B-169813, JUL 6, 1970, 50 COMP GEN 8

B-169813: Jul 6, 1970

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AS THE CONTRACTING OFFICER CANNOT DETERMINE WHETHER THE BIDDER OFFERED A CONFORMING ARTICLE OR THAT THE PART NUMBERS WERE INCLUDED FOR THE PURPOSE OF INTERNAL CONTROL. THE BID IS CONSIDERED A QUALIFIED BID AND MAY NOT BE CONSIDERED FOR AWARD. AWARD IS BEING WITHHELD PENDING OUR CONSIDERATION OF THE PROTEST. IT WAS DISCOVERED THAT IMMEDIATELY BENEATH THE DESCRIPTIONS FOR ITEMS 0100 AND 0200 THE FIRM HAD TYPED THE FOLLOWING RESPECTIVE ENTRIES: "AIR-MAZE PLANT PART NUMBER 203134" AND "AIR-MAZE PLANT PART NUMBER 203133.". AAF ASSERTS THAT FPD'S BID IS NONRESPONSIVE ON THE GROUND THAT THE PART NUMBER ENTRIES ARE A QUALIFICATION OF THE BID. THAT AAF'S CONTENTION IS INVALID SINCE: *** THE NUMBER PLACED ON THE BID APPEARS TO BE AN INTERNAL PLANT CONTROL NUMBER ONLY AND NOT A QUALIFICATION.

B-169813, JUL 6, 1970, 50 COMP GEN 8

BIDS - QUALIFIED - AMBIGUOUS BID THE UNSOLICITED INSERTION OF PLANT PART NUMBERS IN THE LOW BID TO FURNISH ENGINE AIR FILTERS WITHOUT AN EXPRESS STATEMENT THAT THE SPECIFICATIONS WOULD BE COMPLIED WITH CREATED AN AMBIGUITY THAT MAY NOT BE RESOLVED BY REFERENCE TO "CATALOG CUT SHEETS" AND OTHER DATA AVAILABLE TO THE GOVERNMENT BEFORE BID OPENING, AS RELIANCE ON THIS INFORMATION WOULD AFFORD THE BIDDER AN OPTION TO AFFECT THE RESPONSIVENESS OF THE BID - AN OPTION DETRIMENTAL TO THE COMPETITIVE BIDDING SYSTEM. THEREFORE, AS THE CONTRACTING OFFICER CANNOT DETERMINE WHETHER THE BIDDER OFFERED A CONFORMING ARTICLE OR THAT THE PART NUMBERS WERE INCLUDED FOR THE PURPOSE OF INTERNAL CONTROL, THE BID IS CONSIDERED A QUALIFIED BID AND MAY NOT BE CONSIDERED FOR AWARD.

TO THE SECRETARY OF THE ARMY, JULY 6, 1970:

BY LETTER, WITH ENCLOSURES, DATED JUNE 2, 1970, THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, FURNISHED OUR OFFICE A REPORT ON THE PROTEST OF AMERICAN AIR FILTER COMPANY, INC. (AAF), AGAINST THE PROPOSED AWARD OF A CONTRACT TO FILTER PRODUCTS DIVISION, AIR- MAZE PLANT, NORTH AMERICAN ROCKWELL (FPD), UNDER INVITATION FOR BIDS NO. DACA87-70-B-0005, ISSUED BY THE ARMY ENGINEER DIVISION, HUNTSVILLE, ALABAMA. AWARD IS BEING WITHHELD PENDING OUR CONSIDERATION OF THE PROTEST.

THE SUBJECT INVITATION COVERS A REQUIREMENT FOR TWO ITEMS OF ENGINE COMBUSTION AIR FILTERS DESCRIBED THEREIN AS FOLLOWS:

ITEM TYPE CODE HO2FI

0100 FILTER, ENGINE COMBUSTION AIR (LEFT HAND)

ITEM TYPE CODE HO3FI

0200 FILTER, ENGINE COMBUSTION AIR (RIGHT HAND)

BY THE MAY 7, 1970, BID OPENING DATE, THREE FIRMS RESPONDED: FPD, WITH A BID IN AN AMOUNT OF $156,376; AAF, WITH A BID IN AN AMOUNT OF $198,572; AND ALTON IRON WORKS, INC., WITH A BID IN AN AMOUNT OF $990,000. UPON EXAMINATION OF FPD'S BID, IT WAS DISCOVERED THAT IMMEDIATELY BENEATH THE DESCRIPTIONS FOR ITEMS 0100 AND 0200 THE FIRM HAD TYPED THE FOLLOWING RESPECTIVE ENTRIES: "AIR-MAZE PLANT PART NUMBER 203134" AND "AIR-MAZE PLANT PART NUMBER 203133." IN A TELEGRAM OF MAY 13 AND LETTER OF MAY 15, 1970, AAF ASSERTS THAT FPD'S BID IS NONRESPONSIVE ON THE GROUND THAT THE PART NUMBER ENTRIES ARE A QUALIFICATION OF THE BID.

