B-176312, NOV 3, 1972

B-176312: Nov 3, 1972

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IT IS REASONABLE TO CONCLUDE THAT THE STATEMENT INSERTED BY PAYE BELOW THE BIDDING SCHEDULE WAS AN ATTEMPT TO CONTROL THE SELECTION OF THE CASKETS AND SERVICES. THIS WAS INCONSISTENT WITH THE REQUIREMENTS OF THE IFB AND RENDERS THE BID NONRESPONSIVE. PAYE: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31. PRICES WERE SOLICITED FOR TWO TYPES OF CASKETS FOR REMAINS DEFINED IN SPECIFICATION PARAGRAPH 2.1 OF SECTION F OF PART II OF THE SCHEDULE AS FOLLOWS: "TYPE I - NON-VIEWABLE: REMAINS WHEREIN THERE EXISTS EXTREME MUTILATION. OR SEVERE BURNING OR CHARRING FOR WHICH RESTORATION TO A NORMAL LIFELIKE APPEARANCE BY MAJOR RESTORATIVE PROCEDURES IS NOT POSSIBLE. ***" "TYPE II - VIEWABLE: (1) REMAINS UNDAMAGED BY TRAUMA OR DISEASE.

B-176312, NOV 3, 1972

BID PROTEST - NONRESPONSIVE BID - MODIFYING STATEMENTS DENIAL OF PROTEST BY PAYE FUNERAL HOME AGAINST THE REJECTION OF THEIR LOW BID UNDER AN IFB ISSUED BY THE PROCUREMENT DIVISION, FORT BRAGG, N. C. SINCE THE IFB PROVIDED THE CRITERIA TO BE USED IN SELECTING THE CASKETS AND SERVICES FOR THE REMAINS, IT IS REASONABLE TO CONCLUDE THAT THE STATEMENT INSERTED BY PAYE BELOW THE BIDDING SCHEDULE WAS AN ATTEMPT TO CONTROL THE SELECTION OF THE CASKETS AND SERVICES. THIS WAS INCONSISTENT WITH THE REQUIREMENTS OF THE IFB AND RENDERS THE BID NONRESPONSIVE.

TO MRS. MAYBOB E. PAYE:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31, 1972, AND PRIOR CORRESPONDENCE, PROTESTING THE REJECTION OF THE LOW BID YOUR FUNERAL HOME SUBMITTED UNDER INVITATION FOR BIDS (IFB) DABC21-72-B-0063, ISSUED BY THE PROCUREMENT DIVISION, FORT BRAGG, NORTH CAROLINA.

THE IFB CONTEMPLATED THE AWARD OF A REQUIREMENTS CONTRACT FOR THE PERIOD OF JULY 1, 1972, THROUGH JUNE 30, 1973, FOR THE CARE OF THE REMAINS OF DECEASED PERSONNEL, RELATED SERVICES, CASKETS AND OUTER CASES. IN SECTION E OF THE SCHEDULE ENTITLED "SUPPLIES/SERVICES/ TRANSPORTATION & PRICES," AMONG OTHER REQUIREMENTS, PRICES WERE SOLICITED FOR TWO TYPES OF CASKETS FOR REMAINS DEFINED IN SPECIFICATION PARAGRAPH 2.1 OF SECTION F OF PART II OF THE SCHEDULE AS FOLLOWS:

"TYPE I - NON-VIEWABLE: REMAINS WHEREIN THERE EXISTS EXTREME MUTILATION, ADVANCED STAGES OF DECOMPOSITION, OR SEVERE BURNING OR CHARRING FOR WHICH RESTORATION TO A NORMAL LIFELIKE APPEARANCE BY MAJOR RESTORATIVE PROCEDURES IS NOT POSSIBLE. ***"

"TYPE II - VIEWABLE: (1) REMAINS UNDAMAGED BY TRAUMA OR DISEASE; (2) REMAINS DAMAGED BY TRAUMA OR DISEASE, WHICH THROUGH RESTORATIVE ART CAN BE MADE PRESENTABLE; REMAINS EITHER NON-AUTOPSIED OR AUTOPSIED (EITHER PARTIAL OR COMPLETE AUTOPSY)."

