B-174858, APR 7, 1972

B-174858, APR 7, 1972

CONTRACTS - BID PROTEST - UNAUTHORIZED ALTERNATE BID DECISION DENYING THE PROTEST OF HYSTER COMPANY AGAINST AWARD OF A CONTRACT TO SILENT HOIST AND CRANE COMPANY, INC., UNDER AN IFB ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO, FOR A PROCUREMENT OF FORK LIFT TRUCKS AND REQUIRED TECHNICAL DATA. IT IS THE OPINION OF THE COMP. GEN. THAT PROTESTANT'S OFFER TO SUPPLY A SET OF CHANGES IN LIEU OF THE NEW BASIC MANUALS REQUIRED DID NOT MEET THE SPECIFICATIONS OF THE SUBJECT IFB AND WAS PROPERLY CONSIDERED AN UNAUTHORIZED ALTERNATE BID PURSUANT TO PARAGRAPH 2(D) OF STANDARD FORM 33A. FURTHER, IT SHOULD BE NOTED THAT PAST ACTIONS DO NOT JUSTIFY THE CONTINUATION OF ERRONEOUS PRACTICES. FOR THE FOREGOING REASONS, THE PROTEST MUST BE DENIED.

TO HYSTER COMPANY:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO SILENT HOIST AND CRANE COMPANY, INC. (SILENT HOIST) UNDER INVITATION FOR BIDS (IFB) NO. DSA700-71-B-1817, ISSUED ON MARCH 25, 1971, BY THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), COLUMBUS, OHIO.

THE INSTANT SOLICITATION REQUESTED BIDS FOR 60 FORK LIFT TRUCKS FOR DELIVERY TO VARIOUS DOMESTIC AND OVERSEAS DESTINATIONS, TOGETHER WITH REQUIRED TECHNICAL DATA AS REFERENCED IN DD FORMS) 1423, WITH 5 SUPPLEMENTS.

WHEN BIDS WERE OPENED ON JUNE 7, 1971, YOUR COMPANY HAD BID $18,000 ON CONTRACT LINE ITEM NUMBER (CLIN) 0018 FOR FURNISHING NEW BASIC TECHNICAL MANUALS. HOWEVER, ON PAGE 14 OF YOUR BID YOU INDICATED THAT YOU HAD SUBMITTED MANUALS, AND AN UPDATE THEREOF, ON PRIOR CONTRACTS AND STATED "IF THE REQUIREMENTS OF CLIN 0018 AND 0019 ARE DELETED WE OFFER TO SUPPLY CHANGES (ONE SET OF REPRO NEGATIVES) TO THE PREVIOUSLY SUPPLIED T.O. FOR $3,650.00." YOUR BID ON CLIN 0019 (VALIDATION RECORD) WAS "NO CHARGE." THE CONTRACTING OFFICER CONSIDERED YOUR STATEMENT TO BE IN THE NATURE OF AN UNAUTHORIZED ALTERNATE BID, WHICH WAS NONRESPONSIVE, AND YOUR PRICE FOR CLIN 0018 WAS THEREFORE EVALUATED AT $18,000. AS A CONSEQUENCE, YOUR TOTAL BID PRICE WAS DETERMINED TO BE $1,029,349.88 AS COMPARED TO $1,018,397.57 FOR SILENT HOIST. CONSEQUENTLY, AN AWARD WAS MADE TO SILENT HOIST ON DECEMBER 6, 1971, AS THE LOW RESPONSIVE, RESPONSIBLE OFFEROR.

BY LETTER DATED DECEMBER 13, 1971, THE PROCUREMENT ACTIVITY, IN RESPONSE TO YOUR TELEGRAM OF DECEMBER 8, 1971, ADVISED YOUR FIRM OF THE DETERMINATIONS MENTIONED ABOVE IN ARRIVING AT THE LOWEST RESPONSIVE BID. IN A TELEGRAM OF DECEMBER 16, 1971, YOU INQUIRED OF THE ACTIVITY AS TO WHY YOUR ALTERNATE BID WAS CONSIDERED NONRESPONSIVE TO CLIN 0018. IN RESPONSE THERETO DCSC ADVISED YOU ON DECEMBER 22, 1971, THAT PARAGRAPH 2(D) OF STANDARD FORM 33A MADE A PART OF THE INVITATION PRECLUDES CONSIDERATION OF ALTERNATE BIDS UNLESS AUTHORIZED IN THE SOLICITATION AND SINCE THE INSTANT IFB DID NOT SO AUTHORIZE, YOUR OFFER OF $3,650 IN CONNECTION WITH CLIN 0018 COULD NOT BE CONSIDERED IN DETERMINING YOUR TOTAL BID PRICE.

