B-172573, JUL 27, 1971

B-172573, JUL 27, 1971

BID PROTEST - BID RESPONSIVENESS CONCERNING THE DECISION IN THE PROTEST OF YARBROUGH MOVING & STORAGE, INC. AGAINST CANCELLATION OF ITS CONTRACT FOR MOVEMENT OF HOUSEHOLD GOODS AWARDED BY BLYTHEVILLE A.F. BASE, ARKANSAS. ADVISING THAT AS IFB DID NOT CALL FOR A GUARANTEE TO MATCH A MAXIMUM GOVERNMENT DAILY REQUIREMENT OF GROSS HUNDREDWEIGHT, THE BIDDER WAS NOT REQUIRED TO INCLUDE SUCH IN THEIR BID AND THE BID WAS THEREFORE RESPONSIVE. ADVISING FURTHER THAT IN THE FUTURE, SOLICITATIONS OF THIS TYPE SHOULD COMPLY WITH ASPR 7-1601.7 BY STATING A MINIMUM ACCEPTABLE CAPACITY OF GROSS HUNDREDWEIGHT.

TO MR. SECRETARY:

WE REFER TO THE LETTER SPPM DATED MAY 19, 1971, FROM THE CONTRACT MANAGEMENT DIVISION, DIRECTORATE OF PROCUREMENT POLICY, HEADQUARTERS UNITED STATES AIR FORCE, FORWARDING A REPORT ON THE PROTEST OF YARBROUGH MOVING & STORAGE, INC., AGAINST THE PROPOSED CANCELLATION OF CONTRACT NO. F03601-71-C-0105, AWARDED TO THAT COMPANY ON DECEMBER 2, 1970, BY THE BLYTHEVILLE AIR FORCE BASE, ARKANSAS.

THE SUBJECT PROTEST CONCERNS A CONTRACT INVOLVING THE TRANSPORTATION OF HOUSEHOLD GOODS AWARDED FOR SCHEDULE III OF THE SOLICITATION. BIDS ON THIS SCHEDULE WERE AS FOLLOWS:

YARBROUGH MOVING & STORAGE, INC. $19,839.60

BRANSCUM MOVING & STORAGE $20,574.40

BLYTHEVILLE TRANSFER & STORAGE COMPANY $20,941.80

FISHER'S MOVING & STORAGE CO. $23,513.60

GUARDIAN VAN LINES, INC. $29,392.00

CONSEQUENTLY, AWARD WAS MADE TO YARBROUGH AS LOW BIDDER. THE CONTRACT COVERS THE PERIOD OF JANUARY 1, 1971, TO DECEMBER 31, 1971.

THEREAFTER, THE SECOND, THIRD, AND FOURTH LOW BIDDERS PROTESTED THE AWARD TO YARBROUGH ON THE BASIS THAT ITS BID WAS NONRESPONSIVE UNDER THE SOLICITATION PROVISION WHICH HAD INCORPORATED, IN PART, PARAGRAPH 7 1601.7 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) INTO THE SOLICITATION. IN PERTINENT PART, THIS PROVISION READS:

"(B) THE GOVERNMENT'S ESTIMATED MAXIMUM DAILY REQUIREMENTS, EXCLUDING SATURDAY; SUNDAY; NATIONAL, STATE AND LOCAL HOLIDAYS, ARE LISTED BELOW BY AREA OF PERFORMANCE WITHIN EACH SCHEDULE. BIDDERS MUST COMPLETE THE BIDDERS GUARANTEED DAILY CAPABILITY, WHICH MUST EQUAL OR EXCEED THE GOVERNMENT'S MINIMUM ACCEPTABLE DAILY CAPABILITY FOR ALL ITEMS WITHIN THE AREA OF PERFORMANCE FOR WHICH THEY SUBMIT BIDS. FAILURE TO DO SO WILL RENDER THE BID NONRESPONSIVE."

