224; Brown Boveri Elec., Inc., B-209338, Apr. 1, 1983, 83-1 CPD Para. 342.

The last title page in BSBC's bid package is headed "Start-Up and Phase- In Schedule Labor Force Availability." The five pages following this title page contain several references to a time when BSBC will begin performance of what it refers to as "this contract." The agency cites two areas of alleged ambiguity in this material as the basis for its nonresponsiveness determination.

The agency first points to the final page of this section, headed "Weekly Phase-In Schedule." This page contains a 4-week phase-in schedule under which "contract tasking" does not begin until the fourth week. The agency's interpretation of this phase-in schedule was that BSBC planned to take 4 weeks before beginning contract performance. Since the solicitation required performance to begin on October 1 or date of award, whichever was later, the agency was concerned that a 4-week phase-in would be impossible if award were made less than 4 weeks prior to October

1. In light of this possibility, and since no phase-in period was provided for by the solicitation, the agency reasonably interpreted BSBC's bid as taking exception to the performance date. The agency also cites statements in this section referring to various time periods after which BSBC would have personnel available to work on "this contract." On page 1, BSBC states:

"We do anticipate complementing our personnel with additional support. In addition to the personnel at your facility already in place, we feel that ten (10) days' lead time for some of our administrative staff and key personnel is reasonable . . . ."

On page 2, BSBC states, "[an] adequate number of personnel will be available within 14 days after the award of this contract." The agency's interpretation of these passages is that BSBC plans to take 10 to 14 days before beginning contract performance.

As to the first passage, we agree with the protester that, in context, the 10 days refers to the time period after which additional support staff will be in place. However, we agree with the agency that the second passage indicates sufficient personnel may not be available to perform the contract until 14 days after contract award. While BSBC argues that this passage merely refers to the time period after which all permanent staff will be in place, we find that it is at best ambiguous, especially in light of its seeming correspondence with the phase-in schedule, under which personnel indoctrination and assignments begin after 14 days. The agency's interpretation of this passage as raising a question whether BSBC's bid complies with the performance requirement of the solicitation thus is reasonable.

BSBC argues that the phase-in schedule and these other statements must be interpreted in light of the statement, also found in this section of the supplemental materials, that BSBC was prepared to assume full contract performance immediately upon award of the contract. BSBC also asserts that the phase-in plan was included to demonstrate an understanding of the steps in a phase-in schedule, not to specify a particular time frame for beginning performance.

We think that the inclusion of the phase-in schedule requiring 4 weeks before full contract performance reasonably raised a question whether BSBC intended to comply fully with the required performance schedule, even taking into consideration BSBC's other statement ("we are prepared to assume full contract performance immediately upon award of the contract"); the inclusion of the phase-in schedule and the other statement relating to staffing availability at best created an ambiguity as to whether BSBC intended to comply with that requirement. A bid must be rejected where unsolicited descriptive literature submitted with the bid is ambiguous regarding whether the bidder intends to comply with material terms of the IFB. Orbit Advanced Tech., Ltd., B-224603.2, Mar. 11, 1987, 87-1 CPD Para. 273. As to BSBC's post-bid opening explanation that the phase-in plan was intended merely to show BSBC's knowledge of the proper steps, whether a bid is responsive or not must be determined by the bid documents submitted at the time set for bid opening, not from clarifications provided by the bidder after bid opening. Mechanical Resources Inc., B-241403, Jan. 30, 1991, 91-1 CPD Para. 93.

In further support of its position, BSBC cites our line of cases holding that a bidder's unsolicited submission of preprinted literature that does not conform to a solicitation requirement does not render the bid nonresponsive where there is no clear indication in the bid that the bidder does not intend to conform with the requirement. See, e.g., Futura Sys., Inc., 70 Comp.Gen. 365 (1991), 91-1 CPD Para. 327; Tektronix, Inc.; Hewlett Packard Co., 66 Comp.Gen. 704 (1987), 87-2 CPD Para. 315. These cases are inapposite to the facts presented here. All of those cases involved preprinted materials such as descriptive literature or standard commercial forms. For purposes of marketing presentation or economy, the descriptive literature and standard commercial forms of many, if not most, vendors are designed to apply to multiple situations. Here, the format of BSBC's unsolicited supplemental materials is not that of the preprinted commercial form; rather, it appears to have been tailored for this solicitation. Where the unsolicited descriptive literature takes this form, and it contains information that is or appears to be inconsistent with one or more material requirements, it reasonably raises a question as to whether the services offered comply with those requirements and the bid therefore is nonresponsive. See International Mailing Sys., Inc., supra; Brown Boveri Elec., Inc., supra.

Finally, BSBC objects to the fact that the Navy did not order Food Services to suspend performance of the contract while the protest was pending. Since we have found that the agency properly rejected BSBC's bid as nonresponsive, and consequently BSBC suffered no prejudice from the fact that performance was not suspended, this issue is academic.

The protest is denied.