B-171588, JUN 7, 1971

B-171588, JUN 7, 1971

BID PROTEST - BIDDER RESPONSIBILITY - INSPECTION SITE DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO LOW BIDDER, R. H. PINES CORPORATION, UNDER AN IFB ISSUED BY GSA, FEDERAL SUPPLY SERVICE, FOR A REQUIREMENTS CONTRACT FOR STEEL PIPE. ALTHOUGH SUCCESSFUL BIDDER FAILED TO INCLUDE IN ITS BID PLACES OF INSPECTION WITHIN THE U.S., PUERTO RICO, OR THE VIRGIN ISLANDS, THE COMP. GEN. HAS HELD THAT MATTERS CONCERNING INSPECTION AND PRODUCTION RELATE TO BIDDER RESPONSIBILITY RATHER THAN RESPONSIVENESS, AND SUCH INFORMATION MAY BE CHANGED OR PROVIDED SUBSEQUENT TO BID OPENING.

TO HEIECK SUPPLY:

REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 22, 1970, AND LETTER OF JANUARY 4, 1971, PROTESTING THE AWARD OF A CONTRACT TO THE R. H. PINES CORPORATION UNDER INVITATION FOR BIDS (IFB) NO. 9PR-W-00210/E4, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), FEDERAL SUPPLY SERVICE, SAN FRANCISCO, CALIFORNIA.

THE IFB WAS ISSUED SEPTEMBER 17, 1970, FOR A REQUIREMENT CONTRACT OF STEEL PIPE, FSC CLASS 4710, RUNNING FROM NOVEMBER 1, 1970, OR DATE OF AWARD, WHICHEVER WAS LATER, THROUGH OCTOBER 31, 1971. R. H. PINES CORPORATION WAS EVALUATED AS THE LOW BIDDER UNDER THE INVITATION. AWARD WAS MADE TO PINES ON DECEMBER 16, 1970.

SECTION 5(A)(2) OF GSA FORM 1424 INCORPORATED BY REFERENCE INTO THE IFB PROVIDED:

"OFFERORS WILL BE REQUIRED TO SPECIFY THE NAME AND ADDRESS OF EACH MANUFACTURING PLANT OR OTHER FACILITY WHERE SUPPLIES WILL BE AVAILABLE FOR INSPECTION, INDICATING THE ITEM NUMBERS TO WHICH EACH APPLIES. A CONTRACT WILL BE AWARDED ONLY TO THE RESPONSIBLE OFFEROR (I) WHO AGREES TO DELIVER THE ITEMS SPECIFIED BY THE CONTRACT FROM A PLANT OR WAREHOUSE WITHIN THE UNITED STATES (INCLUDING PUERTO RICO AND THE VIRGIN ISLANDS) THAT IS EQUIPPED TO PERFORM ALL TESTS REQUIRED BY THE CONTRACT AND SPECIFICATIONS, TO EVIDENCE CONFORMANCE THEREWITH, OR (II) WHO WILL ARRANGE WITH A TESTING LABORATORY IN THE UNITED STATES, ACCEPTABLE TO THE GOVERNMENT, TO PERFORM THE REQUIRED TESTS."

TWO OF THE PLACES FOR INSPECTION SPECIFIED IN THE BID BY PINES WERE LOCATED IN TWO FOREIGN COUNTRIES, JAPAN AND CANADA. HOWEVER, DURING THE PREAWARD SURVEY, PINES AGREED TO HAVE THE TESTS REQUIRED UNDER THE TERMS OF THE IFB PERFORMED BY THE ROBERT W. HUNT CO. OR SUCH OTHER TESTING LABORATORY IN THE UNITED STATES ACCEPTABLE TO THE GOVERNMENT AND TO PROVIDE AN ADDITIONAL INSPECTION AT THE PORT OF STOCKTON WAREHOUSES IN CALIFORNIA.

YOU CONTEND THAT THE FAILURE TO INCLUDE IN THE BID PLACES OF INSPECTION WITHIN THE UNITED STATES, PUERTO RICO OR THE VIRGIN ISLANDS RENDERED THE PINES' BID NONRESPONSIVE AND THAT IT SHOULD NOT HAVE BEEN ALLOWED TO FURNISH INFORMATION AFTER THE OPENING OF BIDS.

OUR OFFICE HAS CONSISTENTLY HELD THAT TO CONSTITUTE A MATTER OF RESPONSIVENESS, INFORMATION MUST BE REQUIRED FOR EVALUATION OF THE BID. THAT IS, IT MUST BE AN ESSENTIAL ELEMENT OF THE PROMISE TO PERFORM AS REQUIRED BY THE SPECIFICATIONS, NOT RELATED TO AN OFFEROR'S ABILITY TO CARRY OUT THAT PROMISE. B-165799(1), MARCH 25, 1969. MORE SPECIFICALLY, WE HAVE HELD THAT MATTERS CONCERNING INSPECTION AND PRODUCTION RELATE TO BIDDER RESPONSIBILITY RATHER THAN RESPONSIVENESS. 49 COMP. GEN. 553 (1970). IN FACT, THE 49 COMP. GEN. DECISION INVOLVED A PROCUREMENT WHERE YOUR COMPANY UNDER AN IFB FOR STEEL PIPE REQUIREMENTS WAS PERMITTED TO FURNISH SOURCE INSPECTION POINT INFORMATION AFTER THE OPENING OF BIDS. UPHOLDING THE AWARD TO YOUR COMPANY PROTESTED BY PINES, IT WAS STATED AT PAGE 556, QUOTING FROM B 155600, FEBRUARY 25, 1965:

"IT SEEMS CLEAR THAT THE REQUEST FOR ADVICE AS TO THE POINT OF PRODUCTION AND THE ORIGIN AND INSPECTION POINTS WAS SOLICITED AS A MATTER OF INFORMATION FOR THE BENEFIT AND CONVENIENCE OF THE GOVERNMENT RATHER THAN AS A CONDITION OF THE BID. OBVIOUSLY, THE FURNISHING OF SUCH INFORMATION COULD NOT AFFECT THE OBLIGATION OF THE BIDDER, IN THE EVENT OF AN AWARD, TO FURNISH SUPPLIES ACCEPTABLE TO THE GOVERNMENT. FURTHERMORE, THE AMERICAN EQUIPMENT COMPANY LEGALLY COULD NOT REFUSE TO ACCEPT AN AWARD ON THE GROUND THAT ITS BID WAS DEFECTIVE BECAUSE IT DID NOT INITIALLY FURNISH THE REQUIRED INFORMATION ACCURATELY. CONSEQUENTLY, WE FAIL TO SEE HOW ANY BIDDER COULD BE PREJUDICED BY CONSIDERATION OF THE BID OF THE AMERICAN EQUIPMENT COMPANY."

MOREOVER, IN 39 COMP. GEN. 655, 658 (1960), WE CONCLUDED THAT INFORMATION CALLED FOR TO DETERMINE THE RESPONSIBILITY OF THE BIDDER, RATHER THAN RESPONSIVENESS, MAY BE CHANGED OR PROVIDED SUBSEQUENT TO BID OPENING WITHOUT PREJUDICE TO CONSIDERATION OF THE BID.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.