B-181470, JAN 17, 1975

B-181470, JAN 17, 1975

1. WHERE BIDDER IS INVITED TO ATTEND CONFERENCE ON PROTEST BEFORE GAO AND IS SENT COPY OF WRITTEN RECORD BEFORE OUR OFFICE 2 MONTHS PRIOR TO ISSUANCE OF DECISION BUT DOES NOT ATTEND CONFERENCE NOR SUBMIT COMMENTS ON RECORD, HANDLING OF PROTEST BY GAO COMPORTED WITH EX PARTE SAFEGUARDS OF INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 C.F.R. PART 20 (1974)) AND PROCEDURAL CHALLENGES TO DECISION ARE INSUFFICIENT TO REQUIRE REVERSAL OF PRIOR DECISION ON RECONSIDERATION. 2. DECISION B-181470, NOVEMBER 6, 1974, CONCLUDING THAT DASHES IN BID FOR KITCHEN POLICE SERVICES SHOULD HAVE BEEN CONSIDERED SAME AS "NO CHARGE" BID, IS SUSTAINED AND DECISIONS CITED IN OPPOSITION ARE DISTINGUISHED.

DYNETERIA, INC., ET AL.:

SOUTHEASTERN SERVICES, INC. (SOUTHEASTERN), HAS REQUESTED A RECONSIDERATION OF OUR DECISION IN THE MATTER OF DYNETERIA, INC. ET AL., 54 COMP. GEN. (B-181470, NOVEMBER 6, 1974). THAT DECISION HELD THAT THE BID OF DYNETERIA UNDER INVITATION FOR BIDS (IFB) NO. DAKF48-74-B-0102, ISSUED BY THE UNITED STATES ARMY FOR KITCHEN POLICE SERVICES AT FORT HOOD, TEXAS, WAS IMPROPERLY REJECTED AS NONRESPONSIVE. THE DECISION FURTHER RECOMMENDED THAT THE RESULTING CONTRACT WITH SOUTHEASTERN BE TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT AND THAT DYNETERIA SHOULD BE CONSIDERED FOR AWARD OF THE REMAINING PORTION OF THE CONTRACT.

THE BASIS FOR THE DETERMINATION BY THE CONTRACTING OFFICER THAT DYNETERIA'S BID WAS NONRESPONSIVE WAS THAT DYNETERIA HAD INSERTED DASHES IN THE SPACES PROVIDED FOR A BID PRICE NEXT TO 45 OF THE 56 DINING FACILITIES TO COVER KITCHEN POLICE SERVICES. OUR DECISION CONCLUDED THAT THE DASHES SHOULD HAVE BEEN CONSIDERED THE SAME AS A "NO CHARGE" NOTATION SINCE DYNETERIA HAD SUBMITTED A BID PRICE OF 22 CENTS PER MEAL FOR AN ESTIMATED QUANTITY OF 10,038,264 MEALS TO BE SERVED. THIS BID, WE HELD, EVIDENCED AN INTENT ON THE PART OF DYNETERIA TO BE PAID ON A PER MEAL BASIS FOR KITCHEN POLICE SERVICES AT THE DINING FACILITIES FOR WHICH A DASH WAS INSERTED.

SOUTHEASTERN CHALLENGES THE DECISION ON BOTH PROCEDURAL AND SUBSTANTIVE GROUNDS.

THE PROCEDURAL GROUNDS OF THE REQUEST FOR RECONSIDERATION INVOLVE EITHER THE FAILURE OF THE ARMY, DYNETERIA, OR OUR OFFICE TO COMPLY STRICTLY WITH THE INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 C.F.R. PART 20 (1974)). AT A CONFERENCE HELD ON JANUARY 8, 1975, AT THE REQUEST OF SOUTHEASTERN AND ATTENDED BY THE INTERESTED PARTIES, THE ALLEGED PROCEDURAL DEFICIENCIES WERE DISCUSSED. IN VIEW OF THE DISCUSSIONS THAT TOOK PLACE AT THAT TIME, WE DO NOT BELIEVE THAT IT IS NECESSARY TO FULLY CONSIDER THESE ASPECTS OF THE PROTEST WHICH DO NOT AFFECT THE ESSENCE OF OUR PREVIOUS DECISION. WE DO BELIEVE THAT THE PROCESSING OF THE PROTEST BEFORE OUR OFFICE COMPORTED GENERALLY WITH THE EX PARTE SAFEGUARDS INHERENT IN OUR PROTEST PROCEDURES.

