B-163550, MAY 3, 1968, 47 COMP. GEN. 624

B-163550, MAY 3, 1968, 47 COMP. GEN. 624

BIDS - BUY AMERICAN ACT - REJECTION - UNJUSTIFIED THE CANCELLATION OF AN INVITATION THAT INCORPORATED BY REFERENCE THE BUY AMERICAN CLAUSE IN PARAGRAPH 6-104.5 OF THE ARMED SERVICES PROCUREMENT REGULATION BECAUSE THE BUY AMERICAN CERTIFICATE AND CERTIFICATION OF INDEPENDENT PRICE DETERMINATION REQUIREMENTS INADVERTENTLY OMITTED FROM THE INVITATION WERE CONSIDERED ESSENTIAL WAS UNJUSTIFIED IN VIEW OF THE FACT THAT ACCEPTANCE OF A BID UNDER THE INVITATION WOULD BIND THE BIDDER TO FURNISH THE DOMESTIC END PRODUCTS FIXED BY THE CLAUSE, AND THAT THE INDEPENDENT PRICE DETERMINATION, GOING TO THE RESPONSIBILITY OF THE BIDDER AND NOT THE RESPONSIVENESS OF THE BID, COULD BE FURNISHED AFTER THE BIDS WERE OPENED. THEREFORE, THE CANCELED INVITATION SHOULD BE REINSTATED AND THE SUBMITTED BIDS EVALUATED.

TO THE SECRETARY OF THE NAVY, MAY 3, 1968:

REFERENCE IS MADE TO A LETTER DATED MARCH 19, 1968, FILE SUP-0232, FROM THE DEPUTY COMMANDER, NAVAL SUPPLY SYSTEMS COMMAND, FURNISHING A REPORT ON THE PROTESTS OF FTS CORPORATION (FTS) AND RADIATION SYSTEMS, INC. (RSI) AGAINST THE CANCELLATION OF INVITATION FOR BIDS NO. N60921 68-B-0085 ISSUED ON NOVEMBER 3, 1967, BY THE UNITED STATES NAVAL ORDNANCE LABORATORY (NOL), WHITE OAK, SILVER SPRING, MARYLAND.

THE INVITATION SOLICITED BIDS FOR FURNISHING A QUANTITY OF MISSILE CRADLES AS SPECIFIED IN THE INVITATION. EIGHTEEN BIDS WERE RECEIVED AND OPENED ON DECEMBER 22, 1967. IT APPEARS THAT DUE TO A MISTAKE ON THE PART OF THE GOVERNMENT SOME OF THE BID PACKAGES WERE RELEASED TO POTENTIAL BIDDERS WITH PAGE 2 OF STANDARD FORM 33 MISSING. THE INVITATION WAS CANCELED BY NOL ON FEBRUARY 7, 1968, BECAUSE TWO PROVISIONS CONTAINED ON THE MISSING PAGE, NAMELY, PARAGRAPHS 7 AND 8, ENTITLED BUY AMERICAN CERTIFICATE AND CERTIFICATION OF INDEPENDENT PRICE DETERMINATION, RESPECTIVELY, WERE CONSIDERED TO BE MATERIAL AND ESSENTIAL TERMS THAT MUST BE CONFORMED WITH IN ORDER TO SUBMIT A RESPONSIVE BID. THOSE PARAGRAPHS PROVIDE AS FOLLOWS: 7. BUY AMERICAN CERTIFICATE.

THE OFFEROR HEREBY CERTIFIES THAT EACH END PRODUCT, EXCEPT THE END PRODUCTS LISTED BELOW, IS A DOMESTIC SOURCE END PRODUCT (AS DEFINED IN THE CLAUSE ENTITLED "BUY AMERICAN ACT"); AND THAT COMPONENTS OF UNKNOWN ORIGIN HAVE BEEN CONSIDERED TO HAVE BEEN MINED, PRODUCED, OR MANUFACTURED OUTSIDE THE UNITED STATES.

