B-164984, OCTOBER 24, 1968, 48 COMP. GEN. 230

B-164984, OCTOBER 24, 1968, 48 COMP. GEN. 230

BIDS - ESTIMATES OF GOVERNMENT - FAILURE TO FURNISH ON ALL ITEMS ALTHOUGH IT WOULD HAVE BEEN PREFERABLE IF ESTIMATED QUANTITIES HAD BEEN FURNISHED FOR ALL THE 323 JANITORIAL SERVICES LISTED IN AN INVITATION WHICH PROVIDED BLANK SPACES FOR UNIT PRICES AND TOTALS, AND ALSO FOR CONTRACT AWARD ON THE BASIS OF THE COST OF THE ENTIRE JOB, AN AWARD TO A BIDDER WHO MARKED 6 OF THE 12 ITEMS FOR WHICH NO ESTIMATES WERE STATED. "N.C.' AND FURNISHED INDIVIDUAL PRICES WHICH WERE NOT EXTENDED FOR THE OTHER 6, WAS PROPER AND IS CONSIDERED AN AWARD ON THE "ENTIRE JOB.' ADDITION EVEN IF THE TOTAL BID PRICE HAD BEEN INCREASED TO INCLUDE THE 6 UNEXTENDED ITEMS, THE RELATIVE STANDING OF THE SUCCESSFUL BIDDER WOULD HAVE REMAINED UNCHANGED. HOWEVER, FOR THE GUIDANCE OF BIDDERS, AND TO PROVIDE A MORE REALISTIC BIDDING BASIS, FUTURE INVITATIONS SHOULD PROVIDE QUANTITY ESTIMATES FOR ALL ITEMS SOLICITED. CONTRACTS - AWARDS - PROTEST PENDING THE FACT THAT AN AWARD OF A CONTRACT IS MADE WHILE A PROTEST IS PENDING WOULD NOT VIOLATE PARAGRAPH 2-407.9 (B) (3) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), IF AN ADMINISTRATIVE DETERMINATION HAD BEEN MADE THAT A PROMPT AWARD WILL BE ADVANTAGEOUS TO THE GOVERNMENT. THEREFORE, WHERE THE CONTRACTING AGENCY FOUND THAT TO POSTPONE AN AWARD, WOULD ALTER THE PERFORMANCE DATES OF THE CONTRACT WITH A CONSEQUENT EFFECT ON THE BID PRICE, THE AWARD MADE PRIOR TO THE RESOLUTION OF A PROTEST IS NOT INVALID. HOWEVER, THE CONTRACTING OFFICER HAVING FAILED TO GIVE WRITTEN NOTICE OF THE AWARD AS REQUIRED UNDER ASPR, APPROPRIATE STEPS SHOULD BE TAKEN TO ASSURE FUTURE COMPLIANCE WITH THE REGULATION.

TO JOEL R. FEIDELMAN, OCTOBER 24, 1968:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 28, 1968, AND PREVIOUS CORRESPONDENCE, PROTESTING, ON BEHALF OF THE ADVANCE BUILDING MAINTENANCE COMPANY, CERTAIN ADMINISTRATIVE ACTIONS WITH RESPECT TO INVITATION FOR BIDS N62477-68-C-0664 FOR MILTIBUILDING JANITORIAL SERVICES AT THE NAVAL STATION, WASHINGTON, D.C.

THE INVITATION SCHEDULE LISTED 323 ITEMS OF WORK. WITH RESPECT TO 311 ITEMS, BIDDERS WERE ADVISED OF THE ESTIMATED NUMBER OF TIMES THE SERVICES WOULD BE REQUIRED TO BE PERFORMED DURING THE 1-YEAR TERM OF THE CONTRACT. ALSO, AS TO THESE 311 ITEMS BIDDERS WERE TO INSERT THEIR UNIT PRICES AND TOTAL EXTENDED PRICES. NO ESTIMATED QUANTITIES OR UNIT IDENTIFICATIONS WERE STATED AS TO THE OTHER 12 ITEMS, BUT BLANK SPACES WERE PROVIDED FOR UNIT PRICES AND TOTALS. IN THE COLUMN WHERE THE ESTIMATED QUANTITY WAS SHOWN FOR THE OTHER 311 ITEMS, THESE 12 ITEMS STATED EITHER "AS REQUIRED" OR "AS DIRECTED.' THE FRONT SHEET OF THE INVITATION SOLICITED PRICES FOR "BID ITEM NO. 1," "BID ITEM NO. 2" AND "BID ITEM NO. 3.' GENERAL PARAGRAPH 5.1 OF THE INVITATION PROVIDED THAT BIDS SHOULD BE BROKEN DOWN ON A PERITEM BASIS AS SHOWN ON THE INVITATION SCHEDULE SHEETS AND THAT AWARD WOULD BE MADE ON THE TOTAL BID PRICE. GENERAL PARAGRAPH 5.1.1 STATED:

TOTAL BIDS SHALL BE AS FOLLOWS:

BID ITEM 1--- COST OF ENTIRE JOB.

