B-166784, JUN. 16, 1969

B-166784, JUN. 16, 1969

TO MANPOWER, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 24, 1969, PROTESTING THE AWARD TO ANY OTHER BIDDER OF CONTRACT NO. N62474-69-C 0856, ISSUED BY THE SAN FRANCISCO BAY NAVAL SHIPYARD, VALLEJO, CALIFORNIA.

THE INVITATION, ISSUED MARCH 12, 1969, REQUIRED JANITORIAL SERVICES FOR VARIOUS BUILDINGS AT THE SAN FRANCISCO NAVAL BAY SHIPYARD FOR THE PERIOD JULY 1, 1969 THROUGH JUNE 30, 1970. ITEM 1 CALLS FOR A TOTAL PRICE FOR THE DESIGNATED JANITORIAL SERVICES IN VARIOUS BUILDINGS COVERING 1,077,916 SQUARE FEET IN ACCORDANCE WITH SPECIFICATION NO. 12 69-0856.

ESSENTIALLY YOU CONTEND THAT THE LOW BIDDER, PACIFIC UTILITIES SERVICE, INCORPORATED, FAILED TO COMPLY WITH SECTION 3, PARAGRAPH 3.3, PAGE 1, OF THE SPECIFICATION AND ADDENDUM 2. PARAGRAPH 3.3 OF THE CONTRACT SPECIFICATION IS AS FOLLOWS: "ITEMS OF BIDS. BIDS SHALL BE SUBMITTED IN QUARUPLICATE ON AND IN ACCORDANCE WITH NAVDOCKS FORM 2996 (1-64). (THE SUMMARY PRICE SCHEDULE, APPENDIX -A-, SHALL BE COMPLETED TO SHOW COST PER SECTION PER YEAR.) THE TOTAL OF APPENDIX -A- SHALL ADD TO THE TOTAL PRICE, BID ITEM 1. "ITEM 1. PRICE PER YEAR FOR THE ENTIRE WORK COMPLETE IN ACCORDANCE WITH THE SPECIFICATIONS.' ADDENDUM NO. 2 STATES IN PERTINENT PART AS FOLLOWS: ,APPENDIX -A- - SUMMARY PRICE SCHEDULE ADD: TOTAL PRICE FOR ANNUAL GLASS CLEANING".

THE INVITATION REQUIRED THAT APPENDIX "A" BE SUBMITTED WITH THE BID AND THAT APPENDICES "B" THROUGH "F" BE SUBMITTED WITHIN 10 DAYS AFTER AWARD. ALL APPENDICES CALLED FOR PRICE BREAKDOWNS. APPENDIX "F" COVERED PRICE BREAKDOWNS FOR ANNUAL GLASS CLEANING FOR BUILDINGS BY AREA IN ACCORDANCE WITH PARAGRAPH 2.9 OF THE SPECIFICATION.

SPECIFICALLY, IT IS YOUR CONTENTION THAT THE SUM TOTAL SUBMITTED BY PACIFIC UNDER APPENDIX "A" WOULD HAVE ADDED UP TO A HIGHER PRICE THAN THE TOTAL SUBMITTED UNDER ITEM 1, CONTRARY TO PARAGRAPH 3.3, HAD PACIFIC INCLUDED A SUMMARY LISTING FOR ANNUAL CLASS CLEANING. FURTHER, YOU CONTEND THAT THE FAILURE TO FURNISH THE SUMMARY TOTAL IS CONTRARY TO THE REQUIREMENTS OF ADDENDUM NO. 2.

THE RECORD BEFORE OUR OFFICE SHOWS THE SUM TOTAL OF APPENDIX "A" TO BE THE SAME AS THE AMOUNT LISTED UNDER ITEM 1 OF PACIFIC'S BID. FURTHER, PACIFIC ACKNOWLEDGED RECEIPT OF ADDENDUM NO. 2 AND SUBMITTED APPENDIX "A" WITH ITS BID, BUT DID NOT SHOW A SEPARATE TOTAL PRICE FOR ANNUAL GLASS CLEANING. IT IS THE CONTRACTING OFFICER'S OPINION THAT SINCE NEITHER THE ADDENDA NOR THE APPENDICES ADDED ANY GLASS CLEANING TO WHAT WAS SET FORTH IN THE BASIC SPECIFICATIONS, IT MUST BE CONCLUDED THAT THE ITEM 1 TOTAL PRICE SUBMITTED BY PACIFIC COVERED ALL THE GLASS CLEANING. IN THIS REGARD, THE FAILURE OF PACIFIC TO SHOW A SEPARATE PRICE FOR GLASS CLEANING IN APPENDIX "A" DID NOT AFFECT THE PRICE, QUANTITY OR QUALITY OF THE SERVICES. SEE 30 COMP. GEN. 179, 181.

