BNUMBER:  B-270777
DATE:  March 27, 1996
TITLE:  CardioMetrix

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Matter of:CardioMetrix

File:     B-270777

Date:March 27, 1996

Robert J. Loring, Ph.D., for the protester.
Monika S. Rueda for Sekot Laboratories, Inc., an intervenor.
Jonathan Cramer, Esq., Department of Justice, for the agency.
Sylvia Schatz, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where solicitation contemplated award of a fixed-price requirements 
contract, bid was properly rejected for failure to offer fixed price 
where fee schedule contained legend stating that "[a]ll prices are 
subject to change without notice."

DECISION

CardioMetrix protests the rejection of its bid under invitation for 
bids (IFB) No. 125-0212, issued by the Federal Bureau of Prisons, U.S. 
Department of Justice, for clinical laboratory testing for the inmate 
populations of the Federal Correctional Institute/Federal Prison Camp 
in Miami, Florida.

We deny the protest.

The IFB contemplated the award of a fixed-price requirements contract.  
The bid schedule stated as follows:

     "The [g]overnment intends to make a single award based upon price 
     alone.  The low bid will be determined by the combined overall 
     lowest priced regular fee schedule utilizing ten (10) regular fee 
     schedule tests listed in this section, considering the discount 
     offered, if any, along with the aggregate total of the special 
     pricing of the twenty (20) tests listed in this section.  I/we 
     will provide all regular fee schedule tests at _____% discount."

In addition, the statement of work (SOW) provided:

     "A breakdown of all available tests with their regular fee 
     schedule shall be provided with the entire bid.  Failure to 
     submit the entire regular fee schedule will consider the bid to 
     be non-responsive.

     "Special pricing is being requested for twenty (20) tests listed 
     in section B of this solicitation package.  The estimated 
     quantities reflect a twelve (12) month period.  All other tests 
     that do not reflect special pricing will be paid from the regular 
     fee schedule that is provided by the contractor with a ___% 
     discount, if offered.  A discount offered, if any will include, 
     but will not be limited to the ten tests listed in section B of 
     this solicitation package."

Although CardioMetrix's bid was apparently low, the Bureau rejected it 
as nonresponsive because the included fee schedule contained the 
following legend:  "All prices are subject to change without notice."  
The Bureau concluded that this qualifying language rendered 
CardioMetrix's bid nonresponsive for failure to offer a fixed price.  
Award thus was made to the second low bidder, Sekot Laboratories, Inc. 
 
CardioMetrix principally contends that since its fee schedule 
containing the legend was submitted for informational purposes only, 
and was not part of the price evaluation, the legend did not cause its 
bid to be nonresponsive.[1]

A bid that does not offer to perform at a fixed price where a 
fixed-price contract is contemplated must be rejected as 
nonresponsive.  See Federal Acquisition Regulation  sec.  14.404-2(d); U.S. 
Coast Guard--Advance Decision, B-252396, Mar. 31, 1993, 93-1 CPD  para.  
286.   

While the fee schedule was not used for bid evaluation, it was not to 
be submitted, as CardioMetrix contends, for informational purposes 
only.  The SOW, as indicated, clearly required offerors to submit the 
entire regular fee schedule for all available tests; their failure to 
do so would result in their bids being determined nonresponsive.  
Given that a fixed-price contract was to be awarded, this requirement 
clearly was included to ensure that fixed prices--i.e., the regular 
fee schedule prices--would be established for the unevaluated fee 
schedule items.  By submitting a qualified fee schedule, CardioMetrix 
provided prices that were variable to the extent that they should 
change; this constituted a failure to agree to perform the fee 
schedule tests at a fixed price, as required by the IFB.  Its bid 
therefore was nonresponsive and properly was rejected.

CardioMetrix also argues that, since the fee schedule was to be 
submitted in "as is" condition, without changes or qualifications, its 
bid would have been found nonresponsive had it removed the legend.  
This argument is untenable.  First, since CardioMetrix's 
interpretation of the IFB would require bidders with qualifying 
legends on their fee schedules, essentially, to submit nonresponsive 
bids, the interpretation is unreasonable.  In any case, to the extent 
CardioMetrix may have interpreted the IFB as precluding removal of the 
legend, this created a material inconsistency with the requirement for 
fixed prices; the resulting ambiguity as to whether the fee schedule 
could be changed to eliminate variable pricing should have been 
protested prior to bid opening.  Bid Protest Regulations, section 
21.2(a)(1), 60 Fed. Reg. 40,737, 40,740 (Aug. 10, 1995) (to be 
codified at 4 C.F.R.  para.  21.2(a)(1)).[2]

The protest is denied.

Comptroller General
of the United States

1. CardioMetrix also states that it has had numerous government 
contracts with the Bureau and other agencies for testing similar to 
that required here, and that its offers have never been rejected as 
nonresponsive due to similar legends on its fee schedules.  However, 
agency actions in connection with other procurements are irrelevant to 
the determination of whether the bid properly was rejected under the 
current procurement; each procurement stands on its own.  See Discount 
Machinery & Equip., Inc., B-248321, July 22, 1992, 92-2 CPD  para.  44.

2. CardioMetrix maintains that the legend should not have rendered its 
bid nonresponsive because it was merely pre-printed on its master fee 
schedule and was not intended to qualify its prices.  However, only 
material available at bid opening may be considered in making a 
responsiveness determination.  Since the bid contained the qualifying 
language, and did not include any indication that this language did 
not represent its intent, it rendered the bid nonresponsive; post-bid 
opening explanations cannot be considered in determining the 
responsiveness of a bid.  Gelco Payment Sys., Inc., B-234957, July 10, 
1989, 89-2 CPD  para.  27.