B-170908, MAR 5, 1971

B-170908, MAR 5, 1971

BID PROTEST - BID RESPONSIVENESS DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO AQUA-CHEM, INC., FOR HEAT EXCHANGERS SOLICITED BY THE U.S. ARMY ENGINEER DIVISION. BECAUSE CONTRACTING OFFICER COULD NOT DETERMINE, BASED ON INFORMATION AVAILABLE PRIOR TO BID OPENING IF PROTESTANT'S MODEL NUMBERS IN FACT MET THE SPECIFICATION, THE BID WAS DETERMINED NONRESPONSIVE. WHILE COMPTROLLER GENERAL BELIEVES THAT THE MERE INCLUSION OF MODEL NUMBERS IN A BID SHOULD NOT CONSTITUTE AN AUTOMATIC FINDING OF NONRESPONSIVENESS, WHERE AWARD HAD TO BE MADE AND THE CONTRACTING OFFICER PROCEEDED ON THE BASIS THAT PROTESTANT'S BID WAS NONRESPONSIVE, SUCH ACTION WAS THE RESULT OF A REASONABLE ADMINISTRATIVE DETERMINATION AND THERE IS NO LEGAL JUSTIFICATION FOR DISTURBING AWARD.

TO SELLERS, CONNER & CUNEO:

REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 8 AND OCTOBER 26, 1970, ON BEHALF OF SPACE DYNAMICS CORPORATION (SDC) OF CINCINNATI, OHIO, PROTESTING THE AWARD OF A CONTRACT TO AQUA-CHEM, INCORPORATED, UNDER INVITATION FOR BIDS NO. DACA-87-70-B-0016, ISSUED JUNE 30, 1970, BY THE UNITED STATES ARMY ENGINEER DIVISION, HUNTSVILLE, ALABAMA.

THE INVITATION CALLED FOR HEAT EXCHANGERS AS LISTED IN THE BID SCHEDULE UNDER ITEM NOS. 0100 THRU 0400. BIDS WERE OPENED AUGUST 26, 1970, AND SDC WAS THE LOW BIDDER. HOWEVER, ITS AGGREGATE BID PRICE WAS QUESTIONABLE, DUE TO A DISCREPANCY BETWEEN THE UNIT PRICE FOR ITEM 0300 (4 UNITS $38,000 EACH, OR $152,000) AND THE EXTENDED PRICE OF $228,000. IN EITHER CASE, SDC REMAINED LOW SINCE ITS TOTAL BID CALCULATED TO EITHER $438,000 OR $514,000, AND THE NEXT LOW BID WAS $662,920, SUBMITTED BY AQUA-CHEM. SDC NOTIFIED THE CONTRACTING OFFICER THAT $514,000 WAS THE CORRECT PRICE, BUT THE CONTRACTING OFFICER DECIDED NOT TO ACT UPON SDC'S MISTAKE IN BID CLAIM DUE TO ANOTHER ASPECT OF THE BID.

SDC'S BID CONTAINED THE FOLLOWING INSERTED MODEL NUMBERS AFTER EACH LINE ITEM IN THE BID SCHEDULE:

LINE ITEM BIDDER INSERTED MODEL NUMBER

0100 MODEL 70819-1

0200 MODEL 70819-2

0300 MODEL 70819-3

0400 MODEL 70819-4 THE CONTRACTING OFFICER CONCLUDED THAT THE INSERTED MODEL NUMBERS CAUSED THE BID TO BE NONRESPONSIVE. BY LETTER DATED SEPTEMBER 30, 1970, SDC WAS NOTIFIED OF THIS DETERMINATION AS FOLLOWS:

"YOUR BID SUBMITTED UNDER INVITATION FOR BIDS DACA87-70-B-0016 HAS BEEN DETERMINED TO BE NONRESPONSIVE.

