B-161950, NOV. 2, 1967

B-161950, NOV. 2, 1967

BIDS - DEVIATIONS - OMISSIONS DECISION TO GULTON INDUSTRIES, INC., CONCERNING PROTEST AGAINST AWARD TO GENERAL ELECTRIC CO. FOR BATTERIES BY NAVAL AIR SYSTEMS COMMAND. A LOW BIDDER WHO DID NOT INCLUDE A PRICE FOR ITEM 2 ALTHOUGH HE INTENDED THAT ITEM 2 WAS OFFERED AT NO COST TO THE GOVERNMENT HAS SUBMITTED BID WITH A MATERIAL DEVIATION THAT RENDERED THE BID NONRESPONSIVE. ALTHOUGH THE LANGUAGE OF THE TESTING PROVISIONS IS NOT VIEWED AS AMBIGUOUS THE PROCURING AGENCY IS REVIEWING THE LANGUAGE OF THE PROVISION TO AVOID CONFUSION IN THE FUTURE.

TO GULTON INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 26, 1967, AND LETTERS DATED SEPTEMBER 14 AND OCTOBER 6, 1967, FROM PAUL M. TRUEGER AND CO., CONCERNING YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. N00019-67-B-0180, ISSUED BY THE NAVAL AIR SYSTEMS COMMAND, DEPARTMENT OF THE NAVY.

THE INVITATION, ISSUED ON FEBRUARY 23, 1967, SOLICITED BIDS FOR FURNISHING QUANTITIES OF BATTERIES. ITEM 2 REQUESTED BIDS FOR TWO BATTERIES TO BE FURNISHED FOR FIRST ARTICLE APPROVAL TESTS (PREPRODUCTION TESTS) OF THE BATTERIES BEING PROCURED UNDER ITEM 1. THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AS FOLLOWS:

GULTON $11,012.68

GENERAL ELECTRIC 11,895.00*

SONOTONE 13,923.00**

*THE PRICE INCLUDES $610 FOR FIRST ARTICLE TESTING.

**THE PRICE INCLUDES $714 FOR FIRST ARTICLE TESTING.

HOWEVER, YOUR BID DID NOT CONTAIN A PRICE FOR ITEM 2, AND NEITHER WAS THERE ANY INDICATION ELSEWHERE IN YOUR BID OF AN INTENTION TO SUPPLY ITEM 2. YOU DID NOT INDICATE THAT ITEM 2 WAS TO BE OFFERED AT NO CHARGE TO THE GOVERNMENT OR THAT THE PRICE THEREOF WAS INCLUDED IN THE PRICE OF THE PRODUCTION QUANTITIES COVERED BY ITEM 1. THE PROCUREMENT AGENCY REPORTS THAT IN PREVIOUS SOLICITATIONS, BIDDERS HAVE BEEN CONSIDERED RESPONSIVE IF "N.C., " "AT NO COST," OR SIMILAR ENTRIES WERE MADE. ACCORDINGLY, YOUR BID WAS DETERMINED TO BE NONRESPONSIVE AND AWARD WAS MADE TO THE GENERAL ELECTRIC COMPANY.

YOU MAKE REFERENCE TO A PREVIOUS AWARD TO YOU FOR SIMILAR BATTERIES WHERE YOU ALLEGEDLY FOLLOWED THE SAME PROCEDURE AS IN THE INSTANT INVITATION. HOWEVER, THE PROCUREMENT AGENCY REPORTS THAT ON THAT OCCASION YOU ACCOMPANIED YOUR BID WITH A LETTER WHEREIN YOU STATED THAT THE GOVERNMENT COULD SAVE THE COST OF ITEM 5 ($497.30) SHOULD FIRST ARTICLE TESTING BE WAIVED, AND IT WAS CONSIDERED, BY READING THE FORMAL BID AND COVERING LETTER TOGETHER, THAT YOU OFFERED A PRICE OF $497.30 FOR THE FIRST ARTICLE TESTING UNITS COVERED BY ITEM 5 OF THAT INVITATION. ACCORDINGLY, YOU WERE FOUND TO BE RESPONSIVE TO THE TERMS AND CONDITIONS OF THAT INVITATION. THE INSTANT INVITATION, HOWEVER, THERE WAS NO INDICATION OF A LIKE OR ANY DOCUMENT INDICATING YOUR INTENTIONS AS TO ITEM 2.

