B-164401, JUL. 22, 1968

B-164401, JUL. 22, 1968

TO THREE-T-FLEET, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 23, 1968, AND CONFIRMING LETTER OF THE SAME DATE, PROTESTING AN AWARD OF A CONTRACT TO ANY OTHER CONCERN UNDER INVITATION FOR BIDS (IFB) NO. FPNMV-S-03364 A-5-10 -68, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA).

THE INVITATION WAS FOR A REQUIREMENTS CONTRACT FOR THE QUALIFICATION TREAD WEAR ROAD TESTING OF TIRES FOR AUTOMOTIVE VEHICLES FOR A PERIOD OF ONE YEAR FROM DATE OF AWARD. BIDS WERE OPENED MAY 10, 1968, AND YOUR CORPORATION WAS THE LOWEST BIDDER.

THE ADMINISTRATION HAS TAKEN THE POSITION THAT YOUR BID IS NOT RESPONSIVE TO THE INVITATION'S REQUIREMENTS AND MUST BE REJECTED, FOR THE REASON THAT YOU DID NOT UNQUALIFIEDLY OFFER TO PERFORM THE CONTRACT SERVICES WITHIN THE MAXIMUM TIME REQUIRED BY THE TERMS OF THE INVITATION.

ARTICLE 5, PAGE 7, OF THE SPECIAL PROVISIONS OF THE INVITATION, AS AMENDED BY AMENDMENT 2, PROVIDES, IN PART, THAT "* * * ANY BID OFFERING A PERFORMANCE TIME WHICH EXCEEDS NINETY (90) CALENDAR DAYS AFTER RECEIPT OF ALL TIRES OF A CATEGORY WILL BE CONSIDERED NONRESPONSIVE ON THE BASIS THAT THE TIME OF PERFORMANCE OFFERED IS UNREASONABLE.'

IN THE SPACE PROVIDED IN THAT ARTICLE FOR INSERTION OF THE BIDDER'S PROPOSED MAXIMUM PERFORMANCE TIME, YOU INSERTED THE WORDS "SEE LETTER.' THE LETTER, DATED MAY 7, 1968, WHICH ACCOMPANIED YOUR BID STATED AS FOLLOWS:

"WITH RESPECT TO ITEM 5, PAGE 7, THE BIDDER'S PROPOSED MAXIMUM PERFORMANCE TIME IS 90 CALENDAR DAYS AFTER RECEIPT OF ALL THE TIRES OF A CATEGORY AND RECEIPT OF VEHICLES WHICH MUST BE ORDERED FOR CERTAIN CATEGORIES IN ORDER TO COMPLY WITH AMENDMENT 3. THE DELIVERY TIME OF HEAVY SERVICE TRUCKS IS APPROXIMATELY 100 DAYS, AND IF THE TEST WERE DESIRED TO BE RUN ON THIS NEW EQUIPMENT, IT WOULD BE NECESSARY TO OBTAIN A WAIVER ON THE DELIVERY TIME FOR THE TEST RESULTS. THIS EQUIPMENT WOULD HAVE BIG ENGINES OF DETROIT DIESEL V12-71 (544 HP) OR NTC 335 CUMMINS ENGINES (335 HP). IF THE TEST CAN BE RUN ON 200 HP EQUIPMENT, SECOND HAND UNITS CAN BE PURCHASED IN ANY LARGE CITY IN THE REQUIRED QUANTITIES, ON SHORT NOTICE.

"THE SAME COMMENT HOLDS FOR SOME OF THE PASSENGER AND PICKUP EQUIPMENT, EXCEPT THAT HERE A 60 DAY DELIVERY DATE IS NORMALLY POSSIBLE.'

IN YOUR PROTEST LETTER OF MAY 23 YOU ATTEMPT TO INTERPRET THE ABOVE LETTER AS MEANING:

"/1) THREE-T-FLEET INC. WILL PERFORM THE NECESSARY WORK CALLED FOR IN THE CONTRACT WITHIN 90 DAYS (WITH POSSIBLE INFERIOR TEST RESULTS SINCE LOW HORSEPOWER EQUIPMENT WOULD OF NECESSITY HAVE TO BE USED.)

"/2) THREE-T-FLEET, INC. WILL PERFORM THE NECESSARY WORK AT NO INCREASE IN COST TO THE GOVERNMENT BUT WITH SUBSTANTIALLY HIGHER QUALITY TEST RESULTS BEING FURNISHED AT THE OPTION AND DECISION OF THE GOVERNMENT BUT AT A POSSIBLE SLIGHT INCREASE IN DELIVERY TIME OF THE TEST ULTS.'

THESE STATEMENTS MAY EXPLAIN WHAT YOU HAD IN MIND WITH RESPECT TO HEAVY SERVICE TRUCKS, BUT THEY DO NOT NEGATE THE EFFECT OF THE LANGUAGE USED IN THE MAY 7 LETTER, WHICH WE CANNOT READ OTHERWISE THAN AS EXTENDING YOUR PERFORMANCE PERIOD BEYOND 90 DAYS IN ANY CASE IN WHICH VEHICLES OF ANY KIND WERE NOT OBTAINED BY YOU IN TIME TO PERMIT COMPLETION OF TESTING WITHIN 90 DAYS AFTER RECEIPT OF TIRES.

