B-162084, AUG. 1, 1967

B-162084, AUG. 1, 1967

BIDS - DEVIATIONS - GOVERNMENT PROPERTY USE AUTHORIZATION DECISION TO CONTRACTING OFFICER, NAVAL SHIP SYSTEMS COMMAND, RE AWARD OF CONTRACT FOR PROPULSION SYSTEM TO EITHER FAIRBANKS MORSE, INC., OR ALPINE GEOPHYSICAL ASSOCIATES, INC. A LOW BIDDER WHO FAILED TO FURNISH AN AUTHORIZATION FOR USE OF GOVT. PROPERTY MAY NOT HAVE THE DEVIATION REGARDED AS A MINOR INFORMALITY AS URGED BY THE PROCURING AGENCY SINCE IN A LONG-LINE OF DECISIONS SUCH FAILURE TO HAVE THE AUTHORIZATION FOR USE PRIOR TO BID OPENING, HAS BEEN HELD TO BE A MATERIAL DEVIATION. THEREFORE REJECTION IS REQUIRED. COMP. GEN. 572. WITH RESPECT TO THE BID FROM ALPINE GEOPHYSICAL ASSOCIATES, INC., WHICH CONTAINED AN ORIGINAL DD FORM 1423 WHICH SHOULD HAVE BEEN SUBSTITUTED IN ACCORDANCE WITH AN AMENDMENT, SUCH OMISSION MAY BE REGARDED AS ONE OF FORM AND PROPERLY WAIVED PURSUANT TO ASPR 2-405 AS A MINOR INFORMALITY. SINCE INVITATION INDEPENDENT OF FORM REQUIRED DATA TO BE FURNISHED AND FORM ATTACHED BY BIDDER DOES NOT APPLY TO INSTANT PROCUREMENT, WAIVER IS PROPER.

TO MR. D. E. WEATHERLY, JR., ASSISTANT DIRECTOR OF CONTRACTS, NAVAL SHIP SYSTEMS COMMAND, DEPARTMENT OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER SER 00J-49 OF JULY 18, 1967, REQUESTING A DECISION WHETHER AN AWARD MAY BE MADE TO EITHER FAIRBANKS MORSE, INC., POWER SYSTEMS DIVISION, OR ALPINE GEOPHYSICAL ASSOCIATES, INC., UNDER INVITATION FOR BIDS NO. N00024-67-B-1011.

THE INVITATION FOR BIDS SOLICITED PRICES FOR FURNISHING SECONDARY PROPULSION SYSTEMS AND DATA. TWO TIMELY BIDS ARE REPORTED TO HAVE BEEN RECEIVED AS FOLLOWS:

FAIRBANKS MORSE, INC. $422,500

ALPINE GEOPHYSICAL ASSOCIATES, INC. 457,500.