YOUR PROTEST TO THIS OFFICE RAISES PRINCIPALLY THE SAME ISSUE, I.E., SHOULD YOUR OFFER TO SUPPLY A SET OF CHANGES IN THE PLACE OF THE NEW BASIC MANUALS COVERED BY CLIN 0018 HAVE BEEN CONSIDERED IN EVALUATING YOUR BID. CLIN 0018 SPECIFIES DATA IN ACCORDANCE WITH SEQUENCE 001 OF DD FORM 1423. SEQUENCE 001 REQUIRES TECHNICAL ORDERS TO BE IN ACCORDANCE WITH THE PROVISIONS OF AFPI 71-531-(13) (AFPI) "TECHNICAL ORDER DATA REQUIREMENTS FOR VEHICLES," WHICH WAS ATTACHED TO DD FORM 1423 AS SUPPLEMENT 1. THE REFERENCED AFPI CLEARLY REQUIRED THE SUCCESSFUL BIDDER TO FURNISH NEW BASIC TECHNICAL MANUALS. HAD THE USING ACTIVITY BEEN WILLING TO ACCEPT MERELY CHANGES TO PREVIOUSLY SUBMITTED MANUALS THIS SHOULD HAVE BEEN REFLECTED IN THE AFPI, OR BY THE ISSUANCE OF TIMELY AMENDMENT TO THE IFB.

YOU ARGUE, HOWEVER, THAT SINCE PARAGRAPH 1.A. OF AFPI STATES, IN PART: "ANY CHANGE, HOWEVER, OR ADDITIONAL TECHNICAL ORDER DATA WHICH THE CONTRACTOR CONSIDERS NECESSARY MAY BE RECOMMENDED FOR INCORPORATION HEREIN" ESTABLISHES A BASIS FOR ACCEPTANCE OF BIDS ON ALTERNATE DATA. DO NOT AGREE. THIS SENTENCE MUST BE READ IN CONJUNCTION WITH THE PRECEDING SENTENCE OF THE PARAGRAPH WHICH IS: "BASIC TECHNICAL MANUALS OR CHANGES/REVISIONS TO T.O. MANUALS LISTED BELOW SHALL BE FURNISHED." ONLY NEW BASIC MANUALS WERE "LISTED BELOW" IN THAT PARAGRAPH. IT IS PLAIN, THEREFORE, THAT THE LISTED MANUALS WERE SPECIFIC REQUIREMENTS AND, WHILE THE SENTENCE WHICH YOU QUOTE INVITES SUGGESTED CHANGES BY THE "CONTRACTOR" FOR INCORPORATION INTO THE LISTING OF DOCUMENTS, THERE IS NO INDICATION THAT SUCH SENTENCES CONTEMPLATE PROVIDING BIDDERS WITH AN OPTION OF SUBSTITUTING THEIR RECOMMENDED CHANGES FOR THE NEW BASIC MANUALS SPECIFICALLY SHOWN IN THAT PARAGRAPH AS REQUIRED DOCUMENTS. WE THINK IT IS ALSO SIGNIFICANT THAT THE TERM "CONTRACTOR" IS USED RATHER THAN "BIDDER" IN THE PARAGRAPH, AND THROUGHOUT AFPI, INDICATING THAT THE ACTIONS DESCRIBED THEREIN BY THE CONTRACTOR ARE IN CONNECTION WITH THE ADMINISTRATION OF THE CONTRACT INSTEAD OF PERTAINING TO THE SUBMISSION OF BIDS.

