B-172584, JUL 22, 1971

B-172584, JUL 22, 1971

BID PROTEST - BIDDER RESPONSIVENESS - FAILURE TO BID ON AN ITEM DECISION DENYING PROTEST OF WESTERN GEAR CORPORATION AGAINST THE AWARD OF A CONTRACT TO NORTHERN LINE MACHINE AND ENGINEERING CO. UNDER IFB ISSUED BY THE NAVAL RESEARCH LABORATORY FOR A DEEP SEA AND INTERMEDIATE WINCH SYSTEM FOR OCEANOGRAPHIC VESSELS. ALTHOUGH NORTHERN FAILED TO BID ON LINE ITEM 8, WHICH WAS FOR SERVICES BY A QUALIFIED TECHNICAL REPRESENTATIVE FOR A PERIOD OF ONE YEAR FROM DATE OF DELIVERY, THE BID WAS NOT NONRESPONSIVE CONSIDERING THE FACT THAT THE AMENDED INVITATION RESERVED THE RIGHT TO THE GOVERNMENT TO MAKE AN AWARD ON AN ITEM BASIS. FURTHER, THE FACT THAT NORTHERN'S FAILURE TO BID BECAUSE IT CONSIDERED ITEM 8 AS "DELIVERABLE", BUT NOT A "PRICED" ITEM, DID NOT PREJUDICE OTHER BIDDERS.

TO WESTERN GEAR CORPORATION

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 10, 1971, AND PRIOR CORRESPONDENCE, PROTESTING THE PROPOSED AWARD OF A CONTRACT TO NORTHERN LINE MACHINE AND ENGINEERING CO., A DIVISION OF TACOMA BOAT BUILDING CO., INC., UNDER INVITATION FOR BIDS (IFB) NO. N00173-71-B-0007, ISSUED BY THE NAVAL RESEARCH LABORATORY, WASHINGTON, D.C.

THE IFB IS THE SECOND STEP OF A TWO-STEP PROCUREMENT FOR A DEEP SEA AND INTERMEDIATE WINCH SYSTEM FOR AN OCEANOGRAPHIC VESSEL. THE PROCUREMENT DESIGNATED "LOT I" IN THE IFB IS DIVIDED INTO 13 DIFFERENT LINE ITEMS COVERING THE EQUIPMENT, TECHNICAL MANUALS, TECHNICAL SERVICES, AND DELIVERY CHARGES. TACOMA BOAT BUILDING BID ON 12 LINE ITEMS. IT DID NOT BID ON ITEM 8 DESCRIBED AS "TECHNICAL SERVICES FOR SEA TRIALS AND NRL TESTS-RATE/MAN DAY (EXCLUSIVE OF TRANSPORTATION)." THE BIDS ON ITEM 8 RECEIVED FROM THE OTHER BIDDERS WERE $175 AND $191 A MAN-DAY. ON THE BASIS OF THE TOTAL OF THE PRICES FOR THE ITEMS IT BID UPON, TACOMA BOAT BUILDING IS THE LOW BIDDER.

PARAGRAPH 1 OF SECTION IX-1 (REVISED) OF THE SPECIFICATIONS PROVIDES THAT THE CONTRACTOR SHALL PROVIDE FOR 30 DAYS ON-SITE TECHNICAL SERVICES THAT ARE TO BE PROVIDED AT NO ADDITIONAL COST TO THE GOVERNMENT. WITH RESPECT TO SERVICES FOR TIME IN EXCESS OF THE FOREGOING, PARAGRAPH 2 OF THE AFORESAID SECTION STATES:

"2. ITEM 8

SERVICES FOR ANY TIME IN EXCESS OF THE GENERAL TECHNICAL SERVICES DESCRIBED ABOVE SHALL BE A DELIVERABLE ITEM (ITEM 8) MEETING THE FOLLOWING SPECIFICATIONS:

A. CONTRACTOR SHALL MAKE AVAILABLE THE SERVICES OF A QUALIFIED TECHNICAL REPRESENTATIVE FOR EITHER SHIPYARD, DOCKSIDE OR AT-SEA CONSULTATION FOR A PERIOD OF ONE (1) YEAR FROM DATE OF DELIVERY.

