B-205492, APR 15, 1982

B-205492, APR 15, 1982

DIGEST: LOW BIDDER'S FAILURE TO ACKNOWLEDGE AMENDMENT WHICH MERELY CORRECTED MINOR SOLICITATION DISCREPANCY IN ALPHABETICAL DESIGNATIONS IDENTIFYING APPLICABLE DRAWINGS MAY BE WAIVED SINCE COPIES OF DRAWINGS ATTACHED TO SOLICITATION AND APPLICABLE MILITARY SPECIFICATIONS LISTED IN SOLICITATION OTHERWISE CLEARLY DESCRIBED REQUIREMENT.

AMS MANUFACTURING INCORPORATED:

AMS MANUFACTURING INCORPORATED (AMS) PROTESTS AWARD OF A CONTRACT TO ZARN, INC. (ZARN), UNDER INVITATION FOR BIDS (IFB) NO. DLA100-81-B-1467 ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA, FOR 814,980 PLASTIC WATER CANTEENS, 1 QUART, WITH "M-1 CAP." AMS ALLEGES THAT ZARN FAILED TO ACKNOWLEDGE A MATERIAL AMENDMENT INVOLVING THE CANTEEN CAP AND, THEREFORE, THE BID OF ZARN IS NONRESPONSIVE. WE DENY THE PROTEST.

SECTION "B" OF THE SOLICITATION LISTING "SUPPLIES/SERVICES AND PRICES" REQUIRED THE CANTEENS TO HAVE M-1 CAPS - A CAP WHICH, ACCORDING TO THE PROTESTER, PERMITS USE OF A CANTEEN WHILE A SOLDIER IS WEARING A GAS MASK UNLIKE PREVIOUS CANTEENS WHICH USE A "SCREW CAP." THE DETAILS OF THE M-1 CAP WERE SHOWN ON A MICROFICHE COPY OF DRAWING 8-1-33, ATTACHED TO THE IFB. THIS DRAWING WAS ENTITLED "CANTEEN, WATER, PLASTIC, WITH SCREW CAP." ANOTHER DRAWING (NO. 8-1-34), ATTACHED TO THE IFB, SHOWED THE PLASTIC STRAP WHICH CONNECTS THE CAP TO THE CANTEEN'S NECK.

REFERENCES TO THE M-1 CAP WERE ALSO FOUND ON THE IFB'S COVER SHEET AND IN THE FIRST PARAGRAPH OF THE IFB'S SECTION "C," SPECIFICATION DATA. THIS PARAGRAPH STATED THAT THE CANTEEN, WITH M-1 CAP, WAS TO BE FURNISHED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-C-43103C, JUNE 1980, EXCEPT THAT CERTAIN DEVIATIONS WERE TO APPLY, NONE OF WHICH AFFECTED THE CONFIGURATION OF THE M-1 CAP.

TWO OTHER REFERENCES TO THE CAP OF THE CANTEEN WERE FOUND IN SECTION "C." ONE REFERENCE WAS TO ANOTHER APPLICABLE MILITARY SPECIFICATION WHICH ALSO CONTAINED THE M-1 DESIGNATION. HOWEVER, THE OTHER REFERENCE DID NOT MENTION THE M-1 CAP, BUT RATHER REFERRED TO A "SCREW CAP." THIS REFERENCE WAS CONTAINED IN THE NARRATIVE DESCRIPTION OF THE TWO DRAWINGS NOTED ABOVE, ATTACHED TO THE IFB. THE DESCRIPTION READS, AS FOLLOWS:

"DRAWINGS

8-1-33, REV. G CANTEEN, WATER, PLASTIC, WITH SCREW CAP, ASSEMBLY AND DETAILS, 6/16/80

8-1-34, REV. D CANTEEN, WATER, PLASTIC, WITH SCREW-CAP, DETAILS 6/16/80"

