B-176304, SEP 1, 1972

B-176304, SEP 1, 1972

BID PROTEST - CANCELLATION OF IFB - DESIGNATION OF EVALUATION FACTORS DENIAL OF PROTEST BY A.C. BALL COMPANY AGAINST THE CANCELLATION OF AN IFB ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO, AND THE SUBSEQUENT RESOLICITATION OF THE PROCUREMENT UNDER ANOTHER IFB. TO PERMIT BIDDERS TO COMPETE ON EQUAL TERMS, AN INVITATION MUST BE SUFFICIENTLY DEFINITE TO PERMIT THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS. SINCE BIDDERS CANNOT COMPETE EQUALLY UNLESS THEY KNOW IN ADVANCE THE BASIS ON WHICH THEIR BIDS WILL BE EVALUATED, THAT BASIS MUST BE STATED IN THE IFB IN AS CLEAR, PRECISE AND EXACT TERMS AS POSSIBLE. SEE 36 COMP. GEN. 380, 385 (1956). THE FAILURE OF IFB -0968 TO STATE WHICH UNIT AMOUNT WAS TO BE USED AS THE EVALUATION FACTOR IS CONTRARY TO THE PRINCIPLES OF FORMAL ADVERTISING AND JUSTIFIES THE CANCELLATION OF THE IFB. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO A. C. BALL COMPANY:

REFERENCE IS MADE TO A LETTER DATED AUGUST 4, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE CANCELLATION OF INVITATION FOR BIDS (IFB) DSA700-72-B-0968 AND THE RESOLICITATION OF THE PROCUREMENT UNDER IFB DSA700-72-B-2879. BOTH IFB'S WERE ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO.

IFB -0968 SOLICITED BIDS FOR AN INDEFINITE QUANTITY OF AIRCRAFT FUEL SERVICING UNITS AND RELATED TECHNICAL DATA. BIDDERS WERE ADVISED THAT THE BEST ESTIMATED QUANTITY (BEQ) WHICH THE GOVERNMENT EXPECTED TO ORDER OVER THE LIFE OF THE CONTEMPLATED CONTRACT WAS 133 UNITS OF CLIN (CONTRACT LINE ITEM) 0001, THE FUEL SERVICING UNITS. UNDER THE AMENDED CLAUSE ENTITLED "DELIVERY ORDER LIMITATIONS," THE GOVERNMENT WAS NOT OBLIGATED TO PURCHASE, NOR THE CONTRACTOR REQUIRED TO FURNISH, LESS THAN 99 UNITS. HOWEVER, THE MINIMUM QUANTITY ORDER WAS STATED IN PARAGRAPH L55(A) TO BE 33 UNITS AND, UNDER PARAGRAPH L55(B), THE ESTIMATED MAXIMUM QUANTITY WAS NOT TO EXCEED A TOTAL OF 428 UNITS OF CLIN 0001. ALSO, THE 33 MINIMUM QUANTITY LIMITATION WAS STATED IN PARAGRAPH L55(C) TO BE THE EXTENT OF THE GOVERNMENT'S ORDERING OBLIGATION. FINALLY, PARAGRAPH D51 PROVIDED THAT FOR EACH CLIN, EVALUATION WOULD BE BASED ON THE AVERAGE OF THE UNIT PRICES FOR EACH ORDERING RANGE, INCLUDING TRANSPORTATION COSTS.

BIDDERS WERE REQUIRED TO BID A UNIT PRICE FOR EACH OF FIVE ORDERING RANGES FOR CLIN 0001. THESE ORDERING RANGES WERE FOR UNITS OF 1-100, 101- 200, 201-300, 301-400, AND 401 AND UP. CLIN 0002-0013 INVOLVED FIRST ARTICLE TESTING AND CERTAIN DATA ITEMS, ALL OF WHICH, WITH THE EXCEPTION OF 0005, REQUIRED BID RESPONSES. SEVEN BIDDERS RESPONDED AND IT APPEARED THAT HENRY SPEN & CO., INC. (SPEN), WAS THE LOWEST UNIT PRICE BIDDER ON ALL FIVE ORDERING RANGES FOR CLIN 0001.