B. CONTRACTOR SHALL PROVIDE THESE SERVICES WITHIN 48 HOURS OF NOTIFICATION BY AN AUTHORIZED GOVERNMENT REPRESENTATIVE.

C. IF TECHNICAL SERVICES ARE NEEDED, THE CONTRACTOR SHALL FURNISH TRANSPORTATION TO HIS REPRESENTATIVE AT A RATE NOT TO EXCEED COMMERCIAL TOURIST CLASS AIRFARE. TRANSPORTATION COST SHALL BE PREPAID BY THE CONTRACTOR AND ADDED AS A SEPARATE ITEM TO THE CONTRACTOR'S INVOICE.

D. THE CONTRACTOR SHALL BE RESPONSIBLE FOR ALL OTHER COSTS INCURRED IN PROVIDING THE SERVICES CALLED FOR UNDER ITEM 8."

FURTHER, FOLLOWING THE LIST OF ITEMS UNDER "LOT I" IN THE FIRST-STEP REQUEST FOR TECHNICAL PROPOSALS THERE APPEARS THE STATEMENT:

"THE GOVERNMENT ANTICIPATES AWARD OF A SINGLE LOT TO ONE BIDDER. BIDDERS SHALL BID ON ALL ITEMS. FAILURE TO BID ON ALL ITEMS IN STEP 2 WILL RESULT IN A BID BEING REJECTED AS NONRESPONSIVE."

IT IS YOUR CONTENTION THAT, IN THE CIRCUMSTANCES, THE FAILURE OF TACOMA TO BID ON ITEM 8 CONSTITUTES AN OMISSION WHICH RENDERS ITS BID NONRESPONSIVE AND REQUIRES IT TO BE REJECTED.

THE ABOVE-QUOTED PROVISION IN STEP I WAS MODIFIED BY AMENDMENT 0001 TO STEP II, ISSUED ON JANUARY 29, 1971. AMENDMENT 0001 STATED THAT AWARD WOULD GENERALLY BE MADE TO A SINGLE BIDDER ON EACH LOT, BUT THAT THE GOVERNMENT RESERVED THE RIGHT TO AWARD ON AN ITEM BASIS. UNDER AMENDMENT 0001, THE GOVERNMENT COULD MAKE AN AWARD WITHOUT INCLUDING ITEM 8, UNLESS THE BIDDER HAD MADE AN ALL-OR-NONE BID. IF THE AWARD DID NOT INCLUDE ITEM 8, A BID COULD NOT BE DECLARED NONRESPONSIVE FOR FAILURE TO PRICE THAT ITEM.

NORTHERN LINE CONTENDS THAT IT INCLUDED THE PRICE OF TIME 8 (EXCEPT FOR TRANSPORTATION) IN ITS BID PRICES FOR THE OTHER ITEMS. ITS POSITION IS THAT THIS WAS REQUIRED UNDER ITS INTERPRETATION OF PARAGRAPHS 1 AND 2 OF SECTION IX-1 (REVISED) OF THE SPECIFICATIONS. PARAGRAPH 2, WHICH DEALS WITH ITEM 8, STATES THAT ITEM 8 SHALL BE A "DELIVERABLE" ITEM, NOT THAT IT SHALL BE PRICED. SUBPARAGRAPH "C" STATES THAT THE CONTRACTOR WILL BE PAID FOR TRANSPORTATION INCURRED IN FURNISHING THE SERVICES CALLED FOR UNDER ITEM 8, AND SUBPARAGRAPH "D" STATES THAT THE CONTRACTOR SHALL BE RESPONSIBLE FOR ALL OTHER COSTS INCURRED IN PROVIDING SERVICES UNDER ITEM 8. A FAIR READING OF PARAGRAPHS 1 AND 2, WITHOUT CONSIDERING THE LISTING OF ITEM 8 ON THE SCHEDULE, LEADS TO THE CONCLUSION THAT THE COST OF FURNISHING THE TECHNICAL SERVICES CALLED FOR UNDER BOTH PARAGRAPHS IS FOR THE ACCOUNT OF THE CONTRACTOR, EXCEPT FOR TRANSPORTATION COSTS FOR SERVICES IN EXCESS OF THE 30 DAYS CALLED FOR UNDER PARAGRAPH 1. NORTHERN LINE CONTENDS IT SO READ THESE PARAGRAPHS, AND WE BELIEVE THIS IS A REASONABLE POSITION, SINCE THE SOLICITATION OTHERWISE WOULD BE AMBIGUOUS.

IN VIEW OF THE FACT THAT AWARD COULD BE MADE WITHOUT ITEM 8, AND THE FURTHER FACT THAT WE CAN FIND NO PREJUDICE TO OTHER BIDDERS BECAUSE OF NORTHERN LINE'S FAILURE TO QUOTE A MAN-DAY PRICE FOR ITEM 8, WE BELIEVE IT IS PROPER TO ACCEPT NORTHERN LINE'S BID ON THE BASIS IT CLAIMS IT INTENDED TO BID.