BEFORE BID OPENING, THE PROCURING ACTIVITY BECAME AWARE THAT THE DESCRIPTION OF THE TWO DRAWINGS IN SECTION "C" WAS ERRONEOUS. DRAWING 8-1 -33, SHOWING THE DETAILS OF THE M-1 CAP, IS ACCURATELY REFERRED TO ONLY BY REVISION "H," RATHER THAN REVISION "G" (DATED OCTOBER 1, 1975), BECAUSE THE M-1 CAP DETAILS WERE ESTABLISHED BY REVISION "H" - THE LAST REVISION TO THE DRAWING. DRAWING 8-1-34, SHOWING ONLY THE CANTEEN'S PLASTIC STRAP, IS ACCURATELY REFERRED TO ONLY BY REVISION "E," WHICH REPLACED REVISION "D" (DATED JANUARY 2, 1974) OF THE PRIOR DRAWING. (ACCORDING TO THE PROTESTER, THE EARLIER DRAWING 8-1-34, REVISION "D," PROVIDED "DETAILS OF THE STRAP AND OLD CAP.")

THEREFORE, THE CONTRACTING OFFICER ISSUED IFB AMENDMENT 0001, WHICH SUBSTITUTED THE CORRECT REVISION LETTERS FOR THESE DRAWINGS AND CONTINUED THE SAME BID OPENING DATE.

ON BID OPENING, FOUR BIDS WERE RECEIVED. AMS WAS SECOND LOW BIDDER. ZARN WAS THE APPARENT LOW BIDDER, BUT FAILED TO ACKNOWLEDGE THE AMENDMENT; NEVERTHELESS, THE PROCURING AGENCY CONSIDERED THE FAILURE TO BE WAIVABLE AS A MINOR INFORMALITY AND SUBSEQUENTLY AWARDED THE CONTRACT TO ZARN.

AMS'S POSITION IS THAT AMENDMENT 0001 WAS MATERIAL BECAUSE IT ADMITTEDLY RESOLVED AN INACCURACY IN THE IFB. AMS ALSO REFERS TO A STATEMENT IN THE PROCURING AGENCY'S REPORT ON ITS PROTEST THAT THE IFB'S ORIGINAL DESCRIPTION OF THE DRAWINGS IN SECTION "C" WAS "CONTRADICTORY."

THE PROCURING AGENCY INSISTS, HOWEVER, THAT THE IFB TAKEN AS A WHOLE OBVIOUSLY MADE IT CLEAR THAT AN M-1 CAP WAS REQUIRED; THEREFORE, THE AMENDMENT "MERELY CLARIFIED A MINOR CONTRADICTION AND WAS NOT A MATERIAL CHANGE REQUIRING ACKNOWLEDGMENT."

WE CONCLUDE THE AMENDMENT WAS NOT MATERIAL AND, THEREFORE, ZARN'S FAILURE TO ACKNOWLEDGE THE AMENDMENT WAS PROPERLY WAIVABLE AS A MINOR INFORMALITY.

THE ONLY MENTION OF A "SCREW CAP" INSTEAD OF AN M-1 CAP IS FOUND IN SECTION "C"'S DESCRIPTION OF THE DRAWINGS; BY CONTRAST, THE REST OF THE IFB - INCLUDING ALL APPLICABLE MILITARY SPECIFICATIONS - UNIFORMLY REFER TO AN M-1 CAP. MOREOVER, MICROFICHE COPIES OF THE DRAWINGS SHOWED ONLY THE M-1 CAP AND ASSOCIATED STRAP. ALTHOUGH DRAWING 8-1-33, AS CURRENTLY REVISED, STILL CONTAINS A "SCREW CAP" DESIGNATION (A DESIGNATION, WE TRUST, WHICH WILL BE ELIMINATED), THE REQUIREMENT FOR AN M-1 CAP WAS REASONABLY EVIDENT IN THE ORIGINAL IFB, NOTWITHSTANDING THE MINOR CONTRADICTIONS NOTED. THEREFORE, ZARN'S FAILURE TO ACKNOWLEDGE THIS AMENDMENT WAS PROPERLY WAIVED AS A MINOR INFORMALITY. SEE ARROWHEAD LINEN SERVICE, B-194496, JANUARY 17, 1980, 80-1 CPD 54.

WE DENY THE PROTEST.