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IN THE ABSENCE OF EVIDENCE THAT THE LOW BIDDER WAS NOT QUALIFIED TO PERFORM. 1957: REFERENCE IS MADE TO A LETTER DATED JULY 17. THE RECORD BEFORE US INDICATES THAT FOUR BIDS WERE RECEIVED IN RESPONSE TO EACH INVITATION FOR BIDS. THE SAME FIRMS BID ON BOTH CONTRACTS AND THE PROTESTANT WAS LOW BIDDER WITH A PRICE OF $88. SUBJECT TO A THREE PERCENT DISCOUNT IF IT WERE AWARDED BOTH CONTRACTS. ON WHICH BASIS ITS BID PRICE ON EACH CONTRACT WAS $88. BIDDERS WERE ADVISED AND REQUIRED. ALL BIDDERS WILL BE REQUIRED TO SUBMIT. THE QUALIFICATIONS SUBMITTED WILL BE EVALUATED BY THE CONTRACTING OFFICER AND HIS TECHNICAL REPRESENTATIVE AND ONLY PROPOSALS FROM PROPERLY QUALIFIED BIDDERS WILL BE CONSIDERED.

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B-132596, JULY 23, 1957, 37 COMP. GEN. 51

CONTRACTS - SPECIFICATIONS - EVALUATION FACTORS - BIDDER'S QUALIFICATIONS A REQUIREMENT IN AN INVITATION FOR THE SUBMISSION OF TECHNICAL QUALIFICATION INFORMATION ON THE BIDDER'S EXPERIENCE AND BACKGROUND DOES NOT JUSTIFY THE USE OF THIS INFORMATION FOR BID EVALUATION PURPOSES BUT ONLY FOR DETERMINATION OF THE RESPONSIBILITY OF THE BIDDER UNDER 10 U.S.C. 2305 AND, IN THE ABSENCE OF EVIDENCE THAT THE LOW BIDDER WAS NOT QUALIFIED TO PERFORM, AN AWARD TO THE HIGHER BIDDER BASED ON A POINT SYSTEM ESTABLISHED TO EVALUATE THE TECHNICAL QUALIFICATION INFORMATION SHOULD BE CANCELED.

TO THE SECRETARY OF THE AIR FORCE, JULY 23, 1957:

REFERENCE IS MADE TO A LETTER DATED JULY 17, 1957, FROM THE ASSISTANT SECRETARY FORWARDING A PROTEST DATED JULY 1, 1957, BY PLANT ENGINEERING, INC., AGAINST THE AWARD OF CONTRACTS NO. AF 21 (602/-296 AND 297, FOR OPERATION AND MAINTENANCE OF HIGH-TEMPERATURE HOT WATER SYSTEMS AT GRAND FORKS AIR FORCE BASE AND AT MINOT AIR FORCE BASE, TO AMERICAN HYDROTHERM CORPORATION.

THE RECORD BEFORE US INDICATES THAT FOUR BIDS WERE RECEIVED IN RESPONSE TO EACH INVITATION FOR BIDS. THE SAME FIRMS BID ON BOTH CONTRACTS AND THE PROTESTANT WAS LOW BIDDER WITH A PRICE OF $88,211.58 ON EACH. AMERICAN HYDROTHERM BID $91,500 ON EACH CONTRACT, SUBJECT TO A THREE PERCENT DISCOUNT IF IT WERE AWARDED BOTH CONTRACTS, ON WHICH BASIS ITS BID PRICE ON EACH CONTRACT WAS $88,755.

