B-169237, JUN. 18, 1970

B-169237, JUN. 18, 1970

BIDS--DISCARDING ALL BIDS--SPECIFICATIONS DEFECTIVE--AMBIGUOUS BASED UPON WIDE PRICE DIFFERENTIAL OF BIDS SUBMITTED RESULTING FROM DIFFERENT INTERPRETATION BY BIDDERS OF SAME SPECIFICATIONS DUE TO INCONSISTENCY IN ITEM DESCRIPTION AND TECHNICAL DATA PACKAGE, UPON SPECIFICATIONS BEING DETERMINED AMBIGUOUS AS TO PACKAGING INSTRUCTIONS AND ASSEMBLY REQUIRED, ALL BIDS WERE PROPERLY REJECTED AND PROCUREMENT READVERTISED UNDER REVISED SPECIFICATIONS CLARIFYING GOVERNMENT'S REQUIREMENTS AS TO ASSEMBLY SINCE 10 U.S.C. 2305(B) REQUIRES THAT INVITATION SPECIFICATIONS BE SUFFICIENTLY DEFINITE TO PERMIT FULL AND FREE COMPETITION AND IT IS IMPROBABLE THAT ALL BIDDERS WERE COMPETING ON EQUAL BASIS UNDER AMBIGUOUS SPECIFICATIONS. SEE COMP. GEN. DECS. CITED.

TO Z. J. INDUSTRIES:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MARCH 4, 1970, AND SUPPLEMENTAL LETTER, WITH ENCLOSURES, DATED MARCH 25, 1970, PROTESTING THE CANCELLATION OF INVITATION FOR BIDS NO. F42600-70-B-0664, ISSUED BY HEADQUARTERS, OGDEN AIR MATERIEL AREA, HILL AIR FORCE BASE, UTAH, AND THE ISSUANCE OF A NEW INVITATION FOR BIDS NO. F42600-70-B-2412.

THE INVITATION F42600-70-B-0664, A 100-PERCENT SMALL BUSINESS SET ASIDE, WAS ISSUED ON OCTOBER 3, 1969, FOR THE PROCUREMENT OF 18 EACH MOUNTS, HIGH ALTITUDE STATION SPLIT VERTICAL STILL PICTURE CAMERA, APPLICABLE TO KS72 - KS87 CAMERAS IN THE RF-4C A/C AIRCRAFT. THE INVITATION SPECIFIED DELIVERY OF ONE MOUNT FOR FIRST ARTICLE TESTING WITHIN 60 DAYS AND ALLOWED AN ADDITIONAL 90 DAYS FOR FULL DELIVERY OF THE REMAINING ARTICLES. BIDS WERE OPENED ON NOVEMBER 4, 1969, AS SCHEDULED AND TWO BIDS WERE RECEIVED. AEROFLEX LABORATORIES, INCORPORATED (AEROFLEX), SUBMITTED THE LOW BID OF $2,576 PER UNIT AND YOUR BID WAS $14,620 PER UNIT. BASED UPON THE WIDE PRICE DIFFERENTIAL, THE CONTRACTING OFFICER RAISED THE QUESTION OF MISTAKE IN BID AND REQUESTED AEROFLEX TO REVIEW AND VERIFY ITS BID PRICE. NOVEMBER 14, 1969, AEROFLEX ADVISED THAT AN INCONSISTENCY BETWEEN THE ITEM DESCRIPTION AND TECHNICAL DATA PACKAGE HAD MISLED THEM AS TO THE AMOUNT OF WORK TO BE DONE. THIS WAS THE FIRST TIME THAT THE ITEMS WERE BEING PROCURED COMPETITIVELY, AND EXTENSIVE CONSULTATION WITH AIR FORCE TECHNICAL PEOPLE VERIFIED THAT THERE WAS CONFUSION AS TO THE STATE OF ASSEMBLY IN WHICH THE ITEM WAS DESIRED, EVEN WITHIN THE AIR FORCE. THEREAFTER, ON JANUARY 9, 1970, NOTICE WAS GIVEN TO YOU THAT ALL BIDS WERE REJECTED PURSUANT TO PARAGRAPH 2-404.1(B)(I) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHICH PROVIDES FOR THE REJECTION OF BIDS WHEN INADEQUATE OR AMBIGUOUS SPECIFICATIONS ARE CONTAINED IN AN INVITATION.

YOUR PROTEST IS PREMISED ON TWO BASES, (1) THAT AEROFLEX, BY VIRTUE OF A MISTAKE IN ITS BID PRICE WAS ALLOWED TO WITHDRAW ITS BID AND YOUR BID THEREFORE BECAME LOW BID, AND (2) THAT INSOFAR AS YOUR BID WAS CONCERNED THE SPECIFICATIONS WERE NOT CONSIDERED BY YOU SO AMBIGUOUS AS TO WARRANT THE CANCELLATION OF ALL BIDS.

