B-176692, DEC 27, 1973

B-176692, DEC 27, 1973

PROTEST AGAINST AMBIGUOUS SPECIFICATIONS FILED ON THE DATE FOR SUBMISSION OF BEST AND FINAL OFFERS RATHER THAN BY THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS IS CONSIDERED SINCE SECTION 20.2(A) OF BID PROTEST PROCEDURES WHICH REQUIRES FILING BY "CLOSING DATE FOR RECEIPT OF PROPOSALS" DOES NOT PRECISELY STATE WHICH DEADLINE WAS INTENDED AND THE PROTESTER BELIEVED THE DATE FOR BEST AND FINAL OFFERS WAS INTENDED. PERFORMANCE SPECIFICATION FOR PIPE BENDING MACHINE REQUIRING CAPACITY TO PERFORM SEVERAL BENDS OF VARYING DEGREES OF DIFFICULTY WAS NOT AMBIGUOUS EVEN THOUGH SPECIFICATIONS DID NOT REQUIRE FIRST ARTICLE TESTING FOR THE MORE DIFFICULT BENDING CAPABILITIES OR ADDITIONAL BENDING EQUIPMENT FOR SUCH BENDS. SEE 48 COMP. GEN. 757 (1969). CONTRACTOR WAS OBLIGATED TO MEET ALL BENDS THROUGH ITS OWN INGENUITY AND CONTRACTOR TESTING FOR COMPLIANCE WITH SPECIFICATION WAS OTHERWISE REQUIRED. ASPR 7-103.24. MOREOVER, WARRANTY PROTECTS GOVERNMENT IF CONTRACTOR FURNISHED DEFICIENT MACHINES. WHERE RECORD INDICATES THAT URGENCY DID IN FACT EXIST, AWARD MAY BE MADE PENDING RESOLUTION OF PROTEST BY GAO. 52 COMP. GEN. 640 (1973). SINCE THERE WAS COMPLIANCE WITH ASPR PROCEDURE RELATING TO MAKING OF SUCH AWARDS, FAILURE TO GIVE WRITTEN NOTICE AS PROVIDED IN SEC. 20.4 OF INTERIM BID PROTEST PROCEDURES AND STANDARDS DOES NOT CONSTITUTE BASIS FOR QUESTIONING AWARD. 51 COMP. GEN. 787 (1972).

TO STECK AND MARSTON:

BY LETTERS DATED JUNE 27 AND APRIL 18, 1973, YOU REQUEST THAT WE CONSIDER THE MERITS OF CONRAC CORPORATION'S (CONRAC'S) PROTEST RELATIVE TO AN ALLEGED AMBIGUITY IN THE SPECIFICATIONS UNDER REQUEST FOR PROPOSALS (RFP) NO. N00600-72-R-5459, ISSUED ON MAY 26, 1972, BY THE UNITED STATES NAVY PURCHASING OFFICE (NPO), WASHINGTON, D.C., FOR TUBE- AND PIPE-BENDING MACHINES.

IN OUR LETTER TO CONRAC OF FEBRUARY 22, 1973, WE ADVISED THAT THE PROTEST AGAINST THE ALLEGED IMPROPRIETIES IN THE SOLICITATION WAS UNTIMELY SINCE IT WAS NOT FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS AS CONTEMPLATED BY SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 CFR 20.2(A)).

WITH RESPECT TO THE QUESTION OF THE TIMELINESS OF YOUR PROTEST, YOU ASSERT THAT WHILE THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS WAS JULY 14, 1972, OFFERORS WERE ADVISED BY LETTER OF JULY 25, 1972, FROM THE CONTRACTING OFFICER DURING THE COURSE OF NEGOTIATIONS, THAT CERTAIN MODIFICATIONS WERE MADE TO THE SPECIFICATIONS AND THAT AUGUST 4, 1972 WAS ESTABLISHED AS THE CLOSING DATE FOR RECEIPT OF REVISED PROPOSALS. CONSEQUENTLY, YOU BELIEVE THAT YOUR PROTEST OF AUGUST 2, 1972, WHICH WAS RECEIVED HERE ON AUGUST 4, WAS TIMELY. YOU ALSO HAVE URGED THAT WE CONSIDER THE ADEQUACY OF THE SPECIFICATIONS FOR PURPOSES OF FUTURE PROCUREMENTS.

