B-169530 (1), JUL. 27, 1970

B-169530 (1), JUL. 27, 1970

BID PROTEST -- OMISSION OF ITEMS DENIAL OF PROTEST OF UNIROYAL PLASTIC PRODUCTS AGAINST AWARD TO RUBBER FABRICATOR'S INCORPORATED BY NAVY SHIPS PARTS CONTROL CENTER FOR INFLATABLE RUBBER LANDING BOATS. LOW BIDDER WHO DID NOT INSERT PRICES FOR TWO ITEMS BUT WHO SPECIFIED A TOTAL PRICE FOR THE BID PACKAGE WHICH WAS SUBSEQUENTLY REDUCED IN TELEGRAPHIC COMMUNICATION MAY BE REGARDED AS LEGALLY OBLIGATED TO FURNISH THE MATERIAL SPECIFIED INCLUDING THE TWO ITEMS AT NO INCREASE IN TOTAL PRICE AS REDUCED BY THE TELEGRAM. ACCORDINGLY, THE BID IS RESPONSIVE TO THE INVITATION.

TO UNIROYAL PLASTIC PRODUCTS, DIVISION OF UNIROYAL, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 9, AND LETTER OF JUNE 29, 1970, PROTESTING THE PROPOSED AWARD OF A CONTRACT TO RUBBER FABRICATOR'S, INC. (RF) UNDER INVITATION FOR BIDS NO. N00104-70-B-1315, ISSUED ON JANUARY 7, 1970, BY THE NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA.

THE SUBJECT INVITATION SOLICITED BIDS UNDER ITEM 1 FOR 240 INFLATABLE RUBBER LANDING BOATS. THE DATA REQUIREMENTS FOR THE ITEM WERE LISTED ON THE BIDDING SCHEDULE (PAGE 3) AS FOLLOWS:

"ITEM SUPPLIES/SERVICES QUANTITY UNIT UNIT AMOUNT

NO. PRICE

2 PROVISIONING TECHNICAL 1 LOT)

DOCUMENTATION (METHOD )

B FOR ITEM 1)

3 TECHNICAL DATA SHEET 1 LOT ) SEE DD FORM 1423

4 INSPECTION SYSTEM 1 LOT )

PROGRAM PLAN )

5 COMMERCIAL MANUAL 1 LOT )

WHEN BIDS WERE OPENED ON FEBRUARY 6, 1970, THE THREE BIDS RECEIVED WERE EVALUATED AS FOLLOWS:

ITEM QUANTITY RUBBER FABRICATOR UNIROYAL FIRESTONE

1 240 EA. $ 1,017.00 $ 994.00 $ 1,074.48

2 1 LOT - 1,000.00 9,316.00

3 1 LOT - 200.00 226.00

4 1 LOT- NC NC

5 1 LOT - 1,900.00 744.00

6 - - - -

TOTAL 244,080.00 241,660.00 268,161.20

LESS DISCOUNT 2,440.80 - 5,363.22

TOTAL 241,639.20 241,660.00 262,797.98

PLUS TRANSPORTATION 8,477.19 10,743.35 6,233.20

TOTAL 250,116.39 252,403.35 269,031.18

THE BID PRICE OF RF FOR ITEM 1 REPRESENTS ITS OFFER FOR THAT ITEM IF FIRST ARTICLE TESTING IS WAIVED. IT IS ADMINISTRATIVELY REPORTED THAT FIRST ARTICLE TESTING WOULD BE WAIVED FOR THAT FIRM AS IT HAD BEEN SUPPLYING THE ITEM ON TWO EARLIER INDEFINITE QUANTITY CONTRACTS. EVALUATING THE BIDS, THE CONTRACTING OFFICER CONSIDERED THAT THE UNIT PRICE OF $1,017 FOR ITEM 1 BID BY RF INCLUDED THE PROVIDING OF THOSE ITEMS 2 THROUGH 5 WHICH WOULD NOT BE WAIVED, AND THEREFORE RF'S BID WAS CONSIDERED TO BE RESPONSIVE AND ELIGIBLE FOR AWARD.

