B-171387, APR 6, 1971

B-171387, APR 6, 1971

BID PROTEST - BID RESPONSIVENESS - DEVIATIONS DENIAL OF PROTEST OF VEGA PRECISION LABORATORY, INC. AGAINST THE AWARD OF A CONTRACT UNDER AN IFB ISSUED BY NAVAL AIR SYSTEMS COMMAND FOR RADAR TRANSPONDERS TO ALPINE PIONEER, INC., LOW BIDDER. ALTHOUGH ALPINE DID NOT SPECIFY SEPARATE PRICES FOR ITEMS 7, 8, AND 12 AS CALLED FOR BY AMENDMENT NO. 3, THE BIDDER DID ACKNOWLEDGE THE AMENDMENT WHICH SPECIFICALLY INCLUDES THESE ITEMS WITHIN THE TOTAL BID PRICE. UNDER AN AWARD, ALPINE WOULD BE REQUIRED TO FURNISH THESE ITEMS AS WELL AS THE OTHERS REQUIRED AT ITS TOTAL BID PRICE. THEREFORE, ALPINE WAS PROPERLY CONSIDERED FOR AWARD.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 12, 1971, AIR-OOC:CJM/JD, WITH ENCLOSURES, FROM THE COUNSEL, NAVAL AIR SYSTEMS COMMAND, FURNISHING OUR OFFICE WITH A REPORT ON THE MATTER OF THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. N00019-71-B-0007, ISSUED BY THE NAVAL AIR SYSTEMS COMMAND, WASHINGTON, D. C.

THE INVITATION, A SMALL BUSINESS SET-ASIDE, ISSUED SEPTEMBER 23, 1970, REQUESTED BIDS FOR RADAR TRANSPONDERS, DATA AND EQUIPMENT RELATED THERETO. ALTERNATIVE (A) INCLUDED FIRST ARTICLE APPROVAL WHILE ALTERNATIVE (B) DID NOT REQUIRE FIRST ARTICLE APPROVAL. EIGHT BIDS WERE RECEIVED AND OPENED ON NOVEMBER 2, 1970, AND THE THREE LOWEST BIDS ARE ALPINE PIONEER, INCORPORATED (ALPINE), AT $471,369.47, (ALTERNATIVE A), VEGA PRECISION LABORATORY, INCORPORATED, AT $496,579 (ALTERNATIVE B), AND RADIATIONS SYSTEMS, INCORPORATED, AT $498,703 (ALTERNATIVE A).

THE INVITATION SCHEDULE LISTED REQUIRED ITEMS (ITEMS 1 THRU 12) AND OPTION ITEMS (ITEMS 13 THRU 17). AS ORIGINALLY ISSUED THE INVITATION CALLED FOR UNIT AND TOTAL PRICES ON ITEMS 1 THRU 5 (RADAR EQUIPMENT), BUT NOT FOR SEPARATE PRICES ON THE OTHER REQUIRED ITEMS (MANUALS, SPARES, DRAWINGS, DATA, TESTS). IT WAS PROVIDED, HOWEVER, THAT BIDS SHOULD BE SUBMITTED ON THE BASIS OF FURNISHING ALL QUANTITIES CALLED FOR IN THE SCHEDULE, AND THE BIDDERS WERE CAUTIONED THAT IF ANY PARTICULAR ITEM WAS PROPOSED TO BE BID AT NO COST TO THE GOVERNMENT, THE ENTRY "AT NO COST" SHOULD BE PLACED IN THE "UNIT PRICE" AND THE "TOTAL PRICE" COLUMNS.

BY AMENDMENT NO. 3 ISSUED OCTOBER 20, 1970, THE INVITATION WAS AMENDED TO CALL FOR SEPARATE PRICING ON ITEM 7 (DRAWINGS), ITEM 8 (DESIGN DATA), AND ITEM 12 (RELIABILITY TESTS). THIS WAS ACCOMPLISHED BY INSTRUCTIONS TO DELETE THE MARKINGS IN THE "TOTAL PRICE" COLUMN NEXT TO THESE ITEMS AND BY ADDING THE FOLLOWING LANGUAGE AFTER ITEM 17: "TOTAL ALTERNATIVE A AND B EXCLUDING ITEMS 6, 9, 10, 11, 13 THRU 17, INCLUDE ITEMS 7, 8 AND 12 THERETO."