IT IS TRUE THAT OUR NOVEMBER DECISION INCLUDED AN EXPLANATION BY DYNETERIA AS TO ITS MODE OF BIDDING. THIS REPRESENTED NOTHING MORE THAN A SELF-SERVING ORAL STATEMENT WHICH WAS GENERATED BY THE AUGUST 28, 1974, CONFERENCE ITSELF AND HAD NO INDEPENDENT PROBATIVE VALUE SINCE IT WAS NOT PART OF THE WRITTEN RECORD BEFORE OUR OFFICE ON THE PROTEST. IT WAS SO STATED TO HIGHLIGHT THE ISSUE BEFORE US AND TO REFLECT THE TENOR OF THE CONFERENCE THE PURPOSE OF WHICH WAS "*** TO CRYSTALLIZE THE ISSUES BEFORE OUR OFFICE AND TO AFFORD ALL INTERESTED PARTIES AN OPPORTUNITY TO PRESENT THEIR VIEWS ON THE MERITS OF THE PROTEST." (53 COMP. GEN. 434, 436 (1973)). ALTHOUGH SOUTHEASTERN RAISES A PROCEDURAL ALLEGATION AS TO ITS "OPPORTUNITY" TO ATTEND THE AUGUST CONFERENCE, AN INVITATION TO ATTEND WAS EXTENDED BUT APPARENTLY DECLINED BECAUSE THE ARMY WOULD NECESSARILY ACT AS ITS ADVOCATE. IN ANY EVENT, THE PROTEST WAS CONSIDERED ONLY ON THE BASIS OF THE WRITTEN RECORD BEFORE OUR OFFICE WHICH CONTAINED THE VIEWS OF ALL INTERESTED PARTIES WHO CHOSE TO VOLUNTARILY SUBMIT THEM FOR OUR CONSIDERATION. IT IS UNFORTUNATE THAT SOUTHEASTERN DID NOT AVAIL ITSELF OF THE OPPORTUNITY TO ATTEND THE CONFERENCE OR TO PRESENT ITS OWN VIEWS ON THE MERITS OF THE PROTEST. BUT SUFFICIENT TIME AND NOTICE WAS AFFORDED TO SUPPLEMENT THE WRITTEN RECORD. IN FACT, SOUTHEASTERN WAS FURNISHED A COPY OF THE RECORD WHICH WAS ALSO MADE AVAILABLE TO DYNETERIA, TOGETHER WITH A COPY OF OUR BID PROTEST PROCEDURES, 2 MONTHS BEFORE OUR DECISION WAS RENDERED. HOWEVER, SOUTHEASTERN DID NOT COMMUNICATE WITH OUR OFFICE ON THE PROTEST UNTIL AFTER THE DECISION WAS RENDERED ON NOVEMBER 6, 1974. THEREFORE DO NOT BELIEVE THAT A STIGMA OF UNFAIRNESS WAS PRESENT IN OUR CONSIDERATION OF THE PROTEST.

THE FIRST ARGUMENT ADVANCED BY SOUTHEASTERN IS THAT THE FAILURE OF DYNETERIA TO INSERT A BID PRICE FOR 45 OF THE 56 DINING FACILITIES UNDER ITEM 1 OF THE SOLICITATION RENDERED ITS BID NONRESPONSIVE OR, AT THE VERY LEAST, AMBIGUOUS SO AS TO REQUIRE ITS REJECTION AS NONRESPONSIVE. SOUTHEASTERN CONTENDS THAT THE SOLICITATION REQUIRED A BID PRICE FOR ALL 56 FACILITIES UNDER ITEM I AND A PER MEAL BID PRICE UNDER ITEM II. THIS IS WHAT THE SOLICITATION STATES. HOWEVER, IN OUR NOVEMBER 6 DECISION, WE HELD THAT FROM THE BID ITSELF, THE DASHES WERE EVIDENCE THAT DYNETERIA INTENDED TO PROVIDE THE REQUIRED SERVICES IN ALL FACILITIES MARKED WITH A DASH AT NO CHARGE. IN OUR OPINION, THE ACT OF PLACING DASHES IN THE BID SCHEDULE CARRIED WITH IT THE CLEAR OBLIGATION TO PROVIDE ALL OF THE ADVERTISED SERVICES AS IF A DOLLAR PRICE ENTRY OR "NC" WERE INSERTED INSTEAD OF A DASH. THE TEST WE APPLIED IS ONE OF OBLIGATION OR PROMISE TO PERFORM ON THE PART OF THE BIDDER IN COMMON WITH OTHER BIDDERS COMPETING FOR THE SAME AWARD. THE CONCEPT WAS STATED IN 49 COMP. GEN. 553, 556 (1970), AS FOLLOWS:

"*** WE HAVE HELD ON NUMEROUS OCCASIONS THAT THE TEST TO BE APPLIED IN DETERMINING THE RESPONSIVENESS OF A BID IS WHETHER THE BID AS SUBMITTED IS AN OFFER TO PERFORM, WITHOUT EXCEPTION, THE EXACT THING CALLED FOR IN THE INVITATION, AND UPON ACCEPTANCE WILL BIND THE CONTRACTOR TO PERFORM IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS THEREOF. UNLESS SOMETHING ON THE FACE OF THE BID, OR SPECIFICALLY A PART THEREOF, EITHER LIMITS, REDUCES OR MODIFIES THE OBLIGATION OF THE PROSPECTIVE CONTRACTOR TO PERFORM IN ACCORDANCE WITH THE TERMS OF THE INVITATION, IT IS RESPONSIVE."

SOUTHEASTERN CITED NUMEROUS PRIOR DECISIONS OF OUR OFFICE, WHICH, IT FEELS, REQUIRE REVERSAL OF OUR DECISION. IN B-167899 OF NOVEMBER 5, 1969, A BIDDER FAILED TO INSERT A BID PRICE FOR DATA ITEMS IN A BID SCHEDULE BUT DID PRICE THE DATA ITEMS ON THE CONTRACT DATA REQUIREMENTS LIST (DD FORM 1423). WE HELD THAT THE BID SHOULD BE REJECTED AS NONRESPONSIVE BECAUSE THE PRICES SHOWN ON DD FORM 1423 WERE ESTIMATED PRICES AND THE BIDDER WOULD NOT HAVE BEEN BOUND TO FURNISH THOSE ITEMS TO THE GOVERNMENT AT THE COST SHOWN ON DD FORM 1423. SUCH IS NOT THE CASE HERE. THE CITED CASE, UNLIKE THE ONE HERE, INVOLVED AN AMBIGUITY WHICH COULD NOT BE RESOLVED FROM THE BID ITSELF.

ALSO CITED BY SOUTHEASTERN IS B-166840, MAY 19, 1969, WHICH INVOLVED THE REJECTION OF A BID AS NONRESPONSIVE BECAUSE THE BIDDER FAILED TO RETURN A SPECIAL BID SHEET WHICH WAS PART OF AN AMENDMENT TO THE SOLICITATION AND WHICH CONTAINED SPACES TO BID ON ADDITIVE ITEMS. WE DO NOT VIEW THIS CASE AS CONTROLLING SINCE THE BIDDER FAILED TO INDICATE IN ANY MANNER THAT IT WAS RESPONDING TO THE ADDITIVE ITEMS OR THAT IT REGARDED THE ADDITIVE ITEMS AS PART OF ITS BID AS SUBMITTED.

ALSO RELIED UPON BY SOUTHEASTERN IS B-153262, FEBRUARY 19, 1964, WHERE WE HELD THAT A BID SHOULD BE REJECTED ON THE GROUND THAT A BIDDER FAILED TO RETURN AN AMENDMENT TO THE BID PACKAGE WHICH HAD ADDED AN ITEM AND REQUESTED A PRICE FOR THAT ITEM. THE RATIONALE OF THAT CASE, WHICH IS DISTINGUISHABLE FROM THIS CASE, WAS STATED IN THE DECISION AS FOLLOWS:

"*** IF A BIDDER DID NOT EMPLOY THE MOST CONVENIENT METHOD OF INDICATING ITS INTENTION WITH RESPECT TO THE PRICING OF THE ITEM, BY EXECUTING AND RETURNING THE ADDENDUM WITH THE BID, SUCH INTENTION SHOULD OTHERWISE HAVE BEEN EVIDENCED BY LETTER ACCOMPANYING THE BID OR BY APPROPRIATE NOTATIONS ON THE BIDDING SCHEDULE MADE A PART OF THE BID."