YOUR PRINCIPAL CONTENTION IS THAT THE BID OF RF IS NONRESPONSIVE BECAUSE IT CONTAINED BLANK SPACES OPPOSITE ITEMS 2 THROUGH 5 AND THERE IS NO REFERENCE IN THE IFB TO INDICATE THAT A FAILURE TO INSERT PRICES FOR THOSE ITEMS IS ALLOWABLE OR THAT EVALUATION FACTORS WOULD ASSUME THE CHARGES THEREFOR ARE INCLUDED IN ITEM 1. YOU ASK:

"WHAT DOES A BLANK SPACE OPPOSITE ITEMS 2 THROUGH 5 MEAN? DOES IT MEAN INCLUDED IN ITEM 1? DOES IT MEAN NO CHARGE? DOES IT MEAN NO BID? DOES IT CONSTITUTE A REQUEST FOR WAIVER?"

THE REFERENCED DD FORM 1423, COVERING ITEMS 2 THROUGH 5, WAS MADE A PART OF ANY RESULTING CONTRACT BY REASON OF THE PROVISIONS OF PARAGRAPH 8.10 OF THE INVITATION WHICH STATES:

"CONTRACTOR DATA REQUIREMENTS LIST: THE CONTRACTOR SHALL DELIVER ONLY THE TECHNICAL DATA LISTED ON THE CONTRACTOR DATA REQUIREMENTS LIST, DD FORM 1423, ATTACHED HERETO AND FORMING A PART OF THIS CONTRACT." ON EACH OF THE FOUR (ONE FOR EACH ITEM) 1423 FORMS ENCLOSED IN THE INSTANT INVITATION THERE WAS INSERTED THE NOTATION: "PRICES FOR ABOVE DATA SHALL BE INSERTED OPPOSITE EACH ITEM ON PAGE 3."

THE CONTRACTING OFFICER'S CONCLUSION THAT THE BID OF RF WAS RESPONSIVE WAS BASED ON THE FOLLOWING RATIONALE:

"A. THE SOLICITATION, BY FORM 4ND-SPCC-4270/9, WHICH WAS ATTACHED TO AND A PART OF THE INVITATION, PROVIDES FOR THE SUBMISSION OF A 'CERTIFICATE OF PRIOR APPROVAL' UNDER WHICH THE OFFEROR CERTIFIES THAT ALL DRAWINGS/EQUIPMENT ARE EXACT DUPLICATES OF THAT PREVIOUSLY PROVIDED. RUBBER FABRICATOR PROVIDED THE DRAWINGS AND CONTRACT NUMBER UNDER WHICH PRIOR APPROVAL WAS OBTAINED AND CERTIFIED THAT UNITS WOULD BE MANUFACTURED IN ACCORDANCE THEREWITH. ALTHOUGH THE 'CERTIFICATE OF PRIOR APPROVAL' FORM PROVIDES A SPACE TO INDICATE THE NAVSHIP NUMBER ASSIGNED TO MANUALS PREVIOUSLY FURNISHED, THE TYPE REQUIRED IN THIS SOLICITATION, COMMERCIAL TYPE, IS NOT ASSIGNED A NAVSHIP NUMBER AND, THEREFORE A NUMBER WAS NOT INSERTED.

"B. 'PROVISIONING TECHNICAL DOCUMENTATION FOR REPAIR PARTS,' FORM 4ND SPCC-4423/2, WAS ATTACHED TO AND A PART OF THE SOLICITATION. SUBPARAGRAPH E. THEREOF STATES, 'IN THE EVENT *** THE PROVISIONS OF PARAGRAPH 3.1.3 OF MIL-P-15137C ARE APPLICABLE.' MIL-P-15137C, PARAGRAPH 3.1.3 STATES, 'USE OF PREVIOUSLY SUBMITTED LISTS AND ALLOWANCE PARTS LISTS (APL). RESUBMISSION OF COMPLETE DOCUMENTATION IS NOT REQUIRED FOR ANY COMPONENT IDENTICAL IN EVERY RESPECT INCLUDING ALL PARTS TO ONE FOR WHICH TECHNICAL DOCUMENTATION HAS BEEN PREVIOUSLY SUBMITTED TO THE INVENTORY CONTROL POINT OR FOR WHICH AN ALLOWANCE PARTS LISTS EXISTS, (SEE 6.1.1).'

