Skip to main content

B-166284, APR. 14, 1969

B-166284 Apr 14, 1969
Jump To:
Skip to Highlights

Highlights

THE BID BY LEGNANO WAS SUBMITTED BY A COVER LETTER DATED JANUARY 3. WHICH STATED IN PART AS FOLLOWS: "WE ARE PLEASED TO SUBMIT OUR FIRM. "ENCLOSED IS A FOLDER CONTAINING A COPY EACH OF THE FOLLOWING DATA: (1) BID SCHEDULE FORM. IS AN EXPEDIENT OF OUR PRINCIPALS. THIS DRAWING IS INTENDED TO SHOW MAINLY THE OVERALL DIMENSIONS OF OUR OFFERED UNITS.'. THE ACTUAL CHARACTERISTICS AND DIMENSIONS WERE TYPED IN ON THE STANDARD FORM. TYPED ON THE STANDARD DRAWING WAS IDENTIFICATION OF THE CLIENT AS THE BUREAU OF RECLAMATION AND THE LISTING OF DIMENSIONS BY SCHEDULES NOS. 1 AND 2 AS DONE IN THE INVITATION. IN SUPPORT OF THESE POSITIONS SECTION 1-2.202.5 (F) OF THE FEDERAL PROCUREMENT REGULATIONS AND SEVERAL DECISIONS OF THIS OFFICE WERE CITED.

View Decision

B-166284, APR. 14, 1969

TO THE LEGNANO ELECTRIC CORPORATION:

THIS LETTER CONCERNS THE PROTEST OF LEGNANO ELECTRIC CORPORATION BY LETTER OF FEBRUARY 25, 1969, AGAINST THE REJECTION OF THE LEGNANO BID, UNDER SOLICITATION NO. DS-6697, BY THE CHIEF ENGINEER, UNITED STATES DEPARTMENT OF INTERIOR, BUREAU OF RECLAMATION, DENVER, COLORADO.

THE BID BY LEGNANO WAS SUBMITTED BY A COVER LETTER DATED JANUARY 3, 1969, WHICH STATED IN PART AS FOLLOWS: "WE ARE PLEASED TO SUBMIT OUR FIRM, NET OFFER TO FURNISH POWER TRANSFORMER UNITS, ALL IN ACCORDANCE WITH THE REQUIREMENTS OF THIS SOLICITATION, AND AS HEREINAFTER INDICATED. "ENCLOSED IS A FOLDER CONTAINING A COPY EACH OF THE FOLLOWING DATA: (1) BID SCHEDULE FORM, (INCLUDING AMENDMENTS NOS. 1 AND 2), DULY COMPLETED. (2) PRELIMINARY OUTLINE DIMENSION DWG. NO. 95-4095.

* * * * * * * "OUR PRELIMINARY OUTLINE DIMENSION DRAWING, ITEM 2) ABOVE, IS AN EXPEDIENT OF OUR PRINCIPALS. THIS DRAWING IS INTENDED TO SHOW MAINLY THE OVERALL DIMENSIONS OF OUR OFFERED UNITS.'

DRAWING NO. 95-4095 APPEARED TO BE A STANDARD DRAWING WITH LIMITED MODIFICATIONS. HOWEVER, THE ACTUAL CHARACTERISTICS AND DIMENSIONS WERE TYPED IN ON THE STANDARD FORM. ADDITIONALLY, TYPED ON THE STANDARD DRAWING WAS IDENTIFICATION OF THE CLIENT AS THE BUREAU OF RECLAMATION AND THE LISTING OF DIMENSIONS BY SCHEDULES NOS. 1 AND 2 AS DONE IN THE INVITATION. PARAGRAPH C-2 OF THE INVITATION REFERENCING DRAWINGS NOS. 5 AND 6 LIMITS THE MAXIMUM DIMENSION (LABELED A IN DRAWING 95-4095) TO 210 INCHES. IN VIEW OF THE FACT THAT THE DIMENSION IN THE UNSOLICITED LITERATURE SUBMITTED BY LEGNANO EXCEEDED THE MAXIMUM DIMENSION ALLOWED, THE CHIEF ENGINEER ON FEBRUARY 14, 1969, ADVISED LEGNANO THAT THE BID MUST BE REJECTED.

