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B-143526, OCT. 24, 1960

B-143526 Oct 24, 1960
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TO MUNSTON ELECTRONIC MANUFACTURING CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 20. IT IS CONTENDED. THAT THE DEVIATIONS AND DEFICIENCIES IN YOUR BID ARE MINOR INFORMALITIES OR IRREGULARITIES AND THEREFORE SHOULD HAVE BEEN WAIVED. THE COST WAS TO BE INCLUDED IN THE UNIT PRICE OF THE INDICATOR. UPON OPENING OF THE BIDS IT WAS DETERMINED THAT THE DATA FURNISHED WITH YOUR BID WAS DEFICIENT AND AT VARIANCE WITH THE INVITATION IN THAT THE LIST FURNISHED BY YOU OMITTED CERTAIN ITEMS OF LAMPS AND FUSES. THE QUANTITY COUNT OF THE SPARE PARTS WAS IN ERROR. IN VIEW THEREOF THE CONTRACTING OFFICER CONCLUDED THAT YOUR BID WAS NONRESPONSIVE AS SUBMITTED. THAT SINCE SPECIFIC COST DATA AS TO THOSE MISSING COMPONENTS WAS NOT AVAILABLE.

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B-143526, OCT. 24, 1960

TO MUNSTON ELECTRONIC MANUFACTURING CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1960, AND TO SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE REJECTION BY THE ARMY SIGNAL SUPPLY AGENCY OF YOUR LOW BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. SC-36-039-60-256-A1, COVERING THE PURCHASE OF A QUANTITY OF ARIMUTH AND RANGE INDICATORS. IT IS CONTENDED, IN SUBSTANCE, THAT THE DEVIATIONS AND DEFICIENCIES IN YOUR BID ARE MINOR INFORMALITIES OR IRREGULARITIES AND THEREFORE SHOULD HAVE BEEN WAIVED, OR THE NECESSARY CORRECTIONS PERMITTED, BY THE CONTRACTING OFFICER.

THE SUBJECT INVITATION SOUGHT BIDS ON THE FURNISHING OF DIFFERENT QUANTITIES OF THE INDICATORS SPECIFIED, INCLUDING VARIOUS QUANTITIES OF RUNNING SPARE PARTS LISTED THEREIN, AS WELL AS OTHER RELATED ITEMS. THE INVITATION REQUIRED EACH BIDDER TO LIST THE TYPES AND QUANTITIES OF VACUUM TUBES, VIBRATORS, BRUSHES, PANEL LAMPS, AND OTHER ITEMS SUBJECT TO WEAR AND BREAKAGE, TO BE SUPPLIED WITH THE UNITS PURCHASED, INCLUDING THE NUMBER OF RUNNING SPARES. THE COST WAS TO BE INCLUDED IN THE UNIT PRICE OF THE INDICATOR. UPON OPENING OF THE BIDS IT WAS DETERMINED THAT THE DATA FURNISHED WITH YOUR BID WAS DEFICIENT AND AT VARIANCE WITH THE INVITATION IN THAT THE LIST FURNISHED BY YOU OMITTED CERTAIN ITEMS OF LAMPS AND FUSES, AND THE QUANTITY COUNT OF THE SPARE PARTS WAS IN ERROR. IN VIEW THEREOF THE CONTRACTING OFFICER CONCLUDED THAT YOUR BID WAS NONRESPONSIVE AS SUBMITTED, AND THAT SINCE SPECIFIC COST DATA AS TO THOSE MISSING COMPONENTS WAS NOT AVAILABLE, THE PROCUREMENT OFFICIALS, EVEN IF AUTHORIZED, COULD NOT MAKE THE NECESSARY ADJUSTMENTS IN THE PRICING OF THOSE PARTS OMITTED. UNDER THOSE CIRCUMSTANCES IT WAS CONCLUDED BY THE CONTRACTING OFFICER THAT A CONTRACT COULD NOT BE AWARDED TO YOU WITHOUT NEGOTIATION OR THE ISSUANCE OF A CHANGE ORDER, BOTH OF WHICH ARE CONTRARY TO APPLICABLE PROCUREMENT LAWS AND NEGOTIATIONS.

