ABCDE
 
 
                                                  
        
                         DENIED:  July 6, 1992
                                                  
 
 
                             GSBCA 11815-P
 
 
                        ATLANTA TRI-COMM, INC.,
 
                                                Protester,
 
                                   v.
 
                        DEPARTMENT OF THE ARMY,
 
                                                 Respondent.
 
        Mychal  H.  Walker,  President of  Atlanta  Tri-Comm,  Inc.,
   Atlanta, GA, appearing for Protester.
 
        Colonel Ronald P. Cundick,  MAJ Charles R. Marvin,  Jr., and
   CAPT  Sophia L. Rafatjah, Department of  the Army, Arlington, VA,
   counsel for Respondent.
 
   Before Board Judges BORWICK, HYATT, and WILLIAMS.
 
   BORWICK, Board Judge.
 
        On May 1,  1992, Atlanta Tri-Comm, Inc.  (Atlanta Tri-Comm),
   protested the Department of the Army's  withdrawal from the Small
   Business Administration's (SBA) 8(a) program of a procurement for
   thirty-nine   integrated   digital  multiline   feature   phones.
   Respondent  moved  to  dismiss  this  count  of  the  protest  as
   untimely, as the  regional SBA representative informed  protester
   on March  23, 1992 that  the procurement had been  withdrawn.  We
   granted respondent's motion.   See Atlanta Tri-Comm,  Inc., GSBCA
   11815-P (May 18, 1992).
 
        In an amended protest dated May  11, 1992, protester alleged
   bad  faith  on the  part  of  the  Government in  the  subsequent
   competitive  procurement for  the same  goods.   For  reasons set
   forth below, we deny the protest.
 
                            Findings of Fact
 
        1.   The Department  of the  Army (Army)  issued Information
   for  Bids (IFB) number  DABT23-92-B-0037, on March  31, 1992, for
   thirty-nine pairs of integrated  digital multiline feature phones
   for delivery to  Fort Knox, Kentucky.  The IFB  called for supply
   of  GTE Telecom  equipment or  an equal  product.   Protest File,
   Exhibit 1 at 1,  C-1.  The equipment is necessary  to support the
   relocation  of the  U.S.  Army Recruiting  Command,  and it  must
   interconnect  with the existing switching equipment at Fort Knox.
   Id.,  Exhibit 20 at  1; Transcript at  19.  Installation  was not
   required, only delivery.  Transcript at 10.
 
        2.   In  September  1991,  for  a  previous  procurement  of
   identical goods, the  agency had purchased the phones  at a price
   of  $3,484.35 per  unit from  GTE  Telecom, Inc.   Protest  File,
   Exhibit 18; Transcript at 18. To determine the current  estimated
   cost of  procuring the equipment,  the agency conducted  a market
   survey  by   calling  AG  Communication  Systems   (formerly  GTE
   Communication  Systems, a subsidiary of GTE Telecom Incorporated)
   and  determined that  the cost  was $2500.00  per pair.   Protest
   File, Exhibits 16, 18; Transcript at 18.  
 
        3.  On February 18,  1992, the Army offered this acquisition
   to the SBA for the 8(a) program.  Due to the urgent need for this
   equipment, the  Army requested  that  SBA reply  by February  20,
   1992.   Protest  File, Exhibit  9; Transcript  at 18-19.   Having
   received no  response from SBA  by February 24, 1992,  the agency
   submitted  a  synopsis  to  the  Commerce  Business  Daily  (CBD)
   announcing  a  competitive  solicitation  for  the   requirement.
   Protest File, Exhibit 20 at 1; Transcript at 19.
 
        4.  By  letter dated February 28, 1992,  the Army received a
   letter  from SBA's  regional office accepting  Atlanta Tri-Comm's
   offer.  Protest File,  Exhibit 10 at 1.  SBA  authorized the Army
   to  negotiate  directly  with   protester  pursuant  to   Federal
   Acquisition Regulation (FAR) 19.808-1(b).  Id.   
 
        5.   By letter  dated March 3,  1992, the  Army requested  a
   completed  proposal with cost  or pricing data  from Atlanta Tri-
   Comm.  Protest File, Exhibits 2, 11.  The contract specialist, by
   facsimile,  transmitted a bid schedule and specification sheet to
   protester  and  testified  that  she   was  trying  to  "see   if
   [protester]  .  . .  could in  fact  provide us  the phones  at a
   reasonable price . . . . I just wanted to see if he could in fact
   get  the phones  for us.    We were  not sure  that  they could."
   Transcript at 32.   According to the contract  specialist, if the
   agency had been negotiating with protester, the agency would have
   sent a package about forty pages in length.  Id. at 33. 
 
        6.   On  March 11, 1992,  Atlanta Tri-Comm proposed  a total
   price  of  $163,672.59  ($4,197.73   per  unit).   Protest  File,
   Exhibits 4 at  2, 20 at 1.   Protester's price was  approximately
   twenty-three percent higher than the estimated price.  Transcript
   at 20; see Finding 2.  Protester's supplier was AG Communications
   Systems.  Protest File, Exhibit 3.
 
 
        7.   On  March 11,  1992,  the  Army advised  SBA  that  the
   proposed prices were  too high, and  that the Army would  have to
   withdraw its  offer if  prices were not  reduced.   Protest File,
   Exhibits  12,  14, 20.    On  March  16, 1992,  Atlanta  Tri-Comm
   apprised the Army that the prices would  not be any lower and, in
   fact, might increase since the  time had expired within which the
   prices were guaranteed.  The contract specialist informed SBA and
   protester that the Army was withdrawing the acquisition from SBA,
   but that protester would be on the mailing list for a competitive
   solicitation.  Id.   The contract specialist testified  that, had
   protester  offered $2,500.00 per unit, the acquisition would have
   been redirected to SBA. Transcript at 29, 34.
 