"C. TECHNICAL DATA SHEETS, ITEM 3, HAVE PREVIOUSLY BEEN PREPARED AND SUBMITTED BY RUBBER FABRICATOR.

"D. AS RUBBER FABRICATOR IS IN PRODUCTION AND HAS AN ACCEPTABLE INSPECTION SYSTEM PROGRAM PLAN, CURRENTLY IN EFFECT, SUCH PLAN IS NOT REQUIRED.

"3. THE CONTRACTING OFFICER ON THE BASIS OF THE ABOVE CONSIDERS THAT IT IS UNREASONABLE TO ASSUME THAT THERE WILL BE ADDITIONAL COST FOR ITEMS THAT ARE NOT REQUIRED OF, NOR WILL BE FURNISHED BY RUBBER FABRICATOR (ITEMS 2 AND 4). WITH RESPECT TO THE TECHNICAL DATA SHEET AND COMMERCIAL MANUALS (ITEMS 3 AND 5), THESE HAVE BEEN PROVIDED AT NO ADDITIONAL CHARGE ON THE MOST RECENT CONTRACT, N00104-69-D-0402, AND THERE IS NO BASIS ON WHICH TO ASSUME THAT THERE WILL BE ADDITIONAL CHARGES FOR THESE ITEMS ON THIS SOLICITATION. WHILE RUBBER FABRICATOR FAILED TO NOTE ON THEIR BID THAT ITEMS 2, 3, 4 AND 5 WERE 'NOT SEPARATELY PRICED' OR 'COST THEREOF INCLUDED IN ITEM 1' OR SOME SUCH NOTATION THIS DEFICIENCY, IN VIEW OF THE FACTS SET FORTH ABOVE, DOES NOT, IN THE OPINION OF THE CONTRACTING OFFICER, RENDER THEIR OFFER NONRESPONSIVE."

THE PRIMARY QUESTION FOR CONSIDERATION HERE IS WHETHER RF WOULD BE LEGALLY OBLIGATED, AT NO INCREASE IN ITS BID PRICE, TO FURNISH THE MATERIAL SPECIFIED IN ITEMS 2 THROUGH 5, WHICH IS NOT WAIVED, BECAUSE OF ITS FAILURE TO MAKE ANY INSERTIONS IN THE PRICE COLUMNS FOR THESE ITEMS. IF THE INITIAL BID PACKAGE, AS SUBMITTED BY RF, CONTAINED THE ONLY DOCUMENTS FOR CONSIDERATION IN INTERPRETING RF'S OFFER, IT WOULD APPEAR, AS YOU INDICATE, THAT A SPECIFIC INTENT COULD NOT BE ASSIGNED TO THE BLANK SPACES OPPOSITE ITEMS 2 THROUGH 5. HOWEVER, RF AMENDED ITS BID ON FEBRUARY 5 BY A TELEGRAM CONTAINING THE FOLLOWING LANGUAGE:

"ON THE SUBJECT INVITATION FOR BID COVERING 240 EACH LANDING BOAT SEVEN

MAN WE WISH TO REDUCE OUR UNIT PRICE BY $81.00 EIGHTY ONE DOLLARS FOR A

TOTAL PRICE REDUCTION OF $19,440.00 NINETEEN THOUSAND FOUR HUNDRED

FORTY DOLLARS ALL OTHER TERMS AND CONDITIONS ON THE SUBJECT INVITATION

FOR BID AND ALL AMENDMENTS THERETO WILL REMAIN THE SAME" WE BELIEVE THAT SUCH LANGUAGE MAY BE REASONABLY CONSTRUED AS INDICATING THAT THE EXTENDED PRICE SHOWN BY RF OPPOSITE ITEM 1 (AS AMENDED BY THE REDUCED UNIT PRICE INSERTED FOR WAIVER OF FIRST ARTICLE TESTING) IS ITS "TOTAL PRICE," AND AS EXPRESSING AN INTENTION OF MEETING ALL TERMS AND CONDITIONS OF THE IFB AT THAT "TOTAL PRICE," AS FURTHER AMENDED BY THE TELEGRAM. WE THEREFORE BELIEVE THAT RF SHOULD BE CONSIDERED AS HAVING LEGALLY OBLIGATED ITSELF TO FURNISH THE MATERIAL (IF NOT WAIVED) SPECIFIED IN ITEMS 2 THROUGH 5, AT NO INCREASE IN THE TOTAL PRICE INDICATED IN THE ORIGINAL BID PACKAGE AS REDUCED BY THE $19,440 SPECIFIED IN ITS TELEGRAM OF FEBRUARY 5.