SINCE THE MAXIMUM PERFORMANCE TIME PROPOSED BY YOU WAS THUS CONDITIONED UPON THE RECEIPT OF VEHICLES, A FACTOR OVER WHICH THE GOVERNMENT WOULD HAVE NO CONTROL AND FOR WHICH THE CONTRACTOR WAS INTENDED TO HAVE FULL RESPONSIBILITY, WE CONCLUDE THAT YOUR BID WAS PROPERLY DETERMINED TO BE NONRESPONSIVE. 43 COMP. GEN. 813; 33 COMP. GEN. 441; 30 COMP. GEN. 179. ANY CONTRACT AWARDED UNDER AN INVITATION FOR BIDS MUST BE THE CONTRACT WHICH WAS OFFERED TO ALL BIDDERS. ANY OTHER COURSE OF ACTION WOULD, OF COURSE, COMPROMISE THE INTEGRITY OF THE COMPETITIVE BID SYSTEM. 46 COMP. GEN. 275; 30 COMP. GEN. 179. THE STRICT MAINTENANCE OF THE COMPETITIVE BIDDING PROCEDURE IS INFINITELY MORE IMPORTANT THAN OBTAINING ANY PECUNIARY ADVANTAGE IN A PARTICULAR CASE. B-156667, JULY 15, 1965.

IN YOUR PROTEST, YOU REFER TO CORRESPONDENCE PERTAINING TO A PRIOR INVITATION FOR BIDS (FPNMV-S-03364-A-4-12-68) FOR TREAD WEAR ROAD TESTING OF TIRES. THAT INVITATION, HOWEVER, WAS CANCELLED AFTER BID OPENING BUT BEFORE AWARD BECAUSE THE LOW RESPONSIVE BID WAS CONSIDERED TO BE EXCESSIVE, AND A MODIFICATION OF THE TESTING PROCEDURES SET FORTH IN THE INVITATION WAS CONSIDERED DESIRABLE BECAUSE OTHERWISE THE RESULTS WOULD PROBABLY HAVE BEEN INACCURATE.

ALTHOUGH IT IS REPORTED THAT THE VIEWS EXPRESSED BY YOU IN THE REFERENCED CORRESPONDENCE WERE INSTRUMENTAL IN CANCELLATION OF THE EARLIER INVITATION, THE CORRESPONDENCE HAS NO BEARING ON THE QUESTION OF THE RESPONSIVENESS OF YOUR BID ON THE SUBSEQUENT INVITATION.

THE PROCEDURES APPLICABLE TO THE SUBMISSION AND OPENING OF BIDS AND AWARD OF CONTRACT WHICH ARE FOR CONSIDERATION HERE ARE STATED IN THE FEDERAL PROCUREMENT REGULATIONS AS FOLLOWS:

"SEC. 1-2.301 RESPONSIVENESS OF BIDS.

"/A) TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED.

"SEC. 1-2.404-2 REJECTION OF INDIVIDUAL BIDS.

"/A) ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS, SUCH AS SPECIFICATIONS, DELIVERY SCHEDULE, OR PERMISSIBLE ALTERNATES THERETO, SHALL BE REJECTED AS NONRESPONSIVE.

"/B) ORDINARILY, A BID SHALL BE REJECTED WHERE THE BIDDER IMPOSES CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT SO AS TO GIVE HIM AN ADVANTAGE OVER OTHER BIDDERS. FOR EXAMPLE, BIDS SHALL BE REJECTED IN WHICH THE BIDDER:

"/5) LIMITS RIGHTS OF GOVERNMENT UNDER ANY CONTRACT CLAUSE. HOWEVER, A LOW BIDDER MAY BE REQUESTED TO DELETE OBJECTIONABLE CONDITIONS FROM HIS BID IF THESE CONDITIONS DO NOT GO TO THE SUBSTANCE, AS DISTINGUISHED FROM THE FORM OF THE BID. A CONDITION GOES TO THE SUBSTANCE OF A BID WHERE IT AFFECTS PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE ITEMS OFFERED.'

SINCE YOUR BID TAKES EXCEPTION TO THE ADVERTISED REQUIREMENTS WITH RESPECT TO THE DELIVERY SCHEDULE, THE ABOVE REGULATIONS PROHIBIT ANY DELETION OF SUCH OBJECTIONABLE CONDITIONS. SEE 36 COMP. GEN. 251.

IN YOUR LETTER OF MAY 23, 1968, YOU ALSO TAKE THE POSITION, FOR REASONS STATED THEREIN, THAT THE SECOND LOWEST BIDDER IS NOT QUALIFIED TO PERFORM THE SERVICES CALLED FOR UNDER THIS CONTRACT. THE RECORD OF THIS PROCUREMENT CONTAINS AN AFFIRMATIVE DETERMINATION BY THE CONTRACTING OFFICER THAT THE SECOND LOW BIDDER IS RESPONSIBLE, WITHIN THE MEANING OF THE REGULATIONS REQUIRING AWARD OF CONTRACTS ONLY TO RESPONSIBLE BIDDERS, AND THIS DETERMINATION APPEARS TO BE SUPPORTED BY A DETAILED EVALUATION OF THE BIDDER'S PLANT FACILITIES,PERSONNEL, AND OPERATIONS BY A PRE-AWARD SURVEY TEAM OF THE FEDERAL SUPPLY SERVICE. IN THIS REGARD OUR OFFICE HAS CONSISTENTLY HELD THAT DETERMINATIONS OF CONTRACTORS' QUALIFICATIONS ARE PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY AND, IN THE ABSENCE OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE DETERMINATION, THERE IS NO BASIS FOR LEGAL OBJECTION. 37 COMP. GEN. 430. ON THE RECORD WE FIND NO APPARENT BASIS FOR LEGAL OBJECTION TO THE CONTRACTING OFFICER'S DETERMINATION.