THE INVITATIONS FOR BIDS DID NOT SET FORTH MINIMUM QUALIFICATIONS OF BIDDERS OR A PROCEDURE FOR EVALUATING QUALIFICATIONS, HOWEVER, BIDDERS WERE ADVISED AND REQUIRED, UNDER THE PROVISIONS OF PARAGRAPH I OF THE TECHNICAL PROVISIONS, AS FOLLOWS:

I. TECHNICAL QUALIFICATIONS OF BIDDERS:

A. ALL BIDDERS WILL BE REQUIRED TO SUBMIT, IN TRIPLICATE, A WRITTEN RESUME SUBSTANTIATING THEIR QUALIFICATIONS TO ADMINISTER, SUPERVISE, OPERATE AND MAINTAIN A CENTRAL HIGH TEMPERATURE WATER BOILER PLANT AND SYSTEMS. THE QUALIFICATIONS SUBMITTED WILL BE EVALUATED BY THE CONTRACTING OFFICER AND HIS TECHNICAL REPRESENTATIVE AND ONLY PROPOSALS FROM PROPERLY QUALIFIED BIDDERS WILL BE CONSIDERED.

B. THE RESUME WILL INCLUDE THE BIDDER'S QUALIFICATIONS, ORGANIZATION, ETC., FOR THE PAST 10 YEARS AND WILL DESCRIBE:

1. BIDDER'S BACKGROUND AND EXPERIENCE IN OPERATING AND MAINTAINING HIGH TEMPERATURE WATER HEATING PLANTS INCLUDING DESCRIPTION OF PLANTS, THEIR CAPACITY, DISTRIBUTION SYSTEM AND TYPE OF FUEL USED.

2. BIDDER'S BACKGROUND AND EXPERIENCE IN OPERATING AND MAINTAINING OTHER TYPES OF BOILER PLANTS INCLUDING DESCRIPTION OF PLANTS, THEIR CAPACITY, DISTRIBUTION SYSTEMS, AND TYPE OF FUEL USED.

3. DESCRIPTION OF ANY OTHER TYPE OF PLANT OR SYSTEM OR SYSTEMS WHICH WOULD QUALIFY THE BIDDER AS AN OPERATING ENGINEERING ORGANIZATION.

4. CERTIFIED FINANCIAL STATEMENT FOR THE CALENDAR YEAR 1955-56.

5. DESCRIPTION OF THE BIDDER'S ORGANIZATION, INCLUDING THE EXECUTIVE STAFF, HEADQUARTERS STAFF SUCH AS MECHANICAL ENGINEERS, ELECTRICAL ENGINEERS, CHEMICAL ENGINEERS AND CLERICAL. ALSO SUPERVISORY AND PLANT OPERATING PERSONNEL.

A. THE RESUME OF THE INDIVIDUALS SHALL STATE THEIR QUALIFICATIONS FOR THE PAST 10 YEARS, INCLUDING THEIR EDUCATION, EXPERIENCE BY EMPLOYMENT AND PROJECTS, AND THEIR AGE.

6. BIDDERS SHALL STATE THEIR QUALIFICATIONS OF ORGANIZATIONAL SUPPORT TO PERFORM ENGINEERING ANALYSIS OF THE FUNCTIONING OF THE PLANT, GUIDE PLANT SUPERVISORS, REVIEW OPERATING LOGS, REVIEW PLANT OPERATIONS, AND PRESENT ENGINEERING EVALUATION FOR PLANT IMPROVEMENT. ALSO VISIT THE SITE FOR FIELD OBSERVATIONS AND CONSULTATIONS.

7. BIDDERS SHALL STATE THE EXTENT OF "OUT-SIDE" AID NEEDED FOR ENGINEERING ORGANIZATIONAL SUPPORT PRESENTING RESUME OF THE CONSULTANTS TO BE RETAINED.

THE INFORMATION FURNISHED BY BIDDERS UNDER 1 THROUGH 7 ABOVE WAS THEN EVALUATED BY A BOARD OF ENGINEERS UNDER A POINT SYSTEM ASSIGNING A MAXIMUM POINT SCORE RANGING FROM 4 TO 15 POINTS ON EACH ITEM, THE POINT AWARD TO BE BASED UPON THE JUDGMENT OF THE INDIVIDUAL EVALUATING THE PROPOSAL, SUCH INDIVIDUALS THEN MEETING TO ARRIVE AT A GROUP COMPOSITE SCORE ON EACH ITEM AND A TOTAL COMPOSITE SCORE FOR EACH FIRM. ON THIS BASIS PLANT ENGINEERING, INC., RECEIVED A SCORE OF 39.4 POINTS AS COMPARED TO 62.6 POINTS FOR AMERICAN HYDROTHERM CORPORATION.