        8.  By letter dated March 20, 1992, AG Communication Systems
   informed the Army  that the price for the  equipment increased to
   $3,347.87. Protest File, Exhibit 17;  Transcript at 21.  In order
   to  verify the  accuracy of  this  price, it  requested that  GTE
   Telecom Incorporated  (GTE) confirm  this price  and explain  the
   price increase.  Id., Exhibit 18; Transcript at 21-22.  
 
        9.   On March 31, 1992, respondent issued an IFB calling for
   supply of integrated  digital multiline feature phones  "GTD Ally
   or  Equal."  Protest  File, Exhibit 6.   The  IFB incorporated by
   reference  Federal  Acquisitions  Requlatin  clause  52.214-0010.
   That  clause  provides  in  pertinent   part  that  "in  case  of
   discrepancy between a unit price  and an extended price, the unit
   price will  be presumed to  be correct, subject to  correction to
   the same extent and same manner as any other mistake."  Id.  
 
        10.   In response to  the IFB, AG Communication  Systems bid
   $2,515 including freight.  Protest File, Exhibit 7; Transcript at
   23.  Protester bid a  unit price of $2,500.00 per pair, but had a
   total extended  price of $112,125.00.   Protest File,  Exhibit 6.
   The unit price of $2,500  multiplied by thirty-nine, the quantity
   called for in the IFB, equals $97,500, not $112,125.  Protester's
   principal testified at  the hearing on the merits  of the protest
   that  its  total  price reflected  profit  and  overhead charges.
   Transcript at 13-14, 23.    
        11.  Because protester's unit  price did not match its total
   price,  the contract  specialist asked  protester  to verify  its
   price or withdraw its bid.  Protester did neither.  Transcript at
   23.   The contracting officer advised protester that its "failure
   to request withdrawal of [its]  bid due to mistake, requires this
   office  to  reject [the]  bid as  nonresponsive pursuant  to [FAR
   14-406-(3)(g)(5)(ii)]."   Protest File, Exhibit 21.  If protester
   had verified its line item bid, it would have received the award.
   Transcript at 23-24.  Award was made to  AG Communications System
   as low responsive bidder.  Protest File, Exhibit 7; Transcript at
   34.  
 
                               Discussion
 
        Protester in its posthearing brief argues about respondent's
   withdrawal of the  procurement from  SBA's 8(a)  program, but  we
   have ruled  that issue  untimely, Atlanta  Tri-Comm, Inc.,  GSBCA
   11815-P (May 18, 1992), and do not consider it further.   We turn
   to  protester's  allegations  of  bad  faith  in  the  subsequent
   competitive  procurement.   Protester's  principal contention  on
   this issue is that respondent  "created an environment of  unfair
   competition  when it  allowed the manufacturer  to bid  against a
   disadvantaged  firm it  had previously  quoted  prices that  were
   inflated."  Protester's  Post Hearing Brief at 2.   We understand
   protester's argument to be  that respondent erred in  allowing AG
   Communications  System to  bid  when  that  same  company  quoted
   inflated  prices  to protester  when  respondent was  considering
   using the 8(a) program for this procurement.  
 
        Protester has not proven that respondent acted  in bad faith
   in conducting  the procurement.  Protester feels  aggrieved by AG
   Communications Systems' allegedly inflated prices during  respon-
   dent's consideration of  the 8(a) acquisition, but  has not shown
   why   the  Government  should  be  held  responsible.    Further,
   respondent was obligated  to consider AG Communications  Systems'
   bid in the  competitive procurement.  Respondent is  obligated to
   secure "all bids"  48 CFR 14.401 (1991)(FAR  14.401), "personally
   and  publicly open  all bids"  received before  the time  set for
   opening  of  bids  (FAR  14.402-1(a)  and  to  "make  a  contract
   award . . . to that  responsible bidder whose bid,  conforming to
   the  invitation,  will  be most  advantageous  to  the Government
   considering only  price and  price-related factors . . . included
   in the invitation."  FAR 14.407-1. 
    
        Protester's bid  was ambiguous  in view  of the  discrepancy
   between  its  unit  price  and   extended  price.    In  view  of
   protester's refusal  to clarify  its price,  protester's bid  was
   properly  rejected as nonresponsive.  Bid responsiveness requires
   an unequivocal offer to provide without exception exactly what is
   required at a firm-fixed price.   Thus, a bid is nonresponsive if
   it is ambiguous as to price  and it is low only under one  of two
   reasonable  interpretations.    Associated  Mechanical, Inc.,  B-
   243892, 91-2 CPD   192, at 2,  Aug. 23, 1991.  In the absence  of
   protester's  clarifying  its  price  ambiguity,  the  contracting
   officer  could not  know whether  protester had  bid  $112,125 or
   $97,500.  Protester's bid was properly rejected for ambiguity.  
 
                                Decision
 
        The protest is DENIED.  
 
 
 
                            _________________________
                            ANTHONY S. BORWICK
                            Board Judge
 
 
   We concur:
 
 
   ____________________
   CATHERINE B. HYATT
   Board Judge
 
 
 
   ___________________________
   MARY ELLEN COSTER WILLIAMS
   Board Judge