BID ITEM 2--- COST OF ENTIRE JOB LESS COST OF CIVILIAN CAFETERIAS IN BUILDINGS 21, 73, AND 169; AND SNACK BARS IN BUILDINGS 200-G AND 76, WASHINGTON NAVY YARD.

BID ITEM 3--- COST OF ENTIRE JOB LESS BID ITEM 2 LESS NAVY EXCHANGE CAFETERIA IN BUILDING 184, WNY; T-50, ANACOSTIA ANNEX; AND SNACK BAR IN BUILDING T-50.

YOU PROTESTED AGAINST AN AWARD TO THE LOW BIDDER, U.S. BUILDING MAINTENANCE CO., ON THE BASIS THAT ITS BID WAS NONRESPONSIVE BECAUSE IT FAILED TO FURNISH A BID BOND AND TO ACKNOWLEDGE TWO AMENDMENTS OF THE INVITATION. THE CONTRACTING OFFICE REJECTED THE BID IN VIEW OF THE DEFICIENCIES CITED BY YOU.

ORBITING ENTERPRISES, INC., WAS THE NEXT LOW BIDDER. ORBITING ENTERPRISES BID ON BID ITEMS NOS. 1, 2 AND 3. ORBITING ALSO BID UNITS AND EXTENDED PRICES ON THE 311 ITEMS IN THE SCHEDULE WHICH LISTED ESTIMATED QUANTITIES. OF THE OTHER 12 ITEMS WHICH MERELY PROVIDE "AS DIRECTED" OR ,AS REQUIRED," ORBITING BID "N.C.' FOR 6 ITEMS AND UNIT PRICES FOR THE OTHER 6 ITEMS. THE CONTRACTING AGENCY CONSIDERED THE BID AS RESPONSIVE AND AWARDED THE CONTRACT TO ORBITING.

YOU CONTEND THAT THE TOTAL BID SUBMITTED BY ORBITING DID NOT INCLUDE THE PRICES FOR THE SEVERAL ITEMS UPON WHICH IT BID UNIT PRICES WITHOUT EXTENDED PRICES AND THAT IT WAS THEREFORE AMBIGUOUS AND SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE IN VIEW OF OUR DECISIONS 43 COMP. GEN. 817 AND B -156145, MARCH 8, 1965.

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

THE DECISIONS YOU CITED INVOLVED SITUATIONS WHERE THE BID SUSCEPTIBLE OF TWO DIFFERENT INTERPRETATIONS WAS LOW ON ONE BASIS AND NOT LOW ON THE OTHER INTERPRETATION. THAT IS NOT THE SITUATION HERE, SINCE EVEN IF THE SIX ITEMS ARE TREATED AS EXTRA WORK, THE AMOUNT OF WORK THAT MIGHT BE REQUIRED WOULD NOT CHANGE THE RELATIVE STANDING OF THE BIDDERS.

THE ABSENCE OF AN ESTIMATE FOR THESE 12 ITEMS PROBABLY WAS RESPONSIBLE FOR THE UNIT BASIS UPON WHICH ORBITING FURNISHED PRICES ON 6 OF THOSE ITEMS. WE BELIEVE THAT IT WOULD HAVE BEEN PREFERABLE HAD THE INVITATION INCLUDED ESTIMATES FOR THE 12 ITEMS TO PROVIDE MORE REALISTIC BIDDING. ARE THEREFORE RECOMMENDING TO THE DEPARTMENT OF THE NAVY THAT, IN FUTURE INVITATIONS OF THIS NATURE, ESTIMATES OF QUANTITIES FOR ALL THE ITEMS BE SET FORTH FOR THE GUIDANCE OF BIDDERS.

