BNUMBER:  B-275304
DATE:  February 6, 1997
TITLE:  The Ryan Company

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Matter of:The Ryan Company

File:     B-275304

Date:February 6, 1997

Barbara G. Werther, Esq., Watt, Tieder & Hoffar, L.L.P., for the 
protester.
John S. Wagner for Houston-Stafford Electric, Inc., an intervenor.
George N. Brezna, Esq., Diane D. Hayden, Esq., Timothy J. Hyland, 
Esq., Department of the Navy, for the agency.
Jerold D. Cohen, Esq., Office of the General Counsel, GAO, 
participated in the preparation of the decision.

DIGEST

A bid should not be rejected as nonresponsive based on a pre-bidding 
communication in which the vendor objected to the performance 
schedule, where the bid as submitted took no exception to the 
invitation's requirements.  Bid responsiveness is determined at the 
time of bid opening from the bid documents themselves (including 
extraneous submissions with the bid and material incorporated by 
reference).  

DECISION

The Ryan Company protests the rejection of its bid as nonresponsive 
under Department of the Navy invitation for bids (IFB) No. 
N62472-90-B-8580 for the replacement of the electrical distribution 
system at the Marine Corps Finance Center-Housing in Belton, Missouri.  
The Navy rejected the bid because the agency believed, based on a 
pre-bid opening submission from Ryan, that the bid was ambiguous.

We sustain the protest.

The IFB was issued on August 26, 1996, with bids due on September 27.  
The 
solicitation required that the contractor begin performance within 15 
calendar days and complete it within 195 calendar days after receiving 
award.  By fax of September 18, Ryan asked the Navy to consider 
extending the contract's duration to 365 days primarily because some 
necessary items were not immediately available.
That same date, the contract specialist asked the project designer to 
review Ryan's concerns.  

On September 24, the Navy received a courier-delivered envelope from 
Ryan referencing the solicitation number, which the agency placed in 
the bid box unopened.

On September 25, Ryan sent the Navy another fax concerning a different 
IFB requirement, which the contract specialist also forwarded to the 
project designer.  The project designer responded by message of 
September 25, including advice that the contract period should not be 
extended unless other vendors also indicated concerns similar to 
Ryan's.  The contract specialist telephoned Ryan to that effect the 
next day, September 26.

The Navy issued an amendment on September 27 addressing Ryan's 
September 25 point and changing the bid opening date to October 10.  
On October 9, the agency extended the bid opening date yet again, to 
October 22, via an amendment that provided prospective bidders with 
certain technical information.

The Navy opened bids as scheduled on October 22; Ryan's bid (received 
that day), which took no exception to any IFB requirement (including 
performance period) was the lowest one received.  At that time, the 
Navy also opened the envelope it had received on September 24.  The 
envelope contained a copy of Ryan's September 18 fax concerning the 
contract period, and a second fax dated September 18 and showing a 
transmittal date of September 23, but which the Navy had no record of 
receiving, in which Ryan stated:

     "As we had stated in our letter to you on 9-18-96, it can take up 
     to
      203 days before material would be on site for this project.  The 
     195 day duration has not been amended.  We will proceed with our 
     bid with the belief that when this project is awarded that the 
     notice to proceed will be held up until material is on site and 
     the 195 days is for on site construction time only."

The Navy believes that Ryan's bid should be rejected as nonresponsive.  
The agency admits that the bid is responsive on its face, but 
maintains that Ryan's position as stated in the communication quoted 
above--that the required 195-day period should begin only after 
receipt of materials--which Ryan never retracted, renders the bid 
ambiguous with respect to the firm's commitment to the required 
performance period of 195 days after notice of award.  We disagree.

Responsiveness involves whether a bid as submitted represents an offer 
to perform, without exception, the exact thing called for in the 
solicitation so that upon acceptance the contractor will be bound to 
perform in accordance with the IFB's 
material terms and conditions.  B-G Mechanical Serv., Inc., B-265782, 
Dec. 27, 1995, 96-1 CPD  para.  6.[1]  Responsiveness thus is determined at 
the time of bid opening from the face of the bid documents themselves.  
Id.  For such purpose, bid documents include information submitted 
with a bid or incorporated into the bid by reference, 40 Comp. Gen. 
432 (1961); Hewlett-Packard Co., B-184515, Jan. 12, 1976, 76-1 CPD  para.  
18, so that a statement in an otherwise extraneous document that 
qualifies the bid with respect to delivery or performance period will 
render the bid unacceptable.  Terra Vac, Inc., supra; J. A. Wynne Co., 
Inc., B-181807, Nov. 18, 1974, 74-2 CPD  para.  268.  Bid documents do not, 
however, include unsubmitted or unreferenced items, pre-bidding 
concerns expressed by a vendor, or agency familiarity with a vendor's 
product.  See, e.g., McGraw-Edison Co., B-181473, Feb. 13, 1975, 75-1 
CPD  para.  95.

As the Navy itself concedes, Ryan's bid is responsive as submitted:  
the bid includes only prices, the firm's acknowledgment of the IFB 
amendments, and the president's signature.  Any concerns Ryan might 
have expressed earlier about the performance period are nowhere noted 
in the bid.  It thus is irrelevant to the bid's responsiveness that 4 
weeks before bid opening, in a never-received fax contained in an 
envelope delivered to the Navy on September 24, Ryan stated an 
objection to the solicitation's performance schedule.  Moreover, Ryan 
sent that envelope to the Navy before being advised, on September 26, 
that the performance schedule would not be changed, and in the bid 
specifically acknowledged receipt of two amendments issued after that 
date, neither of which acceded to Ryan's position.  Finally, it can 
make no difference to the bid's responsiveness, i.e., the 
acceptability of the bid on its face, that the agency did not open the 
envelope 
until the October 22 bid date--if the envelope had been opened upon 
its receipt it certainly would not have affected responsiveness, and 
we do not see how the agency's delay in opening it changes the 
situation. 

In sum, the Navy should not reject Ryan's bid as nonresponsive.  The 
agency's concern about Ryan's pre-bidding submissions is a matter for 
consideration in judging the firm's responsibility, that is, Ryan's 
intention to perform in accordance with the solicitation's material 
terms as promised in its responsive bid and as Ryan would be obligated 
if the bid were accepted.  See Northwest Ecosystem Alliance, 
B-271636, July 12, 1996, 96-2 CPD  para.  12.

The protest is sustained.  We recommend that the Navy award the 
contract to Ryan if the firm is found responsible.  We also recommend 
that Ryan be reimbursed the costs of filing and pursuing its protest, 
including reasonable attorneys' fees.  Bid Protest Regulations,  sec.  
21.8(d)(1), 61 Fed. Reg. 39039, 39046 (1996) (to be codified at 4 
C.F.R.  sec.  21.8(d)(1)).  The protester should submit its detailed and 
certified claim for costs directly to the agency within 60 days after 
receipt of this decision.  Bid Protest Regulations,  sec.  21.8(f)(1), 61 
Fed. Reg., supra (to be codified at 4 C.F.R.  sec.  21.8(f)(1)). 

Comptroller General
of the United States

1. An IFB's performance schedule is a material requirement.  Terra 
Vac, Inc., 
B-241643, Feb. 7, 1991, 91-1 CPD  para.  140.