HOWEVER, WHEN THE VARIOUS QUANTITY LIMITATIONS, STATED ABOVE, ARE USED AS MULTIPLIERS OF THE AVERAGE UNIT PRICES FOR CLIN 0001, THE COMPETITIVE POSITIONS OF THE THREE LOW BIDDERS CHANGE. A. C. BALL WOULD BE LOW ON THE BASIS OF ITS AVERAGE UNIT PRICE FOR 133 UNITS, TRANSPORTATION, FIRST ARTICLE AND DATA COSTS AND PROMPT PAYMENT DISCOUNT. ON THE OTHER HAND, FIRST ARTICLE TESTING AND DATA WOULD BE WAIVED FOR GARSITE PRODUCTS, INC., AND IT WOULD BE LOW ON THE BASIS OF ITS AVERAGE UNIT PRICE ALONE OR WHEN APPLIED TO 33 UNITS; WHEREAS, A. C. BALL WOULD BE LOW ON 99 UNITS. IF THE MAXIMUM OF 428 UNITS IS USED, SPEN IS LOW BIDDER ON THE BASIS OF ITS AVERAGE UNIT PRICE.

IN VIEW OF THE DIVERSE RESULTS WHICH ARE OBTAINED WHEN DIFFERENT MULTIPLIERS ARE USED AND THE LACK OF DIRECTION IN THE IFB, THE PROCUREMENT ACTIVITY CANCELED THE IFB PURSUANT TO PARAGRAPH 2 404.1(B)(VIII) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). AFTER THE IFB WAS CANCELED, IFB -2879 WAS ISSUED TO PROCURE THE ITEMS. THE LATTER IFB STATES A DEFINITE QUANTITY OF 99 UNITS. SPEN WAS DETERMINED TO BE THE LOW BIDDER UNDER THAT IFB. AWARD IS BEING HELD IN ABEYANCE PENDING A DECISION BY OUR OFFICE ON YOUR PROTEST.

ALTHOUGH YOUR FIRM DISAGREES WITH THE EVALUATION METHOD UTILIZED BY THE PROCUREMENT ACTIVITY OF AVERAGING THE UNIT PRICES FOR EACH ORDERING RANGE IN CLIN 0001, WE FIND NOTHING IN THIS PROCEDURE WHICH IS INCONSISTENT WITH THE EVALUATION PROVISIONS OF PARAGRAPH D51. IN ANY EVENT, THE CRUX OF YOUR PROTEST APPEARS TO BE DIRECTED TO THE SELECTION OF THE NUMBER OF UNITS WHICH IS TO BE THE MULTIPLIER IN THE COMPUTATION OF THE EVALUATED PRICE FOR CLIN 0001. YOU MAINTAIN THAT THIS FIGURE SHOULD BE THE NUMBER OF UNITS WHICH WILL BE INITIALLY AWARDED, WHICH YOU UNDERSTAND TO BE 100 UNITS, OR, ALTERNATIVELY, THE BEQ FIGURE OF 133 UNITS.

HOWEVER, THE PROBLEM WITH THE USE OF ANY OF THE UNITS SPECIFIED BY YOU FOR EVALUATION PURPOSES IS THAT THE IFB DOES NOT SPECIFY THAT THEY BE SO UTILIZED AND, AS STATED ABOVE, DIFFERENT BIDDERS ARE EVALUATED AS LOW BIDDERS FOR DIFFERENT QUANTITIES STATED IN THE IFB. TO PERMIT BIDDERS TO COMPETE ON EQUAL TERMS, AN INVITATION MUST BE SUFFICIENTLY DEFINITE TO PERMIT THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS. SINCE BIDDERS CANNOT COMPETE EQUALLY UNLESS THEY KNOW IN ADVANCE THE BASIS ON WHICH THEIR BIDS WILL BE EVALUATED, THAT BASIS MUST BE STATED IN THE IFB IN AS CLEAR, PRECISE AND EXACT TERMS AS POSSIBLE. SEE 36 COMP. GEN. 380, 385 (1956). THE FAILURE OF IFB -0968 TO STATE WHICH UNIT AMOUNT WAS TO BE USED AS THE EVALUATION FACTOR IS CONTRARY TO THE FOREGOING PRINCIPLES OF FORMAL ADVERTISING AND JUSTIFIES THE CANCELLATION OF THE IFB. WHILE IT IS UNFORTUNATE THAT PRICES WERE EXPOSED PRIOR TO THE CANCELLATION AND THAT YOUR FIRM WAS NOT THE LOW BIDDER ON THE RESOLICITATION OF THE PROCUREMENT, NEITHER CIRCUMSTANCE PROVIDES A BASIS FOR REACHING A DIFFERENT CONCLUSION.

FINALLY, THE ORDER OF PRECEDENCE CLAUSE OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS IN THE CANCELED IFB AFFORDS NO BASIS FOR RELIEF SINCE, AS WE STATED ABOVE, THE IFB FAILED TO PROVIDE ADEQUATE BID EVALUATION INFORMATION.

ACCORDINGLY, THE PROTEST IS DENIED.