IN RESPONSE, THE CONTRACTING OFFICER URGES IN HIS REPORT OF MAY 26, 1970, THAT AAF'S CONTENTION IS INVALID SINCE:

*** THE NUMBER PLACED ON THE BID APPEARS TO BE AN INTERNAL PLANT CONTROL NUMBER ONLY AND NOT A QUALIFICATION. THIS IS EXPLAINED AS FOLLOWS: THE "AIR MAZE PLANT PART #203134" FOR ITEM 0100 AND "AIR MAZE PLANT PART #203133" FOR ITEM 0200 WERE COMPARED TO AIR MAZE CATALOG CUT SHEETS AND OTHER DATA AVAILABLE TO THE GOVERNMENT PRIOR TO THE TIME OF BID OPENING. THIS AIR-MAZE DATA CLEARLY INDICATES THAT MODELS OF OIL BATH TYPE FILTERS, THAT WOULD PERFORM IN ACCORDANCE WITH THE REQUIREMENTS OF THE IFB AND NOT EXCEED THE SPACE ENVELOPE CRITERIA, ARE IDENTIFIED BY A FOUR-POSITION ALPHA-NUMERIC CODE. THE FIRST TWO POSITIONS ARE ALPHA, AND THE SECOND TWO POSITIONS ARE NUMERIC. THE AIR MAZE PLANT PART NUMBERS AS INDICATED ON THE BID SUBMITTED BY THEM CONTAINED SIX POSITIONS, ALL NUMERIC. EVALUATING THE BID, THE GOVERNMENT LOGICALLY TOOK THE POSITION THAT THE AIR-MAZE PLANT PART NUMBERS AS TYPED BY THEM ON THEIR BID WERE, IN FACT, FOR INTERNAL CONTROL PURPOSES ONLY AND THAT THIS DID NOT QUALIFY THE BID NOR IN ANY WAY ATTEMPT TO ALTER THE REQUIREMENTS OF THE IFB. THE AIR-MAZE DIVISION, BY LETTER DATED 19 MAY 1970, INDICATED THAT THESE PART NUMBERS TYPED ON THE BID SCHEDULE WERE FOR THEIR OWN INTERNAL CONTROL PURPOSES ONLY AND WERE IN NO WAY INTENDED AS A QUALIFICATION OR AN EXCEPTION TO ANY PORTION OF THE SPECIFICATIONS AND REQUIREMENTS OF THE SOLICITATION.

WE CANNOT AGREE. WE HAVE CONSIDERED THE PROBLEM PRESENTED BY FPD'S INSERTIONS IN A NUMBER OF OTHER CASES. SEE B-152808, JANUARY 2, 1964; B- 151849, SEPTEMBER 10, 1963; B-143084, JUNE 22, 1960. AND OUR DECISION IN B-152808, SUPRA, IS IN ALL MATERIAL RESPECTS ANALOGOUS TO THE PRESENT SITUATION. IN THAT DECISION, WE QUOTED WITH APPROVAL THE FOLLOWING COMMENTS SUBMITTED BY A CONTRACTING OFFICER IN CONNECTION WITH B-151849, SUPRA:

*** SOME BIDDERS, WHEN INTENDING TO SUPPLY MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS, HAVE INCLUDED THEIR PART NUMBERS FOR THEIR READY REFERENCE IN THE EVENT OF AN AWARD, WHILE OTHERS HAVE INCLUDED THEIR PART NUMBERS FOR THE PURPOSE OF OFFERING A SIMILAR BUT MATERIALLY DIFFERENT ITEM, WHICH MIGHT OR MIGHT NOT MEET THE APPLICABLE SPECIFICATIONS AND THE NEEDS OF THE GOVERNMENT. WHEN PART NUMBERS ARE INSERTED IN BIDS, THE CONTRACTING OFFICER HAS NO WAY TO DETERMINE WHETHER THE BIDDER IS OFFERING MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS. ***

