B-166656, JUN. 9, 1969

B-166656, JUN. 9, 1969

TO CHRYSLER MOTORS CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 8 AND 25, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT TO GENERAL MOTORS CORPORATION UNDER SOLICITATION FPNML-P3-14207-A-3-26-69, ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION.

THE SUBJECT SOLICITATION WAS FOR THE PROCUREMENT OF LAW ENFORCEMENT SEDANS AND THE CHRYSLER BID WAS LOW ON 15 OUT OF A TOTAL OF 23 ITEMS, BUT ITS BID WAS REJECTED AS NONRESPONSIVE SINCE IT QUALIFIED ITS BID WITH RESPECT TO A MATERIAL SPECIFICATION REQUIREMENT.

SPECIFICALLY, PARAGRAPH (M) OF SCHEDULE "A" ON PAGE 17 AND PARAGRAPH (H) OF SCHEDULE "B" ON PAGE 19 OF THE SOLICITATION REQUIRE THAT A "CABLE RACEWAY," OR CONDUIT, WILL BE PROVIDED BENEATH THE CAR BODY "TO PROTECT AND FACILITATE INSTALLATION OF CONTROL AND POWER CABLES BETWEEN THE DASHBOARD OF THE AUTOMOBILE AND THE TRUNK AREA.' IT IS REPORTED BY THE GENERAL SERVICES ADMINISTRATION (GSA) THAT THE VEHICLES WILL BE USED BY UNDERCOVER LAW ENFORCEMENT OFFICERS AND THAT IT IS THEREFORE A MATERIAL SPECIFICATION REQUIREMENT THAT THE "CABLE RACEWAY," WHICH CARRIES TWO-WAY RADIO WIRING, BE INSTALLED BENEATH THE AUTOMOBILE BODY SO THAT IT WILL BE CONCEALED FROM VIEW. THE CHRYSLER BID CONTAINED AN ATTACHMENT ENTITLED "CLARIFICATIONS" WHICH STATED WITH RESPECT TO THE CITED SPECIFICATION REQUIREMENT THAT "INSIDE MOUNT TYPE RADIO CABLE-CONDUIT ONLY.' THIS STATEMENT WAS INTERPRETED BY THE CONTRACTING OFFICER TO MEAN THAT CHRYSLER WAS PROPOSING TO INSTALL THE CONDUIT INSIDE THE VEHICLES RATHER THAN UNDERNEATH THE CAR BODY AS REQUIRED BY THE SPECIFICATIONS. SINCE YOUR QUALIFICATION CONSTITUTED A MAJOR DEVIATION FROM THE SPECIFICATION REQUIREMENT, THE CONTRACTING OFFICER REJECTED THE BID AS NONRESPONSIVE.

IT IS YOUR CONTENTION THAT THE ABOVE-QUOTED STATEMENT HAD REFERENCE TO CHRYSLER'S INTENT TO SUPPLY ONLY THE REQUIRED CONDUIT WITHOUT THE ELECTRIC CABLE WHICH THE CONDUIT IS DESIGNED TO PROTECT, AND THAT THE WORDS "INSIDE MOUNT" WERE INTENDED TO SIGNIFY THAT THE CONDUIT REQUIRED BY THE SPECIFICATIONS WOULD BE RUN INSIDE A STRUCTURAL MEMBER OF THE CHRYSLER UNITIZED BODY (THE ,BOTTOM BODY CHANNEL") BUT THAT IT WOULD STILL BE UNDERNEATH, NOT INSIDE, THE CAR BODY. IN THIS REGARD, YOU STATE THAT THE CHRYSLER PRACTICE OF PLACING THE CONDUIT INSIDE THE STRUCTURAL MEMBER ACTUALLY IMPROVES ON THE SPECIFICATION REQUIREMENT BECAUSE THE CONDUIT IS THEREBY PROTECTED FROM ROAD HAZARDS AND CORROSION, WHICH IS NOT THE CASE WHEN THE CONDUIT IS MOUNTED UNDERNEATH THE CAR BODY. FINALLY, YOU STATE THAT THE CHRYSLER "INSIDE MOUNT" CONDUIT INSTALLATION WAS PROVIDED ON TWO PRIOR GSA CONTRACTS WHICH HAD THE SAME SPECIFICATION REQUIREMENT.

FOR REASONS SET OUT BELOW, WE MUST CONCLUDE THAT THE REJECTION OF THE CHRYSLER BID AS NONRESPONSIVE WAS PROPER. IT IS A WELL-SETTLED RULE THAT A BID WHICH TAKES EXCEPTION TO AN INVITATION PROVISION HAVING A MATERIAL EFFECT ON PRICE OR QUALITY IS NONRESPONSIVE AND THEREFORE MUST BE REJECTED, 43 COMP. GEN. 209. AS MENTIONED ABOVE, GSA CONCLUDES THAT THE SUBJECT SPECIFICATION REQUIREMENT WAS MATERIAL. THE GSA REPORT ALSO MAINTAINS THAT THAT QUESTIONED LANGUAGE IN THE CHRYSLER BID WAS AT LEAST AMBIGUOUS; THAT THE CONTRACTING OFFICER'S INTERPRETATION OF THAT LANGUAGE WAS REASONABLE AND THEREFORE PROPER; AND THAT GENERALLY "AN AMBIGUITY IN A BID IS TO BE CONSTRUED AGAINST THE PARTY WHO CREATED THE AMBIGUITY," CITING 43 COMP. GEN. 663 AND 40 COMP. GEN. 653.

THE CONTRACTING OFFICER'S INTERPRETATION OF THE CHRYSLER QUALIFICATION INVOLVING AS IT DID THE EXERCISE OF JUDGMENT WAS NOT CLEARLY ERRONEOUS OR ARBITRARY. HENCE, WHILE YOUR EXPLANATION OF THE "CLARIFICATION" STATEMENT MADE AFTER BID OPENING SEEMS REASONABLE, THE BID MUST BE INTERPRETED AS SUBMITTED AND EXPLANATIONS FURNISHED AFTER THE FACT MAY NOT BE CONSIDERED TO MAKE A NONRESPONSIVE BID RESPONSIVE. 40 COMP. GEN. 393. THE FACT THAT CHRYSLER HAS SUPPLIED "INSIDE MOUNT" TYPE CONDUIT ON PRIOR GSA CONTRACTS HAS NO BEARING ON THE RESPONSIVENESS OF THE INSTANT BID WHICH MUST BE DETERMINED WITHIN THE FOUR CORNERS OF THE BID AS SUBMITTED WITHOUT REGARD TO EXTRANEOUS FACTORS.

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, YOUR PROTEST MUST BE DENIED.