IN OUR LETTER OF FEBRUARY 22, 1973, WE QUOTED THE FOLLOWING PROVISION FROM SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS:

"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS. ***"

THIS PROVISION DOES NOT PRECISELY STATE WHETHER "CLOSING DATE FOR RECEIPT OF PROPOSALS" REFERS TO THE DEADLINE FOR RECEIPT OF INITIAL PROPOSALS OR THE DATE FOR BEST AND FINAL OFFERS. OUR OFFICE IS CURRENTLY CONDUCTING A STUDY TO DETERMINE WHETHER WE SHOULD CONTINUE TO REQUIRE THE FILING OF SUCH PROTESTS PRIOR TO SUBMISSION OF INITIAL PROPOSALS. IN THE MEANWHILE, HOWEVER, SINCE YOU APPARENTLY INTERPRETED "CLOSING DATE FOR RECEIPT OF PROPOSALS" TO MEAN THE DATE FOR SUBMISSION OF BEST AND FINAL OFFERS, WE WILL CONSIDER THE MERITS OF YOUR PROTEST IN THIS CASE.

BRIEFLY, THREE FIRMS, INCLUDING CONRAC, SUBMITTED PROPOSALS WHICH WERE EVALUATED AS TECHNICALLY ACCEPTABLE. COAST IRON AND MACHINE WORKS (COAST) WAS THE LOWEST-PRICED OFFEROR AND A CONTRACT WAS AWARDED TO THAT CONCERN ON AUGUST 11, 1972, NOTWITHSTANDING YOUR PROTEST.

THE BASIS FOR YOUR ALLEGATION OF AMBIGUITY RESTS IN WHAT YOU BELIEVE TO BE AN INCONSISTENCY BETWEEN THE SPECIFICATION REQUIREMENT THAT THE MACHINES HAVE A MINIMUM CAPABILITY TO PERFORM 2D, 3D AND 5D BENDS AND THE OPERATIONAL TEST, AND THE FIRST ARTICLE TEST PROVISIONS, WHICH REQUIRE TESTING FOR ONLY 5D BENDS. YOU ALSO CONTEND THE SOLICITATION WAS DEFICIENT FOR FAILING TO REQUIRE A HYDRAULIC BOOSTER WHICH IS NECESSARY TO ACCOMPLISH THE MORE DIFFICULT 2D BENDS. IN YOUR OPINION THESE CIRCUMSTANCES GAVE OFFERORS THE OPPORTUNITY TO SUBMIT A QUOTATION THAT DID NOT CONTEMPLATE 2D AND 3D BENDS AND THAT THE NAVY COULD NEITHER INSIST ON THE GREATER BENDING CAPABILITY STATED IN THE SPECIFICATIONS NOR REQUIRE ADDITIONAL EQUIPMENT THAT WAS NECESSARY TO PERFORM THE REQUIRED BENDS.

IN DISMISSING YOUR PROTEST AS UNTIMELY, WE NOTED FOR YOUR INFORMATION THAT UNDER THE "RESPONSIBILITY FOR INSPECTION" CLAUSE SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 7-103.24, INCORPORATED BY REFERENCED INTO THE SOLICITATION, THE CONTRACTOR WAS OBLIGATED TO PERFORM OR HAVE PERFORMED THE TESTS REQUIRED TO SUBSTANTIATE THAT THE SUPPLIES PROVIDED UNDER THE CONTRACT CONFORM TO THE SPECIFICATIONS AND CONTRACT REQUIREMENTS. IN ADDITION, OUR LETTER REFERRED TO PAGE 38 OF THE SOLICITATION WHICH REQUIRES THE CONTRACTOR TO WARRANT THAT AT THE TIME OF DELIVERY THE SUPPLIES FURNISHED WILL COMPLY WITH THE SPECIFICATIONS AND ALL OTHER REQUIREMENTS OF THE CONTRACT.