THE LOW BIDDER, ALPINE, SIGNED AND RETURNED AMENDMENT NO. 3 WITH ITS BID BUT FAILED TO INDICATE INDIVIDUAL PRICES FOR ITEMS 7, 8 AND 12 IN THE BID SCHEDULE OR TO INDICATE THAT THESE ITEMS WOULD BE FURNISHED "AT NO COST"; HOWEVER, A TOTAL BID PRICE WAS SUBMITTED AFTER ITEM 17 AS INSTRUCTED. AFTER THE BID OPENING ALPINE STATED THAT ITS TOTAL BID PRICE INCLUDES ITEMS 7, 8 AND 12.

THE NEXT LOW BIDDER, VEGA, CONTENDS THAT ALPINE'S FAILURE TO SPECIFY SEPARATE PRICES FOR ITEMS 7, 8 AND 12, RESULTS IN A BID WHICH DOES NOT INCLUDE A REQUIREMENT TO FURNISH THESE ITEMS. YOUR COUNSEL CONCLUDES, HOWEVER, THAT ALPINE IS REQUIRED TO FURNISH THESE ITEMS UNDER ITS BID AT THE BID PRICE AND THAT THE FAILURE TO INDICATE SEPARATE UNIT PRICES FOR THESE ITEMS MAY THEREFORE BE WAIVED AS A MINOR INFORMALITY.

A NUMBER OF OUR DECISIONS HAVE BEEN CITED BY VEGA IN SUPPORT OF ITS POSITION. SUFFICE IT TO SAY THAT IN THESE VARIOUS DECISIONS WE AFFIRMED THE RULE THAT TO BE CONSIDERED FOR AN AWARD A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE SOLICITATION SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED. ASPR 1 2.301(A). BELIEVE THE ALPINE BID DOES COMPLY WITH THE MATERIAL REQUIREMENTS OF THE SOLICITATION. ALTHOUGH ALPINE DID NOT SPECIFY SEPARATE PRICES FOR ITEMS 7, 8 AND 12, THE BIDDER DID ACKNOWLEDGE AMENDMENT NO. 3 WHICH SPECIFICALLY INCLUDES THESE ITEMS WITHIN THE TOTAL BID PRICE. ALPINE DID NOT TAKE ANY EXCEPTION TO THE SOLICITATION LANGUAGE AND WE BELIEVE THAT IN THE EVENT OF AN AWARD ALPINE WOULD BE REQUIRED TO FURNISH ITEMS 7, 8 AND 12, AS WELL AS THE OTHER REQUIRED ITEMS, AT THE TOTAL BID PRICE OF $471,369. SEE 48 COMP. GEN. 757 (1969).

WE NOTE THAT RADIATION SYSTEMS, INCORPORATED (RADIATION), HAS CHALLENGED THE SMALL BUSINESS SIZE STATUS OF ALPINE FOR AWARD ON THIS SMALL BUSINESS SET-ASIDE, BUT WE UNDERSTAND THAT ALPINE HAS BEEN DETERMINED BY THE SBA REPRESENTATIVE TO BE A SMALL BUSINESS CONCERN. FURTHER, WITH REGARD TO AMENDMENT NO. 1 TO THE SOLICITATION, WHICH RADIATION ALLEGES THAT ALPINE FAILED TO ACKNOWLEDGE, THE RECORD SHOWS THAT SUCH AMENDMENT IN FACT WAS TIMELY ACKNOWLEDGED BY THE LOW BIDDER.

ACCORDINGLY, WE CONCUR WITH THE CONCLUSION OF YOUR DEPARTMENT TO CONSIDER ALPINE FOR THE AWARD SINCE WE FIND NO VALID REASON FOR REJECTING ITS BID. IN VIEW OF OUR CONCLUSION THERE IS NO NEED TO CONSIDER RADIATION'S PROTEST WITH REGARD TO THE VEGA BID. RETURNED HEREWITH ARE THE BID DOCUMENTS AS REQUESTED.