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B-178996, AUG 23, 1973

B-178996 Aug 23, 1973
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ANY MATERIALS ACCOMPANYING A BID WILL BE CONSIDERED A PART OF THAT BID. SINCE P&H WAS AWARE OF THE ALLEGED RESTRICTIVENESS OF THE SPECIFICATIONS PRIOR TO BID OPENING. THAT PORTION OF THE PROTEST IS UNTIMELY. INC.: THIS IS IN FURTHER REFERENCE TO YOUR LETTER OF JUNE 22. BIDS WERE OPENED ON JUNE 14. SEC 20.2(A) (A COPY OF WHICH IS ENCLOSED). YOUR CONTENTION THAT THE SPECIFICATIONS MAY BE COMPATIBLE ONLY WITH A BUILDING PRODUCED BY A SINGLE FIRM IS UNTIMELY. SEC 20.2(A) STATES THAT: "*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING*** SHALL BE FILED PRIOR TO BID OPENING ***" SINCE THE ALLEGED RESTRICTIVENESS OF THESE SPECIFICATIONS WAS APPARENT TO YOU BEFORE JUNE 14.

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B-178996, AUG 23, 1973

DENIAL OF PROTEST BY P&H CONSTRUCTION CO., INC., AGAINST (1) THE REJECTION OF ITS LOW BID UNDER IFB NO. N62472-73-B-0148 ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, AND (2) THE RESTRICTIVENESS OF THE IFB'S SPECIFICATIONS. ANY MATERIALS ACCOMPANYING A BID WILL BE CONSIDERED A PART OF THAT BID, AND IF SUCH MATERIALS QUALIFY THE BID, A FINDING OF NONRESPONSIVENESS MAY PROPERLY BE MADE. ALSO, SINCE P&H WAS AWARE OF THE ALLEGED RESTRICTIVENESS OF THE SPECIFICATIONS PRIOR TO BID OPENING, THAT PORTION OF THE PROTEST IS UNTIMELY.

TO P&H CONSTRUCTION CO., INC.:

THIS IS IN FURTHER REFERENCE TO YOUR LETTER OF JUNE 22, 1973, AND SUBSEQUENT CORRESPONDENCE PROTESTING (1) THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS (IFB) NO. N62472-73-B-0148, ISSUED MAY 8, 1973, BY THE NAVAL FACILITIES ENGINEERING COMMAND AND (2) THE RESTRICTIVENESS OF THE IFB'S SPECIFICATIONS TO THE PRODUCT OF A SINGLE MANUFACTURER.

THE IFB IN QUESTION SOUGHT BIDS FOR THE ERACTION OF PREFABRICATED STEEL BUILDINGS AND INSTALLATION OF THE MAJOR APPURTENANCES THERETO (PLUMBING, ELECTRICAL WIRING, ETC.) FOR AN ENVIRONMENTAL EXPLOSIVE TEST FACILITY AT THE NAVAL AMMUNITION DEPOT, CRANE, INDIANA.

BIDS WERE OPENED ON JUNE 14, 1973, WITH YOUR BID BEING THE LOWEST RECEIVED FROM AMONG EIGHT BIDDERS. HOWEVER, THE NAVY SUBSEQUENTLY DECLARED YOUR BID NONRESPONSIVE AND HAS MADE AWARD TO THE SECOND LOW BIDDER.

PURSUANT TO 4 CFR, SEC 20.2(A) (A COPY OF WHICH IS ENCLOSED), YOUR CONTENTION THAT THE SPECIFICATIONS MAY BE COMPATIBLE ONLY WITH A BUILDING PRODUCED BY A SINGLE FIRM IS UNTIMELY.

SEC 20.2(A) STATES THAT:

"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING*** SHALL BE FILED PRIOR TO BID OPENING ***"

SINCE THE ALLEGED RESTRICTIVENESS OF THESE SPECIFICATIONS WAS APPARENT TO YOU BEFORE JUNE 14, 1973, YOUR PROTEST ON THIS POINT DATED JUNE 22, 1973, AND RECEIVED IN OUR OFFICE ON JUNE 25, 1973, IS CLEARLY UNTIMELY, AND IS THEREFORE NOT FOR CONSIDERATION ON ITS MERITS BY OUR OFFICE.

YOU STATE THAT IN THE PREPARATION OF YOUR BID QUESTIONS AROSE WHICH NECESSITATED YOUR SEEKING CLARIFICATION OF THE SPECIFICATIONS FROM THE PROCURING ACTIVITY. YOU CONTEND, AND THE NAVY DENIES, THAT YOU WERE ADVISED UPON CONTACTING THE AGENCY TO INCLUDE WITH YOUR BID A LETTER SETTING FORTH YOUR INTERPRETATION OF THE PLANS AND SPECIFICATIONS COVERING THE METAL BUILDING. NOTWITHSTANDING THIS DISPUTED FACT, YOUR BID WAS ACCOMPANIED BY SUCH A LETTER DATED JUNE 14, 1973, AND THE NAVY DETERMINED THAT THE CONTENT OF THE LETTER QUALIFIED YOUR BID.

