B-160767, MAR. 7, 1967

B-160767, MAR. 7, 1967

TO LONG LIFE RUBBER PRODUCTS COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 18, 1967, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. FPNFH-Y-27420-A-9-7-66 ISSUED AUGUST 5, 1966, BY THE GENERAL SERVICES ADMINISTRATION (GSA).

THE INVITATION COVERED FEDERAL SUPPLY SCHEDULE REQUIREMENTS FOR GROUP 72, PART I, HOUSEHOLD FURNISHINGS, CLASS 7220, FLOOR COVERINGS, FOR THE PERIOD MARCH 15, 1967, THROUGH MARCH 14, 1968.

PAGE 54 OF THE INVITATION CONTAINS BIDDING INSTRUCTIONS APPLICABLE TO BIDS FOR MATTING; TYPE I (ITEMS 31-56 THROUGH 31-65). THOSE INSTRUCTIONS PROVIDE IN PERTINENT PART AS FOLLOWS:

"* * * ONE PRICE ONLY FOR EACH ZONE PER LINEAR YARD IS TO BE BID FOR ALL COLORS INCLUDING BLACK. BIDS QUOTING A PRICE FOR BLACK MATTING AND ANOTHER PRICE FOR MATTING IN OTHER COLORS WILL NOT BE CONSIDERED AS RESPONSIVE TO THIS INVITATION FOR BIDS, AND WILL BE SUMMARILY REJECTED.

YOU SUBMITTED BIDS ON ITEMS 31-56 THROUGH 31-65 FOR EACH ZONE,"A" THROUGH 3. THE COLORS OFFERED BY YOU WERE BLACK, BROWN, GRAY AND GREEN. ABOVE THE PRICE QUOTATION IS THE STATEMENT "ADD 9 CENTS PER SQ. FT. ADDITIONAL FOR BROWN, GRAY, AND GREEN.' OTHER BIDS ON THOSE ITEMS WERE SUBMITTED BY THE TENNESSEE MAT COMPANY AND BY THE ACE LITE STEP CO., INC. THE BIDS WERE OPENED ON SEPTEMBER 7, 1966, AND AWARD WAS MADE ON DECEMBER 14, 1966, TO THE TENNESSEE MAT COMPANY AS THE LOW RESPONSIVE BIDDER. YOUR BID WAS REJECTED AS NONRESPONSIVE BECAUSE YOU QUOTED DIFFERENT PRICES FOR COLOR MATTING CONTRARY TO THE ABOVE-QUOTED INSTRUCTIONS TO BIDDERS.

IN YOUR LETTER OF JANUARY 18, 1967, YOU CONTEND THAT YOUR BID IS RESPONSIVE IN VIEW OF THE HOLDING IN OUR DECISION OF JULY 14, 1966, B 159176. THAT DECISION INVOLVED THE INVITATION FOR BIDS ISSUED BY GSA FOR THE SAME ITEMS IN THE PRECEDING YEAR. UNDER THAT INVITATION YOU SUBMITTED A SINGLE BID PER LINEAR YARD FOR EACH ZONE, WHILE THE SUCCESSFUL BIDDER SUBMITTED A LINEAR YARD PRICE FOR BLACK MATTING, WITH A NOTATION ACROSS THE FACE OF THE BID WHICH READ "ADD 10 CENTS PER SQUARE FOOT FOR COLORS OTHER THAN BLACK.' IN THAT INSTANCE, YOU CLAIMED THAT SINCE THE SUCCESSFUL BIDDER FAILED TO FOLLOW INSTRUCTIONS, ITS BID WAS NONRESPONSIVE. THE INSTRUCTIONS IN THE INVITATION THERE INVOLVED STATED THAT THE MATTING "MUST BE MADE AVAILABLE, AT NO ADDITIONAL COST TO THE GOVERNMENT, IN AT LEAST BLACK AND THREE OTHER COLORS," BUT DID NOT SPECIFY THAT BIDS QUOTING ONE PRICE FOR BLACK MATTING AND ANOTHER FOR COLORS WOULD NOT BE CONSIDERED AS RESPONSIVE AND WOULD BE SUMMARILY REJECTED, AS IN THE PRESENT CASE. IN REACHING OUR DECISION THAT THE BID OF THE SUCCESSFUL BIDDER SHOULD NOT BE REJECTED AS NONRESPONSIVE AS URGED BY YOU, WE COMPARED THE BIDS SUBMITTED BY YOU ON EACH OF THE ITEMS WITH THOSE OF ACE LITE STEP CO., INC., THE SUCCESSFUL BIDDER, AFTER APPLYING THE 10-CENT DIFFERENTIAL TO EACH ITEM. THE COMPARISON SHOWED THAT WITH THE DIFFERENTIAL INCLUDED, THE BID OF ACE LITE WAS STILL LOW IN THE AGGREGATE AS TO ALL ITEMS BID UPON. IN VIEW OF THE BIDDING INSTRUCTIONS AND IN THE LIGHT OF THE PRICE COMPARISON, WE CONCLUDED THAT THE DEVIATION DID NOT AFFECT THE PRICE, QUANTITY, OR QUALITY OF THE ARTICLE OFFERED AND, THEREFORE, THE DEVIATION COULD BE WAIVED WITHOUT PREJUDICING THE RIGHTS OF OTHER BIDDERS. 38 COMP. GEN. 708, 709.