"THE BASIS FOR ABOVE ACTION WAS THAT THE MODEL NUMBERS YOU INSERTED BY EACH LINE ITEM CONSTITUTED AN AMBIGUITY IN THAT THE CONTRACTING OFFICER COULD NOT DETERMINE, BASED ON INFORMATION AVAILABLE PRIOR TO THE BID OPENING, IF YOUR MODEL NUMBERS DID, IN FACT, MEET THE SPECIFICATIONS. A SIMILAR SITUATION UNDER DECISION B-169813, DATED 6 JULY 1970, THE COMPTROLLER GENERAL RULED A BID WAS NONRESPONSIVE. THIS DECISION INDICATED THAT IF THE BIDDER HAD MADE AN EXPRESS STATEMENT IN THE BID THAT THE MODEL NUMBERS WOULD COMPLY WITH THE SPECIFICATIONS, OR IF THE GOVERNMENT HAD DATA ON THE MODEL NUMBERS, SUCH AS CATALOG CUT SHEETS, PRIOR TO BID OPENING THEN THE COMPTROLLER GENERAL MAY HAVE RULED OTHERWISE. THE GOVERNMENT DID NOT HAVE DATA PRIOR TO BID OPENING TO PROVE THAT THE MODEL NUMBERS USED IN YOUR BID DID MEET THE SPECIFICATIONS AND YOU DID NOT INCLUDE A STATEMENT WITH THE BID THAT THE MODEL NUMBERS DID COMPLY WITH THE SPECIFICATIONS."

A PROTEST WAS FILED WITH OUR OFFICE. HOWEVER, THE CONTRACTING OFFICER FELT COMPELLED TO MAKE AWARD TO THE SECOND LOW BIDDER ON OCTOBER 19, 1970, WHILE THE PROTEST WAS PENDING. HIS ACTION WAS BASED ON A "DETERMINATION AND FINDINGS" DATED OCTOBER 13, 1970, TO THE EFFECT THAT AN IMMEDIATE AWARD WAS NECESSARY IN ORDER TO BE ABLE TO MAKE TIMELY DELIVERY OF THE HEAT EXCHANGERS AND OUTLINE DRAWINGS TO A CONSTRUCTION CONTRACTOR ON A CONSTRUCTION PROJECT FOR THE GOVERNMENT. HE CITED ASPR 2-407.8(B)(3) WHICH PROVIDES THAT AWARDS SHALL NOT BE MADE WHILE PROTESTS ARE PENDING, UNLESS THE CONTRACTING OFFICER DETERMINES THAT THE ITEMS ARE URGENTLY REQUIRED OR THAT DELIVERY OR PERFORMANCE WILL BE UNDULY DELAYED BY FAILURE TO MAKE AWARD PROMPTLY OR THAT A PROMPT AWARD WILL OTHERWISE BE ADVANTAGEOUS TO THE GOVERNMENT. WE NOTE, HOWEVER, THAT THE ADMINISTRATIVE RECORD DOES NOT SHOW THAT THE CONTRACTING OFFICER'S DETERMINATION TO MAKE AWARD PENDING OUR DECISION WAS APPROVED AT A HIGHER LEVEL IN ACCORDANCE WITH ASPR 2-407.8(B)(2). SINCE WE RECEIVED THE TELEGRAM OF PROTEST FROM SDC ON SEPTEMBER 30, 1970, AND ADVISED THE APPROPRIATE ARMY REPRESENTATIVE OF ITS RECEIPT ON THE SAME DAY, WE ASSUME THAT THE CONTRACTING OFFICER MUST HAVE BEEN AWARE THAT WE HAD THE PROTEST UNDER CONSIDERATION WHEN HE MADE THE AWARD AND, IN FACT, WHEN HE MADE HIS DETERMINATION TO AWARD PRIOR TO OUR DECISION ON THE PROTEST.