MR. TRUEGER HAS CITED OUR DECISIONS B-161351 DATED JULY 31, 1967, AND B- 86863 DATED DECEMBER 2, 1949, AS ANALOGOUS TO THE PRESENT SITUATION. HOWEVER, THOSE DECISIONS, UNLIKE THE SITUATION HERE, INVOLVED ERRORS IN BID ALLEGED BEFORE AWARD WHERE THERE WAS NOT INVOLVED A RECALCULATION OF A BID OR THE RESUBMISSION OF A NEW BID. IN THOSE CASES, CONVINCING EVIDENCE WAS TIMELY PRESENTED OF A CLERICAL ERROR TO INCLUDE A PREVIOUSLY CALCULATED ITEM WHICH WAS INADVERTENTLY OMITTED FROM THE BID.

YOU CONTEND THAT ITEM 2 OF THE INVITATION DID NOT REQUIRE A SEPARATE BID FOR THAT ITEM OR THE FURNISHING OF TWO ADDITIONAL UNITS FOR TESTING. RATHER, YOU ARGUE THAT THE TWO UNITS OF ITEM 2 WERE INCLUDED IN THE BASIC QUANTITY OF PRODUCTION BATTERIES COVERED BY ITEM 1. ALTHOUGH YOUR VIEW HAS SOME MERIT IN THAT SUCH CONSTRUCTION OF THE SCHEDULE IS POSSIBLE, WE NOTE THAT THE OTHER TWO BIDDERS HAD NO DIFFICULTY IN RESPONDING FULLY AND RESPONSIVELY TO THE INVITATION SCHEDULE. WE DO NOT VIEW THE LANGUAGE EMPLOYED IN ITEM 2 AS SO AMBIGUOUS AS TO REQUIRE US TO QUESTION THE AWARD MADE. WE ARE ADVISED BY THE PROCUREMENT AGENCY THAT IT IS REVIEWING THE DESCRIPTIVE LANGUAGE BY WHICH FIRST ARTICLES FOR TESTING ARE INCORPORATED IN INVITATION SCHEDULES SO AS TO AVOID ANY POSSIBLE CONFUSION IN THE FUTURE.

IT IS A FUNDAMENTAL PRINCIPLE OF THE COMPETITIVE BID SYSTEM THAT IN ORDER TO BE CONSIDERED FOR AWARD A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS AT THE TIME OF THE BID OPENING. A BIDDER MAY NOT BE PERMITTED TO ADD TO OR MODIFY ITS BID AFTER THE OPENING TO MAKE THE BID COMPLY WITH THE REQUIREMENTS OF THE INVITATION, AND IT DOES NOT MATTER WHETHER THE FAILURE TO COMPLY WAS DUE TO INADVERTENCE, MISTAKE OR OTHERWISE. 38 COMP. GEN. 819; 40 ID. 132, 134. THE FAILURE TO QUOTE ON THE FIRST ARTICLES COVERED BY ITEM 2 UNQUESTIONABLY WAS A MATERIAL DEVIATION IN THAT IT DEPRIVED THE GOVERNMENT OF A SUBSTANTIVE AND VALUABLE RIGHT RESERVED TO IT BY THE FIRST ARTICLE TESTING PROVISIONS OF THE INVITATION. FURTHERMORE, THE INVITATION SPECIFICALLY REQUESTED BIDS FOR TWO BATTERIES ON A UNIT AND TOTAL PRICE BASIS FOR FIRST ARTICLE TESTING AND FURTHER REQUESTED A "TOTAL PRICE" OF ALL ITEMS, EXCLUDING OPTION ITEMS, BID UPON. CF. 46 COMP. GEN. 434.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS TO OBJECT TO THE REJECTION OF YOUR BID OR TO THE AWARD MADE. YOUR PROTEST IS THEREFORE DENIED.