B-176254, SEP 1, 1972

B-176254, SEP 1, 1972

BID PROTEST - RESPONSIVENESS - FAILURE TO SUBMIT ITEM PRICE DENIAL OF PROTEST ON BEHALF OF PACIFIC COAST UTILITIES SERVICE, INC., AGAINST THE REJECTION OF THEIR BID UNDER AN IFB ISSUED BY THE PROCUREMENT DIVISION, FORT ORD, CALIF. SINCE THE BIDDER FAILED TO SUBMIT A PRICE ON ITEM 0004 ALTHOUGH REQUIRED TO DO SO, IT CANNOT BE SAID THAT HE WOULD BE REQUIRED TO PERFORM THE BUFFING AND WAXING AS PART OF OTHER SERVICES ON WHICH PRICES WERE SUBMITTED. ADDITIONALLY, THE FAILURE TO QUOTE A PRICE IS A MATERIAL DEVIATION THAT CANNOT BE WAIVED. 50 COMP. GEN. 852 (1971). ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO JEPPSON AND BERMAN:

YOUR LETTER OF JULY 30, 1972, PROTESTS THE REJECTION OF THE PACIFIC COAST UTILITIES SERVICE, INC., BID BY THE DEPARTMENT OF THE ARMY PROCUREMENT DIVISION, FORT ORD, CALIFORNIA, UNDER INVITATION FOR BIDS NO. DABF07-72-B- 0136. AWARD HAS BEEN WITHHELD PENDING OUR RESOLUTION OF THE PROTEST.

THE INVITATION, PROVIDING FOR A REQUIREMENTS CONTRACT FOR BUILDING MAINTENANCE SERVICES, REQUESTED UNIT PRICES IN SECTION "E" OF THE SCHEDULE ON A MONTHLY BASIS AND EXTENDED PRICES ON AN ESTIMATED 12 TIMES PER YEAR BASIS FOR THE MAINTENANCE OF SOME 101 BUILDINGS AT FORT ORD ON A 5-, 6-, OR 7-DAY A WEEK SCHEDULE. ALSO INCLUDED IN THE INVITATION SCHEDULE ARE SEVERAL ADDITIONAL SERVICES NOT PART OF THE GENERAL BUILDING MAINTENANCE WORK, INCLUDING A REQUIREMENT UNDER ITEM 0004 FOR WAXING AND BUFFING ALL WAXABLE FLOORS APPROXIMATELY ONCE A MONTH FOR WHICH BIDDERS WERE TO INSERT A UNIT PRICE AND AN EXTENDED PRICE FOR THE SERVICE FOR AN ESTIMATED 12 MONTHS. THIS ITEM WAS LEFT BLANK BY PACIFIC COAST UTILITIES, AS WAS THE SPACE PROVIDED AT THE END OF THE INVITATION SCHEDULE FOR THE INSERTION OF THE TOTAL OF THE VARIOUS EXTENDED UNIT PRICES.

WITH RESPECT TO EVALUATION OF BIDS, THE INVITATION PROVIDES AS FOLLOWS:

"EVALUATION WILL BE MADE ON A TOTAL PRICE OF ALL ITEMS IN SECTION E OF THE SCHEDULE. OFFERORS ARE CAUTIONED TO SUBMIT AN OFFER ON EACH ITEM INDIVIDUALLY. FAILURE TO BID ON ALL ITEMS WILL BE CAUSE FOR REJECTION OF OFFER."

ALTHOUGH THE ARITHMETIC TOTAL OF THE EXTENDED UNIT PRICES IN THE PACIFIC COAST UTILITIES BID WAS LOW, THE BID WAS REJECTED BY THE CONTRACTING OFFICER AS NONRESPONSIVE FOLLOWING A PROTEST BY THE SECOND LOW BIDDER ON THE GROUND THAT PACIFIC COAST UTILITIES WOULD NOT BE BOUND, IF AWARDED A CONTRACT, TO PERFORM THE WAXING AND BUFFING SERVICES FOR WHICH IT HAD NOT INSERTED A PRICE.