YOU CONTEND THAT THE "RESPONSIBILITY FOR INSPECTION" CLAUSE IS NOT RELEVANT TO YOUR PROTEST SINCE THE CLAUSE PERTAINS TO THE RESPONSIBILITY OF A CONTRACTOR ONCE IT HAS MANUFACTURED ARTICLES UNDER A GOVERNMENT CONTRACT.

IN 48 COMP. GEN. 757 (1969), WE MADE THE FOLLOWING COMMENTS ON PAGE 760 AS TO WHAT CONSTITUTES AN AMBIGUITY:

"THE MERE ALLEGATION THAT SOMETHING IS AMBIGUOUS DOES NOT MAKE IT SO. SIMILARLY, SOME FACTOR IN A WRITTEN INSTRUMENT MAY BE SOMEWHAT CONFUSING AND PUZZLING WITHOUT CONSTITUTING AN AMBIGUITY, PROVIDED THAT AN APPLICATION OF REASON WOULD SERVE TO REMOVE THE DOUBT. IN OTHER WORDS, AN AMBIGUITY EXISTS ONLY IF TWO OR MORE REASONABLE INTERPRETATIONS ARE POSSIBLE. DITTMORE-FREIMUTH CORP. V. UNITED STATES, 182 CT. CL. 507, 390 F.2D 664 (1968). KEEPING IN MIND CORBIN'S STATEMENT THAT "VAGUENESS, INDEFINITENESS, AND UNCERTAINTY ARE MATTERS OF DEGREE, WITH NO ABSOLUTE STANDARD FOR COMPARISON' (CORBIN ON CONTRACTS, SEC 95, PAGE 396), THE INQUIRY IS WHETHER THE BIDDING SCHEDULE CAUSED SUCH UNCERTAINTY THAT ONE MIGHT REASONABLY BELIEVE THAT THE GOVERNMENT DESIRED PRICES ON PACKAGING AND NOT ON THE DATA ITEM."

IN OUR VIEW SECTION 3.5 OF THE SPECIFICATION CLEARLY DEFINED THE REQUIREMENT THAT THE MACHINE MUST BE CAPABLE OF ACCOMPLISHING 2D, 3D AND 5D BENDS. THE SPECIFICATIONS DID NOT REQUIRE THAT ALL TESTS BE CONDUCTED BY THE GOVERNMENT. HOWEVER, WHETHER TESTING TO DETERMINE COMPLIANCE WITH THE SPECIFICATION IS CONDUCTED BY THE GOVERNMENT OR THE CONTRACTOR IS AN ADMINISTRATIVE MATTER WHICH MAY PROPERLY BE DETERMINED BY THE AGENCY. THE "RESPONSIBILITY FOR INSPECTION" CLAUSE INCORPORATED IN THIS SOLICITATION REQUIRED THE CONTRACTOR TO SUBSTANTIATE ALL CAPABILITIES WHICH WOULD INCLUDE THE 2D AND 3D BENDS AND WE HAVE NOTED THE IMPACT OF THIS CLAUSE ONLY BECAUSE OF YOUR CONFUSION OVER THE LACK OF A SPECIFIC REQUIREMENT FOR TESTING OF 2D AND 3D BENDS. THE NAVY COULD REQUEST AND EXAMINE THE CONTRACTOR'S TEST DATA AND IF THIS DID NOT SATISFY NAVY THAT THE MACHINES CONFORMED TO REQUIREMENTS, THE NAVY WAS FREE TO CONDUCT ITS OWN TESTS. DEFECTS WERE DISCOVERED THE CONTRACTOR WOULD BE OBLIGATED TO REPAIR OR REPLACE THE NONCONFORMING UNITS UNDER THE WARRANTY PROVISIONS ON PAGE 38 OF THE SOLICITATION. IN VIEW OF THE OBLIGATIONS IMPOSED BY THE SOLICITATION IT SEEMS UNREASONABLE FOR AN OFFEROR TO SUBMIT A PROPOSAL BASED ON FURNISHING A MACHINE WHICH WOULD NOT BE CAPABLE OF PERFORMING ALL OF THE REQUIRED BENDS. MOREOVER, YOUR ASSERTION THAT THE SPECIFICATIONS ARE AMBIGUOUS FOR FAILING TO INCLUDE A REQUIREMENT FOR AN HYDRAULIC BOOSTER IS ALSO NEGATED BY THE FACT THAT THE CONTRACTOR IS OBLIGATED TO FURNISH A MACHINE THAT IS CAPABLE OF MAKING 2D AND 3D BENDS. WHILE THE MANNER FOR ACCOMPLISHING THIS CAPABILITY WAS LEFT TO THE INGENUITY OF OFFERORS, THIS DOES NOT MEAN THAT AN OFFEROR COULD FURNISH LESS THAN WHAT WAS REQUIRED. CONSEQUENTLY, WE DO NOT FIND THE SPECIFICATIONS ARE AMBIGUOUS AS YOU CONTEND.