THE REFERENCED LETTER ACCOMPANYING P&H'S BID STATED, IN PART:

"*** THE FOLLOWING ARE CLARIFICATIONS OF OUR PROPOSAL PER *** INSTRUCTIONS:

"B. REMOVABLE PARTITIONS TO BE BUTLER MONOPANEL, 3" THICK AT MAJOR CORRUGATION AND PANEL FACES OF 24 GAGE.

"C. LOUVER TO BE STANDARD BUTLER LOUVER, 3' X 2' FABRICATED FROM 20 GAGE GALVANIZED STEEL. INSECT SCREEN SHALL BE 14-18 MESH BRONZE ATTACHED TO EXTERIOR.

"D. SIDEWALL GIRTS SHALL BE FASTENED TO OUTSIDE OF COLUMN AS OPPOSED TO FLUSH WITH COLUMN LINE.

"E. WALL PANELS BOTH EXTERIOR AND INTERIOR WILL BE 26 GAGE ZINC COATED BUTLERIB II.

"H. MEASUREMENT ON END WALL FROM CENTER OF COLUMN TO EXTERIOR OF SHEETING SHALL BE 2'-0".

THESE CHANGES ARE BASED ON BUTLER'S STANDARD BUILDING. ***"

WE CONCLUDE THAT P&H WAS PROPERLY DEEMED TO HAVE QUALIFIED ITS BID BASED ON THE FOLLOWING STATEMENTS WHICH CREATED AN AMBIGUITY AS TO WHAT P&H WAS OFFERING:

(1) REGARDING THE REMOVABLE PARTITIONS, P&H INDICATES THAT 24 GAGE STEEL WILL BE USED RATHER THAN THE HEAVIER 20 GAGE STEEL SET FORTH IN SEC 13A.3.2.2D OF THE SPECIFICATIONS.

(2) AS TO REQUIREMENTS FOR THE LOUVERS, P&H INDICATES A 20 GAGE GALVANIZED STEEL WHICH DOES NOT MEET THE SPECIFICATION REQUIREMENT MINIMUM ACCEPTABLE OF 18 GAGE STEEL AS SET OUT IN SEC 13A.3.2.3.4.

(3) P&H'S CLARIFICATION D DEVIATES FROM SPECIFICATION 13A.3.1 AS TO THE METHOD OF FASTENING SIDEWALL GIRTS.

(4) AS TO INTERIOR AND EXTERIOR PANELS, P&H LISTED 26 GAGE STEEL WHICH DOES NOT MEET THE MINIMUM REQUIREMENTS OF 24 GAGE STEEL SET FORTH IN SEC 13A.3.2.2.C.

(5) P&H INDICATES THAT THE MEASUREMENTS ON THE END WALL FROM THE CENTER OF THE COLUMN TO THE EXTERIOR OF SHEETING SHALL BE 2'-0" WHEREAS DRAWING 2007940 INCLUDED IN THE IFB SHOWS 1'-0" FOR THAT MEASUREMENT.

WHETHER OR NOT INSTRUCTED BY AN AGENCY TO SUBMIT AN EXPLANATION WITH ITS BID, WE FEEL A BIDDER SHOULD REALIZE THAT ANYTHING ACCOMPANYING ITS BID WILL BE CONSIDERED A PART OF THE BID, 36 COMP. GEN. 535 (1957); 40 ID. 432 (1961); 45 ID. 397 (1966); B-176138, OCTOBER 19, 1972, AND, THAT ANYTHING CONTAINED IN THAT MATERIAL WHICH CREATES AN AMBIGUITY AS TO JUST WHAT THE BIDDER IS OFFERING WILL OF NECESSITY QUALIFY THE BID UNLESS THE AMBIGUITY CAN BE RESOLVED WITHIN THE FOUR CORNERS OF THE BID. SEE B-175028, JUNE 26, 1973, 52 COMP. GEN. .

P&H'S ADDITIONAL STATEMENT IN ITS LETTER OF JULY 19 THAT THE LETTER ACCOMPANYING ITS BID SHOULD HAVE READ 24 GAGE RATHER THAN 26 WITH RESPECT TO WALL PANELS CANNOT BE CONSIDERED SINCE QUESTIONS OF RESPONSIVENESS OF A BIDDER'S INTENT MUST BE DETERMINED FROM THE BID ITSELF AND NOT FROM INFORMATION SUBSEQUENTLY OFFERED. 51 COMP. GEN. 352 (1971).

AMBIGUITIES CREATED BY THE DEVIATIONS FROM THE STATED SPECIFICATIONS STATED IN P&H'S LETTER ARE NOT CURED AS YOU IMPLY MERELY BECAUSE THE BUILDING P&H OFFERED (ONE MANUFACTURED BY BUTLER) COMPORTED AS REQUIRED WITH THE METAL BUILDING MANUFACTURERS ASSOCIATION DESIGN PRACTICE MANUAL AND WAS ONE MANUFACTURED BY AN EXPERIENCED MANUFACTURER AS REQUIRED BY SEC 13A.3.1 OF THE SPECIFICATIONS. A BID TO BE RESPONSIVE MUST UNAMBIGUOUSLY DEMONSTRATE AN INTENTION TO COMPLY WITH ALL OF THE SPECIFICATIONS, NOT JUST WITH CERTAIN GENERAL ONES TO THE EXCLUSION OF THE HIGHLY TECHNICAL SPECIFICATIONS.

FOR THE FOREGOING REASONS, YOUR PROTEST IS DENIED.

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