CONCERNING YOUR OBSERVATION THAT "WE WOULD BE AWARDED THE LABOR SURPLUS SET ASIDE PORTION OF THE IFB AT A HIGHER REPEAT HIGHER UNIT PRICE THAN WE QUOTED ON THE NON SET ASIDE PORTION," WE AGREE WITH THE CONTRACTING OFFICER'S CONCLUSION THAT SUCH A STATEMENT IS NOT SUPPORTED BY THE FACTS. SPECIFICALLY HE STATES:

"UNIROYAL FAILED TO TAKE INTO CONSIDERATION THE COSTS FOR SOFT-WARE WHICH HE WILL BE REQUIRED TO FURNISH AND THE EVALUATION FACTORS OF DISCOUNT AND TRANSPORTATION COSTS. AS UNIROYAL IS IN GROUP 1, AS DEFINED IN THE LABOR SURPLUS AREA SET-ASIDE CLAUSE, NEGOTIATIONS FOR THE SET-ASIDE QUANTITY OF 240 UNITS WILL BEGIN WITH HIM. IN ORDER TO OBTAIN THE AWARD, UNIROYAL WILL BE REQUIRED TO MATCH THE EVALUATED UNIT PRICE OF RUBBER FABRICATOR OF $1,042.15 VERSUS HIS EVALUATED UNIT PRICE OF $1,051.68. ALTHOUGH UNIROYAL'S UNIT PRICE IS 'LOWER' HIS TOTAL OFFER OF $252,403.35 MUST BE REDUCED BY $2,287.20 IN ORDER TO RECEIVE THE SET-ASIDE QUANTITY."

YOU NOTE THAT THE CLAUSE FOR WAIVER OF PROVISIONING TECHNICAL DOCUMENTATION PROVIDES THAT THE DOCUMENTATION MAY BE WAIVED "BY MIPR AMENDMENT IF THE SUCCESSFUL BIDDER" CAN CERTIFY THAT HE HAS PREVIOUSLY FURNISHED ACCEPTABLE DOCUMENTATION, AND YOU STATE THAT THIS IMPLIES THAT THE DECISION WOULD BE MADE AFTER AWARD AND YOU ASK HOW THE DECISION CAN BE MADE BEFORE AWARD AND USED AS AN EVALUATION FACTOR. YOU ALSO CALL OUR ATTENTION TO PARAGRAPH 8.8 "DEFERRED ORDERING OF TECHNICAL DATA," AND ASK, "IF THERE IS A POSSIBILITY THAT PREVIOUSLY SUBMITTED DATA WILL BE FOUND TO BE OBSOLETE AND, THEREFORE, UNACCEPTABLE, HOW CAN THE GOVERNMENT KNOW THAT ADDITIONAL COSTS WOULD BE INVOLVED IF THE ITEM WAS NOT QUOTED?" INASMUCH AS WE HAVE DECIDED HEREIN THAT RF IS REQUIRED BY ITS COMPLETE BID TO FURNISH AT NO COST ALL MATERIAL WHICH IS NOT WAIVED AND INCLUDED IN ITEMS 2 THROUGH 5, THE WAIVER OR NONWAIVER OF SUCH ITEMS HAS NO BEARING ON THE EVALUATION OF RF'S BID AND THESE QUESTIONS ARE CONSIDERED TO BE ACADEMIC.

ACCORDINGLY, WE BELIEVE RF'S BID IS RESPONSIVE TO THE IFB, AND YOUR PROTEST AGAINST AN AWARD TO THAT FIRM IS THEREFORE DENIED.