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B-175097, NOV 29, 1972

B-175097 Nov 29, 1972
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THE ACCEPTANCE OF A BID CONTAINING TERMS WHICH ARE AT VARIANCE WITH THOSE CONTAINED IN THE INVITATION ONLY BINDS THE BIDDER TO FURNISH PERFORMANCE AS DESCRIBED IN HIS BID. YOU QUESTION WHETHER THERE IS. WHERE THE CONFLICTS BETWEEN THE CLAUSES ARE CLEARLY SPELLED OUT. YOU ALSO ASSERT THAT YOUR BID SHOULD NOT HAVE BEEN REJECTED BECAUSE YOUR FIRM WOULD HAVE BEEN BOUND TO ALL TERMS OF THE INVITATION. THIS OFFICE HAS HELD THAT THE ACCEPTANCE OF A BID CONTAINING TERMS WHICH ARE AT VARIANCE WITH THOSE CONTAINED IN THE INVITATION ONLY BINDS THE BIDDER TO FURNISH PERFORMANCE AS DESCRIBED IN HIS BID. YOU REASSERT YOUR ARGUMENTS THAT AWARD SHOULD HAVE BEEN MADE TO YOUR FIRM AS LOW BIDDER AND THAT THE AGENCY'S ACTIONS WERE INCONSISTENT WITH ITS POSITION IN A PRIOR PROCUREMENT.

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B-175097, NOV 29, 1972

BID PROTEST - NONRESPONSIVENESS - TERMS VARYING WITH SPECIFICATIONS DECISION AFFIRMING DENIAL OF THE PROTEST OF VICTOR CONTROLS DIVISION, CIRCLE SEAL CORP., AGAINST REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO. THE ACCEPTANCE OF A BID CONTAINING TERMS WHICH ARE AT VARIANCE WITH THOSE CONTAINED IN THE INVITATION ONLY BINDS THE BIDDER TO FURNISH PERFORMANCE AS DESCRIBED IN HIS BID. SEE 46 COMP. GEN. 1, 6 (1969). THEREFORE, SUCH A BID SHOULD BE REJECTED AS NONRESPONSIVE.

TO VICTOR CONTROLS DIVISION:

WE REFER TO YOUR LETTER DATED SEPTEMBER 15, 1972, WITH ENCLOSURE, REQUESTING RECONSIDERATION OF OUR DECISION, B-175097, MAY 12, 1972, DENYING YOUR PROTEST UNDER INVITATION FOR BIDS DSA 700-72-B-1020, ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO.

YOU QUESTION WHETHER THERE IS, IN FACT, A CONFLICT BETWEEN YOUR WARRANTY CLAUSE AND THE INSPECTION AND DEFAULT CLAUSES CONTAINED IN THE INVITATION. WE DIRECT YOUR ATTENTION TO PAGES 1 AND 2 OF B-175097, SUPRA, WHERE THE CONFLICTS BETWEEN THE CLAUSES ARE CLEARLY SPELLED OUT.

YOU ALSO ASSERT THAT YOUR BID SHOULD NOT HAVE BEEN REJECTED BECAUSE YOUR FIRM WOULD HAVE BEEN BOUND TO ALL TERMS OF THE INVITATION. WE DISAGREE. THIS OFFICE HAS HELD THAT THE ACCEPTANCE OF A BID CONTAINING TERMS WHICH ARE AT VARIANCE WITH THOSE CONTAINED IN THE INVITATION ONLY BINDS THE BIDDER TO FURNISH PERFORMANCE AS DESCRIBED IN HIS BID. SEE 46 COMP. GEN. 1, 6 (1969).

YOU REASSERT YOUR ARGUMENTS THAT AWARD SHOULD HAVE BEEN MADE TO YOUR FIRM AS LOW BIDDER AND THAT THE AGENCY'S ACTIONS WERE INCONSISTENT WITH ITS POSITION IN A PRIOR PROCUREMENT. WE BELIEVE THAT THESE ISSUES WERE CONSIDERED IN OUR INITIAL DECISION AND, IN THE ABSENCE OF NEW INFORMATION, REMAIN SETTLED.

THEREFORE, WE MUST AFFIRM OUR PRIOR DECISION.

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