LEGNANO PROTESTED THE PROPOSED REJECTION OF ITS BID IN VIEW OF THE VARIED OVERALL OFFERS TO COMPLY WITH THE SPECIFICATIONS AND THE LANGUAGE IN THE INVITATION ADVISING THAT DEVIATIONS IN UNSOLICITED DESCRIPTIVE LITERATURE WOULD BE DISREGARDED BY THE GOVERNMENT. IN SUPPORT OF THESE POSITIONS SECTION 1-2.202.5 (F) OF THE FEDERAL PROCUREMENT REGULATIONS AND SEVERAL DECISIONS OF THIS OFFICE WERE CITED. ALSO OUR ATTENTION WAS DIRECTED TO THE OVERALL OFFERS TO CONFORM ON THE FACE OF STANDARD FORM 33 OF THE INVITATION, AND IN THE COVER LETTER WITH THE BID AS WELL AS THE CERTIFICATION OF CONFORMANCE MADE ON PAGE L OF THE INVITATION, DRAWINGS AND DATA TO BE FURNISHED BY OFFEROR.

IN THIS INSTANCE, THE UNSOLICITED DATA SUBMITTED BY LEGNANO, ESPECIALLY DRAWING NO. 95-4095, MUST BE CONSIDERED PART OF THE BID. THESE DATA WERE SUBMITTED IN THE PROPOSAL BINDER IDENTIFYING THE SOLICITATION NUMBER AND THE COVER LETTER OF JANUARY 3, 1969, REFERRED TO THE DRAWING AS PART OF THE BID DATA. FURTHER, THE DRAWING ITSELF IDENTIFIED THE SEPARATE SCHEDULES AND LISTED THE BUREAU OF RECLAMATION AS THE CLIENT FOR WHICH IT WAS PREPARED. IN VIEW OF THAT EVIDENCE, WE CAN REACH NO OTHER CONCLUSION THAN THAT THE DATA WERE INTENDED AS PART OF THE BID. SEE FOR COMPARISON 30 COMP. GEN. 179; 36 ID. 585; ID. 705; AND 40 ID. 432.

IN SITUATIONS WHERE A BIDDER ACCOMPANIES HIS BID WITH UNSOLICITED MATERIAL WHICH ON ITS FACE QUALIFIES THE BID, THE BID MAY BE ACCEPTED ONLY WHERE THE EVIDENCE CLEARLY ESTABLISHES THAT THE BIDDER INTENDED TO CONFORM TO THE SPECIFICATIONS. THIS IS TRUE NOTWITHSTANDING ANY OVERALL OFFER TO CONFORM OR THE ABSENCE OF SUCH A REPRESENTATION. THIS OFFICE HAS IN THE PAST REJECTED THE ARGUMENT THAT AN OVERALL OFFER TO CONFORM, PER SE, CURES SPECIFIC DEVIATIONS. SEE 36 COMP. GEN. 415; 40 ID. 132; AND 46 ID. 1. ANY CONCLUSION WHICH MAY BE DRAWN TO THE CONTRARY FROM OUR PREVIOUS DECISIONS IS UNWARRANTED AND REJECTED. THE OVERALL OFFER TO CONFORM TO THE SPECIFICATIONS, IN WHATEVER FORM, CAN CURE A SPECIFIC DEVIATION ONLY IN SITUATIONS WHERE THAT PROMISE OR OFFER MAKES IT PATENTLY CLEAR THAT THE OFFEROR DID IN FACT INTEND TO SO CONFORM. THE CRUX OF THE MATTER IS THE INTENT OF THE OFFEROR AND ANYTHING SHORT OF A CLEAR INTENTION TO CONFORM ON THE FACE OF THE BID REQUIRES REJECTION. ANY CLARIFICATION OR EXPLANATION OF THE BIDDER'S INTENTION BY EXTRANEOUS INFORMATION AFTER BID OPENING WOULD VIOLATE THE RULE THAT RESPONSIVENESS MUST BE ASCERTAINED FROM THE BID ITSELF. SEE 38 COMP. GEN. 819.

