B-170371, OCT. 2, 1970

B-170371, OCT. 2, 1970

BID PROTEST - CORRECTION OF BID DEFICIENCIES AFTER OPENING DENIAL OF PROTEST OF CARTWRIGHT AERIAL SURVEYS, INC., AGAINST REJECTION OF BID FOR AERIAL PHOTOGRAPHIC SERVICES BECAUSE PHOTOGRAPHIC SAMPLES DID NOT MEET SPECIFICATIONS. WHERE AFTER BID OPENING BIDDERS WERE PERMITTED TO CORRECT DEFICIENCIES AND ONE BIDDER FURNISHED DATA PERTAINING TO HIS RESPONSIBILITY AND THE OTHER TWO BIDDERS WERE ALLOWED TO FURNISH SAMPLES USED FOR MEASURING PRODUCT TO BE DELIVERED, SUCH PROCEDURE WAS NOT PROPER SINCE THE LATTER TWO TWO BIDDERS SHOULD NOT HAVE BEEN PERMITTED TO CORRECT A DEFICIENCY RELATED TO RESPONSIVENESS. HOWEVER, INASMUCH AS CONTRACT HAS BEEN COMPLETED NO USEFUL PURPOSE WOULD BE SERVED BY CANCELLATION. REMEDIAL ACTION SHOULD BE TAKEN IN FUTURE.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER 6320 CONTRACTING OF SEPTEMBER 16, 1970, FROM THE ACTING DIRECTOR OF ADMINISTRATIVE SERVICES, FOREST SERVICE, WASHINGTON, D.C., AND TO LETTER 6320 - CONTRACTING OF JULY 15, 1970, FROM THE CHIEF, BRANCH OF ADMINISTRATIVE SERVICES, FOREST SERVICE, SAN FRANCISCO, CALIFORNIA, REGARDING A PROTEST MADE TO THE CONTRACTING OFFICER BY CARTWRIGHT AERIAL SURVEYS, INC., UNDER INVITATION FOR BIDS R5-70-234 FOR AERIAL PHOTOGRAPHY SERVICES.

THE INVITATION REQUESTED BIDDERS TO SUBMIT WITH THEIR BIDS OR PRIOR THERETO A FINANCIAL STATEMENT, A LIST OF AVAILABLE EQUIPMENT, PERSONNEL AND FACILITIES, PHOTOGRAPHIC SAMPLES AND A CAMERA CALIBRATION REPORT. THE INVITATION STATED THAT "FAILURE ON PART OF BIDDER TO SUBMIT ALL REQUIRED ITEMS TO THE FOREST SERVICE EITHER PRIOR TO THE BID OPENING OR WITH THE BID MAY CAUSE HIS BID TO BE REJECTED AS NONRESPONSIVE."

BIDS WERE RECEIVED FROM THREE BIDDERS. AT BID OPENING, EACH HAD FAILED TO MEET ONE OR MORE OF THE ABOVE REQUIREMENTS AS FOLLOWS:

CARTWRIGHT AERIAL SURVEYS, INC.-- FINANCIAL STATEMENT, SAMPLES AND CAMERA CALIBRATION REPORT

MARK HURD AERIAL SURVEYS, INC.-- CAMERA CALIBRATION REPORT

WESTERN AERIAL CONTRACTORS, INC.-- ALL OF THE REQUIREMENTS. AFTER BID OPENING, TELEGRAMS WERE SENT TO EACH BIDDER ADVISING OF THE DEFICIENCIES AND PROVIDING 12 DAYS WITHIN WHICH SUCH DEFICIENCIES COULD BE CURED.