THE IMPORTANCE OF INDICATING AN INTENTION TO BE BOUND UNDER THE BID ITSELF, WHICH WAS ABSENT IN B-153262, WAS PRESENT HERE. IN 48 COMP. GEN. 757 (1969) AT PAGE 762, IT WAS STATED:

"THE ENTRY OF A ' ' IS CERTAINLY LESS CLEAR AN INDICATION OF INTENT THAN EITHER A DOLLAR PRICE ENTRY OR A STATEMENT LIKE 'NO CHARGE.' BUT IT IS A MORE MEANINGFUL EXPRESSION OF INTENT THAN A MERE BLANK SPACE. THE ' ,' IT SEEMS TO US, SHOWS TWO THINGS. FIRST, THE BIDDER WAS AWARE OF THE NECESSITY TO INSERT SOMETHING NEXT TO THE ITEM; IN OTHER WORDS, THE BIDDER HAD NOT OVERLOOKED THE ITEM. SECOND, AFTER CONSIDERING THE MATTER, THE BIDDER DECIDED NOT TO INSERT A PRICE FOR THE ITEM. THE AFFIRMATIVE COROLLARY IS THAT THE BIDDER OBLIGATED ITSELF TO FURNISH THE DATA WITHOUT COST TO THE GOVERNMENT. THEREFORE, WHILE THERE IS NO EXPLICIT INDICATION THAT THE DATA WAS TO BE SUPPLIED AT NO COST, THE BIDDER'S INTENT TO DO SO WAS CLEAR AND THE FAILURE TO STATE THIS INTENT IN A MORE POSITIVE FASHION DID NOT RENDER THE BID NONRESPONSIVE."

FURTHER, IN 51 COMP. GEN. 325, 356 (1971), WE SAID: "*** DASHES HAVE NO FIRM MEANING APART FROM THE CONTEXT IN WHICH THEY ARE USED - THE ENTIRE CONTEXT."

FINALLY, SOUTHEASTERN RAISES THE SAME ISSUES ORIGINALLY PRESENTED BY THE ARMY UNDER THE PRIOR DECISION RELATING TO OVERTIME SERVICES AND THE EFFECT OF CLOSING OF ONE OR MORE OF THE BUILDINGS. WE BELIEVE THESE MATTERS WERE ADEQUATELY TREATED IN THE NOVEMBER 6 DECISION. SOUTHEASTERN PLACES GREAT STRESS ON THE FACT THAT THERE WILL BE NO PRICES UPON WHICH TO COMPUTE THE OVERTIME ENTITLEMENT OF DYNETERIA AS REQUIRED BY THE FORMULA CONTAINED IN AMENDMENT 0004. AS WE HELD IN OUR DECISION, THERE WOULD BE NO NEED TO EMPLOY THIS FORMULA AS DYNETERIA HAS LIMITED ITS PAYMENT TO $0.22 PER MEAL REGARDLESS OF THE EXTENT OF USE OF A DINING FACILITY. REGARDING THE CLOSING OF A DINING FACILITY, ONCE AGAIN THE FORMULA SIMPLY WOULD NOT BE USED BUT THE TOTAL MEALS FED DURING A DAY WOULD CONSTITUTE THE TOTAL COMPENSATION TO DYNETERIA.

UPON REVIEW, WE FIND NO BASIS TO DEPART FROM OUR CONCLUSION THAT THE DYNETERIA BID WAS RESPONSIVE TO THE INVITATION NOTWITHSTANDING ITS USE OF DASHES IN BIDDING FOR KITCHEN POLICE SERVICES AT CERTAIN DINING FACILITIES.

ACCORDINGLY, THE DECISION OF NOVEMBER 6, 1974, AND RECOMMENDATION CONTAINED THEREIN ARE AFFIRMED.