B-159622, OCT. 13, 1966

B-159622, OCT. 13, 1966

TO JAN PACKAGING INC.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 23, 1966, REQUESTING, IN EFFECT, THAT WE RECONSIDER OUR DECISION B-159622, DATED SEPTEMBER 1, 1966, WHICH DENIED YOUR PROTEST AGAINST THE REJECTION OF A BID YOU SUBMITTED UNDER INVITATION FOR BIDS (IFB) NO. 66-262-04-P, ISSUED JUNE 15, 1966, BY THE UNITED STATES INFORMATION AGENCY (USIA).

THE IFB SOLICITED BIDS TO SUPPLY USIA'S NEEDS DURING THE PERIOD JULY 1, 1966, THROUGH JUNE 30, 1967, FOR NAILED WOOD PACKING BOXES MANUFACTURED IN ACCORDANCE WITH THE GENERAL REQUIREMENTS OF FEDERAL SPECIFICATION PPP-B- 621A, DATED AUGUST 29, 1962, AND AMENDMENTS, BUT WITH TONGUE AND GROOVE CONSTRUCTION ONLY. NO PROVISION WAS MADE FOR SUBMISSION OF BIDS ON ALTERNATE ITEMS. BIDDING INSTRUCTIONS ON STANDARD FORM 33-A, INCORPORATED IN THE IFB TERMS, CAUTIONED BIDDERS TO EXAMINE THE DRAWINGS, SPECIFICATIONS, SCHEDULE, AND ALL INSTRUCTIONS; ADVISED THAT EXPLANATIONS OF THE IFB TERMS SHOULD BE REQUESTED IN WRITING IN SUFFICIENT TIME TO PERMIT REPLY IN ADVANCE OF THE DEADLINE FOR SUBMISSION OF BIDS; AND SPECIFICALLY WARNED THAT ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE AWARD OF THE CONTRACT WOULD NOT BE BINDING. IN ADDITION, THE BIDDERS WERE PLACED ON NOTICE THAT BIDS OFFERING SUPPLIES OTHER THAN THOSE SPECIFIED WOULD NOT BE CONSIDERED UNLESS AUTHORIZED BY THE IFB.

YOU SUBMITTED A LOW BID OFFERING BOXES WITH BUTT-END CONSTRUCTION AND WERE THEREFORE ADVISED BY USIA THAT YOUR BID WAS NONRESPONSIVE FOR FAILURE TO COMPLY WITH THE TONGUE AND GROOVE CONSTRUCTION REQUIREMENT IN THE IFB. YOU PROTESTED THE ADMINISTRATIVE ACTION TO OUR OFFICE, POINTING OUT THAT THE FEDERAL SPECIFICATION CITED IN THE PURCHASE DESCRIPTION INCLUDES BUTT- END CONSTRUCTION AS ONE OF FOUR ACCEPTABLE TYPES OF CONSTRUCTION FOR THE BOXES IN QUESTION AND ALLEGING THAT YOU HAD BEEN VERBALLY ADVISED BY A USIA EMPLOYEE PRIOR TO THE SUBMISSION OF YOUR BID, IN RESPONSE TO YOUR INQUIRY, THAT SUCH AN EXCEPTION WOULD NOT RENDER THE BID NONRESPONSIVE.

IN OUR DECISION, WE QUOTED VARIOUS PROVISIONS OF THE IFB, INCLUDING THE BIDDING INSTRUCTIONS MENTIONED ABOVE, AND CALLED YOUR ATTENTION TO YOUR FAILURE TO MAKE A PROPER WRITTEN REQUEST FOR A PRE-BID INTERPRETATION OF THE IFB AND THE SPECIFICATIONS. IN ADDITION, WE ADVISED YOU OF THE REASONS ADVANCED BY USIA FOR THE USE OF THE RESTRICTIVE TONGUE AND GROOVE CONSTRUCTION REQUIREMENT IN THE IFB, AND WE STATED THAT WE DID NOT FIND SUCH JUSTIFICATION UNREASONABLE. ACCORDINGLY, WE FURTHER ADVISED YOU THAT WE CONCURRED WITH USIA'S VIEW, I.E., THAT YOUR BID WAS NONRESPONSIVE AND THAT ITS REJECTION WAS THEREFORE REQUIRED, AND THAT WE FOUND NO LEGAL BASIS FOR OBJECTION TO AWARD TO THE OTHER BIDDER, ABBOT AND ABBOT BOX CORPORATION, WHO PRESUMABLY WAS FOUND TO BE RESPONSIBLE AS WELL AS RESPONSIVE. IT IS OUR UNDERSTANDING THAT AWARD WAS MADE TO SUCH BIDDER ON SEPTEMBER 7, 1966.

