B-170591, SEP. 28, 1970

B-170591, SEP. 28, 1970

BID PROTEST - RESPONSIVENESS - GOVERNMENT-OWNED PROPERTY DENIAL OF PROTEST OF TASKER INDUSTRIES, AGAINST THE AWARD TO PACE COMPANY, LOW BIDDER FOR 60 MM CARTRIDGES ON BASIS THAT BIDDER DID NOT SUBMIT AN ITEMIZED LISTING OF GOVERNMENT-OWNED PROPERTY AS REQUIRED BY U.S. ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY, JOLIET, ILLINOIS. A LOW BIDDER WHO DID NOT SUBMIT A SEPARATE ITEMIZED LIST OF THE GOVERNMENT-OWNED PROPERTY INTENDED TO BE USED BUT WHO INDICATED HIS INTENTION TO USE SUCH PROPERTY UNDER A SPECIFIC FACILITIES USE CONTRACT FOR WHICH HE HAD OBTAINED WRITTEN AUTHORIZATION PRIOR TO BID OPENING HAD BID PROPERLY CONSIDERED RESPONSIVE, AND WAIVER OF THE SPECIFIC LISTING REQUIREMENT AS A MINOR DEFICIENCY DID NOT INFRINGE UPON RIGHTS OF OTHER BIDDERS.

TO BERMITE DIVISION, TASKER INDUSTRIES, WHITTAKER CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 12 AND SEPTEMBER 8, 1970, PROTESTING AGAINST AN AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS (IFB) NO. DAAA09-70-B-0124, ISSUED BY THE UNITED STATES ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY, JOLIET, ILLINOIS.

THE INVITATION FOR BIDS, THE SECOND STEP OF A TWO-STEP FORMALLY ADVERTISED PROCUREMENT, REQUESTED BIDS TO BE OPENED ON JULY 30, 1970, FOR FURNISHING 225,000 CARTRIDGES 60 MM, ILLUMINANT, M83A3 LOAD, ASSEMBLE AND PACK (LAP) WITH FUZE TIME M65A1. THE USE OF GOVERNMENT OWNED PROPERTY CLAUSE ON PAGE 36 OF THE INVITATION PROVIDED THAT IF THE OFFEROR PLANNED TO USE GOVERNMENT-OWNED PROPERTY IN HIS POSSESSION IN PERFORMING THE CONTRACT WORK, SUCH FACT WAS TO BE DISCLOSED AND THAT OFFEROR WAS TO SUBMIT A SEPARATE LIST, ON FORMS PROVIDED, IDENTIFYING EACH ITEM OF GOVERNMENT-OWNED PROPERTY WHICH THE OFFEROR INTENDED TO USE.

IN A LETTER DATED JULY 30, 1970, TO THE CONTRACTING OFFICER, YOU CONTENDED THAT THE BID SUBMITTED BY PACE COMPANY, DIVISION OF AMBAC INDUSTRIES, WAS NONRESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. WAS STATED THAT WHILE PACE'S BID PROVIDED FOR THE USE OF GOVERNMENT OWNED PROPERTY (NOT LISTED) BY REFERENCE TO AN EXISTING GOVERNMENT FACILITIES USE CONTRACT, PACE FAILED TO FURNISH AN ITEMIZED LIST OF THE PROPERTY WHICH IT INTENDED TO USE AND FAILED TO SUBMIT WRITTEN AUTHORIZATION TO USE ANY SUCH GOVERNMENT-OWNED PROPERTY.

BY LETTER DATED AUGUST 12, 1970, THE CONTRACTING OFFICER ADVISED YOU THAT WHILE THE USE OF GOVERNMENT-OWNED PROPERTY CLAUSE REQUIRED THE OFFEROR, PRIOR TO THE TIME SPECIFIED FOR RECEIPT OF BIDS, TO BE IN FACT AUTHORIZED IN WRITING TO USE EACH ITEM OF GOVERNMENT PROPERTY, SUCH AUTHORIZATION NEED NOT BE SUBMITTED WITH THE BID. RATHER, IT WAS REQUIRED THAT "EVIDENCE OF SUCH AUTHORIZATION SHALL BE SUBMITTED UPON REQUEST FROM THE CONTRACTING OFFICER UNDER THIS SOLICITATION." IT WAS FURTHER STATED THAT PACE HAD FURNISHED WRITTEN AUTHORIZATION DATED MAY 28, 1970, FROM THE COGNIZANT ADMINISTRATIVE CONTRACTING OFFICER FOR SUCH USE.

