B-170825, APR 14, 1971

B-170825, APR 14, 1971

BID PROTEST - BID RESPONSIVENESS - DEVIATIONS AFFIRMING TWO PRIOR DECISIONS DENYING PROTEST OF CONSOLIDATED DIESEL ELECTRIC COMPANY AGAINST THE CANCELLATION OF A SECOND STEP IFB ISSUED BY WARNER ROBINS AIR MATERIAL AREA FOR TANK TRUCKS. IT IS SUFFICIENT TO NOTE THAT THE ARGUMENT THAT NO PROVISION OF THE SPECIFICATIONS EXPRESSLY REQUIRES THAT A PROPOSED STANDARD CHASSIS BE IN EXISTENCE PRIOR TO THE CLOSE OF THE FIRST STEP EVALUATION PERIOD IGNORES THE INTENT OF SPECIFICATION REQUIREMENTS.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER SPPM, DATED APRIL 9, 1971, FROM THE CHIEF, CONTRACT MANAGEMENT DIVISION, DIRECTORATE OF PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, REGARDING THE PROTEST OF WACHTEL, WIENER & ROSS, ATTORNEYS FOR THE CONSOLIDATED DIESEL ELECTRIC COMPANY (CONDEC), AGAINST THE CANCELLATION OF A SECOND-STEP INVITATION FOR BIDS (IFB) NO. F09603-70-B-1697. THIS PROCUREMENT WAS THE SUBJECT OF OUR PRIOR DECISIONS B-170825, DECEMBER 24, 1970, AND MARCH 12, 1971.

AFTER ALLEGING THAT THE PRIOR DECISIONS OF OUR OFFICE HAD HIGHLIGHTED THE AMBIGUITY AND LACK OF CLARITY IN THE SPECIFICATIONS OF THE FIRST STEP LETTER REQUEST FOR TECHNICAL PROPOSALS (LRFTP), THE PURCHASING ACTIVITY, SOME TIME SUBSEQUENT TO MARCH 12, 1971, CANCELED THE IFB AND ADVISED ALL BIDDERS ON THE SECOND STEP TO CLARIFY THEIR TECHNICAL PROPOSALS BY CITING THE MODEL NUMBER OF, AND BY PROVIDING LITERATURE ON, THE CHASSIS WHICH THEY PROPOSED TO FURNISH AS THE STANDARD CHASSIS MODIFIED TO MEET REQUIREMENTS OF THE PROCUREMENT. BIDDERS WERE ALSO ADVISED THAT THE FOREGOING ADVICE WAS NOT INTENDED AS A REQUEST FOR NEW TECHNICAL PROPOSALS.

WE ARE ADVISED BY THE REFERENCED LETTER THAT AN AMBIGUITY EXISTS BECAUSE OUR OFFICE AND THE CONTRACTING OFFICER HOLD DIVERGENT INTERPRETATIONS OF THE SPECIFICATION REQUIREMENTS WITH RESPECT TO THE NECESSITY OF FURNISHING CERTAIN CHASSIS AND ENGINE DATA WHICH WOULD HAVE IDENTIFIED AND PROVEN THE EXISTENCE OF A PROPOSED STANDARD CHASSIS DURING THE FIRST-STEP TECHNICAL EVALUATION. THE POSITION OF THE CONTRACTING OFFICER HAS BEEN THAT SUCH DATA WAS NOT REQUIRED BECAUSE A PROPOSED STANDARD CHASSIS DID NOT HAVE TO BE IN EXISTENCE AT THE TIME THE FIRST-STEP PROPOSAL EVALUATIONS WERE COMPLETED. OUR ABOVE MENTIONED DECISIONS HELD TO THE CONTRARY.

