B-156374, SEPT. 3, 1965

B-156374, SEPT. 3, 1965

TO ATEMCO, INC.:

REFERENCE IS MADE TO TELEGRAM OF JUNE 28 AND LETTERS OF JUNE 29 AND JULY 23, 1965, FROM YOUR ATTORNEY, REQUESTING RECONSIDERATION OF OUR DECISION B -156374, DATED JUNE 25, 1965, WHICH DENIED YOUR PROTEST AGAINST AWARD OF CONTRACT TO ANY FIRM OTHER THAN ATEMCO, INC., UNDER THE LABOR SURPLUS SET- ASIDE PORTION OF INVITATION FOR BIDS NO. AMC (A) 36-038-65-350 (SP), ISSUED BY FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA. WE ALSO HAVE YOUR LETTER OF JULY 9, 1965, IN THIS MATTER.

WITHOUT REPEATING THE FACTS OF THE PROCUREMENT, YOUR PROTEST TO THE PROCUREMENT AGENCY AND TO OUR OFFICE WAS CENTERED ON YOUR CONTENTION THAT YOU SHOULD HAVE BEEN PERMITTED, AS A BIDDER ON THE LABOR SURPLUS AREA SET- ASIDE PORTION OF THE SUBJECT INVITATION, TO CHANGE YOUR CERTIFICATION FROM NATRONA HEIGHTS, PENNSYLVANIA, TO THE GEOGRAPHICAL AREA OF FREEPORT, PENNSYLVANIA, AND SINCE FREEPORT IS IN A PERSISTENT AND SUBSTANTIAL LABOR SURPLUS AREA, SUCH DESIGNATION WOULD IMPROVE YOUR PRIORITY FROM GROUP 3 TO GROUP 1, THUS GIVING YOU PREFERENCE FOR AWARD. TO THIS END, YOUR ALLEGATION OF ERROR IN LISTING NATRONA HEIGHTS WAS EXPLAINED BY YOU TO OUR OFFICE AS FOLLOWS:

"3. IN INDICATING THE CITY AND STATE OF SAID AREA, ATEMCO ERRONEOUSLY USED ITS MAILING RESS,"NATRONA HEIGHTS, PA.' INSTEAD OF THE ACTUAL ADDRESS,"FREEPORT, PA., " OF ITS PLANT WHERE THE COLLIMATORS WILL BE MANUFACTURED, AND

"4. AFTER BID OPENING, ATEMCO EXPLAINED TO THE CONTRACTING OFFICER THAT IT HAD NEVER INTENDED TO MANUFACTURE ANYTHING IN NATRONA HEIGHTS, PA., THAT IT DOES NOT EVEN HAVE A PLANT, OFFICE OR FACILITY IN NATRONA HEIGHTS, THAT IT MERELY RENTS A DRAWER IN THE NATRONA HEIGHTS POST OFFICE BECAUSE ITS MAIL IS RECEIVED FASTER WHEN DELIVERY IS MADE TO ITS PLANT AND THAT THE ACTUAL LOCATION OF ITS PLANT WHERE THE COLLIMATORS WILL BE MANUFACTURES IS FREEPORT, PENNSYLVANIA, AND

"5. NATRONA HEIGHTS IS NOT IN A PERSISTENT AND SUBSTANTIAL LABOR SURPLUS AREA BUT FREEPORT, PENNSYLVANIA IS. (SEE LETTER OF JANUARY 27, 1965, FROM BUREAU OF EMPLOYMENT SECURITY ATTACHED HERETO AND MARKED EXHIBIT D.) * *

SINCE THIS EXPLANATION OF CHANGE SEEMED AT VARIANCE WITH THE RECORD BEFORE US, WE POINTED OUT TO YOU THE DISCREPANCY BETWEEN YOUR ALLEGATION AND THE FACTS BEFORE US, WHICH INDICATED THAT NATRONA HEIGHTS WAS NOT MERELY A "MAILING ADDRESS" FOR ATEMCO.

IN YOUR REQUEST FOR RECONSIDERATION YOU HAVE STRESSED THAT SINCE NATRONA HEIGHTS IS MERELY A MAILING ADDRESS WE MUST CHANGE OUR ANALYSIS OF THE FACTS. TO VERIFY THE INFORMATION SUPPLIED US BY THE PROCURING AGENCY, WE AGAIN ASKED THE AGENCY TO COMMENT ON THE ALLEGATION IN YOUR REQUEST FOR RECONSIDERATION. IN RESPONSE, IT IS REPORTED THAT:

"THE REPORT OF THE PREAWARD SURVEY OF ATEMCO, INC., BY PITTSBURGH DEFENSE CONTRACTS ADMINISTRATION SERVICES DISTRICT, DATED 8 MARCH 1965, INDICATES THAT VISITS WERE MADE BY THE MEMBERS OF THE PREAWARD SURVEY TEAM TO ATEMCO'S PLANT NO. 1 AT NATRONA HEIGHTS AND TO THE SITE OF PLANT NO. 2 IN FREEPORT, PA.

