B-132113, AUG. 22, 1957

B-132113, AUG. 22, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED JULY 26, 1957, FROM THE DEPUTY ASSISTANT SECRETARY (LOGISTICS), FURNISHING A REPORT RELATIVE TO THE PROTEST OF CDC CONTROL SERVICES, INC., HATBORO, PENNSYLVANIA, AGAINST THE AWARD OF A CONTRACT TO EITHER OF THE TWO LOW BIDDERS UNDER INVITATION NO. ENG-15-029-57-75, ISSUED BY THE CORPS OF ENGINEERS, LOUISVILLE DISTRICT.

THE INVITATION REQUESTED BIDS TO BE OPENED ON JUNE 4, 1957, FOR PERFORMING WORK CONSISTING ESSENTIALLY OF FURNISHING AND INSTALLING INSTRUMENT AND CONTROL EQUIPMENT NECESSARY FOR OPERATION AND CONTROL OF THE MECHANICAL AND ELECTRICAL EQUIPMENT INSTALLED IN THE ADDITION TO BUILDING 45, UNDER ANOTHER CONTRACT, AT WRIGHT-PATTERSON AIR FORCE BASE, OHIO. THE INVITATION PROVIDED THAT CERTAIN INFORMATION WITH RESPECT TO INSTRUMENTATION EQUIPMENT SHALL BE SUBMITTED WITH THE BID AND, WITH RESPECT THERETO, PARAGRAPH 22 OF THE SPECIAL CONDITIONS PROVIDED AS FOLLOWS:

"DATA TO BE SUBMITTED WITH BID. INFORMATION TO BE SUBMITTED WITH THE BID IS LISTED ON PAGES ATTACHED TO THE BID FORM. SUBMISSION OF THE BID DATA REQUIRED WILL IN NO WAY RELIEVE THE BIDDER FROM COMPLETE COMPLIANCE WITH THE SPECIFICATIONS.'

IN PARAGRAPH 14 OF THE INSTRUCTIONS FOR BIDDERS (STANDARD FORM 22) THE GOVERNMENT RESERVED THE RIGHT TO REJECT ANY AND ALL BIDS AND TO WAIVE ANY DEFECT OR INFORMALITY IN THE BIDS RECEIVED.

THE RECORD SHOWS THAT FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE THREE LOWEST BIDS RECEIVED ARE IN THE AMOUNTS OF $348,220, $394,835 AND $411,000, WHICH WAS SUBMITTED BY CDC CONTROL SERVICES, INC. THE LOW BIDDER AND THE SECOND LOW BIDDER FAILED TO FURNISH WITH THEIR BIDS ALL THE INFORMATION CALLED FOR BY THE INVITATION FOR BIDS. SPECIFICALLY, THEY DID NOT FURNISH THE DETAILED INFORMATION REGARDING THE INSTRUMENTATION EQUIPMENT PROPOSED TO BE FURNISHED.

IT IS REPORTED THAT ON JUNE 4, 1957, THE LOW BIDDER CONTACTED THE CONTRACTING OFFICE BY TELEPHONE AND ADVISED THAT IT HAD ENCOUNTERED DIFFICULTY IN PROCURING THE REQUIRED EQUIPMENT INSTRUMENTATION DATA AND THAT AN EXPLANATION ALONG WITH THE REQUIRED DATA WOULD BE SUBMITTED WITHIN THE NEXT FEW DAYS. THE DATA WAS SUBMITTED ON JUNE 7, 1957.

ON JUNE 6, 1957, CDC CONTROL SERVICES, INC., PROTESTED AN AWARD TO EITHER OF THE TWO LOW BIDDERS ON THE BASIS THAT SINCE THE EQUIPMENT INSTRUMENTATION DATA HAD NOT BEEN SUBMITTED WITH THEIR BIDS, THE BIDS WERE NOT RESPONSIVE TO THE INVITATION.

IT IS, OF COURSE, A FUNDAMENTAL RULE THAT COMPETITIVE BIDS FOR GOVERNMENT CONTRACTS MAY NOT BE CHANGED IN ANY MATERIAL RESPECT AFTER THE BIDS ARE OPENED SO AS TO AFFECT THE PRICE, QUANTITY OR QUALITY OF THE MATERIAL OR WORK TO BE PERFORMED. SEE 30 COMP. GEN. 179. OUR OFFICE HAS CONSISTENTLY HELD, HOWEVER, THAT THIS DOES NOT MEAN THAT A BIDDER MAY NOT BE OFFERED AN OPPORTUNITY TO FURNISH INCIDENTAL INFORMATION WHERE HE HAS SHOWN IN HIS BID AN INTENTION TO PERFORM THE WORK SPECIFIED IN ACCORDANCE WITH THE GOVERNMENT'S REQUIREMENTS AS SET OUT IN THE INVITATION. SEE 36 COMP. GEN. 376.

IT IS THE DUTY AND RESPONSIBILITY OF CONTRACTING OFFICIALS OF THE GOVERNMENT TO MAKE REASONABLE INQUIRY CONCERNING THE RESPONSIBILITY OF A BIDDER WHO MAY BE ENTITLED TO AN AWARD, TO DETERMINE WHETHER THE BIDDER PROPOSES TO FURNISH EQUIPMENT MEETING THE REQUIREMENTS OF THE SPECIFICATIONS AND THAT HE HAS THE ABILITY TO PROPERLY INSTALL SUCH EQUIPMENT. IT IS TO FACILITATE THAT DETERMINATION THAT PROVISIONS REQUIRING DATA SUCH AS THE ONE HERE INVOLVED ARE OCCASIONALLY INCLUDED IN INVITATIONS FOR BID. OBVIOUSLY, SUCH DETERMINATIONS MAY BE MADE ON THE BASIS OF EVIDENCE SUBMITTED THE BIDDER AFTER THE OPENING OF BIDS AS WELL AS ON THE BASIS OF EVIDENCE SUBMITTED WITH HIS BID.

IN THE PRESENT CASE THE INFORMATION WAS FURNISHED A FEW DAYS AFTER THE BID OPENING. THE INFORMATION WAS, THEREFORE, FURNISHED IN AMPLE TIME TO PERMIT CONTRACTING OFFICIALS TO MAKE A DETERMINATION AS TO WHETHER THE BIDDER WAS QUALIFIED TO PERFORM THE PROPOSED CONTRACT IF AN AWARD SHOULD BE MADE TO HIM. THE PROVISION IN THE INVITATION REQUIRING DATA WAS INSERTED FOR THE BENEFIT AND CONVENIENCE OF THE GOVERNMENT AND IN NO WAY AFFECTS THE RIGHT OF COMPETING BIDDERS. FURTHERMORE, THE LOW BIDDER LEGALLY COULD NOT HAVE REFUSED TO ACCEPT AWARD OF THE CONTRACT ON THE GROUND THAT HIS BID WAS DEFECTIVE BECAUSE IT DID NOT INCLUDE THE DESIRED INFORMATION. IN SUCH CIRCUMSTANCES STRICT COMPLIANCE WITH REQUIREMENT MAY BE WAIVED BY THE GOVERNMENT AS AN INFORMALITY AS EXPRESSLY AUTHORIZED BY PARAGRAPH 14 OF THE INSTRUCTION TO BIDDERS.

ACCORDINGLY, YOU ARE ADVISED THAT THE PROTEST OF CDC CONTROL SERVICES, INC., IS WITHOUT MERIT, AND THAT THE LOW BID PROPERLY MAY BE CONSIDERED FOR AWARD.