YOU ALSO OBJECT TO THE NAVY'S DETERMINATION THAT URGENCY REQUIRED AWARD PRIOR TO RESOLUTION OF THE PROTEST AND THAT THE NAVY FAILED IN THIS CONNECTION TO FURNISH THIS OFFICE WITH THE WRITTEN FINDING AS PROVIDED IN SECTION 20.4 OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 CFR 20 ET SEQ.

WITH RESPECT TO THE URGENCY DETERMINATION, A MEMORANDUM FROM THE COMMANDER, NAVAL SHIP SYSTEMS COMMAND, TO THE OFFICE IN CHARGE, NPO, DATED AUGUST 11, 1972, STATES THAT BENDING MACHINES WERE URGENTLY REQUIRED TO ALLOW INSTALLATION DURING THE OVERHAUL OF SEVERAL SUBMARINES THEREBY AVOIDING ADDED FABRICATION EXPENSES AND DELAYS IN DEPLOYMENT. BASED ON THESE CONSIDERATIONS, THE OFFICER IN CHARGE AT NPO, THE NEXT LEVEL ABOVE THE CONTRACTING OFFICER, IN A MEMORANDUM DATED AUGUST 11, 1972, APPROVED THE AWARD PENDING THE RESOLUTION OF THE PROTEST BY OUR OFFICE. OUR OFFICE WAS ADVISED THAT AWARD WOULD BE MADE ON THE BASIS OF URGENCY ON THE SAME DATE. WE HAVE BEEN ADVISED THAT THE REASON FOR CANCELLING THE INITIAL SOLICITATION WAS THAT SUBSTANTIAL REVISIONS TO THE SPECIFICATIONS WERE REQUIRED.

ASPR 2-407.8(B)(3) PROVIDES THAT AN AWARD WILL NOT BE MADE DURING THE PENDENCY OF A PROTEST UNLESS THE CONTRACTING OFFICER DETERMINES THAT THE ITEMS TO BE PROCURED ARE URGENTLY REQUIRED, OR THAT DELIVERY OR PERFORMANCE WILL BE UNDULY DELAYED BY FAILURE TO MAKE AWARD PROMPTLY, OR THAT A PROMPT AWARD WILL OTHERWISE BE ADVANTAGEOUS TO THE GOVERNMENT. ASPR 2-407.8(B)(2) PROVIDES THAT WHERE IT IS KNOWN THAT A PROTEST HAS BEEN LODGED WITH OUR OFFICE A DETERMINATION TO MAKE AN AWARD BASED ON THE CONSIDERATIONS IN ASPR 2-407.8(B)(3), MUST BE APPROVED AT AN APPROPRIATE LEVEL ABOVE THAT OF THE CONTRACTING OFFICER. THE REGULATION ALSO PROVIDES THAT A NOTICE OF INTENT TO MAKE AN AWARD SHALL BE FURNISHED TO OUR OFFICE AND FORMAL OR INFORMAL ADVICE SHOULD BE OBTAINED CONCERNING THE STATUS OF THE CASE BEFORE MAKING THE AWARD.