THAT SPECIFICATIONS ARE SUBJECT TO DIVERGENT INTERPRETATIONS IS INSUFFICIENT, IN AND OF ITSELF, TO CREATE AN AMBIGUITY. SEE 48 COMP. GEN. 757, 760 (1969); B-169594(1), OCTOBER 27, 1970. ALTHOUGH THE APRIL 9 LETTER DOES NOT DETAIL THE PREMISES UPON WHICH ITS INTERPRETATION OF AMBIGUITY IS BASED SO THAT WE MIGHT BE ABLE TO JUDGE THE REASONABLENESS OF THAT POSITION, WE HAVE NO REASON TO ASSUME THAT THE PREMISES ARE OTHER THAN THOSE WHICH HAVE PREVIOUSLY BEEN BROUGHT TO OUR ATTENTION AND, THOUGH REJECTED BY OUR PRIOR DECISIONS, ARE ONCE AGAIN RAISED BY THE ATTORNEYS FOR THE GENERAL STEEL TANK COMPANY (GST). IN SUMMARY, GST'S ARGUMENT, AS WE SEE IT, IS AS FOLLOWS: NO PROVISION OF THE SPECIFICATIONS EXPRESSLY REQUIRES THAT A PROPOSED STANDARD CHASSIS BE IN EXISTENCE PRIOR TO THE CLOSE OF THE FIRST-STEP EVALUATION PERIOD. "STANDARD" IS DEFINED IN TERMS OF CERTAIN TECHNICAL DATA WHICH NEED ONLY BE ON FILE WITH THE ENGINEERING OFFICE OF THE PURCHASING ACTIVITY PRIOR TO DELIVERY. THEREFORE, SINCE THE TECHNICAL DATA INSURES THE EXISTENCE OF A STANDARD CHASSIS AND SINCE SUCH DATA NEED ONLY BE ON FILE PRIOR TO DELIVERY, NO STANDARD CHASSIS NEED BE IN EXISTENCE AT THE TIME THE FIRST-STEP PROPOSALS ARE EVALUATED.

OUR PRIOR DECISIONS HAVE DEALT IN DETAIL WITH THIS ARGUMENT AND OUR REASONS FOR REJECTING IT. CONSEQUENTLY, WE DO NOT FEEL THAT A DETAILED REPLY IS AGAIN REQUIRED. IT IS SUFFICIENT TO NOTE THAT NOT ONLY DOES THE FOREGOING ARGUMENT IGNORE THE NATURE OF THE FIRST STEP, WHICH IS TO EVALUATE THE PROPOSALS SUBMITTED, BUT IT ALSO IGNORES THE INTENT OF CERTAIN SPECIFICATION REQUIREMENTS, AND THE SPECIFIC AND EXPRESS REQUIREMENT OF PARAGRAPH 3(F)4 OF THE LRFTP FOR THE SUBMISSION, IN THE FIRST STEP, OF MANUFACTURER'S CATALOG SHEETS ON THE PROPOSED CHASSIS. MOREOVER, HAD GST SUBMITTED THE CATALOG SHEETS REQUIRED BY 3(F)4 IN ITS TECHNICAL PROPOSAL, THEN, CONTRARY TO THE EFFECT OF THE POSITIONS OF GST AND THE CONTRACTING OFFICER, ALL PARTS OF THE SPECIFICATION COULD BE HARMONIZED AND GIVEN EFFECT SINCE THE TECHNICAL DATA DEFINING THE "STANDARD" CHASSIS WOULD HAVE, IN FACT, BEEN ON FILE WITH THE ENGINEERING OFFICE OF THE PURCHASING ACTIVITY PRIOR TO DELIVERY OF THE ITEMS. IN VIEW OF THE FOREGOING AND FOR THE REASONS EXPRESSED IN OUR PRIOR DECISIONS, WE BELIEVE THE CONTRACTING OFFICER'S INTERPRETATION OF THE SPECIFICATIONS IS NOT REASONABLE. IN SUCH A SITUATION, OF COURSE, NO AMBIGUITY EXISTS. SEE 48 COMP. GEN., AND B-169594, SUPRA.

THE PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM DEMANDS THAT THE REJECTION OF ALL BIDS AND THE CANCELLATION OF AN IFB AFTER BIDS HAVE BEEN OPENED BE ONLY FOR A COMPELLING REASON. PARAGRAPH 2- 404.1(A) OF THE ARMED SERVICES PROCUREMENT REGULATION. IN THE ABSENCE OF ANY AMBIGUITY, THERE IS, IN THE INSTANT CASE, NO COMPELLING REASON FOR THE CANCELLATION OF THE IFB AND WE BELIEVE IT SHOULD BE REINSTATED AS SOON AS POSSIBLE AND AWARD MADE TO THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER THEREUNDER. SEE 39 COMP. GEN. 396 (1959); B-170408, OCTOBER 20, 1970. WOULD APPRECIATE TIMELY ADVICE AS TO THE ACTION FINALLY TAKEN UNDER THIS SOLICITATION.