THE CONTRACTING OFFICER HAD LISTED THE GOVERNMENT'S ESTIMATED MAXIMUM DAILY CAPABILITY IN THE SOLICITATION, BUT HAD FAILED TO INDICATE THE GOVERNMENT'S MINIMUM DAILY CAPABILITY. THE LOW BIDDER'S GUARANTEED DAILY CAPABILITY WAS 5,000 POUNDS (50 GCWT) IN COMPARISON TO THE GOVERNMENT'S ESTIMATED MAXIMUM DAILY CAPABILITY OF 13,000 POUNDS (130 GCWT).

THE PROTESTS MAINTAINED THAT THE FAILURE OF THE YARBROUGH BID TO STATE A GUARANTEED DAILY CAPABILITY EQUAL TO THE GOVERNMENT'S STATED MAXIMUM DAILY CAPABILITY RENDERED IT NONRESPONSIVE. ON THE BASIS OF A LETTER DATED JANUARY 27, 1971, FROM THE ASSISTANT STAFF JUDGE ADVOCATE, BLYTHEVILLE AIR FORCE BASE, ARKANSAS, CONCLUDING THAT THE FAILURE ON THE PART OF THE GOVERNMENT TO SET OUT THE REQUIRED DAILY MINIMUM QUANTITIES IN THE SOLICITATION RENDERED IT INVALID, THE CONTRACT MANAGEMENT DIVISION, DIRECTORATE OF PROCUREMENT POLICY, HEADQUARTERS UNITED STATES AIR FORCE, DIRECTED THAT WITH RESPECT TO SCHEDULE III, THE SOLICITATION SHOULD BE CANCELED AND REISSUED. ALTHOUGH THE REPORT TO OUR OFFICE IN THIS MATTER INDICATES THAT THE CONTRACT AWARDED YARBROUGH FOR SCHEDULE III WAS, IN FACT, CANCELED IN ACCORDANCE WITH THIS DIRECTIVE, WE HAVE BEEN INFORMALLY ADVISED BY THE CONTRACTING OFFICER THAT PERFORMANCE UNDER THE CONTRACT HAS BEEN CONTINUED PENDING OUR DECISION.

UNLESS SOMETHING ON THE FACE OF THE BID, OR SPECIFICALLY A PART THEREOF, EITHER LIMITS, REDUCES, OR MODIFIES THE OBLIGATION OF THE BIDDER TO PERFORM IN ACCORDANCE WITH THE TERMS OF THE INVITATION, THE BID IS RESPONSIVE. 48 COMP. GEN. 685, 687 (1969); 49 ID. 553, 556 (1970). THIS INSTANCE, THE LOW BIDDER WAS NOT OBLIGATED BY THE TERMS OF THE SOLICITATION TO SUBMIT A GUARANTEED DAILY CAPABILITY FIGURE WHICH EQUALED OR EXCEEDED THE GOVERNMENT'S ESTIMATED MAXIMUM DAILY REQUIREMENT OF 130 GROSS HUNDREDWEIGHT. HENCE, ITS BID WAS NOT NONRESPONSIVE BECAUSE IT INSERTED A GUARANTEED DAILY CAPACITY OF 50 GROSS HUNDREDWEIGHT. WHILE ASPR 7-1601.7 CONTEMPLATES THAT SOLICITATIONS FOR THIS TYPE OF CONTRACT CONTAIN A STATEMENT OF THE MINIMUM ACCEPTABLE DAILY CAPABILITY WHICH MUST BE MET BY BIDDERS, THE CONTRACTING OFFICER MADE AN AWARD UNDER THE SOLICITATION PRESUMABLY ON THE BASIS THAT HE WAS SATISFIED THAT THE DAILY CAPABILITIES OFFERED BY BIDDERS WOULD MEET THE GOVERNMENT'S ACTUAL REQUIREMENTS.

THEREFORE, WE CONCLUDE THAT THE AWARD TO YARBROUGH OF SCHEDULE III CONSUMMATED A PROPER AWARD WHICH NEED NOT BE DISTURBED. IN THE FUTURE, CONTRACTS OF THIS NATURE SHOULD INDICATE FULL COMPLIANCE WITH THE PROVISIONS OF ASPR 7-1601.7 SO THAT THE GOVERNMENT MAY BE ASSURED THAT BIDS SUBMITTED WILL ACTUALLY SATISFY ITS MINIMUM NEEDS.