B-178764, JUN 27, 1973

B-178764, JUN 27, 1973

INSTRUCTION TO CONSIDER BID OF GICHNER MOBILE SUBMITTED IN RESPONSE TO SOLICITATION NO. M00027-73-B0041, ISSUED BY HEADQUARTERS, USMC AS A LATE MODIFICATION OF THE OTHERWISE ACCEPTABLE BID UNDER ASPR 2-305, APPARENTLY MAKING THE TERMS MORE FAVORABLE TO THE GOVERNMENT.

TO LT. GEN. ROBERT E. CUSHMAN, JR.:

WE REFER TO A LETTER DATED JUNE 4, 1973, FROM GICHNER MOBILE SYSTEMS PROTESTING BEFORE AWARD THE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO SOLICITATION NO. M00027-73-B0041, ISSUED BY HEADQUARTERS, UNITED STATES MARINE CORPS, WHICH WAS THE SUBJECT OF A REPORT DATED JUNE 8, 1973, WITH ENCLOSURES, FROM THE QUARTERMASTER GENERAL.

THE PROCUREMENT IS FOR STATED QUANTITIES OF TRANSPORTABLE ELECTRONIC SHOPS AND WAS CONDUCTED BY THE MARINE CORPS AS A TWO-STEP, FORMALLY ADVERTISED PROCUREMENT IN ACCORDANCE WITH PART 2-5 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THE REQUEST FOR UNPRICED TECHNICAL PROPOSALS WAS ISSUED ON JANUARY 12, 1973. SEVEN COMPANIES SUBMITTED PROPOSALS AND, AS A RESULT OF DISCUSSIONS FOLLOWED BY MODIFICATIONS OF THE TECHNICAL PROPOSALS, ALL WERE DETERMINED TO BE "ACCEPTABLE." SEVEN BIDDERS RESPONDED TO THE STEP-TWO INVITATION FOR BIDS (IFB) ON MAY 21, 1973, AND GICHNER WAS THE LOW BIDDER.

THE CONTRACTING OFFICER HAS DETERMINED HOWEVER THAT THE GICHNER BID IS NONRESPONSIVE BECAUSE THE PROPOSED DELIVERY SCHEDULE FOR CERTAIN ITEMS DOES NOT MEET THE REQUIRED DELIVERY SCHEDULE.

THE QUESTION OF RESPONSIVENESS TO THE DELIVERY TERMS INVOLVES THE FOLLOWING PROVISION OF THE INVITATION FOR BIDS:

IF THE BIDDER IS UNABLE TO MEET THE ABOVE DESIRED DELIVERY SCHEDULE, HE MAY WITHOUT PREJUDICE TO THE EVALUATION OF HIS BID, SET FORTH HIS PROPOSED DELIVERY SCHEDULE BELOW, BUT SUCH DELIVERY SCHEDULE MUST NOT EXTEND THE DELIVERY PERIOD BEYOND THE TIME FOR DELIVERY CALLED FOR IN THE REQUIRED DELIVERY SCHEDULE.

REQUIRED DELIVERY SCHEDULE

ITEM NO. QUANTITY TIME

(WITHIN THE NUMBER OF DAYS

STATED BELOW)

0011AA 55 EA.FIVE (5) EACH WITHIN 365 DAYS

AFTER FIRST ARTICLE APPROVAL -

0011AB 30 EA. CONCURRENT WITH DELIVERY OF

STOCK REPAIR PARTS (IF OPTION

IS EXERCISED). BALANCE TO BE

DELIVERED AT RATE OF FIVE (5)

EACH EVERY THIRTY (30) DAYS

THEREAFTER UNTIL COMPLETION.

GICHNER OFFERED THE FOLLOWING UNDER THE BIDDER'S PROPOSED DELIVERY SCHEDULE:

0011AA 55 EA. 510 DAYS

0011AB 30 EA. 570 DAYS

IT IS THE MARINE CORPS' POSITION THAT GICHNER'S OFFER WAS NONRESPONSIVE SINCE IT DID NOT SET FORTH THE DELIVERY SCHEDULE IN TERMS OF A RATE PER THIRTY DAYS.

HOWEVER, IT IS CLEAR THAT THE AGGREGATE DELIVERY TIMES SPECIFIED BY GICHNER WERE WITHIN THE TOTAL TIMES ALLOWED UNDER THE "REQUIRED DELIVERY SCHEDULE." IT IS ALSO CLEAR THAT GICHNER'S STATEMENT OF AGGREGATE TIMES PROPOSED IS NOT INCONSISTENT WITH THE MONTHLY DELIVERIES SPECIFIED, AND CONTAINS NO AFFIRMATIVE INDICATION THAT GICHNER DID NOT INTEND TO MEET THEM OR INTENDED TO TAKE EXCEPTION TO THEM.