THE CONTRACTING OFFICER FURTHER ADVISED THAT PACE'S BID SPECIFICALLY INDICATED ITS INTENTION TO USE GOVERNMENT PROPERTY IN ITS POSSESSION UNDER FACILITIES USE CONTRACT NO. DAAA09-67-C-0068 AND THAT WHERE, AS HERE, THE AMOUNT OF THE GOVERNMENT-OWNED PROPERTY IN POSSESSION OF THE BIDDER CAN BE DETERMINED FROM REGULARLY AVAILABLE GOVERNMENT RECORDS, THE BIDDER'S FAILURE TO FURNISH AN ITEMIZED LIST OF THE GOVERNMENT OWNED PROPERTY DOES NOT RENDER THE BID NON-RESPONSIVE. IN SUPPORT THEREOF THE CONTRACTING OFFICER CITED OUR DECISION OF SEPTEMBER 25, 1967, B-162071.

IN A LETTER DATED SEPTEMBER 8, 1970, YOU URGE THAT THE REFERENCED DECISION OF THIS OFFICE INVOLVED A DIFFERENT CIRCUMSTANCE AND DOES NOT CORRECTLY RELATE TO THE INSTANT CASE SINCE THE INVITATION SPECIFICALLY REQUIRED A SEPARATE LISTING OF THE GOVERNMENT-OWNED EQUIPMENT WHICH THE OFFEROR PROPOSED TO USE IN PERFORMING THE CONTRACT WORK. IN THIS CONNECTION, YOU REFER TO PARAGRAPH 2, 4 AND 6 OF THE USE OF GOVERNMENT OWNED PROPERTY CLAUSE WHICH PROVIDES AS FOLLOWS:

"2. OFFEROR WILL SUBMIT A SEPARATE LISTING OF FACILITIES AND SPECIAL TOOLING AND REAL PROPERTY (ATTACHMENTS M, M(1), Q, Q(1) AND UU IDENTIFYING EACH ITEM OF GOVERNMENT PROPERTY THAT THE OFFEROR INTENDS TO USE TOGETHER WITH THE ACQUISITION COST AND YEAR OF MANUFACTURE (INCLUDING COST OF TRANSPORTATION AND INSTALLATION PAID BY THE GOVERNMENT) THEREOF:

A. ONLY THOSE ITEMS INTENDED TO BE USED BY THE OFFEROR SHALL BE LISTED IN ATTACHMENTS M, M(1), Q, Q(1), Q(2) AND UU. SEPARATE LISTS SHALL BE SUBMITTED FOR ITEMS OF GOVERNMENT PROPERTY DESCRIBED IN PARAGRAPH 1 ABOVE.

B. IF OFFEROR DOES NOT INTEND TO USE ALL OF THE GOVERNMENT-OWNED REAL PROPERTY IN HIS POSSESSION, THE NUMBER OF SQUARE FEET INTENDED FOR ACTUAL MANUFACTURING AND SUPPORT OF MANUFACTURING SHALL BE LISTED IN COLUMN 6, REMARKS, ATTACHMENT UU.

"4. EVALUATION:

A. FOR PURPOSES OF EQUALIZATION OF COMPETITIVE ADVANTAGE, THE USE OF SUCH GOVERNMENT PROPERTY, INCLUDING SPECIAL TOOLING, SHALL BE EVALUATED BY ADDING TO THE PROPOSED PRICE OF THE ITEM (S) PROPOSED UPON, THE FOLLOWING RATES FOR EACH MONTH OF THE PROPOSED PRODUCTION PERIOD. OFFERORS SHALL NOT INCLUDE IN THEIR PROPOSED PRICES ANY PROVISION FOR PAYMENT OF A USE CHARGE FOR SUCH PROPERTY. NOTWITHSTANDING ANY OTHER CONTRACTUAL ARRANGEMENTS, THE PROVISIONS OF THIS PARAGRAPH WILL APPLY; THEREFORE, OFFERORS ARE ADVISED TO ARRANGE WITH THE CONTRACTING OFFICER HAVING JURISDICTION OVER THE PROPERTY FOR RENT-FREE USE OF SUCH PROPERTY OR FOR A WAIVER OF RENTAL PAYMENT DUE UNDER ANY OTHER ARRANGEMENT, PRIOR TO SUBMISSION OF A PROPOSAL.