YOU LAY MUCH STRESS ON THE FACT THAT IN AT LEAST TWO EARLIER PROCUREMENTS YOUR FIRM HAD OFFERED ALTERNATE DATA PRICES WHICH HAD BEEN ACCEPTED BY THE USING ACTIVITY AND THUS A PRECEDENT HAS BEEN ESTABLISHED BY DCSC FOR ACCEPTING ALTERNATE BIDS IN THIS INSTANCE. IN ITS REPORT TO OUR OFFICE DCSC ADVISES THAT IN ONE OF THE REFERENCED EARLIER PROCUREMENTS THE AFPI DID NOT REQUIRE NEW MANUALS BUT REQUESTED CHANGES TO PREVIOUSLY SUBMITTED MANUALS, AND THEREFORE YOUR ALTERNATE BID UNDER THOSE CIRCUMSTANCES, WHICH WAS FOUND NOT TO PREJUDICE ANY OTHER BIDDER, WAS ACCEPTED. IN THE OTHER REFERENCED PROCUREMENT, IT IS ADMITTED THAT YOUR FIRM OFFERED AN ALTERNATE BID ON THE REQUIRED DATA, BUT NONE OF THE DATA ITEMS WERE AWARDED. THUS FAIL TO FIND THAT THESE PRACTICES ESTABLISH A PRECEDENT BY THE GOVERNMENT FOR THE PRICE EVALUATION SUGGESTED BY YOU IN THE INSTANT PROCUREMENT. EVEN IF THEY DID, PAST ACTIONS DO NOT JUSTIFY THE TAKING OF A CLEARLY ERRONEOUS ACTION IN AN INDIVIDUAL CASE OR THE CONTINUATION OF A PRACTICE WHICH WOULD BE REGARDED AS BEING IMPROPER.

YOU ALSO URGE THAT YOUR OFFER CONCERNING CLIN 0018 WAS MADE AS A PORTION OF YOUR STATEMENT OF PRIOR SUBMISSION - DATA WHICH WAS FURNISHED PURSUANT TO PARAGRAPH 18 OF THE STATEMENT OF PROVISIONING POLICY, DD FORM 1537, INCLUDED IN THE IFB AS SUPPLEMENT 5 TO DD FORM 1423. PARAGRAPH 18 PROVIDES IN PERTINENT PART:

"IF SUCCESSFUL BIDDER HAS FURNISHED ACCEPTABLE PROVISIONING DATA WITHIN THE LAST 15 MONTHS ON SAME END ITEM TO A GOVERNMENT ACTIVITY, TYPE III PROVISIONING IS REQUIRED IN ACCORDANCE WITH PAR 4.10 DSAM 4100.1."

SUPPLEMENT 5 AND DSAM 4100.1 ARE REFERENCED, HOWEVER, IN SEQUENCE 009 OF DD 1423 WHICH IS THE SEQUENCE SPECIFIED FOR CLIN 0026 WHEREAS SEQUENCE 001, AS STATED ABOVE, IS REFERENCED FOR CLIN 0018 AND REQUIRES NEW BASIC MANUALS AS SET OUT IN AFPI. WE THEREFORE AGREE WITH THE CONTRACTING OFFICER'S POSITION THAT THE IFB DID NOT PROVIDE FOR BRINGING CLIN 0018 WITHIN THE SCOPE OF PARAGRAPH 18, DD FORM 1537.

IT IS THEREFORE CLEAR THAT YOUR OFFER TO SUPPLY A SET OF CHANGES FOR $3,650, IN LIEU OF THE NEW BASIC MANUALS REQUIRED UNDER CLIN 0018, DID NOT MEET THE SPECIFICATIONS OF THE IFB. SUCH OFFER WAS CORRECTLY CONSIDERED TO BE IN THE NATURE OF AN ALTERNATE BID WITHIN THE MEANING OF THE PROHIBITION STATED IN STANDARD FORM 33 (33 COMP. GEN. 499 (1954)) AND WAS PROPERLY EXCLUDED IN THE EVALUATION OF YOUR BID.

IN VIEW OF THE FOREGOING, YOUR PROTEST IS DENIED.