IN YOUR LETTER OF JULY 29, 1960, YOU REFER TO A PREVIOUS CASE CONSIDERED BY THIS OFFICE WHERE, AS SECOND LOW BIDDER, YOU PROTESTED AGAINST THE AWARD OF THE CONTRACT TO THE LOW BIDDER ON THE GROUND THAT ITS BID WAS NONRESPONSIVE DUE TO THE FACT THAT IT HAD LEFT BLANK THE COLUMN PERTAINING TO THE COST TO BE CHARGED FOR COPIES OF THE DRAWINGS CALLED FOR UNDER THAT ITEM. IN THAT CASE, B-123562, APRIL 21, 1955, THE BIDDER HAD ALLEGED ERROR IMMEDIATELY AFTER BID OPENING, AND WE AUTHORIZED CORRECTION OF THE BID TO REFLECT THE INTENT OF THE BIDDER AS TO THE PRICE OF THE ITEM BY INSERTING "NO CHARGE" IN THE COLUMN LEFT BLANK BY THE BIDDER. SUCH ACTION, PRIOR TO THE MAKING OF ANY AWARD, WAS BASED UPON AN OBVIOUS ERROR AS TO PRICE TIMELY ALLEGED AND PROVED, AND THEREFORE WAS NOT LEGALLY PREJUDICIAL TO OTHER BIDDERS. ANOTHER MATERIAL DIFFERENCE BETWEEN THE FACTS IN THE TWO CASES IS THAT IN THE PRIOR CASE THERE WAS NO STIPULATION IN THE INVITATION THAT REQUIRED A BIDDER TO QUOTE ON EVERY ITEM NOR WAS THE GOVERNMENT OBLIGATED TO AWARD A CONTRACT FOR ALL THE ITEMS BID ON BY A PARTICULAR BIDDER. THERE, IT WOULD HAVE BEEN POSSIBLE AND PROPER FOR THE GOVERNMENT TO ACCEPT THE LOW AGGREGATE BID ON ALL ITEMS EXCEPT NO. 5 AND CANCEL THAT ITEM. HERE THE RUNNING SPARES WERE MADE AN INTEGRAL PART OF THE END ITEM AND WERE NOT SEPARABLE.

SECTION 2305 (C) OF TITLE 10, U.S. CODE, REQUIRES THAT A BID TO BE ACCEPTABLE MUST CONFORM TO THE INVITATION. ALSO, IT HAS BEEN HELD REPEATEDLY BY THE COURTS AND BY THIS OFFICE THAT BIDDERS SHOULD NOT BE PERMITTED TO ALTER THEIR PROPOSALS AFTER THE BIDS ARE OPENED SINCE SUCH PRACTICE COULD DEFEAT THE PURPOSES OF COMPETITIVE BIDDING PROCEDURES. IS APPARENT THAT COMPLIANCE THEREWITH IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING A PECUNIARY ADVANTAGE IN A PARTICULAR CASE.

IN VIEW OF THE CLEAR AND SPECIFIC REQUIREMENT OF THE INVITATION HERE INVOLVED THAT BIDDERS SHOULD INDICATE THE TYPE AND QUANTITY OF EACH ITEM FOR WHICH SPARES WERE REQUIRED AND "SHALL SHOW AMOUNT USED IN THE EQUIPMENT," AND THAT THE BID PRICE SHOULD REFLECT THE COMPLETE COST OF THE EQUIPMENT, INCLUDING SPARES, THERE WAS A SERIOUS QUESTION AS TO WHETHER ACCEPTANCE OF YOUR BID, WHICH INCLUDED A LIST FROM WHICH SEVERAL ARTICLES WERE OMITTED, WOULD HAVE OBLIGATED YOU TO FURNISH ANYTHING MORE THAN WAS INCLUDED IN YOUR LIST. EVEN THOUGH THE OMISSIONS MAY HAVE BEEN OF SLIGHT CONSEQUENCE FROM THE STANDPOINT OF COST, ACCEPTANCE OF THE BID WOULD IN THAT CASE HAVE BEEN CONTRARY TO 10 U.S.C. 2305 (C), REFERRED TO ABOVE, AND HAVE CREATED A CONTRACT DIFFERENT FROM THE ONE OFFERED FOR BIDDING AND BID ON BY OTHERS WHOSE LISTS WERE COMPLETE.

FOR THESE REASONS, WE MUST CONCLUDE THAT WE WOULD NOT BE LEGALLY JUSTIFIED IN REFUSING TO GIVE EFFECT TO THE CONTRACT AWARDED BY THE DEPARTMENT OF THE ARMY.

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