B-171417, MAY 26, 1971

B-171417, MAY 26, 1971

BID PROTEST - BID RESPONSIVENESS - AMBIGUITY AFFIRMING PRIOR DECISION WHICH CONCLUDED THAT BIDS SUBMITTED BY SKIL CORPORATION FOR VARIOUS ITEMS OF PORTABLE ELECTRIC DRILLS UNDER AN IFB ISSUED BY GSA MUST BE REJECTED AS NONRESPONSIVE. BECAUSE NUMBERS INSERTED BY THE BIDDER CREATED AN AMBIGUITY IN THE BID, IT WAS REJECTED AS NONRESPONSIVE, A SITUATION ANALOGOUS TO THE RULING IN B -169813, JULY 6, 1970. FURTHER, REJECTION IS CALLED FOR IF THE CIRCUMSTANCES ARE REASONABLY SUSCEPTIBLE OF A CONCLUSION THAT THE BIDDER INTENDED TO QUALIFY ITS BID. BECAUSE IT CANNOT BE ESTABLISHED THAT THE INSERTED NUMBERS IDENTIFY CONFORMING ITEMS IN A PRE-EXISTING PUBLIC CATALOGUE OR OTHER DOCUMENT AVAILABLE AT THE TIME OF BID OPENING, THERE IS NO BASIS UPON WHICH TO CHANGE THE CONCLUSION THAT SKIL'S BID CREATED AN AMBIGUITY AND THEREFORE MUST BE REJECTED.

TO MR. KUNZIG:

REFERENCE IS MADE TO THE LETTER OF APRIL 5, 1971, WITH ATTACHMENTS, FROM YOUR GENERAL COUNSEL, REQUESTING THAT WE RECONSIDER OUR DECISION, B- 171417, MARCH 9, 1971, WHICH CONCLUDED THAT SKIL CORPORATION'S BIDS FOR ITEMS 2 AND 5 UNDER INVITATION FOR BIDS NO. FPNTP-B8-18828-A-11-10 70, ISSUED ON OCTOBER 7, 1970, BY THE PROCUREMENT OPERATIONS DIVISION, GSA, MUST BE REJECTED AS NONRESPONSIVE.

THE SOLICITATION CALLS FOR VARIOUS ITEMS OF PORTABLE ELECTRIC DRILLS. SKIL'S BID FOR ITEM 2, THE NUMBER "91196-01" WAS TYPED BY THE BIDDER IN THE FIRST LINE OF THE PURCHASE DESCRIPTION BETWEEN DATA FOR "ESTIMATED PEAK MONTHLY REQUIREMENT" AND THE "GUARANTEED MINIMUM QUANTITY." IN ITEM 5, SKIL TYPED THE NUMBER "91196-02" IN THE FIRST LINE BETWEEN THE SAME TYPE DATA AS INDICATED FOR ITEM 2. ALSO IN ITEM 7, THE NUMBER "582" WAS INSERTED IN THE SAME RELATIVE POSITION. SKIL WAS LOW BIDDER ON ITEMS 2 AND 5, BUT WE CONCLUDED IN OUR PRIOR DECISION THAT SKIL'S BID ON THESE ITEMS MUST BE REJECTED BECAUSE THE NUMBERS INSERTED BY THE BIDDER CREATED AN AMBIGUITY IN THE BID.

THE BASES FOR THE REQUEST FOR RECONSIDERATION SET FORTH IN THE APRIL 5 LETTER MAY BE STATED AS FOLLOWS:

(1) THE DECISION (B-169813, JULY 6, 1970, 50 COMP. GEN. ) CITED TO SUPPORT THE CONCLUSION IN THE MARCH 9 DECISION WAS NOT AN ANALOGOUS SITUATION SINCE IN THE CITED CASE THE NUMBERS WERE SPECIFICALLY IDENTIFIED BY THE BIDDER AS PART NUMBERS WHICH WAS NOT THE SITUATION IN THE INSTANT CASE.

(2) THE CONSIDERATION OF STATEMENTS MADE AFTER THE BID OPENING FOR THE PURPOSE OF DETERMINING THE RESPONSIVENESS OF SKIL'S BID IS INCONSISTENT WITH THE RULE THAT "THE RESPONSIVENESS OF THE BID MUST BE DETERMINED FROM THE BID ITSELF INCLUDING ANY MATERIAL ACCOMPANYING THE BID AND ANY EXPLANATORY MATERIAL SUBMITTED PRIOR TO BID OPENING." A NUMBER OF DECISIONS OF THIS OFFICE ARE CITED IN SUPPORT OF THIS PROPOSITION.

