B-171153, JAN 5, 1971

B-171153, JAN 5, 1971

BID PROTEST - RESPONSIVENESS OF LOW BIDDER DENIAL OF PROTEST OF WASHINGTON MOVING & STORAGE CO., INC., AGAINST THE AWARD OF AN ADVERTISED CONTRACT FOR SERVICES OF HAULING AND PACKING STOLEN, ABANDONED AND SEIZED PROPERTY ISSUED BY THE DISTRICT OF COLUMBIA TO LOW BIDDER, GREENWOOD'S TRANSFER. WHERE SUCCESSFUL LOW BIDDER DREW LINES THROUGH THE "UNIT PRICE" AND "AMOUNT" COLUMNS ADJACENT TO CERTAIN ITEMS OF THE IFB, IT MAY REASONABLY BE ASSUMED BY THE GOVERNMENT THAT THE BIDDER OBLIGATED ITSELF TO FURNISH THE DATA WITHOUT COST, AND IN ADDITION, SUCCESSFUL LOW BIDDER WAS THE PREVIOUS CONTRACTOR FOR THE SERVICES IN QUESTION AND IT HAD BID "NO CHARGE" FOR THESE SAME ITEMS ON ITS PREVIOUS CONTRACT, A FACT PROTESTANT KNEW BEFORE BID OPENING. THEREFORE, THE PROTEST IS DENIED.

TO WASHINGTON MOVING AND STORAGE CO., INC.:

REFERENCE IS MADE TO YOUR TELEGRAM DATED OCTOBER 28 AND YOUR LETTER DATED NOVEMBER 4, 1970, IN WHICH YOU PROTEST AGAINST THE AWARD TO THE LOW BIDDER, GREENWOOD'S TRANSFER OF WASHINGTON, D.C., UNDER INVITATION FOR BIDS NO. 03-131-1-0156-CH ISSUED BY THE DISTRICT OF COLUMBIA GOVERNMENT.

THE INVITATION WAS ISSUED ON OCTOBER 13, 1970, FOR SERVICES OF HAULING AND PACKING STOLEN, ABANDONED AND SEIZED PROPERTY DURING THE PERIOD FROM NOVEMBER 1, 1970 THROUGH OCTOBER 31, 1971. INVITATIONS WERE SENT TO 59 POTENTIAL BIDDERS AND SIX BIDS WERE RECEIVED. THE LOWEST BID WAS RECEIVED FROM GREENWOOD'S TRANSFER. YOU PROTESTED AGAINST AWARDING THE CONTRACT TO THE LOW BIDDER ON THE GROUNDS THAT ITS BID WAS NON-RESPONSIVE IN THAT IT FAILED TO SET FORTH UNIT PRICES AND EXTENDED PRICES ON THREE ITEMS OF THE INVITATION.

YOU APPEAR TO RELY ON A STATEMENT ON THE FACE PAGE OF THE IFB WHICH STATES AS FOLLOWS:

"IN COMPLIANCE WITH THE ABOVE, AND SUBJECT TO ALL TERMS AND CONDITIONS THEREOF, THE UNDERSIGNED OFFERS AND AGREES, IF THIS BID BE ACCEPTED, TO FURNISH ITEMS UPON WHICH PRICES ARE QUOTED, AT THE PRICE SET OPPOSITE EACH ITEM."

YOU FURTHER RELY ON A STATEMENT AS FOLLOWS ON PAGE NINE OF THE IFB:

"BIDDERS MUST QUOTE ON ALL ITEMS WITHIN EACH GROUP TO RECEIVE CONSIDERATION FOR THE AWARD."

FINALLY, YOU CALL ATTENTION TO PARAGRAPH SIX OF THE "INSTRUCTIONS TO BIDDERS" WHICH STATES AS FOLLOWS:

"UNLESS OTHERWISE SPECIFIED BY THE DISTRICT OR BY THE BIDDER, THE PROCUREMENT OFFICER RESERVES THE RIGHT TO MAKE AWARD ON ALL ITEMS, OR ON ANY OF THE ITEMS ACCORDING TO THE BEST INTERESTS OF THE DISTRICT. BIDDER MAY RESTRICT HIS BID TO CONSIDERATION IN THE AGGREGATE BY SO STATING, BUT SHOULD NAME A UNIT PRICE ON EACH ITEM BID UPON; ANY BID IN WHICH THE BIDDER NAMES A TOTAL PRICE FOR ALL THE ARTICLES WITHOUT QUOTING A PRICE ON EACH AND EVERY SEPARATE ITEM, MAY BE CONSIDERED INFORMAL."