HOWEVER, SINCE SUCH SYSTEM GAVE NO CONSIDERATION TO BID PRICE, AN EIGHTH ITEM WAS ADDED TO THE ABOVE LIST, GIVING A WEIGHTED POINT VALUE FOR THAT FACTOR TO EACH BID. BID PRICE WAS THEN EVALUATED BY AWARDING THE LOWEST BID 30 POINTS AND OTHER BIDDERS A LESSER NUMBER OF POINTS DETERMINED BY DIVIDING THE LOWEST BID BY THE HIGHER BID AND MULTIPLYING THE RESULT BY 30. BASED UPON THE ADDITIONAL EVALUATION THE LOW BID SUBMITTED BY PLANT ENGINEERING RECEIVED A TOTAL POINT SCORE OF 69.4 WHILE AMERICAN HYDROTHERM RECEIVED A SCORE OF 92.5. THE AWARDS ON JULY 1, 1957, TO AMERICAN HYDROTHERM ARE BASED ON THESE SCORES.

AS A GENERAL RULE A BID MAY NOT BE EVALUATED UPON A BASIS NOT PROVIDED IN THE INVITATION. WHILE THE INVITATION IN THIS CASE STATED THAT THE QUALIFICATIONS WHICH BIDDERS WOULD BE REQUIRED TO SUBMIT UNDER PARAGRAPH I OF THE TECHNICAL PROVISIONS WOULD BE EVALUATED BY THE CONTRACTING OFFICER AND ONLY PROPOSALS FROM PROPERLY QUALIFIED BIDDERS WOULD BE CONSIDERED, IT IS OUR OPINION THAT SUCH PROVISION WOULD JUSTIFY THE USE OF THE REQUIRED INFORMATION ONLY FOR THE PURPOSE OF DETERMINING WHETHER A PARTICULAR BIDDER QUALIFIED AS A RESPONSIBLE BIDDER UNDER THE PROVISION OF 10 U.S.C. 2305. YOU STATE THAT THE ABILITY OF PLANT ENGINEERING TO PERFORM IS NOT IN QUESTION AND THE RECORD BEFORE US CONTAINS NO EVIDENCE TO INDICATE THAT PLANT ENGINEERING WAS NOT FULLY QUALIFIED TO PERFORM THE SERVICES REQUIRED. IN THE ABSENCE OF SUCH EVIDENCE IT IS OUR OPINION THE CONTRACTING OFFICER WAS WITHOUT LEGAL AUTHORITY TO AWARD THE CONTRACTS TO ANY BUT THE LOW BIDDER AND THE AWARDS TO AMERICAN HYDROTHERM SHOULD THEREFORE BE CANCELED.

WITH RESPECT TO THE QUESTION OF WHETHER AMERICAN HYDROTHERM MAY BE REIMBURSED FOR COSTS IT MAY HAVE INCURRED IN RELIANCE UPON THE AWARDS MADE TO IT, PERSONS DEALING WITH AGENTS OF THE UNITED STATES ARE PRESUMED TO KNOW THE EXTENT OF THE AGENT'S AUTHORITY AND EXPENSES INCURRED BY A BIDDER BASED UPON AN ILLEGAL AWARD ARE INCURRED AT HIS OWN RISK. 17 COMP. GEN. 312; 20 ID. 890, 894. ACCORDINGLY, SINCE THERE IS NO LEGAL LIABILITY ON THE PART OF THE UNITED STATES TO PAY SUCH EXPENSES, AND IN THE ABSENCE OF EVIDENCE THAT THE UNITED STATES HAS RECEIVED ANY DIRECT BENEFIT FROM THEM, WE ARE NOT AWARE OF ANY AUTHORITY UNDER WHICH REIMBURSEMENT COULD BE MADE TO AMERICAN HYDROTHERM.

THE ORIGINAL BIDS FORWARDED WITH THE LETTER FROM THE ASSISTANT SECRETARY ARE ENCLOSED.

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