"IN A TELEPHONE CONVERSATION 30 JUNE 1965 WITH THE PITTSBURGH DCAS DISTRICT OFFICE (MR. A. J. REARDON, HEADQUARTERS, ARMY MATERIEL COMMAND SPOKE WITH MESSRS. PETER P. MORGUS AND COY H. NEILSON), THE PITTSBURGH DISTRICT REPRESENTATIVES STATED THAT:

"A. THERE IS AN ATEMCO PLANT OR PRODUCTION FACILITY AT NATRONA HEIGHTS, PA., (LOCATED ON A HILL OVERLOOKING NATRONA) AND THIS PLANT WAS VISITED BY THE PREAWARD SURVEY TEAM INCLUDING MR. NEILSON WHO PARTICIPATED IN THE TELEPHONE CONVERSATION.

"B. THIS FACILITY IS IDENTIFIED ON DRAWINGS FURNISHED TO THE DISTRICT OFFICE BY ATEMCO AS ATEMCO BUILDING NO. 1, NATRONA HEIGHTS, PA. IT IS A FACILITY FOR PRECISION MANUFACTURING OF METAL PRODUCTS SUCH AS GAGES, DIES, JIGS, TOOLING, ETC.

"C. THE PREAWARD SURVEY TEAM UNDERSTOOD THAT THIS FACILITY AT NATRONA HEIGHTS, BUILDING NO. 1, WOULD BE USED FOR MANUFACTURING THE SPECIAL TOOLING, AND THAT THE FINAL ASSEMBLY WORK UNDER THE CONTRACT WOULD BE PERFORMED HERE.'

HOWEVER, IT SHOULD BE EMPHASIZED THAT OUR DECISION OF JUNE 25, 1965, TO YOU WAS NOT PREDICATED ON THE ISSUE OF WHETHER OR NOT NATRONA HEIGHTS WAS YOUR MAILING ADDRESS OR WHETHER OR NOT YOU HAD A PLANT OR FACILITY IN NATRONA HEIGHTS. RATHER, THE SOLE LEGAL ISSUE INVOLVED IN YOUR PROTEST WAS WHETHER OR NOT IT WOULD BE PROPER FOR YOU TO CORRECT GEOGRAPHICAL INFORMATION SUPPLIED BY YOU WITH YOUR BID AFTER BID OPENING WHEN SUCH CORRECTION WOULD ADVANCE YOUR PRIORITY AS TO AWARD FROM GROUP 3 TO GROUP 1 TO THE PREJUDICE OF OTHER BIDDERS. IN THIS CONNECTION YOU HAVE CITED SEVERAL OF OUR OFFICE DECISIONS WHICH YOU BELIEVE CONSTITUTE THE AUTHORITY TO PERMIT YOU TO CORRECT THE INFORMATION SUPPLIED WITH YOUR BID AFTER BID OPENING AND YOU ASKED US TO REVIEW OUR FINDINGS, PARTICULARLY IN LIGHT OF OUR DECISIONS B 153267, JUNE 8, 1964; B-155522, DECEMBER 1, 1964; AND B- 146258, AUGUST 28, 1961. OUR DECISION IN B-153267 DID PERMIT A BIDDER TO CHANGE THE LOCATION OF PERFORMANCE OF THE AREA ORIGINALLY CERTIFIED, BUT ONLY BECAUSE THE CHANGE TO ANOTHER GEOGRAPHICAL AREA WOULD LEAVE THE BIDDER IN THE SAME LABOR SURPLUS PRIORITY GROUP AS INDICATED IN ITS BID. THAT IS WHERE THE SITUATION DIFFERS FROM THE ONE PRESENTED IN YOUR PROTEST AND THE CHANGE WAS PERMITTED IN THAT CASE IN "LATERAL FASHION," SO TO SPEAK. IN OTHER WORDS, SUCH CHANGE DID NOT PREJUDICE ANY OTHER BIDDER. SUCH PRINCIPLE WOULD NOT BE APPLICABLE IN YOUR CASE SINCE THE CHANGE FROM NATRONA HEIGHTS TO FREEPORT WOULD NECESSARILY PREJUDICE OTHER BIDDERS AND BE CONTRARY TO THE PRINCIPLES OF PROCUREMENT LAW. IN B-155522, DATED DECEMBER 1, 1964, OUR OFFICE FOLLOWED THE GENERAL PROPOSITION THAT WHERE THE INVITATION CALLED FOR INFORMATION AS TO FIRST-TIER SUBCONTRACTORS BUT WAS SILENT AS TO THE NEED FOR THE INFORMATION REGARDING SUPPLIERS, IT WOULD BE PROPER TO SUPPLY INFORMATION AFTER BID OPENING IF IT IS TO SHOW THAT THE BIDDER WILL PERFORM IN THE CATEGORY INDICATED IN ITS BID, BUT NOT IF IT IS TO IMPROVE THE BIDDER'S POSITION IN THE ORDER OF PRIORITY.