(3) ANY STATEMENTS MADE WITH RESPECT TO ITEM 7 ARE IRRELEVANT SINCE THE RESPONSIVENESS OF SKIL'S BID FOR THAT ITEM WAS NOT IN ISSUE.

(4) IT CANNOT BE ASSUMED THAT SKIL'S NUMBERS WERE MODEL NUMBERS. HOWEVER, EVEN CONCEDING SUCH AN ASSUMPTION FOR PURPOSES OF ARGUMENT, SKIL'S BID SHOULD BE CONSIDERED RESPONSIVE SINCE "THE NUMBERS INSERTED BY SKIL OVER THE DESCRIPTIONS OF ITEMS 2 AND 5, RESPECTIVELY, ARE NUMBERS IN THE 91,000 SERIES WHICH THE FIRM ASSIGNS TO ALL EQUIPMENT WHICH IT PRODUCES IN CONFORMITY WITH FEDERAL SPECIFICATIONS UNDER GOVERNMENT CONTRACTS AWARDED IT."

(5) THE REFERENCE TO THE PROPOSED REVISION OF FEDERAL PROCUREMENT REGULATIONS (FPR) IN THE MARCH 9 DECISION WAS SPECULATIVE AND THE DECISION SHOULD HAVE BEEN BASED ON EXISTING REGULATIONS.

(6) OUR MARCH 9 DECISION WAS INCONSISTENT WITH B-153828, MARCH 8, 1965, ENCLOSURE 2 TO THE LETTER OF APRIL 5, IN WHICH WE COMMENTED ON A PROPOSAL FROM YOUR AGENCY DATED JANUARY 21, 1965, TO AMEND FPR 1-2.202 4(G) AND 1- 2.202-5(F) WHICH ARE THE BASIS FOR ARTICLE 25 OF GSA FORM 1424.

WITH RESPECT TO CONTENTION (1), OUR DECISION AT B-169813, JULY 6, 1970, CONSIDERED A SITUATION WHERE A BIDDER HAD TYPED BENEATH THE DESCRIPTIONS FOR TWO OF THE ITEMS THE FOLLOWING ENTRIES: "AIR-MAZE PLANT PART NUMBER 203134" AND "AIR-MAZE PLANT PART NUMBER 203133". THE BIDDER DID NOT ATTACH ANY LITERATURE TO THE BID AND IT WAS URGED BY THE BIDDER THAT THE ENTRIES WERE INSERTED FOR INTERNAL CONTROL PURPOSES ONLY. WE CONCLUDED THAT IN THE ABSENCE OF AN EXPRESS STATEMENT THAT THE SPECIFIED PART NUMBERS WOULD COMPLY WITH THE SPECIFICATIONS, THE BID CONTAINED AN INITIAL AMBIGUITY AS TO WHETHER THE BIDDER WOULD COMPLY WITH THE SPECIFICATIONS. WE CONCLUDED FURTHER THAT THIS AMBIGUITY MUST BE RESOLVED PRIOR TO BID OPENING; THEREFORE, IT WAS NOT PROPER TO CONSIDER THE BIDDER'S POST-BID- OPENING LETTER OF EXPLANATION.

IN BOTH B-169813 AND THE INSTANT CASE, NUMBERS WERE INSERTED BY THE BIDDER IN SUCH A MANNER AS TO RAISE THE INFERENCE THAT THEY WERE RELATED TO THE PURCHASE DESCRIPTION WITHOUT ACTUAL PHYSICAL ATTACHMENT OF ANY LITERATURE. IN BOTH CASES IT WAS HELD THAT THE INSERTION OF THE NUMBERS CREATED AN AMBIGUITY WHICH MADE THE BIDS NONRESPONSIVE. WE FIND THAT THE TWO DECISIONS ARE ANALOGOUS IN THIS RESPECT.

WE AGREE WITH THE RULE AS SET FORTH IN CONTENTION (2). HOWEVER, AS A COROLLARY TO THE RULE IT MUST ALSO BE RECOGNIZED THAT IF THE CIRCUMSTANCES ARE REASONABLY SUSCEPTIBLE OF A CONCLUSION THAT A BIDDER INTENDED TO QUALIFY ITS BID OR IF THERE IS AN AMBIGUITY AS TO WHAT THE BIDDER INTENDED TO OFFER, THEN THE BID MUST BE REJECTED AS NONRESPONSIVE. B-169057, JUNE 17, 1970, 49 COMP. GEN.