WE CONCUR WITH THE CONCLUSION REACHED BY THE CONTRACTING OFFICER. THE PURPOSE OF THE APPENDICES, INCLUDING APPENDIX "A" , WAS TO ACQUIRE INFORMATION TO BE USED DURING THE PERFORMANCE OF THE CONTRACT. WHILE PACIFIC FAILED TO ADD A SEPARATE TOTAL FOR GLASS CLEANING, THE FACT REMAINS THAT IT WOULD STILL BE OBLIGATED TO PROVIDE ALL SERVICES UNDER THE SPECIFICATIONS AT THE TOTAL PRICE SUBMITTED AS ITEM 1. IN 40 COMP. GEN. 321, 324, WE STATED THAT:

"WHETHER CERTAIN PROVISIONS OF AN INVITATION FOR BIDS ARE TO BE CONSIDERED MANDATORY OR DISCRETIONARY DEPENDS UPON THE MATERIALITY OF SUCH PROVISIONS AND WHETHER THEY WERE INSERTED FOR THE PROTECTION OF THE INTEREST OF THE GOVERNMENT OR FOR THE PROTECTION OF THE RIGHTS OF BIDDERS. UNDER AN ADVERTISED PROCUREMENT ALL QUALIFIED BIDDERS MUST BE GIVEN AN EQUAL OPPORTUNITY TO SUBMIT BIDS WHICH ARE BASED UPON THE SAME SPECIFICATIONS, AND TO HAVE SUCH BIDS EVALUATED ON THE SAME BASIS. TO THE EXTENT THAT WAIVER OF THE PROVISIONS OF AN INVITATION FOR BIDS MIGHT RESULT IN FAILURE OF ONE OR MORE BIDDERS TO ATTAIN THE EQUAL OPPORTUNITY TO COMPETE ON A COMMON BASIS WITH OTHER BIDDERS, SUCH PROVISION MUST BE CONSIDERED MANDATORY. HOWEVER, THE CONCEPT OF FORMALLY ADVERTISED PROCUREMENT, INSOFAR AS IT RELATES TO THE SUBMISSION AND EVALUATION OF BIDS, GOES NO FURTHER THAN TO GUARANTEE EQUAL OPPORTUNITY TO COMPETE AND EQUAL TREATMENT IN THE EVALUATION OF BIDS. IT DOES NOT CONFER UPON BIDDERS ANY RIGHT TO INSIST UPON THE ENFORCEMENT OF PROVISIONS IN AN INVITATION, THE WAIVER OF WHICH WOULD NOT RESULT IN AN UNFAIR COMPETITIVE ADVANTAGE TO OTHER BIDDERS BY PERMITTING A METHOD OF CONTRACT PERFORMANCE DIFFERENT FROM THAT CONTEMPLATED BY THE INVITATION OR BY PERMITTING THE BID PRICE TO BE EVALUATED UPON A BASIS NOT COMMON TO ALL BIDS. SUCH PROVISIONS MUST THEREFORE BE CONSTRUED TO BE SOLELY FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT AND THEIR ENFORCEMENT OR WAIVER CAN HAVE NO EFFECT UPON THE RIGHTS OF BIDDERS TO WHICH THE RULES AND PRINCIPLES APPLICABLE TO FORMAL ADVERTISING ARE DIRECTED. TO THIS END, THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY HELD THAT WHERE DEVIATIONS FROM, OR FAILURE TO COMPLY WITH, THE PROVISIONS OF AN INVITATION DO NOT AFFECT THE BID PRICE UPON WHICH A CONTRACT WOULD BE BASED OR THE QUANTITY OR QUALITY OF THE WORK REQUIRED OF THE BIDDER IN THE EVENT HE IS AWARDED A CONTRACT, A FAILURE TO ENFORCE SUCH PROVISION WILL NOT INFRINGE UPON THE RIGHTS OF OTHER BIDDERS AND THE FAILURE OF A BIDDER TO COMPLY WITH THE PROVISION MAY BE CONSIDERED AS A MINOR DEVIATION WHICH CAN BE WAIVED AND THE BID CONSIDERED RESPONSIVE.'

APPLYING THESE PRINCIPLES, WE CONCLUDE THAT THE FAILURE OF PACIFIC TO SUBMIT A SEPARATE COST BREAKDOWN IN APPENDIX "A" WAS A MINOR DEVIATION NOT AFFECTING PRICE, QUANTITY OR QUALITY OF THE WORK SPECIFIED IN THE INVITATION AND MAY BE WAIVED. SEE B-151276, MAY 28, 1963.