YOU DISPUTE THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIVENESS. IN YOUR VIEW THE SDC BID EVIDENCES A CLEAR INTENTION TO CONFORM TO THE REQUIREMENTS OF THE INVITATION. YOU POINT OUT THAT THE MODEL NUMBERS IN QUESTION APPEAR ONLY ON PAGE 8 OF THE INVITATION, AND THAT THESE MODEL NUMBERS ARE SEQUENTIAL, I.E., 70819-1 TO 70819-4, THUS MAKING IT OBVIOUS, IN YOUR OPINION, THAT THIS DESIGNATION OF MODEL NUMBERS IN SEQUENCE WAS APPLIED BY THE BIDDER PURELY FOR THE PURPOSE OF THIS PROCUREMENT. YOU FURTHER POINT OUT THAT THE BIDDER'S MODEL NUMBERS CORRELATE DIRECTLY TO THE SEQUENCE OF THE BID SCHEDULE ITEM NUMBERS, I.E., 0100 TO 0200, AND THAT THE GOVERNMENT SPECIFICATION OF THE FOUR TYPES OF HEAT EXCHANGERS IN THE BID SCHEDULE CONTAINS A PARENTHETICAL REFERENCE TO DATA SHEETS ATTACHED TO THE INVITATION WHICH ALSO ARE SEQUENTIALLY NUMBERED EXACTLY AS THE ITEM TYPE CODE (P01HE TO P04HE), THE ITEM NUMBERS OF THE INVITATION (0100 TO 0400), AND THE SDC MODEL NUMBERS (70819-1 TO 70819-4). FINALLY, YOU NOTE THAT THE REFERENCED DATA SHEETS THEMSELVES CONTAIN A REFERENCE TO THEIR ITEM TYPE CODE NUMBER AND ALSO TO A NUMBERED DRAWING ATTACHED TO THE INVITATION AND THESE DRAWINGS ARE NUMBERED IN SEQUENCE IN THE SAME ORDER AS THE DATA SHEETS, THE ITEM TYPE CODE NUMBERS, ITEM NUMBERS AND THE SDC MODEL NUMBERS.

YOU ADVISE THAT THE DERIVATION OF THE 5 DIGIT MODEL NUMBER, 70819, WAS THE DATE ON WHICH THE SDC BID WAS MAILED TO THE INSTALLATION (AUGUST 19, 1970, AS INDICATED BY A CERTIFICATE OF MAILING WHICH YOU HAVE ENCLOSED) AS ARRANGED TO COINCIDE WITH THE ARMY AND ASPR DATE ARRANGEMENT OF YEAR, MONTH AND DAY.

REGARDING B-168913, JULY 6, 1970, YOU BELIEVE THAT THE TWO SITUATIONS ARE DISTINGUISHABLE SINCE IN THE PRIOR CASE THE BIDDER HAD ASSIGNED NUMBERS TO EXISTING PARTS AND HAD SUPPLIED DATA PRIOR TO BID OPENING, AND THE CASE WAS DECIDED ON THE QUESTION OF THE ADEQUACY OF THE DATA FURNISHED; WHEREAS IN THE PRESENT SITUATION NO DATA WAS SUPPLIED "AS NONE EXISTED" AND, UNLIKE B-168913, THE ASSIGNED NUMBERS DID NOT CREATE AN AMBIGUITY IN BID.

BASED ON THE FOREGOING, YOU CONTEND THAT THE LOW BID WAS RESPONSIVE AND YOU URGE THAT WE DIRECT CANCELLATION OF THE EXISTING CONTRACT AND AWARD TO SDC UPON CORRECTION OF SDC'S ERROR IN BID. IN THIS CONNECTION, YOU REPORT THAT THESE HEAT EXCHANGERS ARE TO BE USED AT THE SAFEGUARD ABM SITES AND DUE TO A STANDARDIZATION OF MATERIAL FOR ALL SAFEGUARD SITE CONSTRUCTION WHICH WAS APPROVED BY THE SECRETARY OF THE ARMY, SDC WILL AS A PRACTICAL MATTER BE OUT OF COMPETITIVE CONSIDERATION IF IT LOSES THIS CONTRACT. BECAUSE OF THE SAVING WHICH WOULD BE REALIZED BY AWARD TO SDC, SPREAD OVER THE ENTIRE SAFEGUARD PROGRAM, AND SDC'S ABILITY TO MAKE TIMELY DELIVERY, YOU URGE THAT IMMEDIATE CANCELLATION OF THE EXISTING CONTRACT AND AWARD TO SDC IS IN THE BEST INTEREST OF THE GOVERNMENT.

