B-241810, Mar 5, 1991, 91-1 CPD 246

B-241810: Mar 5, 1991

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Is responsive. Since the bid unconditionally bound the bidder to provide all units in accordance with the terms of the IFB and the first article pricing is not grossly front- loaded. Dodge contends Fabricated's low bid is nonresponsive. The IFB was issued with a bid opening date of October 9. There was no statement as to when delivery of the first articles would be required. This matter was covered in amendment 0001. In which the first article delivery time was set at 90 calendar days following the contract date. 12 bids were received. 375.30 was low. Dodge's bid was second low. Dodge contends that Fabricated's bid is nonresponsive because its first article prices are different than its production unit prices.

B-241810, Mar 5, 1991, 91-1 CPD 246

PROCUREMENT - Bids - Responsiveness - Price data - Minor deviations

DIGEST

Attorneys

Dodge Romig Tex Corporation:

Dodge Romig Tex Corporation protests the award of a contract to Fabricated Technology, Inc., by the Defense Logistics Agency (DLA), Defense Personnel Support Center, under invitation for bids (IFB) No. DLA100-90-B-0434 for survival vests. Dodge contends Fabricated's low bid is nonresponsive.

We deny the protest.

On September 6, 1990, the IFB was issued with a bid opening date of October 9, 1990, for 6,012 survival vests with delivery to commence 195 days after contract award. While the IFB contained a first article testing requirement, there was no statement as to when delivery of the first articles would be required. This matter was covered in amendment 0001, issued on September 18, in which the first article delivery time was set at 90 calendar days following the contract date. Amendment 0002, issued on October 3, increased the production quantity to 10,260 and extended the bid opening date to October 16, 1990.

On October 16, 12 bids were received. On that date, Fabricated transmitted by facsimile a letter, which acknowledged the amendments and modified its previous submitted bid to price its production units at $82.85 each and the two first articles at $250 each. Fabricated's total bid of $850,375.30 was low. Dodge's bid was second low, with a unit price of $84.29 and a total price of $864,815.40. Dodge contends that Fabricated's bid is nonresponsive because its first article prices are different than its production unit prices, and this "injected a new, different, foreign term, condition, aspect, or item into the IFB as issued."

The test to be applied in determining bid responsiveness is whether the bid, as submitted, is an offer to perform, without exception, the exact thing called for in the IFB, which, upon acceptance, will bind the contractor to perform in accordance with all the terms and conditions thereof. Rocky Ridge Contractors, Inc., B-224862, Dec. 19, 1986, 86-2 CPD Para. 691. Here, while the IFB did not provide for separate pricing of the first article units, it did not prohibit it or contain any requirement that all units be priced the same. Fabricated's bid does not in any way imply that it would not perform the contract in complete accordance with the terms and conditions of the IFB, nor does it alter Fabricated's legal obligations to the government as required by the IFB. Fabricated unconditionally bound itself to provide both production and first articles units in accordance with the terms of the IFB and its bid was responsive. See Seaward Corp., B-237107.2, June 13, 1990, 90-1 CPD Para. 552.

Nor can Fabricated's pricing of the first article units at $250 each, as compared to its production unit price of $82.85 each, be considered to be so grossly front-loaded, and in excess of the actual value of the units, to be considered tantamount to a prohibited advance payment, and require rejection of the bid. See Seaward Corp. -- Recon., B-237107.3, Oct. 24, 1990, 90-2 CPD Para. 324. Fabricated's first article unit prices for two units were only three times its unit prices for 10,260 production units. /1/ In addition, DLA obtained a cost breakdown of Fabricated's first article unit price, which indicated that Fabricated's actual cost for this item approximated $250.

The protest is denied.

/1/ This ratio is much less than in those cases where we have found bid prices to be so grossly front-loaded as to require rejection. See, e.g., Riverport Industries, Inc., 64 Comp.Gen. 441 (1985), 85-1 CPD Para. 364, aff'd B-216656.2, July 31, 1985, 85-2 CPD Para. 108 (where the first article unit prices were $185,000 and the production unit prices were $250); Islip Transformer & Metal Co., Inc., B-225257, Mar. 23, 1987, 87-1 CPD Para. 327 (where the first article unit prices were $15,000 and the production unit prices were $408.90); Edgewater Machine & Fabricators, Inc., B-219828, Dec. 5, 1985, 85-2 CPD Para. 630 (where the first article unit prices were $125,000 and the production unit prices were $301); Nebraska Aluminum Castings, Inc., B-222476, June 24, 1986, 86-1 CPD Para. 582, aff'd B-222476.2, Sept. 23, 1986, 86-2 CPD Para. 335, reaff'd, B-222476.3, Nov. 4, 1986, 86-2 CPD Para. 515 (where the first article unit prices were $22,510 and the production unit prices were $19.17).

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