MARK HURD AND WESTERN AERIAL ARE REPORTED TO HAVE CORRECTED THE DEFICIENCIES COMPLETELY WITHIN THE TIME PROVIDED. HOWEVER, IT IS REPORTED THAT THE PHOTOGRAPHIC SAMPLES SUBMITTED BY CARTWRIGHT WITHIN THE TIME PROVIDED DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS AND CARTWRIGHT'S BID WAS REJECTED. AWARDS WERE MADE TO MARK HURD FOR ONE ITEM AND TO WESTERN AERIAL FOR ANOTHER ITEM. CARTWRIGHT PROTESTED THAT ITS BID SHOULD NOT HAVE BEEN REJECTED BECAUSE THE SAMPLES FURNISHED IN THE ADDITIONAL TIME PROVIDED MET THE INVITATION CRITERIA AND ITS BID PRICE WAS LOWER THAN THE AWARDED PRICES. THE CONTRACTING OFFICER DISAGREED THAT THE PHOTOGRAPHIC SAMPLES MET THE SPECIFIED CRITERIA.

AFTER INITIAL REVIEW OF THE RECORD, REPRESENTATIVES OF OUR OFFICE INFORMALLY QUESTIONED THE FOREST SERVICE WITH RESPECT TO THE PROCEDURE OF PERMITTING BIDDERS TO CORRECT THE DEFICIENCY IN THEIR BIDS AFTER THE OPENING OF BIDS. WITH RESPECT TO THE REQUIREMENT FOR THE CAMERA CALIBRATION REPORT, THE FOREST SERVICE, WASHINGTON, D.C., ADVISED BY LETTER OF SEPTEMBER 16, 1970, THAT IT PERTAINS TO A MATTER OF RESPONSIBILITY IN THAT IT REQUESTS DETAILED INFORMATION ON THE CAMERA WHICH WILL BE USED TO PERFORM THE SERVICES NEEDED. IN THAT REGARD, WE HAVE HELD THAT INFORMATION PERTAINING TO THE EQUIPMENT TO BE USED IN THE PERFORMANCE OF A CONTRACT RELATES TO THE BIDDER'S ABILITY TO PERFORM AND THAT SUCH INFORMATION CAN BE SUPPLIED AFTER BID OPENING. SEE 42 COMP. GEN. 728 (1963); B-168396, FEBRUARY 2, 1970. HOWEVER, WITH RESPECT TO THE REQUIREMENT FOR PHOTOGRAPHIC SAMPLES, THE INVITATION SPECIFICATIONS INDICATED THAT THE SAMPLES WERE TO BE USED AS STANDARDS FOR MEASURING THE QUALITY OF NEGATIVES AND PRINTS DELIVERED UNDER THE CONTRACT. THE FOREST SERVICE THEREFORE STATES THAT THE SAMPLES WERE NECESSARY TO MEASURE THE ACCEPTABILITY OF THE PRODUCT FURNISHED UNDER THE CONTRACT AND RELATED TO RESPONSIVENESS SO THAT BIDS WHICH WERE DEFICIENT IN THIS RESPECT SHOULD HAVE BEEN REJECTED WITHOUT AN OPPORTUNITY TO CURE THE DEFICIENCY. AGREE WITH THIS POSITION WHICH IS IN CONSONANCE WITH DECISIONS OF OUR OFFICE. SEE 46 COMP. GEN. 406 (1966); 48 ID. 59 (1968).

IN THE CIRCUMSTANCES, IT WAS APPROPRIATE TO PERMIT MARK HURD TO FURNISH THE CAMERA CALIBRATION REPORT AFTER BID OPENING. HOWEVER, THE BIDS OF BOTH WESTERN AND CARTWRIGHT SHOULD HAVE BEEN REJECTED FOR FAILURE TO FURNISH ACCEPTABLE PHOTOGRAPHIC SAMPLES WITH THEIR BIDS. THUS, THE QUESTION AS TO WHETHER THE SAMPLES FURNISHED BY CARTWRIGHT AFTER THE BID OPENING MET SPECIFICATION REQUIREMENTS IS ACADEMIC. WITH RESPECT TO WESTERN, IT IS REPORTED THAT IT HAS COMPLETED ALL THE PHOTOGRAPHY WORK REQUIRED UNDER THE CONTRACT SO THAT NO USEFUL PURPOSE WOULD BE SERVED BY CANCELLATION OF ITS CONTRACT AT THIS TIME. HOWEVER, APPROPRIATE STEPS SHOULD BE TAKEN TO AVOID A REPETITION OF THESE CIRCUMSTANCES IN THE FUTURE.