YOU CONTEND ALSO THAT THE BID OF ORBITING IS AMBIGUOUS AND NONRESPONSIVE BECAUSE, ALTHOUGH THE WORK SCHEDULE IN THE INVITATION LISTS SERVICES TO BE PERFORMED IN BUILDINGS 94 AND 150, THE SCHEDULE DID NOT PROVIDE FOR A PRICE FOR THE WORK REQUIRED IN THOSE BUILDINGS. HOWEVER, GENERAL PARAGRAPH 1.2 PROVIDES THAT THE WORK INCLUDES SERVICES IN THOSE BUILDINGS; GENERAL PARAGRAPH 3.5 PROVIDES THAT THE BID SHALL BE BASED ON THE WORK SCHEDULES WHICH ARE A PART OF THE CONTRACT; THE WORK SCHEDULES REQUIRE CERTAIN SERVICES TO BE PERFORMED IN THOSE BUILDINGS AND SPECIFY THE FREQUENCY; AND GENERAL PARAGRAPH 5.1.1 PROVIDES THAT BID ITEM 1, THE BASIS UPON WHICH THE CONTRACT WAS AWARDED, INCLUDES THE COST OF THE ENTIRE JOB. THEREFORE, EVEN THOUGH SEPARATE PRICES MAY NOT HAVE BEEN INVITED FOR WORK IN THOSE BUILDINGS, ORBITING'S BID PRICE INCLUDED THESE ADDITIONAL REQUIREMENTS.

YOU CONTEND THAT ORBITING IS NOT A RESPONSIBLE BIDDER FOR A PROCUREMENT OF THE SIZE INVOLVED AND YOU STATE THAT IT DOES NOT HAVE THE FINANCIAL OR ADMINISTRATIVE CAPACITY TO UNDERTAKE SUCH A COMMITMENT. HOWEVER, THE CONTRACTING AGENCY HAS ADVISED THAT IT HAD DETERMINED THAT ORBITING REGULARLY PERFORMS THE SERVICES REQUIRED BY THE CONTRACT AND THAT IT HAS SATISFACTORILY PERFORMED SIMILAR SERVICES AT FORT MEADE AND IT INDICATED THAT IT IS SATISFIED THAT ORBITING IS A RESPONSIBLE CONTRACTOR. THE DETERMINATION OF RESPONSIBILITY DOES NOT APPEAR ARBITRARY AND WE ARE THEREFORE REQUIRED TO ACCEPT THE DETERMINATION THAT THE BIDDER IS CAPABLE OF PERFORMING THE CONTRACT. 38 COMP. GEN. 131.

YOU HAVE ALSO PROTESTED THAT THE CONTRACTING AGENCY VIOLATED ARMED SERVICES PROCUREMENT REGULATION 2-407.9 (B) (3) IN MAKING AN AWARD WHILE THE PROTEST WAS PENDING IN OUR OFFICE AND WITHOUT PROVIDING NOTICE TO ADVANCE THAT SUCH ACTION WOULD BE TAKEN. ALTHOUGH ASPR 2 407.9 (B) (3) PROVIDES, AS A GENERAL PROPOSITION, THAT, WHERE A PROTEST IS MADE BEFORE AWARD, AN AWARD SHALL NOT BE MADE UNTIL THE MATTER IS RESOLVED, IT ALSO PROVIDES THAT AN AWARD MAY BE MADE WHILE A PROTEST IS PENDING UNDER CERTAIN CIRCUMSTANCES. IN THIS CASE, THE CONTRACTING AGENCY HAS REPORTED IT RELIED UPON ASPR 2-407.9 (B) (3) (III), PROVIDING FOR AN AWARD WHEN IT IS DETERMINED THAT A PROMPT AWARD WILL OTHERWISE BE ADVANTAGEOUS TO THE GOVERNMENT, IN MAKING AN AWARD TO ORBITING AS THE LOWEST CONFORMING BIDDER. THE CONTRACTING AGENCY FURTHER FOUND THAT TO HAVE POSTPONED THE AWARD WOULD HAVE ALTERED THE PERFORMANCE DATES OF THE CONTRACT WITH A CONSEQUENT EFFECT ON THE BID PRICE. HOWEVER, UNDER THE ASPR THE CONTRACTING OFFICER WAS REQUIRED TO GIVE WRITTEN NOTICE OF THE AWARD DETERMINATION TO ADVANCE AND THERE WAS AN ADMINISTRATIVE FAILURE IN THIS RESPECT. WE ARE BRINGING THIS ASPECT OF THE MATTER TO THE ATTENTION OF THE DEPARTMENT OF THE NAVY WITH A RECOMMENDATION THAT APPROPRIATE STEPS BE TAKEN TO ASSURE FUTURE COMPLIANCE WITH THE ASPR. HOWEVER, WE HAVE HELD THAT THE FAILURE TO COMPLY WITH ASPR 2-407.9 (B) (3) DOES NOT RENDER INVALID AN OTHERWISE PROPER AWARD. SEE B-150014, NOVEMBER 20, 1962.

ACCORDINGLY, IN VIEW OF THE FOREGOING, THE AWARD TO ORBITING ENTERPRISES DOES NOT APPEAR TO HAVE BEEN IMPROPER. THE PROTEST IS THEREFORE DENIED.