PARAGRAPH 5 OF THE INVITATION,"ADDITIONAL AND/OR ALTERED SOLICITATION INSTRUCTIONS AND CONDITIONS," PROVIDED THAT IF A BIDDER REQUIRED IN THE PERFORMANCE OF THE CONTRACT THE USE OF ANY GOVERNMENT PROPERTY IN ITS POSSESSION OR OTHERWISE UNDER A FACILITIES CONTRACT OR OTHER AGREEMENT, IT SHOULD SO STATE AND SUBMIT WITH THE BID EVIDENCE OF THE RIGHT TO SUCH USE OF THE GOVERNMENT PROPERTY. THE PARAGRAPH FURTHER PROVIDED THAT, IF THE BIDDER DID NOT STATE IN THE BID THAT IT REQUIRED THE USE OF ANY GOVERNMENT PROPERTY, THE BID SHALL BE REGARDED AS NOT REQUIRING THE USE OF ANY GOVERNMENT PROPERTY EXCEPT GOVERNMENT FURNISHED PROPERTY, IF ANY, SPECIFIED IN THE INVITATION. PARAGRAPH 15 OF THOSE INSTRUCTIONS AND CONDITIONS ALSO PROVIDED THAT EACH BIDDER SHALL STATE WHETHER IT WILL REQUIRE IN THE PERFORMANCE OF THE CONTRACT THE RENT-FREE USE OF GOVERNMENT -OWNED FACILITIES, SPECIAL EQUIPMENT OR SPECIAL TOOLING IN ITS POSSESSION OR IN THE POSSESSION OF ITS SUBCONTRACTORS. IT PROVIDED FURTHER THAT, TO ELIMINATE THE COMPETITIVE ADVANTAGE WHICH MIGHT OTHERWISE ACCRUE, AN EVALUATION FACTOR EQUAL TO THE RENTAL ALLOCABLE TO THE CONTRACT WHICH OTHERWISE WOULD BE CHARGED UNDER CURRENT ASPR PROVISIONS WOULD BE ADDED TO THE TOTAL AMOUNT OF EACH BID WHICH STATED AN AFFIRMATIVE REQUIREMENT FOR SUCH USE. THE PARAGRAPH FURTHER ADVISED BIDDERS CONTEMPLATING SUCH USE NOT TO INCLUDE IN THEIR BIDS ANY USE CHARGE FOR GOVERNMENT-OWNED PROPERTY. ADDITIONALLY, THE PARAGRAPH STATED THAT EACH SUCH BIDDER SHALL SUBMIT WITH ITS BID AN ITEMIZED LIST OF THE PROPERTY PROPOSED TO BE USED WITHOUT CHARGE; IDENTIFICATION OF THE FACILITIES CONTRACT OR OTHER DOCUMENT UNDER WHICH THE PROPERTY IS HELD AND THE WRITTEN PERMISSION OF THE COGNIZABLE CONTRACTING OFFICER FOR USE OF THAT PROPERTY IN THE PERFORMANCE OF THE CONTRACT WITHOUT CHARGE; THE AMOUNT OF USE (IN MONTHS) THE PROPERTY WILL BE USED; AND THE AMOUNT OF RENT WHICH WOULD OTHERWISE BE CHARGED FOR THE USE OF THE PROPERTY COMPUTED ACCORDING TO THE TABLE OF RATES SET FORTH IN THE PARAGRAPH. THE LAST SENTENCE OF THE PARAGRAPH WARNED BIDDERS THAT BIDS WHICH DO NOT INCLUDE THE REQUIRED INFORMATION SHALL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.

FAIRBANKS MORSE IN A LETTER ACCOMPANYING ITS BID STATED:

"IT IS REQUESTED THAT WE BE GRANTED AN EXTENSION TO USE GOVERNMENT OWNED EQUIPMENT IDENTICAL TO THAT WHICH IS BEING USED ON CONTRACT N00024-67-C- 5028.'

YOU INDICATE THAT, ALTHOUGH THIS BIDDER DID NOT FURNISH AN ITEMIZED LIST OF THE GOVERNMENT EQUIPMENT IT PROPOSED TO USE, THE REFERENCE TO THE EARLIER CONTRACT PROVIDED ALL THE INFORMATION REQUIRED TO CALCULATE A GROSS EVALUATION FACTOR TO BE APPLIED TO THE BID AND THAT THE ONLY INFORMATION MISSING WAS THAT RELATED TO THE BASIS FOR ALLOCATION OF THE USE OF THE EQUIPMENT BETWEEN THE PROPOSED CONTRACT AND THE EARLIER CONTRACT. HOWEVER, IT IS STATED THAT THIS OMISSION IS IMMATERIAL SINCE, EVEN APPLYING TO THE BID THE GROSS RENTAL CALCULATED AT $18,427.26, IT IS STILL THE LOW BIDDER. IT IS THEREFORE RECOMMENDED THAT THE BID BE CONSIDERED FOR AWARD. UPON REVIEW OF THE RECORD BEFORE US, WE ARE UNABLE TO CONCUR IN THAT RECOMMENDATION.

THE RECORD SHOWS THAT FAIRBANKS MORSE REQUESTED IN ITS BID PERMISSION TO USE GOVERNMENT PROPERTY FOR THE WORK UNDER THE INVITATION. IT DID NOT, HOWEVER, FURNISH THE REQUISITE AUTHORIZATION FOR SUCH USE AS REQUIRED BY THE MANDATORY TERMS OF THE INVITATION. IN THAT CONNECTION, OUR OFFICE HAS HELD IN A LONG LINE OF DECISIONS THAT THE FAILURE OF A BIDDER TO HAVE AUTHORIZATION TO USE GOVERNMENT FURNISHED PROPERTY PRIOR TO THE OPENING OF BIDS, AS REQUIRED BY THE INVITATION FOR BIDS, IS A MATERIAL DEVIATION WHICH RENDERS THE BID NONRESPONSIVE AND THAT NEITHER THE REGULATIONS PERMITTING WAIVER OF INFORMALITIES IS FOR APPLICATION; NOR IS THE SITUATION REMEDIED BY A SUBSEQUENTLY ISSUED USE AUTHORIZATION. 45 COMP. GEN. 572 AND DECISIONS CITED THEREIN AT PAGE 573. ACCORDINGLY, THE LOW BID SHOULD BE REJECTED.