"6. NECESSITY FOR LISTING OF NEEDED EQUIPMENT

THE OFFEROR MAY ONLY BE AUTHORIZED THE USAGE OF THE INDUSTRIAL PLANT EQUIPMENT AND TOOLING LISTED ON ATTACHMENTS M, M(1), Q, Q(1), Q(2) AND UU BY LINE ITEM. BLANKET LISTING BY REFERRING TO FACILITIES OR SUPPLY CONTRACT NUMBER IS NOT ACCEPTABLE. FAILURE TO COMPLY WITH THE REQUIREMENT OF THIS USE OF GOVERNMENT-OWNED PROPERTY CLAUSE MAY PLACE YOUR OFFER IN A NON-RESPONSIVE STATUS."

YOU ALSO REFER TO THE CLAUSE APPEARING ON PAGE 42 OF THE INVITATION UNDER THE HEADING "PREPARATION AND SUBMISSION OF OFFERS", WHICH SPECIFICALLY REQUIRES THAT:

"(A) THE OFFEROR WILL PREPARE OFFER IN STRICT ACCORDANCE WITH AND FURNISH ALL INFORMATION AS REQUESTED IN THE SOLICITATION IN ORDER TO QUALIFY AS A BONAFIDE OFFEROR. ABSENCE OF REQUESTED DATA MAY DISQUALIFY THE OFFEROR. DATA WILL BE BASED ON THE REPRESENTATIONS MADE THEREIN AND CERTIFIED BY THE OFFEROR'S SIGNATURE ON STANDARD FORM 33.

"(B) OFFEROR IS CAUTIONED THAT ALL REQUIREMENTS OF THE SOLICITATION REQUEST WILL HAVE DIRECT BEARING ON THE EVALUATION AND RESULTANT AWARD AND EACH ITEM SHOULD BE THOROUGHLY ANALYZED AND ANSWERED COMPLETELY WHEN APPLICABLE. IF A PARTICULAR ITEM IS CONSIDERED NOT APPLICABLE, THE OFFEROR IS TO SO INDICATE BY INSERTING THE WORDS "NOT APPLICABLE.'"

PACE'S BID INDICATED ITS INTENTION TO USE GOVERNMENT-OWNED PROPERTY IN ITS POSSESSION UNDER FACILITIES USE CONTRACT NO. DAAA09-67-C-0068 AND PACE IN FACT HAD OBTAINED WRITTEN AUTHORIZATION PRIOR TO DATE OF THE BID OPENING TO USE SUCH PROPERTY. THUS, PACE'S BID WAS FULLY RESPONSIVE TO THE SPECIFIC TERMS OF THE INVITATION IN THIS RESPECT.

WITH RESPECT TO THE FAILURE OF PACE TO SUBMIT WITH ITS BID THE ITEMIZED LIST OF GOVERNMENT-OWNED EQUIPMENT IT INTENDED TO USE AS REQUIRED BY THE INVITATION, THE CONTRACTING OFFICER CONCLUDED THAT THIS FAILURE COULD BE WAIVED AS A MINOR INFORMALITY. THE INFORMATION AS TO WHAT EQUIPMENT PACE HAD IN ITS POSSESSION UNDER THE FACILITIES CONTRACT WAS READILY AVAILABLE FROM GOVERNMENT RECORDS. THE CONTRACTING OFFICER APPLIED THE EVALUATION FACTORS SET FORTH IN THE INVITATION AGAINST ALL GOVERNMENT-OWNED EQUIPMENT IN PACE'S POSSESSION UNDER THE FACILITIES CONTRACT. IN PRINCIPLE, WE BELIEVE THE SITUATION IS EQUIVALENT TO THAT CONSIDERED IN OUR DECISION OF SEPTEMBER 25, 1967, B-162071. SINCE THERE WAS APPLIED TO PACE'S BID THE MAXIMUM POSSIBLE GOVERNMENT-OWNED EQUIPMENT EVALUATION FACTOR, WHICH INFORMATION WAS READILY AVAILABLE FROM GOVERNMENT RECORDS, WE DO NOT SEE HOW YOU OR ANY OTHER BIDDER COULD HAVE BEEN PREJUDICED BY SUCH ACTION.

