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B-171467, APR 12, 1971

B-171467 Apr 12, 1971
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THE DELETION OF THE ICC CERTIFICATION REQUIREMENT WAS PROPER. FOR SUCH IS A MATTER OF RESPONSIBILITY NOT RESPONSIVENESS. SECRETARY: REFERENCE IS MADE TO LETTER SAOASI&L)-PO DATED JANUARY 11. IT IS PROPOSED TO CANCEL THE IFB BECAUSE AMENDMENT 0001 THERETO RENDERED THE IFB AMBIGUOUS. EACH OF THE RESPECTIVE AREAS WAS FURTHER DIVIDED INTO SCHEDULES I AND II. SPECIAL PROVISION (SP) 9 PROVIDED: "(A) THE WORDS 'REASONABLE TIME' AS USED IN THE FOLLOWING PARAGRAPH MEANS A PERIOD OF TIME NOT TO EXCEED TWO (2) YEARS AFTER THE TIME THE OWNER DISCOVERS LOSS OR DAMAGE TO HIS PROPERTY OR THE TIME HE SHOULD HAVE DISCOVERED THE LOSS OR DAMAGE IF HE HAD EXERCISED DUE DILIGENCE. "(B) THE CONTRACTOR AGREES TO INDEMNIFY THE OWNER FOR LOSS OR DAMAGE TO THE OWNER'S PROPERTY WHICH ARISES FROM ANY CAUSE WHILE IT IS IN THE CONTRACTOR'S POSSESSION AS FOLLOWS: *** " IFB AMENDMENT 0001.

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B-171467, APR 12, 1971

BID PROTEST - BID RESPONSIVENESS - AMBIGUITY IN IFB CONCERNING PROTESTS BY COLEMAN TRANSFER AND STORAGE INC., AND RUTT MOVING AND STORAGE, INC., AGAINST THE AWARD OF CONTRACTS TO BIDDERS OTHER THAN THEMSELVES UNDER AN IFB ISSUED BY THE PROCUREMENT DIVISION, FT. RILEY, KANSAS, FOR SHIPMENT OR STORAGE OF PROPERTY BELONGING TO DEPARTMENT OF DEFENSE PERSONNEL. WITH RESPECT TO THE CONTRACTOR'S LIABILITY FOR DAMAGES THE IFB PROVIDED IN PART THAT "REASONABLE TIME AS USED IN THE FOLLOWING PARAGRAPH MEANS A PERIOD OF TIME NOT TO EXCEED TWO YEARS ... " HOWEVER, THE WORDS "REASONABLE TIME" APPEAR NOWHERE IN THE NEXT PARAGRAPH. THEREFORE, AN AMENDMENT TO THE IFB ESTABLISHING A ONE-YEAR PERIOD OF CONTRACTOR LIABILITY DOES NOT RENDER THE IFB AMBIGUOUS. FURTHER, THE DELETION OF THE ICC CERTIFICATION REQUIREMENT WAS PROPER, FOR SUCH IS A MATTER OF RESPONSIBILITY NOT RESPONSIVENESS.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER SAOASI&L)-PO DATED JANUARY 11, 1971, FROM THE ASSISTANT DEPUTY FOR PROCUREMENT, REPORTING ON THE PROTESTS OF COLEMAN TRANSFER & STORAGE, INC., AND RUTT MOVING AND STORAGE, INC., AGAINST THE AWARD OF CONTRACTS TO BIDDERS OTHER THAN THEMSELVES UNDER INVITATION FOR BIDS (IFB) NO. DABE13-71-B-0007 ISSUED BY THE PROCUREMENT DIVISION, FORT RILEY, KANSAS. IT IS PROPOSED TO CANCEL THE IFB BECAUSE AMENDMENT 0001 THERETO RENDERED THE IFB AMBIGUOUS.