EXCLUDED END PRODUCTS COUNTRY OR ORIGIN 8. CERTIFICATION OF INDEPENDENT PRICE DETERMINATION (SEE PAR. 18 ON 33A).

(A) BY SUBMISSION OF THIS OFFER, THE OFFEROR CERTIFIES, AND IN THE CASE OF A JOINT OFFER, EACH PARTY THERETO CERTIFIES AS TO ITS OWN ORGANIZATION, THAT IN CONNECTION WITH THIS PROCUREMENT:

(1) THE PRICES IN THIS OFFER HAVE BEEN ARRIVED AT INDEPENDENTLY, WITHOUT CONSULTATION, COMMUNICATION, OR AGREEMENT, FOR THE PURPOSE OF RESTRICTING COMPETITION, AS TO ANY MATTER RELATING TO SUCH PRICES WITH ANY OTHER OFFEROR OR WITH ANY COMPETITOR.

(2) UNLESS OTHERWISE REQUIRED BY LAW, THE PRICES WHICH HAVE BEEN QUOTED IN THIS OFFER HAVE NOT BEEN KNOWINGLY DISCLOSED BY THE OFFEROR AND WILL NOT KNOWINGLY BE DISCLOSED BY THE OFFEROR PRIOR TO OPENING IN THE CASE OF AN ADVERTISED PROCUREMENT OR PRIOR TO AWARD IN THE CASE OF A NEGOTIATED PROCUREMENT, DIRECTLY OR INDIRECTLY TO ANY OTHER OFFEROR OR TO ANY COMPETITOR; AND

(3) NO ATTEMPT HAS BEEN MADE OR WILL BE MADE BY THE OFFEROR TO INDUCE ANY OTHER PERSON OR FIRM TO SUBMIT OR NOT TO SUBMIT AN OFFER FOR THE PURPOSE OF RESTRICTING COMPETITION.

(B) EACH PERSON SIGNING THIS OFFER CERTIFIES THAT:

(1) HE IS THE PERSON IN THE OFFEROR'S ORGANIZATION RESPONSIBLE WITHIN THAT ORGANIZATION FOR THE DECISION AS TO THE PRICES BEING OFFERED HEREIN AND THAT HE HAS NOT PARTICIPATED, AND WILL NOT PARTICIPATE IN ANY ACTION CONTRARY TO (A) (1) THROUGH (A) (3) ABOVE; OR

(2) (1) HE IS NOT THE PERSON IN THE OFFEROR'S ORGANIZATION RESPONSIBLE WITHIN THAT ORGANIZATION FOR THE DECISION AS TO THE PRICES BEING OFFERED HEREIN BUT THAT HE HAS BEEN AUTHORIZED IN WRITING TO ACT AS AGENT FOR THE PERSONS RESPONSIBLE FOR SUCH DECISION IN CERTIFYING THAT SUCH PERSONS HAVE NOT PARTICIPATED, AND WILL NOT PARTICIPATE IN ANY ACTION CONTRARY TO (A) (1) THROUGH (A) (3) ABOVE, AND AS THEIR AGENT DOES HEREBY SO CERTIFY; AND (11), HE HAS NOT PARTICIPATED, AND WILL NOT PARTICIPATE, IN ANY ACTION CONTRARY TO (A) (1) THROUGH (A) (3) ABOVE.

ACKNOWLEDGMENT OF AMENDMENTS THE OFFEROR ACKNOWLEDGES RECEIPT OF AMENDMENTS TO THE SOLICITATION FOR OFFERS AND RELATED DOCUMENTS NUMBERED AND DATED AS FOLLOWS:

AMENDMENT NO. DATE AMENDMENT NO. DATE ALSO, THERE WAS INCORPORATED BY REFERENCE IN THE INVITATION THE CLAUSE CONTAINED IN ASPR 6-104.5 WHICH PROVIDED AS FOLLOWS:

6-104.5 CONTRACT CLAUSE. THE CLAUSE GET FORTH BELOW SHALL BE INSERTED IN ALL CONTRACTS FOR SUPPLIES AND, WHEN APPLICABLE, IN CONTRACTS FOR SERVICES; EXCEPT THAT IT NEED NOT BE INSERTED IN CONTRACTS EXCLUSIVELY FOR ARTICLES, MATERIALS, OR SUPPLIES FOR USE OUTSIDE THE UNITED STATES. BUY AMERICAN ACT (MAY 1964)

(A) IN ACQUIRING END PRODUCTS, THE BUY AMERICAN ACT (41 U.S.C. 10A D) PROVIDES THAT THE GOVERNMENT GIVE PREFERENCE TO DOMESTIC SOURCE END PRODUCTS. FOR THE PURPOSE OF THIS CLAUSE:

(I) "COMPONENTS" MEANS THOSE ARTICLES, MATERIALS, AND SUPPLIES, WHICH ARE DIRECTLY INCORPORATED IN THE END PRODUCTS;

(II) "END PRODUCTS" MEANS THOSE ARTICLES, MATERIALS, AND SUPPLIES, WHICH ARE TO BE ACQUIRED UNDER THIS CONTRACT FOR PUBLIC USE; AND

(III) A "DOMESTIC SOURCE END PRODUCT" MEANS (A) AN UNMANUFACTURED END PRODUCT WHICH HAS BEEN MINED OR PRODUCED IN THE UNITED STATES AND (B) AN END PRODUCT MANUFACTURED IN THE UNITED STATES IF THE COST OF THE COMPONENTS THEREOF WHICH ARE MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES OR CANADA EXCEEDS 50 PERCENT OF THE COST OF ALL ITS COMPONENTS. FOR THE PURPOSES OF THIS (A) (III) (B), COMPONENTS OF FOREIGN ORIGIN OF THE SAME TYPE OR KIND AS THE PRODUCTS REFERRED TO IN (B) (II) OR (III) OF THIS CLAUSE SHALL BE TREATED AS COMPONENTS MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES.

(B) THE CONTRACTOR AGREES THAT THERE WILL BE DELIVERED UNDER THIS CONTRACT ONLY DOMESTIC SOURCE END PRODUCTS, EXCEPT END PRODUCTS:

(I) WHICH ARE FOR USE OUTSIDE THE UNITED STATES;

(II) WHICH THE GOVERNMENT DETERMINES ARE NOT MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES AND OF A SATISFACTORY QUALITY;

(III) AS TO WHICH THE SECRETARY DETERMINES THE DOMESTIC PREFERENCE TO BE INCONSISTENT WITH THE PUBLIC INTEREST; OR

(IV) AS TO WHICH THE SECRETARY DETERMINES THE COST TO THE GOVERNMENT TO BE UNREASONABLE.

(THE FOREGOING REQUIREMENTS ARE ADMINISTERED IN ACCORDANCE WITH EXECUTIVE ORDER NO. 10582, DATED DECEMBER 17, 1954. SO AS TO ALLEVIATE THE IMPACT OF DEPARTMENT OF DEFENSE EXPENDITURES ON THE UNITED STATES BALANCE OF INTERNATIONAL PAYMENTS, BIDS OFFERING DOMESTIC SOURCE END PRODUCTS NORMALLY WILL BE EVALUATED AGAINST BIDS OFFERING OTHER END PRODUCTS BY ADDING A FACTOR OF FIFTY PERCENT (50 PERCENT) TO THE LATTER, EXCLUSIVE OF IMPORT DUTIES. DETAILS OF THE EVALUATION PROCEDURE ARE SET FORTH IN SECTION VI OF THE ARMED SERVICES PROCUREMENT REGULATION.)

IN CONTRACTS FOR (I) CIVIL WORKS ACQUIRED WITH FUNDS APPROPRIATED FOR CIVIL FUNCTIONS, DEPARTMENT OF THE ARMY, OR (II) FOOD ITEMS, DELETE THE WORDS "OR CANADA" IN PARAGRAPH (A) (III) (B) OF THE ABOVE CLAUSE.

