B-158132, FEB. 21, 1966

B-158132, FEB. 21, 1966

TO AMERICAN OIL AND SUPPLY COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM DATED JANUARY 18, 1966, AND YOUR LETTER DATED JANUARY 19, 1966, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION B-158132, DATED JANUARY 12, 1966, DENYING YOUR PROTEST AGAINST AN AWARD TO ANY BIDDER WHO DID NOT SUPPLY THE IDENTITY OF THE QUALIFIED PRODUCTS OFFERED IN THE APPROPRIATE SPACES UNDER INVITATIONS FOR BIDS DSA- 600-66-81, DSA-600-66-84, AND DSA-600-66-89, ISSUED BY THE DEFENSE FUEL SUPPLY CENTER.

YOUR OBJECTION TO OUR DECISION SEEMS TO BE THAT THE GOVERNMENT IS, IN EFFECT, IGNORING ITS OWN MANDATORY LANGUAGE IN PARAGRAPH 23, PAGE 7 OF THE INVITATION BY ACCEPTING BIDS WHICH (A) DID NOT SPECIFY THE PRODUCT IN THE APPLICABLE BLANK SPACES, AND (B) OFFERED MORE THAN ONE PRODUCT. THE PURPOSE OF REQUIREMENTS SUCH AS THOSE UNDER CONSIDERATION IS TO SUPPLY PRODUCT INFORMATION AND IDENTIFICATION TO THE CONTRACTING OFFICER SO THAT HE CAN PROPERLY EVALUATE THE BIDS WHICH HAVE BEEN SUBMITTED, AND CHOOSE THE ONE MOST ADVANTAGEOUS TO THE GOVERNMENT. OF COURSE, CERTAIN RULES MUST BE FOLLOWED TO INSURE THAT ALL BIDDERS COMPETE ON AN EQUAL FOOTING. IF THIS MAIN OBJECTIVE IS ACCOMPLISHED, IT DOES NOT MATTER THAT SOME PURELY FORMAL REQUIREMENTS ARE NOT STRICTLY COMPLIED WITH; WHEN THIS IS THE CASE, THE CONTRACTING OFFICER IS AUTHORIZED BY LAW TO WAIVE SUCH MINOR IRREGULARITIES AS BEING IN THE BEST INTEREST OF THE GOVERNMENT. SEE THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), SECTION 2-405. IN THE INSTANT PROCUREMENT, WHILE IT IS TRUE THE CONTRACTING OFFICER DID NOT GET THE DESIRED INFORMATION FROM THE SPACE PROVIDED, STILL, AT BID OPENING, WITH REFERENCE TO THE TELEGRAPHIC MODIFICATION AND THE QPL, HE WAS AWARE OF ALL THE DATA NECESSARY TO MAKE A FAIR EVALUATION OF THE BIDS.

FURTHERMORE, YOU STATE THE PRACTICE OF ALLOWING A BIDDER TO OFFER MORE THAN ONE OF HIS QUALIFIED PRODUCTS "* * * MAKES FOR THE PREJUDICIAL ELIMINATION OF COMPETITION, * * *" AND YOU ILLUSTRATE YOUR POINT WITH A HYPOTHETICAL SITUATION. SUFFICE IT TO SAY THAT YOUR ILLUSTRATION IS NOT OPPOSITE SINCE BOTH ASPR SECTION 1-1107.1 (A) AND PARAGRAPH 23 REQUIRE, AS A PREREQUISITE TO ELIGIBILITY, THAT A PRODUCT BE APPROVED FOR THE QPL OR ACTUALLY BE LISTED ON IT PRIOR TO BID OPENING. IN VIEW OF THE FACT THAT THE GOVERNMENT WOULD BE REQUIRED TO ACCEPT EITHER OF THE PRODUCTS ON THE QPL, IT MAKES LITTLE SENSE TO REQUIRE REJECTION OF A BID WHICH OFFERS ONE OF TWO TOTALLY ACCEPTABLE AND LEGALLY EQUIVALENT PRODUCTS MERELY BECAUSE A MANUFACTURER HAPPENS TO HAVE TROUBLED HIMSELF TO QUALIFY MORE THAN ONE OF HIS PRODUCTS.

FOR THE REASONS STATED ABOVE, WE FEEL THE DECISION OF JANUARY 12, 1966, MUST BE SUSTAINED.