THE ADMINISTRATIVE OFFICE REPORTS THAT EVEN IF IT BE ASSUMED THAT YOUR FAILURE TO FOLLOW THE BIDDING INSTRUCTIONS IN THE INSTANT CASE COULD BE WAIVED AND YOUR BID EVALUATED ON THE SAME BASIS AS WAS DONE IN THE EARLIER DECISION, THAT IS, THE BID OF TENNESSEE MAT ON EACH ITEM COMPARED WITH THAT BID BY YOU AFTER APPLYING THE 9-CENT DIFFERENTIAL, THE AWARD MADE TO TENNESSEE MAT WAS PROPER SINCE, AS THE FIGURES SET FORTH BELOW SHOW, ITS BID IS LOW IN THE AGGREGATE AS TO EACH ITEM BID UPON.

"AGGREGATE OF ZONES A THROUGH 3 ON A LINE ITEM BASIS, WEIGHTED AS PROVIDED FOR BY THE METHOD OF AWARD CLAUSE; INCLUSIVE OF TIME PAYMENT DISCOUNT, AND INCLUDING THE 9-CENTS PER SQUARE FOOT ADDITIONAL FOR COLORS OTHER THAN PLAIN BLACK:

CHART

ITEM TENNESSEE MAT LONG LIFE RUBBER

31-56 173.36 187.90

31-57 928.66 1,003.80

31-58 4,160.70 4,508.50

31-59 928.66 1,003.90

31-60 2,778.50 3,005.60

AGGREGATE 8,969.88 9,709.70

31-61 346.72 375.71

31-62 928.65 1,003.80

31-63 2,080.34 2,254.24

31-64 6,500.54 7,027.30

31-65 4,167.75 4,508.46

AGGREGATE 14,024.00 15,169.51"

YOU CONTEND, HOWEVER, THAT THE BIDS SHOULD BE EVALUATED UNDER A DIFFERENT METHOD WHICH WOULD RESULT IN YOUR BEING LOW BIDDER. YOU POINT OUT THAT OVER THE PAST FOUR CONSECUTIVE COMPLETED CONTRACTS FOR MATTING THE AVERAGE NUMBER OF YARDS OF BLACK MATTING PURCHASED WAS EQUAL TO 78.25 PERCENT OF THE TOTAL NUMBER OF YARDS, WHILE THE NUMBER OF YARDS OF COLORED MATTING WAS EQUAL TO 21.75 PERCENT OF THE TOTAL.

YOUR CONTENTION APPEARS TO BE BASED UPON THE ASSUMPTION THAT THE PERCENTAGES OF BLACK AND COLORED MATTING TO BE PURCHASED UNDER THE CONTRACT AWARDED TO TENNESSEE MAT WILL BE APPROXIMATELY THE SAME. THERE IS, OF COURSE, NO ASSURANCE THAT THE FUTURE PURCHASES WILL BE APPROXIMATELY THE SAME RATIO AS IN THE PAST. CONSEQUENTLY, THE EVALUATION OF BIDS AS PROPOSED BY YOU WOULD HAVE THE EFFECT OF BASING THE AWARD OF THE CONTRACT ON CONJECTURE AND ON A FACTOR NOT SPECIFIED IN THE INVITATION. IN THAT REGARD WE HAVE HELD CONSISTENTLY THAT UNDER THE RULES OF COMPETITIVE ADVERTISED BIDDING ALL BIDDERS MUST BE ADVISED IN THE INVITATION OF ANY FACTOR OTHER THAN PRICE WHICH IS TO BE CONSIDERED IN DETERMINING THE LOW BIDDER. SEE 45 COMP. GEN 433; 38 ID. 550. IN VIEW THEREOF, WE CANNOT AGREE WITH YOUR CONTENTION THAT THE BIDS SHOULD BE EVALUATED IN THE MANNER PROPOSED BY YOU.