THE MEMORANDUMS OF AUGUST 11, 1972, BY THE COMMANDER, NAVAL SUPPLY SYSTEMS COMMAND AND THE OFFICER IN CHARGE, NPO, ADEQUATELY DEMONSTRATE THAT AN URGENCY SITUATION DID IN FACT EXIST; CONSEQUENTLY, AN AWARD COULD BE MADE PENDING THE RESOLUTION OF THE PROTEST BY OUR OFFICE. 52 COMP. GEN. 640 (1973). SINCE THE CONTRACTING OFFICER RECEIVED APPROVAL FROM HIGHER AUTHORITY TO PROCEED WITH THE AWARD AND OUR OFFICE WAS GIVEN ORAL NOTIFICATION OF THIS INTENTION, THE NAVY COMPLIED WITH THE REQUIREMENTS IN ASPR. WHILE THE NAVY DID NOT FURNISH OUR OFFICE WITH THE WRITTEN NOTICE OF AN INTENT TO MAKE AN AWARD AS PROVIDED IN SECTION 20.4 OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS SUPRA, THIS WOULD NOT CONSTITUTE A BASIS FOR DISTURBING THE AWARD. SEE 51 COMP. GEN. 787, 792 (1972).

FINALLY, YOU HAVE TAKEN ISSUE WITH THE STATEMENT IN OUR LETTER OF FEBRUARY 22 THAT WE HAD BEEN INFORMALLY ADVISED BY THE NAVY THAT THE MACHINE WHICH WAS SCHEDULED TO BE SENT BY THE CONTRACTOR ON FEBRUARY 2 TO THE U.S.S. GILMORE WAS TESTED ON JANUARY 19, 1973, FOR COMPLIANCE WITH ALL BENDING CAPACITIES AND THAT THE MACHINE MET ALL SUCH REQUIREMENTS. YOU HAVE FORWARDED A COPY OF THE CONTRACTOR'S REPORT OF FIRST ARTICLE TESTS PERFORMED ON JANUARY 19, 1973, WHICH INDICATES THAT ONLY A 5D CENTERLINE RADIUS BENDING TEST WAS MADE.

IN THIS REGARD, THE NAVY NOW REPORTS AS FOLLOWS:

"*** IT IS THE CONTRACTING OFFICER'S POSITION THAT THE CONTRACTOR, COAST IRON & MACHINE WORKS, PERFORMING UNDER CONTRACT N00600-73-C-0186 WHICH RESULTED FROM SUBJECT SOLICITATION IS PROVIDING EQUIPMENT IN STRICT ACCORDANCE WITH THE SPECIFICATIONS. THE EQUIPMENT HAS SUCCESSFULLY PASSED ALL FIRST ARTICLE TEST REQUIREMENTS. IN ADDITION, THE CONTRACTOR HAS TESTED THE FULL CAPABILITIES OF THE MACHINE AS PRESCRIBED IN THE SPECIFICATIONS AT HIS PLANT, BUT NOT UNDER GOVERNMENT OBSERVATION. AS A RESULT OF THIS TESTING, THE CONTRACTOR DISCOVERED THAT THE FLATTENING REQUIREMENT FOR A 2D BEND WAS NOT BEING MET WITH THE TOOLING PROVIDED. THIS WAS CORRECTED WITH THE ADDITION OF TWO MORE BALLS ON THE MANDREL. THE CONTRACTOR PROMPTLY NOTIFIED THE CONTRACTING OFFICER OF THE PROBLEM, AND AGREEMENT WAS REACHED THAT THE CONTRACTOR WOULD PROVIDE THE ADDITIONAL TOOLING FOR THOSE MACHINES ALREADY DELIVERED PLUS ALL SUBSEQUENT MACHINES AT NO ADDITIONAL COST TO THE GOVERNMENT."

IN THIS CONNECTION, WE BELIEVE IT IS SUFFICIENT TO NOTE THAT THIS LATEST REPORT SUPPORTS THE CONCLUSION THAT THE CONTRACTOR DID NOT HAVE AN UNFAIR COMPETITIVE ADVANTAGE OVER YOUR FIRM IN THIS PROCUREMENT.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.