B-161012, JUN. 13, 1967

B-161012, JUN. 13, 1967

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER SUP 0232A OF MAY 11, 1967, FROM THE DEPUTY COMMANDER, PURCHASING, NAVAL SUPPLY SYSTEMS COMMAND, REPORTING ON THE PROTEST OF SONEX INC., AGAINST THE REJECTION OF ITS LOW BID UNDER INVITATION FOR BIDS N00156-67-B-0271.

THE BID SUBMITTED BY SONEX WAS AS FOLLOWS:

"LOT I

1. SERVICES AND EQUIPMENT TO PROVIDE 1 LOT --- $31,045.91

RECORD AND PLAYBACK FACILITIES AT A

DATA ACQUISITION SITE LOCATED AT THE

NAVAL AIR TEST FACILITY (SI), NAVAL

AIR STATION, LAKEHURST, NEW JERSEY.

SERVICES AND EQUIPMENT SHALL BE IN

ACCORDANCE WITH NATF (SI) LAKEHURST,

N.J. SPECIFICATION NO. 10550/177-7

DATED 20 SEPTEMBER 1966, ATTACHMENT I

HERETO.

SERVICES SHALL INCLUDE:

(A) INSTALLING ALL EQUIPMENT REQUIRED

BY THE AFOREMENTIONED SPECIFICATION

IN GOVERNMENT-OWNED STANDARD 19 INCH

RELAY RACKS LOCATED AT NATF (SI), NAS,

LAKEHURST, N.J.

(B) CONNECTING POWER TO ALL EQUIPMENT

(C) TERMINATING ALL INPUTS, OUTPUT, AND TEST

POINTS ON GOVERNMENT-OWNED TERMINAL

STRIPS LOCATED IN THE RELAY RACKS.

(D) PERFORMING AN ACCEPTANCE TEST IN

ACCORDANCE WITH AN APPROVED PROCEDURE.

2. DATA FOR ITEM 1: IN ACCORDANCE WITH 1 LOT

DD FORM 1423, SUPPLEMENTED BY NAVWEP

FORM 4200/25 (ATTACHMENT II, PAGES 1

AND 2 HERETO).

AGGREGATE TOTAL $31,045.91"

ALTHOUGH NO PRICE WAS SET FORTH IN THE BID FOR ITEM 2, SONEX STIPULATED IN SECTION 4.0 OF THE INVITATION ITS AGREEMENT TO FURNISH THE ITEM 2 DATA WITHIN 60 DAYS AFTER DATE OF THE CONTRACT.

THE CONTRACTING OFFICER DECIDED TO REJECT THE SONEX BID AS NONRESPONSIVE, SINCE THE INVITATION PROVIDED THAT AWARD WAS TO BE MADE ON A LOT BASIS AND THE BID FAILED TO SET FORTH A PRICE OR OTHER INDICATION OF A CHARGE OR "NO CHARGE" FOR THE FURNISHING OF THE DATA COVERED BY ITEM 2. IN THAT REGARD, THE CONTRACTING OFFICER OBSERVED THAT PAGE 1 OF THE INVITATION PROVIDED AS FOLLOWS:

"IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF THIS BID BE ACCEPTED WITHIN CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE BIDDER) FROM THE DATE OF OPENING, TO FURNISH ANY OR ALL OF THE ITEMS UPON WHICH PRICES ARE QUOTED, AT THE PRICE SET OPPOSITE EACH ITEM, DELIVERED AT THE DESIGNATED POINT/S) WITHIN THE TIME SPECIFIED IN THE SCHEDULE. * * *"

SINCE BIDDERS OFFERED TO DELIVER UNDER THE BID "ANY OR ALL ITEMS UPON WHICH PRICES ARE QUOTED AT THE PRICE SET OPPOSITE EACH ITEM" AND SINCE THE SONEX BID DID NOT SET FORTH A PRICE FOR ITEM 2 AND DID NOT OTHERWISE INDICATE THAT ITEM 2 WOULD BE FURNISHED WITHOUT CHARGE OR THAT THE PRICE FOR ITEM 2 WAS INCLUDED IN THE PRICE FOR ITEM 1, THE CONTRACTING OFFICER DETERMINED THAT THE BID WAS NONRESPONSIVE. HE MADE THIS DETERMINATION ON THE BASIS THAT SONEX HAD NOT OFFERED TO FURNISH ITEM 2 AND BECAUSE THE TERMS OF THE INVITATION PROVIDED THAT AWARD WAS TO BE MADE ON A LOT BASIS COMPOSED OF ITEMS 1 AND 2.

HOWEVER, IN VIEW OF THE FACT THAT SONEX SPECIFICALLY OFFERED IN ITS BID A DELIVERY SCHEDULE FOR ITEM 2 AND ALSO BID AN "AGGREGATE" TOTAL PRICE ON LOT I, WE DO NOT BELIEVE THAT THE BID WAS NONRESPONSIVE. ALTHOUGH THE INVITATION "BOILER PLATE" CONTEMPLATED A PRICE FOR EACH ITEM, THE INVITATION PROVIDED FOR AWARD ON A LOT BASIS AND INVITED PRICES ON AN "AGGREGATE TOTAL" BASIS. SINCE THE AWARD WAS TO BE MADE IN THE AGGREGATE AND AN AGGREGATE TOTAL PRICE WAS INVITED, INDIVIDUAL ITEM PRICES WERE NOT MATERIAL TO THE EVALUATION OF BIDS AND THE FAILURE TO QUOTE INDIVIDUAL ITEM PRICES SHOULD HAVE BEEN WAIVED AS A MINOR DEVIATION. IN VIEW THEREOF, A PRICE ON AN AGGREGATE BASIS FOR BOTH ITEMS WOULD HAVE BEEN RESPONSIVE TO THE INVITATION. MOREOVER, OUR OFFICE HAS RECOGNIZED THAT, WHERE AN INVITATION SOLICITED BIDS ON AN ITEM AND AGGREGATE BASIS, THERE MAY BE ACCEPTED AN AGGREGATE BID PRICE WHICH IS NOT THE ACTUAL MATHEMATICAL TOTAL OF THE INDIVIDUAL ITEM BID PRICES. SEE B-149051, JUNE 29, 1962. ALSO, SEE B-157359, OCTOBER 26, 1965, TO YOUR DEPARTMENT, INVOLVING A FACTUAL SITUATION VIRTUALLY IDENTICAL TO THAT HERE INVOLVED WHEREIN WE CONCURRED IN THE ADMINISTRATIVE PROPOSAL TO AWARD A CONTRACT ON THE BASIS OF AN ,AGGREGATE TOTAL" PRICE WHERE THE BIDDER DID NOT BID ON AN ITEM FOR "MANUALS" BUT EXPRESSED THE AFFIRMATIVE INTENTION ELSEWHERE IN THE BID TO FURNISH THE ITEM WITHIN THE DELIVERY PERIOD SPECIFIED.

HOWEVER, SINCE A CONTRACT WAS AWARDED TO THE ONLY OTHER BIDDER ON FEBRUARY 28, 1967, AND THE CONTRACT WAS TO BE COMPLETED WITHIN 100 DAYS, NO CORRECTIVE ACTION WOULD BE APPROPRIATE AT THIS TIME.