DePonte Investments, Inc.
Highlights
A firm protested a Department of the Interior contract award for the leasing of office space and storage space, contending that (1) it was entitled to a preference for Indian-owned firms, (2) the awardee's offer conflicted with solicitation requirements, and (3) Interior improperly evaluated its proposal. GAO held that (1) the solicitation did not provide for the application of a preference, (2) the awardee's offer was not in conflict with the solicitation requirements, and (3) Interior's evaluation of the protester's offer was reasonable. Accordingly, the protest was denied.
B-172252, MAR 23, 1971
BID PROTEST - RESPONSIVENESS OR RESPONSIBILITY DECISION CONCERNING BID PROTEST BY EVERGREEN AGAINST ACCEPTANCE OF THE LOW BID OFFERED BY ANCHORAGE HELICOPTERS FOR THE RENTAL OF SEVEN HELICOPTERS. THE COMP. GEN. VIEWS THE PROVISION IN THE SOLICITATION REQUIRING PROOF OF OWNERSHIP OR AVAILABILITY AS PERTAINING TO THE BIDDER'S ABILITY TO PERFORM SATISFACTORILY UNDER THE PROSPECTIVE CONTRACT. THE PURPOSE WAS TO ASSIST IN DETERMINING RESPONSIBILITY WHICH MAY NOT BE MADE A QUESTION OF RESPONSIVENESS. THEREFORE ANCHORAGE'S BID SHOULD BE ACCEPTED NOTWITHSTANDING ITS FAILURE TO COMPLY LITERALLY WITH THAT PORTION OF THE SOLICITATION.
TO MR. ROBERT L. BYSOM:
BY LETTER DATED MARCH 15, 1971, YOU REQUESTED OUR OPINION AS TO THE PROPER AWARD TO BE MADE UNDER YOUR SOLICITATION NO. P-1-146, FOR THE RENTAL OF SEVEN HELICOPTERS BEGINNING AT VARIOUS DATES IN MAY 1971.
PROVISION WAS MADE FOR AWARD EITHER ON AN ALL OR NONE BASIS OR SEPARATELY FOR EACH HELICOPTER. THE PRICE QUOTED BY THE ONLY ALL OR NONE BIDDER (EVERGREEN) WAS $610,700. THE TOTAL OF LOW SEPARATE BIDS WAS $602,422.75, INCLUDING EVERGREEN'S LOW BIDS ON ITEMS 1, 2, 3 AND 4 TOTALLING OVER $400,000. EVERGREEN PROTESTED ACCEPTANCE OF THE LOW BID ON ITEM 7 BY ANCHORAGE HELICOPTERS ON THE BASIS THAT ANCHORAGE HAD FAILED TO COMPLY WITH THE REQUIREMENTS OF SECTION D OF THE BID QUESTIONNAIRE.
THAT SECTION INCLUDES THE FOLLOWING PROVISION:
"D. PROOF OF OWNERSHIP OR AVAILABILITY OF HELICOPTERS: THE BIDDER SHALL SUBMIT WITH HIS BID, PROOF OF OWNERSHIP OR OF AVAILABILITY OF THE HELICOPTERS HE INTENDS TO USE IN THE PERFORMANCE OF CONTRACT RESULTING FROM THIS SOLICITATION. THE PROOF SHALL CONSIST OF COPIES OF CURRENT FEDERAL AVIATION AGENCY RECORDS INDICATING THE OWNER OR A COPY OF THE AGREEMENT WITH THE OWNER'S NAME SHOWN ON THE CURRENT FEDERAL AVIATION AGENCY RECORDS."
ANCHORAGE'S BID ON ITEM 7 WAS ACCOMPANIED BY A LETTER FROM VOUGHT HELICOPTER INCORPORATED WHICH STATED THAT VOUGHT WOULD DELIVER THE REQUIRED HELICOPTER TO ANCHORAGE WITHIN 30 DAYS AFTER RECEIPT OF $10,000 AND A SIGNED PURCHASE AGREEMENT. THE PERIOD OF USE FOR ITEM 7 SPECIFIED BY THE SOLICITATION BEGINS MAY 31, 1971, AND THE VOUGHT LETTER GUARANTEED 30-DAY DELIVERY IF ORDERED THROUGH APRIL 30, 1971.
