B-171154, DEC. 2, 1970

B-171154, DEC. 2, 1970

BID PROTEST - NON-RESPONSIVE BID DENIAL OF PROTEST BY FIRE ENGINEERING COMPANY AGAINST PROPOSED REJECTION OF BID BY U.S. ATOMIC ENERGY COMMISSION TO FURNISH AND INSTALL A FIRE EXTINGUISHING SYSTEM FOR THE COMPUTER SCIENCE CENTER IN IDAHO FALLS, IDAHO AND AWARD TO A HIGHER BIDDER. WHERE BIDDERS WERE DIRECTED TO DESIGNATE ON THE BID FORM WHICH OF TWO ACCEPTABLE FIRE EXTINGUISHING SYSTEM WAS BEING OFFERED AND OTHER MINIMUM SPECIFICATION REQUIREMENTS WERE INCLUDED IN THE IFB, PROTESTANT'S FAILURE TO INDICATE WHICH SYSTEM WAS BEING OFFERED AND ITS INSERTION OF A QUALIFICATION OF THEIR BID MAY REASONABLY BE INTERPRETED AS OFFERING A SYSTEM WHICH MIGHT DEVIATE FROM THE REQUIRED SPECIFICATIONS JUSTIFIES THE PROPOSED REJECTION OF THE BID AS NON RESPONSIVE; THEREFORE, THE PROTEST AGAINST SUCH ACTION MUST BE DENIED.

TO OWEN, WARD AND GELDZAHLER:

THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 26, 1970, PROTESTING ON BEHALF OF FIRE ENGINEERING COMPANY THE PROPOSED AWARD OF A CONTRACT TO A HIGHER BIDDER UNDER INVITATION FOR BIDS NO. AT(10-1)-1352, ISSUED BY THE U. S. ATOMIC ENERGY COMMISSION (HEREAFTER THE COMMISSION).

THE INVITATION REQUESTED BIDS FOR FURNISHING AND INSTALLING EITHER A HALON 1301 OR HALON 1211 FIRE EXTINGUISHING SYSTEM FOR THE COMPUTER SCIENCE CENTER IN IDAHO FALLS, IDAHO. BIDDERS WERE TO DESIGNATE IN THE APPROPRIATE BLANK ON THEIR BID FORM WHICH SYSTEM WAS BEING OFFERED. THE SPECIFICATIONS INCLUDED A PROVISION REQUIRING THAT THE SYSTEM MEET THE PARTICULARS OF THE LATEST EDITION OF THE NATIONAL FIRE PROTECTION ASSOCIATION STANDARD NO. 12A (NFPA NO. 12A), WHICH SETS FORTH MINIMUM REQUIREMENTS AND A RANGE OF ACCEPTABLE VARIABLES IN A HALON 1301 SYSTEM. ADDITIONAL REQUIREMENTS ARE SET OUT IN THE INVITATION'S TECHNICAL SPECIFICATIONS. SOME MINIMUM TOLERANCES ARE SPECIFIED IN THE INVITATION WHEREAS NFPA NO. 12A PERMITS A RANGE OF TOLERANCES, AND OTHER REQUIREMENTS ARE SPECIFIED IN THE INVITATION WHICH ARE NOT REQUIRED BY NFPA 12A.

THE COMMISSION HAS ADVISED THAT IT PROPOSES TO REJECT YOUR BID BECAUSE YOU FAILED TO INDICATE IN THE APPROPRIATE SPACE ON THE BID FORM WHICH HALON SYSTEM YOU WERE OFFERING, AND ALSO BECAUSE YOU INSERTED A TYPEWRITTEN STATEMENT QUALIFYING YOUR BID. THE REFERRED TO STATEMENT IN YOUR BID READS AS FOLLOWS:

"THE ABOVE PRICE CONTEMPLATES USE OF A SYSTEM BY A MANUFACTURER OTHER THAN THAT AROUND WHOM THE SPECIFICATIONS WERE WRITTEN, BUT ONE THAT WILL MEET THE REQUIREMENTS OF NFPA NO. 12A."

IT IS YOUR POSITION THAT THE COMPANY'S FAILURE TO INDICATE ON THE BID FORM THE SPECIFIC HALON SYSTEM IT WAS OFFERING WAS AN OVERSIGHT WHICH DOES NOT GO THE SUBSTANCE OF THE BID AND, THEREFORE, CAN BE WAIVED. IN THIS REGARD, WE BELIEVE THE COMPANY DID IN FACT INDICATE IN ITS BID THAT IT WOULD FURNISH A HALON 1301 SYSTEM SINCE, AS SHOWN IN THE ABOVE QUOTED STATEMENT, IT PROPOSED TO MEET THE REQUIREMENTS OF NFPA NO. 12A, WHICH IS A STANDARD FOR ONLY THE HALON 1301 SYSTEM.

WITH RESPECT TO THE COMPANY'S INSERTION OF THE ABOVE-QUOTED STATEMENT IN ITS BID AND THE GOVERNMENT'S PROPOSED REJECTION OF THE BID, YOU STATE THAT WHILE THE COMPANY OFFERED TO COMPLY WITH THE STANDARDS IN NFPA NO. 12A, THE SYSTEM ON WHICH THE COMPANY BID ALSO COMPLIES WITH THE MINIMUM TOLERANCES AND OTHER REQUIREMENTS SPECIFIED IN THE BALANCE OF THE GOVERNMENT'S SPECIFICATIONS.

IT IS FUNDAMENTAL THAT A CONTRACT MAY BE AWARDED ONLY ON A BID WHICH AS SUBMITTED IS FULLY RESPONSIVE TO THE TERMS OF THE INVITATION (41 U.S.C. 253), AND THAT AFTER BID OPENING A BIDDER MAY NOT BE PERMITTED TO CLARIFY THE MEANING INTENDED WHEN HE IS IN A POSITION TO PREJUDICE OTHER BIDDERS OR TO AFFECT THE RESPONSIVENESS OF HIS BID. SEE 36 COMP. GEN. 705 (1957) AND 42 COMP. GEN. 96 (1962).

IN OUR OPINION THE ABOVE-QUOTED STATEMENT IN YOUR CLIENT'S BID MAY REASONABLY BE INTERPRETED AS OFFERING A SYSTEM WHICH WOULD COMPLY WITH THE STANDARDS IN NFPA NO. 12A, BUT WHICH MIGHT DEVIATE FROM THE REQUIREMENTS WRITTEN INTO THE OTHER SPECIFICATIONS OF THE INVITATION. SINCE IT IS OBVIOUS THAT THE INVITATION CONTAINED TECHNICAL SPECIFICATIONS FOR THE SYSTEM IN ADDITION TO THE STANDARDS STATED IN NFPA NO. 12A, WE FEEL THAT THE QUOTED STATEMENT CREATES A DEVIATION FROM THE REQUIREMENT THAT TO RECEIVE AN AWARD A BIDDER MUST OFFER TO FURNISH EQUIPMENT MEETING ALL OF THE PROVISIONS OF THE SPECIFICATIONS. IT IS ALSO NOTED IN SUCH CONNECTION THAT IN A LETTER TO THE PROCURING ACTIVITY DATED OCTOBER 22, 1970, YOUR CLIENT ACKNOWLEDGED THAT ITS BID HAS BEEN QUALIFIED.

IN THESE CIRCUMSTANCES WE MUST AGREE WITH THE PROPOSED REJECTION OF YOUR CLIENT'S BID AS NONRESPONSIVE, AND YOUR PROTEST AGAINST SUCH ACTION IS THEREFORE DENIED.