ITEMS 1 AND 4 OF THE BID SCHEDULE PERTAINED TO CASKETS AND SERVICES FOR TYPE I REMAINS AND ITEMS 2 AND 5 TO CASKETS AND SERVICES FOR TYPE II REMAINS. PARAGRAPH 1 OF SECTION H OF PART II OF THE SCHEDULE PROVIDED:

"THIS IS A REQUIREMENTS CONTRACT FOR THE SUPPLIES OR SERVICES SPECIFIED IN THE SCHEDULE ***. DELIVERY OF SUPPLIES OR PERFORMANCE OF SERVICES SHALL BE MADE ONLY AS AUTHORIZED BY ORDERS ISSUED IN ACCORDANCE WITH THE CLAUSE ENTITLED 'DELIVERY ORDERS AND INVOICES.' ***"

THE "DELIVERY ORDERS AND INVOICES" CLAUSE IN PARAGRAPH 2 OF SECTION K OF PART II OF THE SCHEDULE PROVIDED:

"DELIVERY ORDERS FOR SUPPLIES OR SERVICES SHALL BE ISSUED BY THE CONTRACTING OFFICER AND SHALL SET FORTH (I) THE SUPPLIES OR SERVICES BEING ORDERED ***."

THE PAYE FUNERAL HOME (PAYE) BID $35 EACH ON ITEMS 1 AND 4 AND $275 AND $250 EACH, RESPECTIVELY, ON ITEMS 2 AND 5. IMMEDIATELY BELOW THE BIDDING SCHEDULE, PAYE STATED:

"ITEMS #2 AND #5 WILL BE USED IN ALL CASES UNLESS ABSOLUTELY NECESSARY THAT ITEMS #1 AND ITEMS #4 BE USED."

THE NEXT LOW BID WAS SUBMITTED BY THE JERNIGAN-WARREN FUNERAL HOME, INC., (JERNIGAN-WARREN) AS FOLLOWS: ITEM 1, $285; ITEM 4, $295; ITEM 2, $205; ITEM 5, $207.50. THE CONTRACTING OFFICER, AFTER CONSULTATION WITH THE STAFF JUDGE ADVOCATE, CONCLUDED THAT THE STATEMENT BELOW THE BIDDING SCHEDULE QUALIFIED THE PAYE BID. THE CONTRACTING OFFICER THEREFORE REJECTED PAYE'S BID AS NONRESPONSIVE AND AWARD WAS MADE TO JERNIGAN- WARREN.

WE CONCUR WITH THE CONTRACTING OFFICER'S ACTION. THE IFB PROVIDED THE CRITERIA THAT WOULD BE USED IN SELECTING THE CASKETS AND SERVICES FOR THE REMAINS. THE ORDERING WAS VESTED IN THE CONTRACTING OFFICER BY THE "DELIVERY ORDERS AND INVOICES" CLAUSE OF THE IFB. IN THIS REGARD, WE NOTE THE UNBALANCED NATURE OF PAYE'S PRICES FOR THE TWO TYPES OF CASKETS AND SERVICES, AS WELL AS THE FACT THAT PAYE'S PRICES FOR ITEMS 2 AND 5 WERE SUBSTANTIALLY HIGHER THAN JERNIGAN-WARREN. IN VIEW OF THE FOREGOING, IT IS REASONABLE TO CONCLUDE THAT THE STATEMENT INSERTED BELOW THE BIDDING SCHEDULE WAS AN ATTEMPT TO CONTROL THE SELECTION OF CASKETS AND SERVICES. SUCH AN INTENT IS INCONSISTENT WITH THE REQUIREMENT OF THE IFB AND RENDERS THE BID NONRESPONSIVE. ANY ATTEMPT BY THE BIDDER TO EXPLAIN THAT SOMETHING DIFFERENT WAS MEANT BY THE STATEMENT IS INAPPROPRIATE SINCE THIS WAS AN ADVERTISED PROCUREMENT AND BIDS MADE ON THAT BASIS MUST BE EVALUATED AS SUBMITTED RATHER THAN ON ANY AFTER THE FACT EXPLANATION.

ACCORDINGLY, THE BID WAS PROPERLY REJECTED AND THE PROTEST IS THEREFORE DENIED.

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