WHILE OUR OFFICE HAS CONSISTENTLY HELD THAT A BID MUST BE RESPONSIVE TO AN INVITATION, WE HAVE GENERALLY TAKEN THE VIEW THAT IF THE DEFICIENCIES IN A LOW BID NEITHER GO TO THE SUBSTANCE OF THE BID, NOR WORK ANY INJUSTICE TO OTHER BIDDERS, THERE IS NO REASON WHY AWARD MAY NOT BE MADE TO SUCH LOW BIDDER. B-129208, SEPTEMBER 24, 1956, AND 35 COMP. GEN. 98, 99. UNDER ADVERTISED BIDDING, ALL QUALIFIED BIDDERS MUST BE GIVEN AN EQUAL OPPORTUNITY TO SUBMIT BIDS WHICH ARE BASED UPON THE SAME SPECIFICATIONS, AND TO HAVE SUCH BIDS EVALUATED ON THE SAME BASIS. TO THE EXTENT THAT WAIVER OF THE PROVISIONS OF AN INVITATION FOR BIDS MIGHT RESULT IN FAILURE OF ONE OR MORE BIDDERS TO ATTAIN THE EQUAL OPPORTUNITY TO COMPETE ON A COMMON BASIS WITH OTHER BIDDERS, SUCH PROVISION MUST BE CONSIDERED MANDATORY. HOWEVER, THE CONCEPT OF FORMALLY ADVERTISED PROCUREMENT, INSOFAR AS IT RELATES TO THE SUBMISSION AND EVALUATION OF BIDS, GOES NO FURTHER THAN TO GUARANTEE EQUAL OPPORTUNITY TO COMPETE AND EQUAL TREATMENT IN THE EVALUATION OF BIDS. IT DOES NOT CONFER UPON BIDDERS ANY RIGHT TO INSIST UPON THE ENFORCEMENT OF PROVISIONS IN AN INVITATION THE WAIVER OF WHICH WOULD NOT RESULT IN AN UNFAIR COMPETITIVE ADVANTAGE TO OTHER BIDDERS. SUCH PROVISIONS MUST THEREFORE BE CONSTRUED TO BE SOLELY FOR THE PROTECTION OF THE GOVERNMENT AND THEIR ENFORCEMENT OR WAIVER CAN HAVE NO EFFECT UPON THE RIGHTS OF BIDDERS TO WHICH THE RULES AND PRINCIPLES APPLICABLE TO FORMAL ADVERTISING ARE DIRECTED. TO THIS END, THE DECISIONS OF OUR OFFICE HAVE CONSISTENTLY HELD THAT WHERE DEVIATIONS FROM, OR FAILURES TO COMPLY WITH, THE PROVISIONS OF AN INVITATION DO NOT AFFECT THE BID PRICE UPON WHICH A CONTRACT WOULD BE BASED OR THE QUANTITY OR QUALITY OF THE WORK REQUIRED OF THE BIDDER IN THE EVENT HE IS AWARDED A CONTRACT, A FAILURE TO ENFORCE SUCH PROVISION WILL NOT INFRINGE UPON THE RIGHTS OF OTHER BIDDERS AND THE FAILURE OF A BIDDER TO COMPLY WITH THE PROVISION MAY BE CONSIDERED A MINOR DEVIATION WHICH CAN BE WAIVED AND THE BID CONSIDERED RESPONSIVE. B-153636, MARCH 17, 1964; B- 165160, SEPTEMBER 30, 1968.

FOR THE FOREGOING REASONS, YOUR PROTEST AGAINST THE CONTRACTING OFFICER'S DETERMINATION TO CONSIDER PACE'S BID RESPONSIVE MUST BE DENIED.

IN YOUR LETTER OF SEPTEMBER 8, 1970, YOU RAISE CERTAIN QUESTIONS CONCERNING THE TRANSPORTATION COSTS AND GOVERNMENT-OWNED EQUIPMENT USE EVALUATION FACTORS USED BY THE CONTRACTING OFFICER IN THE EVALUATION OF THE BIDS. HOWEVER, YOU HAVE VERBALLY AGREED THAT SUCH MATTERS PRIMARILY INVOLVE QUESTIONS OF FACTS AND WILL BE TAKEN UP WITH THE CONTRACTING OFFICER FOR CLARIFICATION.