THE IFB, ISSUED OCTOBER 12, 1970, REQUESTED BIDS FOR SERVICES TO BE PERFORMED IN CONNECTION WITH THE PREPARATION OF PERSONAL PROPERTY BELONGING TO DEPARTMENT OF DEFENSE PERSONNEL FOR SHIPMENT OR STORAGE AND INTRACITY MOVES OR INTRA-AREA MOVES FROM FORT RILEY, KANSAS (AREA I), AND SCHILLING MANOR SUB-POST, SALINA, KANSAS (AREA II). EACH OF THE RESPECTIVE AREAS WAS FURTHER DIVIDED INTO SCHEDULES I AND II.

THE IFB PROVIDED THAT THE CONTRACTOR WOULD BE LIABLE FOR DAMAGE TO AN OWNER'S PROPERTY WHILE IN THE CONTRACTOR'S POSSESSION. IN THAT REGARD, SPECIAL PROVISION (SP) 9 PROVIDED:

"(A) THE WORDS 'REASONABLE TIME' AS USED IN THE FOLLOWING PARAGRAPH MEANS A PERIOD OF TIME NOT TO EXCEED TWO (2) YEARS AFTER THE TIME THE OWNER DISCOVERS LOSS OR DAMAGE TO HIS PROPERTY OR THE TIME HE SHOULD HAVE DISCOVERED THE LOSS OR DAMAGE IF HE HAD EXERCISED DUE DILIGENCE. THE WORD 'ARTICLE' AS USED IN THE FOLLOWING PARAGRAPH MEANS ANY SHIPPING PIECE OR PACKAGE AND THE CONTENTS THEREOF.

"(B) THE CONTRACTOR AGREES TO INDEMNIFY THE OWNER FOR LOSS OR DAMAGE TO THE OWNER'S PROPERTY WHICH ARISES FROM ANY CAUSE WHILE IT IS IN THE CONTRACTOR'S POSSESSION AS FOLLOWS: *** "

IFB AMENDMENT 0001, ISSUED OCTOBER 16, 1970, PROVIDED:

"1. IN SECTION J. SPECIAL PROVISIONS, THE FOLLOWING CHANGES ARE HEREBY MADE IN SP-9. LIABILITY (1970 MAY):

"A. IN SUBPARAGRAPH (A) THE LAST SENTENCE IS DELETED IN ITS ENTIRETY AND THE FOLLOWING SUBSTITUTED IN LIEU THEREOF: 'ARTICLE MEANS ANY SHIPPING PIECE OR PACKAGE AND ITS CONTENTS.'

"B. IN SUBPARAGRAPH (B) THE FOLLOWING SENTENCE IS PLACED IN FRONT OF THE SENTENCE CONTAINED THEREIN: 'IF NOTIFIED WITHIN 1 YEAR AFTER THE TIME THE OWNER DISCOVERS LOSS OR DAMAGE TO HIS PROPERTY OR THE TIME HE SHOULD HAVE DISCOVERED SUCH LOSS OR DAMAGE HAD HE EXERCISED DUE DILIGENCE.'"

AMENDMENT 0001 ALSO DELETED THE REQUIREMENT SET FORTH AT THE END OF SCHEDULE I AND SCHEDULE II THAT THE BIDDER CERTIFY THAT HE HOLDS IN HIS OWN NAME AN INTERSTATE COMMERCE COMMISSION (ICC) OPERATING AUTHORITY.

IT IS CONSIDERED THAT THE AMENDED IFB IS AMBIGUOUS BECAUSE UNDER PARAGRAPHS (A) AND (B) OF SP-9 IT CANNOT BE ASCERTAINED WHETHER THE TERM OF THE CONTRACTOR'S LIABILITY IS 1 OR 2 YEARS. ALSO, IT IS STATED THAT THE DELETION OF THE ICC CERTIFICATION REQUIREMENT RENDERED THE IFB AMBIGUOUS BECAUSE IT RAISED A QUESTION AS TO WHETHER THE CONTRACTOR IS REQUIRED TO POSSESS SUCH A CERTIFICATE. ADVICE TO THE CONTRACTING OFFICER DIRECTING THAT THE IFB BE AMENDED WAS AS FOLLOWS:

"2. DELETE REQUIREMENT FOR CERTIFICATION OF I.C.C. OPERATION AUTHORITY FROM SCHEDULE PROVISIONS *** THIS CHANGE NECESSARY TO REMOVE IMPLICATION ICC OPERATING AUTHORITY IS A TEST OF RESPONSIVENESS TO IFB. SUCH OPERATING AUTHORITY GOES TO THE RESPONSIBILITY OF BIDDER."