ALSO, UNDER STEP ONE, GICHNER'S TECHNICAL PROPOSAL CONTAINED THE REQUIRED PROGRAM PLAN AND MILESTONE CHART IDENTIFIED AS FIGURES 2-4 (FIRST ARTICLE MILESTONE PLAN), 2-5 (PRODUCTION MILESTONE PLAN), AND 2 6 (DATA REQUIREMENTS MILESTONE PLAN) WHICH SET FORTH ITS PROPOSED DELIVERY SCHEDULE IN TERMS OF A RATE PER THIRTY DAYS. THIS "MILESTONE PLAN" WAS ACCEPTED BY THE MARINE CORPS. THEREFORE, TO CONSTRUE GICHNER'S DELIVERY SCHEDULE AS EVIDENCING AN INTENT NOT TO BE BOUND BY THE MONTHLY DELIVERY REQUIREMENTS WOULD BE, IN OUR OPINION, AT VARIANCE WITH THE PRESUMPTION THAT A BID IS INTENDED TO BE RESPONSIVE AND SHOULD BE SO CONSTRUED IN THE ABSENCE OF SOME CONTRARY INDICATION. B-143576, SEPTEMBER 12, 1960.

FURTHERMORE, BECAUSE A BIDDER IN A TWO-STEP PROCUREMENT EXPENDS MORE EFFORT AND RESOURCES THAN A BIDDER IN A SINGLE-STEP ADVERTISED PROCUREMENT, WE HAVE RECOGNIZED THAT A BIDDER FOUND TO BE ACCEPTABLE UNDER STEP ONE WOULD NOT LIKELY DISQUALIFY ITS STEP-TWO BID BY INSERTING A CONDITION CONTRADICTORY TO ITS ACCEPTED STEP-ONE PROPOSAL AND THE REQUIREMENTS OF THE SPECIFICATIONS. 52 COMP. GEN. (B 177423, MAY 18, 1973).

IN THIS CONNECTION THE MARINE CORPS REPORTS THAT:

IF GICHNER HAD BID THE SCHEDULE SET FORTH IN FIGURE 2-5 ENTITLED "PRODUCTION MILESTONE PLAN" (THE PROPOSED DELIVERY SCHEDULE) OF ITS UNPRICED TECHNICAL PROPOSAL, IT WOULD HAVE BEEN RESPONSIVE IN REGARD TO ITS DELIVERY SCHEDULE FOR ITEMS 0011AA AND 0011AB.

SINCE THE PROPOSED DELIVERY SCHEDULE SUBMITTED BY GICHNER IN STEP ONE WAS INCORPORATED BY REFERENCE IN STEP TWO, AND SINCE THE TWO SCHEDULES WERE NOT INCONSISTENT, THEY MUST BE READ AS ONE. UNDER THESE CIRCUMSTANCES, IT IS OUR OPINION THAT THE GOVERNMENT COULD HOLD GICHNER TO DELIVERY WITHIN THE REQUIRED SCHEDULE AND, THEREFORE, ITS BID WAS RESPONSIVE TO THE SOLICITATION.

WE NOTE THAT BY LETTER DATED JUNE 1, 1973, GICHNER OFFERED THE CONTRACTING OFFICER AN IMPROVED DELIVERY SCHEDULE EVEN MORE FAVORABLE TO THE GOVERNMENT THAN THAT INITIALLY PROPOSED BY IT IN THE TECHNICAL PROPOSAL, CITING ASPR 2-305 AS ITS AUTHORITY TO DO SO. HOWEVER, SINCE THE CONTRACTING OFFICER DETERMINED GICHNER'S INITIAL BID TO BE NONRESPONSIVE, HE TREATED THE LETTER OF JUNE 1 AS A LATE MODIFICATION FROM A NONRESPONSIVE BIDDER WHICH COULD NOT OPERATE TO RENDER THE BID RESPONSIVE. IN VIEW OF OUR CONCLUSION, WE ARE OF THE OPINION THAT THE LATE MODIFICATION OF JUNE 1, 1973, OFFERING THE IMPROVED DELIVERY SCHEDULE WAS A LATE MODIFICATION OF THE OTHERWISE ACCEPTABLE BID" UNDER ASPR 2-305, AND SHOULD BE CONSIDERED AS IT APPARENTLY MAKES "THE TERMS OF THE BID MORE FAVORABLE TO THE GOVERNMENT ***."