IN EXPLAINING THE AMBIGUITIES, AIR FORCE POINTS OUT THAT UNDER THE CANCELLED INVITATION THE PRESERVATION AND PACKAGING INSTRUCTIONS WERE WRITTEN FOR A SINGLE PIECE ASSEMBLY. THE TOP DRAWING 53-90904 SHOWED THE MOUNT AS BEING COMPLETELY ASSEMBLED WHILE THE OTHER DRAWINGS REQUIRED THE ITEM TO BE FURNISHED IN KIT FORM COMPRISING 30 ODD PIECES, ONLY A PORTION OF WHICH WERE TO BE ASSEMBLED. THE NOMENCLATURE SHOULD HAVE SPECIFIED THE WORD "KIT" AND INSTRUCTIONS SHOULD HAVE BEEN GIVEN SPECIFYING THE DEGREE OF ASSEMBLY DESIRED. THE PRESERVATION AND PACKAGING INSTRUCTIONS SHOULD HAVE REFLECTED PACKAGING FOR A KIT RATHER THAN A SINGLE ASSEMBLY. ACCORDINGLY, THE PROCUREMENT WAS READVERTISED UNDER REVISED SPECIFICATIONS WHICH CLARIFY THE GOVERNMENT'S REQUIREMENTS. IN ADDITION TO AN INCREASE IN QUANTITY, THE NEW INVITATION FOR BIDS NO. F42600-70-B-2412 ADVISES ALL PROSPECTIVE BIDDERS AS TO THE CONFIGURATION DESIRED BY THE GOVERNMENT AND THE METHOD TO EMPLOY IN ASSEMBLING THE SUPPORT ASSEMBLY P/N 53-88198.

UNDER 10 U.S.C. 2305(B), AIR FORCE WAS REQUIRED TO INCLUDE IN THE INVITATION SPECIFICATIONS WHICH WERE SUFFICIENTLY DESCRIPTIVE IN LANGUAGE TO PERMIT FULL AND FREE COMPETITION. SUCH OBLIGATION REQUIRES THAT THE INVITATION BE SUFFICIENTLY DEFINITE TO REQUIRE THE PREPARATION AND PERMIT THE EVALUATION OF BIDS ON A COMMON BASIS. THE FACTS OF RECORD ESTABLISH THAT AIR FORCE INTENDED TO SOLICIT BIDS ON EQUIPMENT MEETING CERTAIN PACKAGING AND ASSEMBLAGE REQUIREMENTS AND HAD NO INTENTION OF ACCEPTING ANY ALTERNATE METHOD. NEVERTHELESS, UNDER YOUR INTERPRETATION OF THE SPECIFICATIONS YOU STATE THAT YOU INTENDED TO ASSEMBLE THE ENTIRE UNIT WHILE AEROFLEX, UNDER ITS INTERPRETATION OF THE SAME SPECIFICATIONS, OFFERED THE SAME EQUIPMENT AS AN UNASSEMBLED UNIT. AS A RESULT OF THE DIFFERENT INTERPRETATION BY YOU AND AEROFLEX OF THE SAME SPECIFICATIONS, IT IS UNCLEAR WHETHER THE REMAINING BIDDERS WERE OFFERING THE EQUIPMENT IN AN ASSEMBLED OR UNASSEMBLED UNIT. THEREFORE, IT SEEMS HIGHLY IMPROBABLE THAT ALL BIDDERS WERE COMPETING ON AN EQUAL BASIS. BECAUSE IT IS IN THE BEST INTEREST OF THE GOVERNMENT TO BE FAIR TO ALL BIDDERS AND TO MAINTAIN THE INTEGRITY OF THE COMPETITIVE BID SYSTEM, IT IS INCUMBENT UPON THE PROCURING AGENCY TO MAKE CERTAIN THAT ALL BIDDERS ARE COMPETING ON A COMMON BASIS. IN OUR DECISION, B-148888, AUGUST 7, 1962, IT WAS HELD:

" *** SINCE PROSPECTIVE SUPPLIERS OF THE EQUIPMENT WERE NOT AFFORDED A COMMON GROUND UPON WHICH TO COMPUTE THEIR OFFERS WE CONCUR WITH THE CONCLUSIONS OF THE PROCUREMENT OFFICIALS THAT THE INVITATION WAS FATALLY DEFECTIVE AND CANCELLATION THEREOF WAS PROPER." SEE ALSO B 163662, APRIL 2, 1968.

AS TO THE EFFECT OF YOUR STATUS AS LOW BIDDER UNDER THE DEFECTIVE INVITATION, YOUR ATTENTION IS DIRECTED TO THE PROVISIONS OF PARAGRAPH 10(B) OF THE TERMS AND CONDITIONS OF THE INVITATION RESERVING TO THE GOVERNMENT THE RIGHT TO REJECT ANY OR ALL BIDS. UNDER SUCH PROVISIONS ALONE, AIR FORCE HAD THE RIGHT TO REJECT YOUR BID. MORE IMPORTANT, A REQUEST FOR BIDS OR OFFERS DOES NOT IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE OFFERS RECEIVED, AND A CONTRACTING OFFICER IS NOT BOUND TO ACCEPT A BID WHERE HE DETERMINES THAT THE PUBLIC INTEREST WOULD BE SERVED BY A REJECTION OF ALL BIDS AND READVERTISEMENT OF A PROCUREMENT UNDER SPECIFICATIONS STATING THE GOVERNMENT'S NEEDS MORE ACCURATELY. 17 COMP. GEN. 554 (1938), AND COURT CASES CITED THEREIN.

ACCORDINGLY, WE SEE NO JUSTIFIABLE BASIS ON WHICH TO QUESTION THE ACTION BY AIR FORCE IN THIS INSTANCE, AND YOUR PROTEST MUST BE DENIED.