WE ARE UNABLE TO SUBSCRIBE TO THE CONTENTION THAT THERE IS JUSTIFICATION FOR CANCELLATION OF THE IFB AND A SUBSEQUENT READVERTISEMENT OF THE SOLICITATION.

IN THE FIRST PLACE, UNDER THE AMENDED IFB, THE TERM OF THE CONTRACTOR'S LIABILITY FOR DAMAGE TO AN OWNER'S PROPERTY CANNOT REASONABLY BE CONSTRUED TO BE FOR MORE THAN A 1-YEAR PERIOD. SP-9(A) PROVIDES THAT "'REASONABLE TIME' AS USED IN THE FOLLOWING PARAGRAPH (B) MEANS A PERIOD OF TIME NOT TO EXCEED TWO (2) YEARS AFTER THE TIME THE OWNER DISCOVERS LOSS OR DAMAGE" TO HIS PROPERTY. HOWEVER, THE WORDS "REASONABLE TIME" APPEAR NOWHERE IN PARAGRAPH (B) OF SP-9. IN FACT, PRIOR TO AMENDMENT 0001, PARAGRAPH (B) ESTABLISHED NO PERIOD OF LIABILITY FOR THE CONTRACTOR. HOWEVER, AMENDMENT 0001 ESTABLISHED IN PARAGRAPH (B) A 1-YEAR PERIOD OF LIABILITY FOR THE CONTRACTOR. THE 2 YEAR PROVISION IS THEREFORE MEANINGLESS IN THE CONTEXT IT IS USED AND DOES NOT CONFLICT IN ANY WAY WITH THE 1-YEAR LIABILITY PERIOD ESTABLISHED IN PARAGRAPH (B) BY AMENDMENT 0001.

IN THE SECOND PLACE, THE DELETION OF THE ICC CERTIFICATION REQUIREMENT BY AMENDMENT 0001 DID NO MORE THAN ELIMINATE THE REQUIREMENT THAT THE BIDDER CERTIFY IN THE BID THAT IT POSSESSES A DESIGNATED ICC OPERATING AUTHORITY. THE ELIMINATION OF THE CERTIFICATION REQUIREMENT FROM THE IFB COULD NOT CHANGE A CONTRACTOR'S RESPONSIBILITY TO OBTAIN WHATEVER ICC PERMITS MAY BE REQUIRED BY LAW TO PERFORM THE TRANSPORTATION SERVICES. SEE 34 COMP. GEN. 175 (1954) AND 47 ID. 539 (1968).

IN THE CIRCUMSTANCES, THERE IS NO PROPER BASIS FOR THE CANCELLATION OF THE IFB AND THE BIDS SUBMITTED THEREUNDER SHOULD BE EVALUATED FOR AWARD.

THREE BIDS WERE RECEIVED AND OPENED NOVEMBER 12, 1970. ACADEMY MOVERS, INC. (ACADEMY), SUBMITTED A BID FOR ALL ITEMS UNDER SCHEDULES I AND II OF AREA I. RUTT MOVING AND STORAGE, INC. (RUTT), AND COLEMAN TRANSFER & STORAGE, INC. (COLEMAN), SUBMITTED BIDS FOR ALL ITEMS UNDER SCHEDULES I AND II FOR BOTH AREAS I AND II.

THE LOW BID FOR AREA I WAS SUBMITTED BY RUTT. THE BID WAS ACCOMPANIED BY A COVER LETTER WHICH STATED:

"(A) WE WILL ACCEPT THE ENTIRE BID, ALL SCHEDULES IN BOTH AREAS I AND II.

"(B) WE WILL ACCEPT ALL SCHEDULES IN AREA I REGARDLESS AS TO DISPOSITION OF THE AWARD AS IT RELATES TO AREA II.