IN EFFECT YOUR PROTEST RAISES THE QUESTION AS TO WHETHER THE LOW BIDDER, BY DRAWING HORIZONTAL LINES THROUGH THE "UNIT PRICE" AND "AMOUNT" COLUMNS ADJACENT TO ITEMS 13 THROUGH 15 OF THE IFB, DID IN FACT QUOTE ON ALL ITEMS AND WAS THEREFORE RESPONSIVE TO THE PROVISIONS OF THE IFB.

A CASE IN POINT WAS DECIDED BY THIS OFFICE IN 48 COMP. GEN. 757 (1969). IN THAT CASE THE IFB CALLED FOR UNIT PRICE AND EXTENDED PRICE BIDS ON ITEMS 2AA AND 2AB, AND THE LOW BIDDER IN THAT CASE ALSO INSERTED HORIZONTAL LINES IN THE "UNIT PRICE" AND "AMOUNT" COLUMNS. ONE OF THE GROUNDS UPON WHICH THE HIGHER BIDDER PROTESTED WAS THE LOW BIDDER'S FAILURE TO SET FORTH PRICES AS REQUESTED ABOVE. HE ALSO ARGUED THAT THE LOW BIDDER'S BID WAS AMBIGUOUS IN THAT "RENICK (THE LOW BIDDER) COULD CLAIM EITHER (A) IT DID NOT INTEND TO BE BOUND TO FURNISH ITEMS 2AA AND 2AB OR (B) IT MEANT TO FURNISH THEM AT NO CHARGE OR (C) IT MADE A MISTAKE AND INTENDED TO CHARGE FOR THESE ITEMS." WE ANSWERED THOSE ARGUMENTS AS FOLLOWS:

"ABSENT A SPECIFIC REQUIREMENT THAT IF AN ITEM IS TO BE FURNISHED AT NO COST IT SHOULD BE STATED IN SO MANY WORDS (SEE B-165549, FEBRUARY 12, 1969), WE DO NOT THINK THAT THE RENICK BID WAS NONRESPONSIVE PER SE BECAUSE OF THE '- - -' NEXT TO THE DATA ITEMS.

"THE ENTRY OF A '- - -' IS CERTAINLY LESS CLEAR AN INDICATION OF INTENT THAN EITHER A DOLLAR PRICE ENTRY OR A STATEMENT LIKE 'NO CHARGE.' BUT IT IS A MORE MEANINGFUL EXPRESSION OF INTENT THAN A MERE BLANK SPACE. THE '- - -,' IT SEEMS TO US, SHOWS TWO THINGS. FIRST, THE BIDDER WAS AWARE OF THE NECESSITY TO INSERT SOMETHING NEXT TO THE ITEM; IN OTHER WORDS, THE BIDDER HAD NOT OVERLOOKED THE ITEM. SECOND, AFTER CONSIDERING THE MATTER, THE BIDDER DECIDED NOT TO INSERT A PRICE FOR THE ITEM. THE AFFIRMATIVE COROLLARY IS THAT THE BIDDER OBLIGATED ITSELF TO FURNISH THE DATA WITHOUT COST TO THE GOVERNMENT. THEREFORE, WHILE THERE IS NO EXPLICIT INDICATION THAT THE DATA WAS TO BE SUPPLIED AT NO COST, THE BIDDER'S INTENT TO DO SO WAS CLEAR AND THE FAILURE TO STATE THIS INTENT IN A MORE POSITIVE FASHION DID NOT RENDER THE BID NONRESPONSIVE."

IN THE PRESENT PROTEST EACH OF THE ITEMS IN QUESTION RELATES TO THE USE OF A LABOR SUPERVISOR, AND WE MUST PRESUME THAT THE LOW BIDDER DID NOT OVERLOOK THE ITEMS IN QUESTION SINCE HE WENT TO THE TROUBLE TO PLACE HORIZONTAL LINES IN THE SPACES FOR "UNIT PRICE" AND "AMOUNT".

ADDITIONALLY, GREENWOOD'S TRANSFER WAS THE PREVIOUS CONTRACTOR FOR THE SERVICES IN QUESTION, AND THE RECORD INDICATES IT HAD ALSO BID "NO CHARGE" FOR THESE SAME ITEMS ON ITS PREVIOUS CONTRACT, AND THAT YOU HAD OBTAINED THOSE ITEM PRICES FROM THE PROCURING OFFICE PRIOR TO BID OPENING AND WERE THEREFORE AWARE THAT GREENWOOD'S TRANSFER WAS NOT CHARGING FOR THE ITEMS IN QUESTION. IN ADDITION, SINCE GREENWOOD'S TRANSFER BID IN THE AGGREGATE, THE ONLY REASONABLE CONCLUSION IS THAT IT AGAIN INTENDED TO FURNISH A LABOR SUPERVISOR FOR EACH OF THE THREE ITEMS AT ISSUE AT NO CHARGE.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.