YOU CONTEND THAT THE AMENDMENTS OF THE SOLICITATION SHOULD NOT BE CONSIDERED AS VALIDLY SIGNED BY MR. CLOONAN, THE BIDDER'S MANAGER, SINCE HE IS A RETIRED REGULAR NAVAL OFFICER ACTING IN VIOLATION OF 18 U.S.C. 281. THAT STATUTE PROHIBITS ANY RETIRED OFFICER FROM REPRESENTING ANY PERSON IN THE SALE OF ANYTHING TO THE GOVERNMENT THROUGH THE DEPARTMENT IN WHOSE SERVICE HE HOLDS A RETIRED STATUS. QUESTIONS AS TO THE INTERPRETATION AND APPLICATION OF THE FEDERAL CRIMINAL STATUTES, SUCH AS 18 U.S.C. 281, ARE NOT WITHIN THE JURISDICTION OF OUR OFFICE BUT ARE FOR CONSIDERATION BY THE DEPARTMENT OF JUSTICE. FURTHER, APPARENTLY MR. CLOONAN HAS NEITHER BEEN INDICTED, TRIED NOR CONVICTED OF HAVING VIOLATED THE CRIMINAL STATUTE. IN THE CIRCUMSTANCES, THE PREMISE UPON WHICH YOUR CONTENTION IS BASED IS NOT SUPPORTED BY THE RECORD.

YOU HAVE ALSO CONTENDED THAT TACOMA SHOULD NOT RECEIVE AN AWARD BECAUSE IT HAS MISREPRESENTED ITSELF AS A SMALL BUSINESS CONCERN. HOWEVER, THE SUBJECT PROCUREMENT IS NOT A SMALL BUSINESS SET-ASIDE AND IT IS THEREFORE IMMATERIAL WHETHER TACOMA MISREPRESENTED ITSELF AS SMALL BUSINESS, SINCE IT OBVIOUSLY HAD NOTHING TO GAIN BY SUCH A REPRESENTATION.

YOU HAVE CONTENDED THAT TACOMA SHOULD NOT BE CONSIDERED A RESPONSIBLE BIDDER BECAUSE IT HAS NOT PERFORMED SATISFACTORILY ON SUBCONTRACTS FOR EQUIPMENT VIRTUALLY IDENTICAL TO THAT IN THE SUBJECT INVITATION. THE CONTRACTING OFFICER HAS RESPONDED THAT NO INFORMATION OF UNSATISFACTORY PERFORMANCE BY TACOMA IS KNOWN. YOU HAVE COUNTERED THAT DEFICIENCIES IN THE EQUIPMENT WERE REPORTED TO THE OFFICE OF NAVAL RESEARCH IN SEPTEMBER 1970 AND THAT SUCH DEFICIENCIES PROMPTED TACOMA TO OFFER REVISED SPECIFICATIONS FOR THE EQUIPMENT IN RESPONDING TO THE FIRST STEP REQUEST FOR TECHNICAL PROPOSALS. IF THERE WERE DEFICIENCIES IN THE EQUIPMENT, YOU HAVE APPARENTLY RECOGNIZED THAT TACOMA HAS SOUGHT TO CORRECT THEM BY AMENDING ITS SPECIFICATIONS. THUS, THE PRIOR DEFICIENCY WOULD NOT APPEAR TO BE RELEVANT. IN ANY EVENT, THE CONTRACTING OFFICER HAS INDICATED THAT A PREAWARD SURVEY WAS MADE AND HE IS SATISFIED THAT THE BIDDER HAS THE CAPABILITY TO PRODUCE THE WINCH SYSTEM REQUIRED AND IS A RESPONSIBLE BIDDER. FURTHER, WE HAVE HELD THAT QUESTIONS CONCERNING THE QUALIFICATIONS OF A PROSPECTIVE CONTRACTOR ARE FOR RESOLUTION BY THE ADMINISTRATIVE OFFICERS CONCERNED. SEE 49 COMP. GEN. 553 (1970). MOREOVER, EVEN IF AN INVESTIGATION DISCLOSED THAT THE BIDDER HAS NOT PERFORMED SATISFACTORILY IN THE PAST, THAT WOULD NOT REQUIRE A DETERMINATION OF NONRESPONSIBILITY WITH RESPECT TO A LATER PROCUREMENT. 27 COMP. GEN. 621 (1948).

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.