IT IS YOUR POSITION THAT IT WAS THE INTENTION OF PACIFIC COAST UTILITIES TO ABSORB THE COST OF ANY REQUIRED WAXING AND BUFFING IN THE PRICES QUOTED FOR MAINTENANCE OF THE VARIOUS BUILDINGS AND THAT THE BID SHOULD HAVE STATED THAT NO CHARGE WOULD BE MADE FOR ITEM 0004. YOU CONTEND THAT THE FAILURE TO SO STATE WAS A CORRECTABLE ERROR WHICH MAY BE DOCUMENTED BY WORKPAPERS SUBMITTED BY PACIFIC COAST UTILITIES. ALTERNATIVELY, YOU ARGUE THAT SECTION D-1 OF THE INVITATION, QUOTED ABOVE, CONTEMPLATES AWARD ON AN AGGREGATE BASIS SO THAT PACIFIC COAST UTILITIES WOULD BE BOUND TO PERFORM ALL REQUIRED CONTRACT WORK FOR THE TOTAL PRICE AS INDICATED BY THE ARITHMETIC SUM OF THE EXTENDED UNIT PRICES, AND THAT THE PACIFIC COAST UTILITIES BID SHOULD THEREFORE BE READ AS IF "NO CHARGE" HAD BEEN ENTERED FOR ITEM 0004.

THE DECISIONS CITED BY YOU, AS WELL AS THOSE CITED IN THE PACIFIC COAST UTILITIES LETTER OF JUNE 12, 1972, TO THE DEPARTMENT OF THE ARMY, DEALING WITH UNIT PRICE OMISSIONS, ALL INVOLVED SITUATIONS WHEREIN THE TERMS OF THE BID AS SUBMITTED WOULD CLEARLY BIND THE BIDDER UPON AWARD OF A CONTRACT TO PERFORMANCE OF ALL REQUIRED WORK NOTWITHSTANDING THE OMISSION OF ONE OR MORE UNIT PRICES. ALTHOUGH EVALUATION WAS TO BE MADE ON THE BASIS OF THE TOTAL BID PRICE IN ACCORDANCE WITH INVITATION SECTION D-1, QUOTED ABOVE, AND WHILE THE INVITATION STIPULATED THAT ONLY ONE AWARD WOULD BE MADE, IT CANNOT BE SAID THAT THE CONTRACT AWARD WAS TO BE MADE FOR THE AGGREGATE TOTAL PRICE BID. THIS IS SO BECAUSE A REQUIREMENTS CONTRACT WAS CONTEMPLATED WITH PAYMENT TO BE MADE ONLY FOR SERVICES ORDERED BY THE GOVERNMENT AND RENDERED BY THE CONTRACTOR. FURTHER, ON PAGE 1 OF THE INVITATION, UNDER THE SECTION ENTITLED "OFFER," THE BIDDER "OFFERS AND AGREES *** TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED." SINCE THE BIDDER FAILED TO SUBMIT A PRICE FOR ITEM 0004, WE CANNOT SAY THAT IT WOULD BE OBLIGATED TO PERFORM THE BUFFING AND WAXING AS PART OF OTHER SERVICES FOR WHICH UNIT PRICES WERE BID. ADDITIONALLY, THE FAILURE TO QUOTE A PRICE IS A MATERIAL DEVIATION THAT CANNOT BE WAIVED. COMP. GEN. 852 (1971). MOREOVER, A UNIT PRICE OMISSION, AS HERE, WOULD GIVE THE BIDDER AN OPTION TO EXPLAIN AFTER THE OPENING OF BIDS AND THE EXPOSURE OF BID PRICES WHETHER HIS INTENT WAS TO PERFORM OR NOT TO PERFORM THE CONTRACT WORK FOR WHICH NO PRICES WERE QUOTED. IN THIS CIRCUMSTANCE, OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRES THE REJECTION OF SUCH A BID AS NONRESPONSIVE AND THAT EVIDENCE EXTRANEOUS TO THE BID ITSELF MAY NOT BE CONSIDERED TO DETERMINE THE BIDDER'S INTENT. SEE 51 COMP. GEN. (B-174298, MARCH 2, 1972), AND CASES CITED THEREIN.

FINALLY, CONCERNING YOUR CONTENTION THAT THE OMITTED UNIT PRICE REPRESENTS A CORRECTABLE BID MISTAKE, IT IS A WELL-SETTLED RULE THAT A NONRESPONSIVE BID MAY NOT BE MADE RESPONSIVE ON THE BASIS OF AN ALLEGATION OF MISTAKE. 50 COMP. GEN., SUPRA; AND 49 ID. 749 (1970).

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, THE PROTEST IS DENIED.