THE QUESTION FOR DETERMINATION IN CASES SUCH AS THIS IS WHETHER THE ACCEPTANCE OF THE BID AS SUBMITTED WILL RESULT IN A CONTRACT BINDING ON THE BIDDER REQUIRING PERFORMANCE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE CONTRACT. WHILE IT IS URGED IN THE MARCH 19 LETTER THAT THE FAILURE TO EXECUTE THE BUY AMERICAN CERTIFICATE IS A MATTER OF SUBSTANCE WHICH MAY NOT BE WAIVED WE CANNOT AGREE WITH SUCH POSITION. OUR DECISION B-157815, JANUARY 21, 1966, WE CONSIDERED THE EFFECT OF THE FAILURE OF A BIDDER TO FILL IN ANY OF THE BLANK SPACES RESPECTING THE BUY AMERICAN CERTIFICATE. WE HELD THAT IN THE ABSENCE OF ANY REPRESENTATION IN THE CERTIFICATE THAT THE BIDDER INTENDED TO OFFER FOREIGN END PRODUCTS THE BIDDER, UPON THE ACCEPTANCE OF ITS BID, WOULD BE BOUND TO FURNISH DOMESTIC END PRODUCTS AS FIXED UNDER THE BUY AMERICAN CLAUSE INCLUDED AS A PART OF THE INVITATION. WE SEE NO MATERIAL DIFFERENCE BETWEEN THE FAILURE TO EXECUTE THE CERTIFICATE AND THE FAILURE TO INCLUDE THE CERTIFICATE IN THE INVITATION. CONSEQUENTLY, WE DO NOT BELIEVE THAT THE INVITATION SHOULD HAVE BEEN CANCELED BECAUSE THE BUY AMERICAN CERTIFICATE WAS MISSING.

REGARDING THE FAILURE TO INCLUDE THE CERTIFICATE OF INDEPENDENT PRICE DETERMINATION IN THE INVITATION, IT IS OUR VIEW THAT SUCH CERTIFICATE MAY BE FURNISHED AFTER BIDS ARE OPENED. IN OUR DECISION OF JULY 17, 1964, B- 154626, WE CONSIDERED THE EFFECT OF THE FAILURE OF A BIDDER TO RETURN A PAGE OF AN INVITATION CONTAINING SUCH CLAUSE AND WE CONCLUDED THAT THE CLAUSE DID NOT AFFECT THE RESPONSIVENESS OF THE BID BUT RATHER WENT TO THE RESPONSIBILITY OF THE BIDDER AND, THEREFORE, SUCH INFORMATION COULD BE FURNISHED AFTER BID OPENING. HENCE, IT IS OUR VIEW THAT CANCELLATION OF THE INVITATION WAS NOT JUSTIFIED ON THE GROUNDS ADVANCED BY NOL AND THE INVITATION SHOULD BE REINSTATED.

INASMUCH AS NO REPORT WAS FURNISHED REGARDING THE CONTENTIONS OF CERTAIN OF THE BIDDERS QUESTIONING THE RESPONSIVENESS OF SOME OF THE BIDS AND SINCE FINAL EVALUATION OF ALL THE BIDS HAD NOT BEEN MADE AT THE TIME OF CANCELLATION OF THE INVITATION, IT IS SUGGESTED THAT THE BIDS NOW BE EVALUATED. IF THE BIDDERS STILL ARE DISSATISFIED WITH THE GOVERNMENT'S DETERMINATION AS TO THE LOWEST RESPONSIVE BIDDER THE MATTER SHOULD BE RESUBMITTED HERE WITH THE ADMINISTRATIVE RECOMMENDATIONS REGARDING THE RESPONSIVENESS OF THE BIDS WHICH CERTAIN BIDDERS HAVE QUESTIONED.