WHILE ALPINE GEOPHYSICAL ASSOCIATES, INC., DID NOT RESPOND TO THE REQUIREMENTS REGARDING THE USE OF GOVERNMENT-OWNED EQUIPMENT, WE ARE NOT ADVISED THAT BIDDERS WOULD HAVE TO USE GOVERNMENT PROPERTY TO PERFORM THE RESULTING CONTRACT. BIDDERS WERE NOT OBLIGATED TO ADVISE THAT THEY WOULD NOT REQUIRE THE USE OF GOVERNMENT PROPERTY IF SUCH USE IS NOT CONTEMPLATED BY A BIDDER. PARAGRAPH 5, AS INDICATED ABOVE, PROVIDES THAT IF A BIDDER DOES NOT STATE IN THE BID THAT IT REQUIRES THE USE OF ANY GOVERNMENT PROPERTY, THEN THE BID SHALL BE REGARDED AS NOT REQUIRING THE USE OF IT. REFERENCE IS MADE TO 45 COMP. GEN. 849 AS AUTHORITY FOR AWARD TO THE LOW BIDDER. BUT THAT DECISION IS DISTINGUISHABLE FROM THE IMMEDIATE CASE IN THAT IN THE CITED DECISION ALL BIDDERS HAD TO USE GOVERNMENT-FURNISHED PROPERTY TO PROPERLY PERFORM THE CONTRACT AND ALL BIDDERS WERE REMISS IN FURNISHING COMPLETE DETAILS RESPECTING SUCH USE AS REQUIRED BY THE INVITATION.

WITH RESPECT TO THE BID FROM ALPINE GEOPHYSICAL ASSOCIATES, INC., IT APPEARS THAT THE INVITATION AS ORIGINALLY ISSUED HAD ATTACHED TO IT TWO COPIES OF DD FORM 1423,"CONTRACT DATA REQUIREMENTS LIST.' ONE COPY REFERRED "TO CONTRACT/PR 6146-78358-RFP N00024-67-R-7480/S)," ANOTHER PROCUREMENT, AND THE OTHER REFERRED TO THE INSTANT INVITATION. AMENDMENT WAS ISSUED TO CORRECT THE DISCREPANCY AND ADVISED BIDDERS TO "DELETE IN ITS ENTIRETY THE DD FORM 1423 ATTACHED TO INVITATION FOR BID N00024-67-B-1011, DATED 6 JUNE 1967, AND SUBSTITUTE THE ATTACHED DD FORM 1423 IN LIEU THEREOF.' HOWEVER, ALPINE REMOVED THE REVISED DD FORM 1423 ATTACHED TO THE AMENDMENT WHICH IT ACKNOWLEDGED, BUT IN ERROR IT LEFT THE ORIGINAL DD FORM 1423 ATTACHED TO THE INVITATION RETURNED WITH ITS BID.

THE REVISED DD FORM 1432 SUBSTITUTED BY THE AMENDMENT ADDED AN ADDITIONAL DATA ITEM, A001AE, PROVISIONING TECHNICAL DOCUMENTATION, METHOD B. HOWEVER, THE INVITATION, INDEPENDENT OF THE REVISED DD FORM 1432, REQUIRES BIDDERS TO FURNISH DATA ITEM A001AE. MOREOVER, IT IS APPARENT FROM THE CONTRACT REFERENCE ON ONE OF THE COPIES OF THE ORIGINAL DD FORM 1432 THAT IT DOES NOT PERTAIN TO THE IMMEDIATE PROCUREMENT. THEREFORE, THE OMISSION OF THE REVISED FORM AND THE INCLUSION OF THE ORIGINAL DD FORM 1432 MAY BE REGARDED AS DEVIATIONS OF FORM WHICH MAY BE PROPERLY WAIVED PURSUANT TO ASPR 2-405 AS A MINOR INFORMALITY.

THE ENCLOSURES ACCOMPANYING THE JULY 18 LETTER ARE RETURNED AS REQUESTED.