IN THIS PARTICULAR SITUATION, THE BASIS UPON WHICH LEGNANO INTENDED TO BID IS AT BEST AMBIGUOUS AND AS SUCH THE CHIEF ENGINEER PROPERLY REJECTED THAT BID. WHERE MORE THAN ONE POSSIBLE INTERPRETATION MAY REASONABLY BE REACHED FROM THE TERMS OF A BID A BIDDER MAY NOT BE PERMITTED TO EXPLAIN THE ACTUAL MEANING OR BID INTENDED SINCE THIS WOULD AFFORD THE BIDDER THE OPPORTUNITY TO ALTER THE RESPONSIVENESS OF HIS BID BY EXTRANEOUS MATERIAL. SEE 36 COMP. GEN. 705; 40 ID. 395; AND B-154755, SEPTEMBER 3, 1964.

INASMUCH AS WE ACCEPT THE CHIEF ENGINEER'S OPINION THAT THE DATA SUBMITTED BY LEGNANO WERE INTENDED TO BE PART OF THE BID WE HAVE NOT CONSIDERED IT NECESSARY TO DISCUSS SEPARATELY OUR DECISIONS CITED BY LEGNANO WHEREIN THE OUTCOME WAS PREMISED UPON THE OPPOSITE FINDING THAT THE BIDS WERE NOT INTENDED TO BE QUALIFIED. HOWEVER, IN VIEW OF THE APPARENT CONFUSION RESPECTING 37 COMP. GEN. 27 WE DO HAVE THE FOLLOWING COMMENT. FIRST, ANY IMPRESSION ERRONEOUSLY CREATED BY THAT DECISION TO THE EFFECT THAT A NONRESPONSIVE BID MAY BE ALTERED OR CORRECTED TO BE MADE RESPONSIVE HAS BEEN SPECIFICALLY REJECTED BY 40 COMP. GEN. 432. SECOND, THE IMPRESSION THAT AN OVERALL OFFER TO CONFORM CURES SPECIFIC DEVIATIONS WAS EXPRESSLY LIMITED IN 36 COMP. GEN. 415 TO THOSE DEVIATIONS CAUSED BY OMISSION WHERE THE OMITTED MATERIAL WAS NOT REQUIRED FOR PURPOSES OF EVALUATING THE OFFER. THE IDEA THAT AN OVERALL OFFER TO CONFORM COULD, PER SE, CURE SPECIFIC DEVIATIONS, CREATED BY EITHER THE OMISSION OF REQUIRED EVALUATION DATA OR THE SUBMISSION OF UNSOLICITED DATA AS PART OF THE INTENDED BID, WAS REJECTED AT PAGES 416 AND 417 OF 36 COMP. GEN. 415.

FINALLY, WE HAVE CONSIDERED LEGNANO'S COMMENTS RESPECTING THE LANGUAGE ON PAGE L OF THE INVITATION AND THAT IN OUR DECISION OF 36 COMP. GEN. 376. THE LANGUAGE IN 36 COMP. GEN. 376 WAS INTENDED TO DEAL WITH DESCRIPTIVE LITERATURE WHICH WAS REQUESTED BY THE INVITATION FOR BIDS, NOT UNSOLICITED LITERATURE. WHILE THE LANGUAGE ON PAGE L DEALS WITH BOTH SITUATIONS IT DOES NOT ALTER THE FACT THAT THE LEGNANO BID WAS QUALIFIED. HOWEVER, WE ARE REVIEWING FURTHER THAT LANGUAGE, AS WELL AS FPR 1-2.202.5 (F), IN VIEW OF THE POSSIBILITY THAT THEY SHOULD BE ALTERED AND MAY IN FACT BE MISLEADING TO BIDDERS.

NOTHWITHSTANDING, WE MUST CONCLUDE THE CHIEF ENGINEER ACTED PROPERLY AND THE PROTEST BY LEGNANO IS DENIED.

GAO Contacts

Office of Public Affairs