YOU HAVE STATED THAT OUR DECISION B-151247, DATED JUNE 28, 1963, WAS OVERRULED BY B-153267, DATED JUNE 8, 1964. SUCH IS NOT THE CASE, SINCE ONLY TO THE EXTENT THAT B-151247 MIGHT BE CONSTRUED AS PRECLUDING CHANGES FOR VALID REASONS BY BIDDERS IN SPECIFIED AREAS OF PERFORMANCE SO LONG AS THE AREAS COINCIDE IN CATEGORY WITH THOSE ORIGINALLY DESIGNATED WOULD IT NO LONGER BE FOLLOWED, AND SUCH WAS THE MODIFICATION WHICH WAS MADE BY B- 153267, DATED JUNE 8, 1964. HOWEVER, NO MODIFICATION WAS MADE IN THE PRINCIPLE EXPRESSED IN B-151247 THAT THE PURPOSE OF THE LABOR SURPLUS AREA SET-ASIDE NOTICE WAS TO PERMIT A DETERMINATION ON THE BASIS OF DATA CONTAINED IN THE BID OF THE PRIORITY CATEGORY INTO WHICH ANY GIVEN BIDDER WOULD FALL. PARAGRAPH (C) OF THE NOTICE OF LABOR SURPLUS AREA SET-ASIDE AFFORDED THE ONLY OPPORTUNITY TO BIDDERS TO CHANGE THE SITE OF PERFORMANCE IF CLASSIFICATION OF THE AREA INVOLVED CHANGES AFTER SUBMISSION OF BIDS. ACCORDINGLY, IT IS OUR VIEW THAT THE NOTICE OF LABOR SURPLUS AREA SET ASIDE PRECLUDES BIDDERS FROM CHANGING THE SITE OF PERFORMANCE OR OFFERING A DIFFERENT SITE AFTER BID OPENING, EVEN IF SUCH CHANGE IS, AS YOU ALLEGE, AN ATTEMPT TO CORRECT AN ERROR FROM A MAILING ADDRESS, ERRONEOUSLY INSERTED, TO THE GEOGRAPHICAL SITE WHERE IT WAS INTENDED THAT THE CONTRACT WORK WOULD BE PERFORMED FROM THE BEGINNING. WHILE IT MIGHT HAVE BEEN PREFERABLE TO AFFIRMATIVELY ADVISE BIDDERS OF THE CONSEQUENCES OF THEIR FAILURE TO INDICATE SITES OF PERFORMANCE OR THAT CHANGES IN PRIORITY GROUPS WOULD NOT BE PERMITTED AFTER BID OPENING, THE ENTIRE CONTEXT OF THE SET-ASIDE NOTICE IS CLEARLY OF MATERIAL SIGNIFICANCE IN BID EVALUATION. WE CONSISTENTLY HAVE HELD THAT A BIDDER'S FAILURE TO FURNISH INFORMATION WITH ITS BID WHICH IS NECESSARY FOR COMPLETE BID EVALUATION WILL RENDER HIS BID NONRESPONSIVE AND THAT SUCH NONRESPONSIVENESS MAY NOT BE CURED AFTER BIDS ARE OPENED. THEREFORE, WE DO NOT BELIEVE IT PROPER IN THE CIRCUMSTANCES OF THE INSTANT CASE TO CORRECT GEOGRAPHICAL INFORMATION AFTER THE CONTENTS OF BIDS ARE PUBLICLY REVEALED. SEE 40 COMP. GEN. 432. THIS IS ESPECIALLY TRUE IN YOUR CASE SINCE THE CORRECTION OF GEOGRAPHICAL INFORMATION SUPPLIED BY YOU WITH YOUR BID AFTER BID OPENING WOULD AUTOMATICALLY ADVANCE YOUR PRIORITY FROM GROUP 3 TO GROUP 1 TO THE PREJUDICE OF OTHER BIDDERS.

WE NOTE YOUR STATEMENT THAT YOU HAVE NOT WAIVED YOUR RIGHT TO PROCEED IN THIS CASE FOR BREACH OF CONTRACT. WE OFFER NO COMMENT IN THAT REGARD EXCEPT TO OBSERVE THAT NO CONTRACT WAS AWARDED TO YOUR COMPANY.

ACCORDINGLY, UPON RECONSIDERATION OF THE RECORD BEFORE US, OUR DECISION OF JUNE 25, 1965, IS SUSTAINED AND YOUR PROTEST MUST BE DENIED.