"(C) WE DECLINE TO ACCEPT ANY SCHEDULES IN AREA II IF NOT ALSO AWARDED ALL SCHEDULES IN AREA I AS WELL."

THE IFB CONTAINED AN ALL-OR-NONE-BID PROVISION AS FOLLOWS:

"(A) A BID SUBMITTED ON AN ALL-OR-NONE BASIS FOR THE SCHEDULES WITHIN AN AREA OF PERFORMANCE WILL BE CONSIDERED FOR AWARD PROVIDED (I) THE BIDDER HAS CLEARLY STATED ON A SCHEDULE PAGE OR ELSEWHERE IN HIS BID THAT HE IS BIDDING ON SUCH AN ALL-OR-NONE BASIS, AND (II) THE OVERALL COST TO THE GOVERNMENT IS LESS THAN THE COST WOULD BE IF SEPARATE AWARDS WERE MADE FOR INDIVIDUAL SCHEDULES, PRICE AND OTHER FACTORS STATED ELSEWHERE HEREIN, IF ANY, CONSIDERED.

"(B) A BID SUBMITTED ON AN ALL-OR-NONE BASIS FOR THE AREAS OF PERFORMANCE WILL NOT BE CONSIDERED FOR AWARD."

COLEMAN PROTESTED TO THE CONTRACTING OFFICER THAT THE RUTT COVER LETTER WAS AN ALL-OR-NONE QUALIFICATION RENDERING THE BID NONRESPONSIVE. THE CONTRACTING OFFICER HAS CONCURRED THAT RUTT IS NONRESPONSIVE.

WE DO NOT AGREE WITH COLEMAN AND THE CONTRACTING OFFICER IN THIS REGARD. THE RUTT COVER LETTER DID NOT STATE THAT IT MUST BE AWARDED ALL THE AREAS OF PERFORMANCE - AREA I AND AREA II - OR NONE OF THEM. RATHER, THE LETTER STATED THAT RUTT WOULD ACCEPT AN AWARD FOR AREAS I AND II TOGETHER OR FOR AREA I BY ITSELF, BUT NOT FOR AREA II ALONE. THUS, RUTT DOES NOT REQUIRE THAT AN AWARD BE MADE TO IT FOR BOTH AREAS. IN FACT, IT HAS INDICATED A WILLINGNESS TO ACCEPT AN AWARD FOR LESS THAN BOTH AREAS AS LONG AS IT DOES NOT RECEIVE AN AWARD FOR AREA II ALONE. IT THEREFORE CANNOT PROPERLY BE SAID THAT IT CONDITIONED ITS BID UPON RECEIPT OF BOTH AREAS OR NONE IN VIOLATION OF PARAGRAPH (B) OF THE ALL-OR-NONE PROVISION IN THE IFB. ACCORDINGLY, AN AWARD TO RUTT FOR AREA I, WHICH ITS COVER LETTER INDICATED IT WAS WILLING TO ACCEPT, WOULD BE APPROPRIATE.

IN THE CIRCUMSTANCES, IT IS UNNECESSARY TO CONSIDER WHETHER THE RESPONSIVENESS OF THE BID OF ACADEMY, THE NEXT LOW BIDDER FOR AREA I, WAS AFFECTED BY ITS FAILURE TO ACKNOWLEDGE AMENDMENT 0001.

FURTHER, COLEMAN HAS BID ON AN ALL-OR-NONE BASIS FOR BOTH SCHEDULES IN AREA II WHICH WAS AUTHORIZED BY PARAGRAPH (A) OF THE ALL-OR-NONE PROVISION IN THE IFB AND AS THE OVERALL COST FOR THOSE TWO SCHEDULES IS LESS THAN THE COST WOULD BE IF AN AWARD FOR THE SAME COMBINATION OF SCHEDULES IN THE AREA WERE MADE TO RUTT, THE ONLY OTHER BIDDER ON AREA II, AN AWARD TO COLEMAN FOR AREA II WOULD BE PROPER.

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