. WE, THEREFORE, FIND THAT THE INSTANT CASE FALLS WITHIN THE GENERAL RULE STATED ABOVE.

WITH REGARD TO POINT (3) WE AGREE THAT THE RESPONSIVENESS OF SKIL'S BID TO ITEM 7 WAS NOT IN ISSUE IN THIS PROCUREMENT. WE REFERRED TO ITEM 7 ONLY AS AN EXAMPLE OF HOW A BID MAY BE RENDERED NONRESPONSIVE BY THE BIDDER'S INSERTION OF AN UNEXPLAINED NUMBER. IT APPEARS THAT THE NUMBER INSERTED BY SKIL IN CONNECTION WITH ITEM 7 CORRESPONDED TO THE BIDDER'S CATALOGUE AND THE DESCRIPTION IN THE CATALOGUE DEVIATED FROM THE SPECIFICATION REQUIREMENTS.

REGARDING CONTENTION (4), UNLIKE THE NUMBER INSERTED BY SKIL FOR ITEM 7, IT CANNOT BE ESTABLISHED THAT THE NUMBERS INSERTED IN SKIL'S BID FOR ITEMS 2 AND 5 CORRESPOND TO EXACT FEDERAL SUPPLY NUMBERS FOR ITEMS WHICH MEET THE INSTANT SPECIFICATIONS. ALSO, IT CANNOT BE ESTABLISHED THAT THE INSERTED NUMBERS IDENTIFY CONFORMING ITEMS IN A PRE-EXISTING PUBLIC CATALOGUE OR OTHER DOCUMENT PUBLICLY AVAILABLE AT THE TIME OF BID OPENING. THEREFORE, WE FIND NO BASIS FOR CHANGING OUR CONCLUSION THAT THE MANNER IN WHICH THE PART NUMBERS WERE INSERTED IN SKIL'S BID CREATED AN AMBIGUITY.

POINTS (5) AND (6) ABOVE, ARE INTERRELATED AND WILL BE CONSIDERED TOGETHER. OUR MARCH 9 DECISION DID NOT TURN ON THE PROPOSED REVISION OF THE FEDERAL PROCUREMENT REGULATIONS (FPR); NOR WERE WE ATTEMPTING TO APPLY A PROPOSED REVISION OF THE FPR. OUR MARCH 9 DECISION WAS CONSISTENT WITH PRIOR PRECEDENT OF THIS OFFICE, AS CITED IN THAT DECISION. OUR PURPOSE IN REFERRING TO THE PROPOSED REVISION OF THE FPR WAS TO INDICATE THAT OUR CONCLUSION WAS NOT CONTRARY TO THE FORTH COMING REGULATION ON THE SUBJECT.

WITH RESPECT TO WHETHER B-153828, MARCH 8, 1965, WHICH WAS IN RESPONSE TO GSA'S LETTER OF JANUARY 21, 1965, IS CONSISTENT WITH OUR DECISION IN THE INSTANT CASE, THE MARCH 8, 1965, DECISION EXPRESSED THE VIEW THAT IT WAS PREFERABLE NOT TO REVISE FPR 1-2.202-4(G) AND 1-2.202 5(F). THE REGULATIONS IN EFFECT AT THE TIME OF OUR MARCH 9, 1971, DECISION WERE BASICALLY THE SAME AS THOSE IN EFFECT AT THE TIME OF OUR MARCH 8, 1965, LETTER. HOWEVER, AS A RESULT OF SEVERAL RECENT DECISIONS (B-166284, APRIL 14, 1969, MAY 21, 1969; AND B-167584, OCTOBER 3, 1969), WE WERE PERSUADED TO CHANGE OUR POSITION WITH REGARD TO THE INSTANT REGULATION. SEE B- 166284, B-167584 DATED MARCH 17, 1970, FROM OUR GENERAL COUNSEL TO THE CHAIRMAN, ARMED SERVICES PROCUREMENT REGULATION SUBCOMMITTEE; AND B- 153828, FEBRUARY 12, 1971, FROM OUR GENERAL COUNSEL TO THE DEPUTY DIRECTOR, FEDERAL PROCUREMENT REGULATIONS STAFF, COPIES ENCLOSED.

ACCORDINGLY, OUR DECISION, B-171417, MARCH 9, 1971, IS AFFIRMED.