YOU HAVE ARGUED THAT THE MERE INCLUSION OF NUMBERS IN A BID SHOULD NOT CONSTITUTE AN AUTOMATIC FINDING OF NONRESPONSIVENESS AND THAT OUR OFFICE SHOULD JUDGE EACH OF THESE CASES ON ITS MERITS. WE AGREE. IN THIS CASE WE FIND THAT THE CONTRACTING OFFICER WAS FACED WITH A SITUATION WHERE AWARD HAD TO BE MADE BEFORE YOUR PROTEST COULD BE RESOLVED. HE HAD FOR CONSIDERATION OUR DECISION, B-169813, SUPRA, INCIDENTALLY, WHERE HE ALSO WAS INVOLVED AS THE CONTRACTING OFFICER. THERE, AS HERE, THE LOW BIDDER HAD INSERTED CERTAIN NUMBERS IN HIS BID AND THEN, AS NOW, THE BIDDER ALLEGED THAT THE NUMBERS WERE INSERTED FOR INTERNAL PURPOSES ONLY. THE DATA WHICH WAS SUBMITTED BY THE BIDDER PRIOR TO BID OPENING WAS SAID TO HAVE BEEN FURNISHED FOR INFORMATIONAL PURPOSES AND NOT IN CONNECTION WITH THE PART NUMBERS INSERTED IN THE BID. THE CONTRACTING OFFICER PROPOSED TO ACCEPT THE LOW BID, BUT WE CONCLUDED THAT THE BID SHOULD BE REJECTED, STATING AS FOLLOWS:

" *** WE HAVE CONSIDERED THE PROBLEM PRESENTED BY FPD'S INSERTIONS IN A NUMBER OF OTHER CASES. SEE B-152808, JANUARY 2, 1964; B-151849, SEPTEMBER 10, 1963; B-143084, JUNE 22, 1960. AND OUR DECISION IN B 152808, SUPRA, IS IN ALL MATERIAL RESPECTS ANALOGOUS TO THE PRESENT SITUATION. IN THAT DECISION, WE QUOTED WITH APPROVAL THE FOLLOWING COMMENTS SUBMITTED BY A CONTRACTING OFFICER IN CONNECTION WITH B 151849, SUPRA:

' *** SOME BIDDERS, WHEN INTENDING TO SUPPLY MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS, HAVE INCLUDED THEIR PART NUMBERS FOR THEIR READY REFERENCE IN THE EVENT OF AN AWARD WHILE OTHERS HAVE INCLUDED THEIR PART NUMBERS FOR THE PURPOSE OF OFFERING A SIMILAR BUT MATERIALLY DIFFERENT ITEM, WHICH MIGHT OR MIGHT NOT MEET THE APPLICABLE SPECIFICATIONS AND THE NEEDS OF THE GOVERNMENT. WHEN PART NUMBERS ARE INSERTED IN BIDS, THE CONTRACTING OFFICER HAS NO WAY TO DETERMINE WHETHER THE BIDDER IS OFFERING MATERIAL IN COMPLETE CONFORMANCE WITH THE SPECIFICATIONS. *** '"

THE CONTRACTING OFFICER CONSIDERED THAT THE TWO CASES WERE SIMILAR, AND WE CANNOT DISAGREE. AT THE TIME THE AWARD HAD TO BE MADE THE CONTRACTING OFFICER BELIEVED HE HAD TO PROCEED ON THE BASIS THAT THE SDC BID WAS NONRESPONSIVE. WE FIND THAT THE AWARD TO THE NEXT LOW BIDDER WAS THE RESULT OF THIS REASONABLE ADMINISTRATIVE DETERMINATION, AND WE FIND NO LEGAL JUSTIFICATION FOR DISTURBING SUCH AWARD.

ACCORDINGLY, YOUR PROTEST AGAINST THE AWARD IS DENIED.