IN YOUR LETTER OF SEPTEMBER 23, YOU MAKE THE FOLLOWING PERTINENT STATEMENTS:

"WE WISH AGAIN TO CALL YOUR ATTENTION TO THE FACT THAT THE CUSTOM OF PREVIOUS PURCHASE FORMS, WHEREIN A RESTRICTIVE COVENANT BE WRITTEN INTO AN OFFERING, IT IS ALWAYS LABELED IN A VERY DEFINITE MANNER AS "NO EXCEPTIONS.'

"THIS WAS NOT PRESENT IN YOUR IFB. RATHER THAN TAKE THIS FOR GRANTED, WE CONTACTED YOUR PERSONNEL REGARDING THIS POSSIBLE OMISSION. ON THE BASIS OF INFORMATION WE RECEIVED, WE INCLUDED THE MODIFICATION WHICH CONDEMNED OUR BID.

"WE TAKE EXCEPTION ON ONE POINT.

"DUE TO THE FACT THERE WAS AN OBVIOUS AMOUNT OF CONFUSION IN OUR INSERTION OF MODIFICATION THAT WE INSERTED IN THE IFB, WE ARE IN THE PECULIAR POSITION OF BEING NEITHER WRONG OR RIGHT; WE FEEL THAT WE SHOULD BE AFFORDED THE OPPORTUNITY OF REMOVING THE CLAUSE AND TO PERFORM AT THE QUOTED PRICES, AS THOUGH THAT MODIFICATION DID NOT EXIST.'

WHILE IT MAY WELL BE TRUE THAT PREVIOUS PURCHASE FORMS WITH WHICH YOU WERE FAMILIAR CARRIED THE NOTATION "NO EXCEPTIONS," THERE IS NO REQUIREMENT IN THE PROCUREMENT STATUTE (41 U.S.C. 253) OR IN THE FEDERAL PROCUREMENT REGULATIONS (FPR) THAT SUCH WORDS BE USED IN ADVERTISED PROCUREMENT SOLICITATIONS. CONVERSELY, STANDARD FORM 33-A, BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS (SUPPLY CONTRACT), WHICH WAS INCORPORATED IN THE IFB IN THIS CASE, IS SPECIFICALLY PRESCRIBED BY FPR 1- 16.101 (D) FOR USE WHEN ENTERING INTO CONTRACTS FOR SUPPLIES, EXCEPT UNDER CERTAIN CONDITIONS NOT HERE PRESENT. FURTHER, THE PROVISIONS OF STANDARD FORM 33-A, CAUTIONING BIDDERS ABOUT THE REJECTION OF NONCONFORMING BIDS AND STIPULATING THAT THE BID OF THE SUCCESSFUL BIDDER MUST CONFORM TO THE INVITATION FOR BIDS, ARE CONSISTENT WITH THE PROVISIONS OF THE PROCUREMENT STATUTE, 41 U.S.C. 253 (B), AND FPR 1-2.404-2 AND 1-2.407-1. ACCORDINGLY, NOTWITHSTANDING THE CONFUSION ON YOUR PART REGARDING THE IFB REQUIREMENTS, YOUR BID WAS NOT RESPONSIVE TO A MATERIAL PROVISION OF THE IFB, AND, THEREFORE, WE ARE UNABLE TO AGREE WITH YOUR VIEW THAT YOU ARE IN THE PECULIAR POSITION OF BEING NEITHER RIGHT NOR WRONG.

WITH REGARD TO YOUR REQUEST FOR AN OPPORTUNITY TO DELETE THE OBJECTIONABLE "MODIFICATION" IN YOUR BID, YOU ARE ADVISED THAT EVEN IF AWARD HAD NOT ALREADY BEEN MADE TO ANOTHER BIDDER, SUCH REQUEST COULD NOT BE GRANTED SINCE YOUR NONRESPONSIVE BID DOES NOT CONSTITUTE AN ACCEPTABLE OFFER AND TO PERMIT A CHANGE THEREIN TO MAKE IT RESPONSIVE WOULD BE TANTAMOUNT TO PERMITTING YOU TO SUBMIT A NEW BID IN VIOLATION OF THE RULES OF COMPETITIVE BIDDING. 17 COMP. GEN. 554, 558; 30 ID. 179; 38 ID. 819; 40 ID. 432.

FOR THE REASONS STATED, WE MUST AFFIRM OUR DECISION OF SEPTEMBER 1.