THE FOREGOING APTLY STATES THE PRECISE DIFFICULTY APPARENT FROM AN EXAMINATION OF FPD'S BID, AND WE MUST INITIALLY CONCLUDE, AS WE DID IN B- 151849, THAT, IN THE ABSENCE OF AN EXPRESS STATEMENT BY FPD IN ITS BID THAT THE SPECIFIED PLANT PARTS NUMBERS WOULD COMPLY WITH THE SPECIFICATIONS, THERE IS AN INITIAL AMBIGUITY AS TO WHETHER FPD AGREED TO OFFER AN ITEM WHICH WOULD COMPLY WITH THE SPECIFICATIONS SET FORTH IN THE INVITATION.

TURNING NOW TO A CONSIDERATION OF THE CONTRACTING OFFICER'S PROPOSED RESOLUTION OF THE AMBIGUITY, WE DO NOT AS A GENERAL MATTER OBJECT TO THE CONTRACTING OFFICER'S ASSERTED RELIANCE ON "CATALOG CUT SHEETS AND OTHER DATA AVAILABLE TO THE GOVERNMENT PRIOR TO THE TIME OF BID OPENING." (WE ARE INFORMALLY ADVISED THAT THIS DATA WAS FURNISHED TO THE PROCURING ACTIVITY'S ENGINEERING DIVISION DURING A COURTESY VISIT BY REPRESENTATIVES OF FPD SUBSEQUENT TO THE ISSUANCE OF THE INVITATION.) WE CANNOT, HOWEVER, ACCEPT THE CONCLUSIONS REACHED BY THE CONTRACTING OFFICER AFTER AN EXAMINATION OF THIS DATA. WE QUESTION THE ADEQUACY OF THE DATA RELIED ON BY THE CONTRACTING OFFICER TO SUPPORT HIS INFERENCE, QUOTED ABOVE. WE ARE NOT PERSUADED THAT THE INFERENCE DRAWN FROM USE OF A FOUR-POSITION ALPHA- NUMERIC CODE ON THE CATALOG SHEETS, WHEN CONTRASTED WITH THE USE OF A NUMERIC CODE IN IDENTIFYING A PLANT PART, REMOVES THE AMBIGUITY. IN OUR OPINION, IT MAY BE INFERRED WITH EQUAL VALIDITY THAT FPD'S DESIGNATED PLANT PARTS NUMBERS REFER TO A DRAWING OR OTHER DATA, WHICH MAY OR MAY NOT EVIDENCE COMPLIANCE WITH THE TERMS OF THE SPECIFICATIONS. IN THIS CONNECTION, DURING A MEETING IN OUR OFFICE ON JUNE 26, 1970, FPD REPRESENTATIVES PROVIDED US A COPY OF A DRAWING, WHICH ILLUSTRATES THE CONFIGURATION OF THE ITEM FPD PROPOSES TO FURNISH. THIS DRAWING WAS PREPARED PRIOR TO BID OPENING AND REFERENCES THE PLANT PARTS NUMBERS ENTERED ON FPD'S BID. WE ARE ADVISED THAT THIS DRAWING WAS ORIGINALLY GIVEN TO A PREAWARD SURVEY TEAM ON MAY 22, 1970, AND THEREAFTER FURNISHED TO THE PROCURING ACTIVITY.

FAILURE, AS HERE, TO ESTABLISH CONFORMANCE OF THE PLANT PARTS NUMBERS TO THE SPECIFICATIONS PRIOR TO BID OPENING LEAVES UNRESOLVED THE AMBIGUITY. FURTHERMORE, THE APPARENT RELIANCE BY THE CONTRACTING OFFICER ON FPD'S POST-BID-OPENING LETTER OF MAY 19, WHILE, IN OUR OPINION, ESSENTIAL TO HIS CONCLUSION, IS NOT PROPER. AS WE HAVE INDICATED IN NUMEROUS CASES, RELIANCE ON SUCH INFORMATION AFFORDS THE BIDDER AN OPTION TO AFFECT THE RESPONSIVENESS OF ITS BID - AN OPTION WHICH IS DETRIMENTAL TO THE COMPETITIVE BIDDING SYSTEM. 36 COMP. GEN. 705 (1967); 37 ID. 110 112 (1957).

ACCORDINGLY, WE ARE CONSTRAINED TO CONCLUDE THAT FPD'S BID IS NONRESPONSIVE AND SHOULD NOT BE CONSIDERED FOR AWARD.

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