EVERGREEN'S PROTEST STATES THAT ANCHORAGE'S BID FAILED TO SUBMIT "COPIES OF CURRENT FEDERAL AVIATION AGENCY RECORDS" SHOWING THE OWNER'S NAME. EVERGREEN ITSELF HAD A SIMILAR AGREEMENT WITH VOUGHT FOR THE DELIVERY OF AN IDENTICAL HELICOPTER AT THE SAME PRICE QUOTED BY VOUGHT TO ANCHORAGE, BUT IT DID FURNISH THE FAA REGISTRATION NUMBER AND AN EXECUTED PURCHASE AGREEMENT.
IT IS APPARENT THAT THE INFORMATION ASKED FOR BY SECTION D OF THE QUESTIONNAIRE (AND ALSO SECTIONS A, B, AND C) PERTAINS TO THE BIDDER'S ABILITY TO PERFORM SATISFACTORILY UNDER THE PROSPECTIVE CONTRACT. OTHER WORDS, THE PURPOSE OF THE QUESTIONNAIRE IS TO ASSIST IN DETERMINING THE BIDDER'S RESPONSIBILITY. RESPONSIBILITY MAY NOT BE MADE A QUESTION OF RESPONSIVENESS BY REQUIRING EVIDENCE OF RESPONSIBILITY TO BE SUBMITTED WITH A BID. WE HAVE HELD MANY TIMES THAT EVIDENCE OF RESPONSIBILITY MAY BE SUBMITTED AFTER BID OPENING. SEE 49 COMP. GEN. 553, 556 (1970), AND THE CASES CITED THEREIN. IN THE PRESENT CASE, THERE IS THE FURTHER CONSIDERATION THAT ANCHORAGE IS SMALL BUSINESS, AND IF ITS BID WERE TO BE REJECTED FOR PRESUMED UNAVAILABILITY OF THE HELICOPTER NEEDED UNDER ITEM 7, THE MATTER WOULD HAVE TO BE REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY.
ACCORDINGLY, IT IS OUR VIEW THAT ANCHORAGE'S BID ON ITEM 7 MAY NOT BE REJECTED FOR FAILURE TO COMPLY LITERALLY WITH SECTION D OF THE QUESTIONNAIRE. SUCH ACTION WOULD BE PROPER ONLY IF IT WERE DETERMINED BY YOU AND THE SMALL BUSINESS ADMINISTRATION THAT ANCHORAGE COULD NOT IN FACT OBTAIN THE REQUIRED HELICOPTER IN TIME FOR PERFORMANCE.
ONE ADDITIONAL MATTER SHOULD BE MENTIONED. PARAGRAPH 21 OF THE ADDITIONAL GENERAL PROVISIONS OF THE SOLICITATION CONTAINS THE FOLLOWING SENTENCE:
" *** ANY FACTOR NOT SPECIFICALLY MENTIONED OR PROVIDED FOR HEREIN, IN ADDITION TO THAT OF PRICE, WHICH WILL AFFECT THE FINAL COST TO THE GOVERNMENT, WILL BE TAKEN INTO CONSIDERATION IN MAKING AWARD." THIS STATEMENT SHOULD BE DELETED FROM FUTURE SOLICITATIONS. IF COST FACTORS OTHER THAN THE BID PRICE ARE TO BE CONSIDERED IN THE EVALUATION OF BIDS OR PROPOSALS, THOSE FACTORS MUST BE IDENTIFIED BOTH QUALITATIVELY AND QUANTITATIVELY IN THE SOLICITATION. SEE 36 COMP. GEN. 380, 385 (1956).