B-140490, SEP. 3, 1959

B-140490: Sep 3, 1959

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO LETTER OF AUGUST 13. IS A RESPONSIVE BID. FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. TWO BIDDERS STATED SPECIFICALLY THAT NO CHARGE WOULD BE MADE OR THAT THE COST THEREOF WAS INCLUDED IN THE PRICES QUOTED FOR THE MOTORS. " PROVIDES THAT CERTAIN TESTS ARE REQUIRED WITHOUT EXCEPTION. THAT OTHERS MAY BE WAIVED PROVIDED CERTAIN CONDITIONS ARE MET. THAT SINCE THE MOTORS IT OFFERED TO FURNISH WERE IDENTICAL TO MOTORS PREVIOUSLY TESTED AND CURRENTLY BEING FURNISHED TO THE NAVY BY ITS SUPPLIER OF MOTORS. IT WAS PROPOSED TO OBTAIN WAIVERS OF THE TESTS. CLEAVER-BROOKS ADVISED THAT THE COST OF ALL THE REQUIRED TESTS WERE INCLUDED IN THE PRICES QUOTED FOR THE MOTORS.

B-140490, SEP. 3, 1959

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF AUGUST 13, 1959, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO WHETHER THE BID SUBMITTED BY CLEAVER-BROOKS SPECIAL PRODUCTS, INC., IN RESPONSE TO INVITATION FOR BIDS NO. 251/497/59, ISSUED BY PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, IS A RESPONSIVE BID.

THE INVITATION REQUESTED BIDS TO BE OPENED ON JULY 7, 1959, FOR FURNISHING FOUR DISTILLING UNITS, FOUR SETS OF MOTORS, AND OTHER ITEMS, SUCH AS DRAWINGS, MANUALS, AND REPORTS. WITH RESPECT TO THE MOTORS, THE INVITATION REQUESTED QUOTATIONS ON THE MOTORS THEMSELVES, AND, ALSO, SEPARATE QUOTATIONS FOR THE TESTS AND DRAWINGS.

FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. WITH RESPECT TO THE TESTS AND DRAWINGS FOR THE MOTORS, TWO BIDDERS STATED SPECIFICALLY THAT NO CHARGE WOULD BE MADE OR THAT THE COST THEREOF WAS INCLUDED IN THE PRICES QUOTED FOR THE MOTORS. ANOTHER OF THE BIDDERS QUOTED A PRICE OF $1,950 FOR THE TESTS AND NO CHARGE FOR THE DRAWINGS. CLEAVER-BROOKS QUOTED A PRICE FOR THE DRAWINGS AND IN THE SPACES PROVIDED FOR SHOWING THE PRICES FOR THE TESTS INSERTED THE WORDS "NO TEST REQUIRED.'

PAGE 7 OF THE SCHEDULE OF INVITATION PROVIDES THAT "MOTORS SHALL BE IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-M-17060A (NAVY) OF 22 JUNE 1953 - "MOTORS; ALTERNATING CURRENT, INTEGRAL HP (SHIPBOARD USE)" * * *.' SECTION 4 OF THAT SPECIFICATION, ENTITLED "SAMPLING, INSPECTION, AND TEST PROCEDURES," PROVIDES THAT CERTAIN TESTS ARE REQUIRED WITHOUT EXCEPTION, THAT OTHERS MAY BE WAIVED PROVIDED CERTAIN CONDITIONS ARE MET, AND THAT SOME SHALL BE WAIVED UNLESS THERE HAS BEEN A DESIGN CHANGE. THE SPECIFICATIONS SET FORTH IN DETAIL THE PARTS TO BE TESTED AND THE TYPE OF TESTS TO BE CONDUCTED, INCLUDING ROUTINE SELECTIVE AND PERIODIC TESTS.

BY LETTER OF JULY 10, 1959, THE CONTRACTING OFFICER REQUESTED, AMONG OTHER THINGS, CLARIFICATION OF THE STATEMENT "NO TEST REQUIRED.' CLEAVER- BROOKS ADVISED BY LETTER OF JULY 16, 1959, THAT SINCE THE MOTORS IT OFFERED TO FURNISH WERE IDENTICAL TO MOTORS PREVIOUSLY TESTED AND CURRENTLY BEING FURNISHED TO THE NAVY BY ITS SUPPLIER OF MOTORS, IT WAS PROPOSED TO OBTAIN WAIVERS OF THE TESTS. BY LETTERS OF JULY 21 AND 28, 1959, CLEAVER-BROOKS ADVISED THAT THE COST OF ALL THE REQUIRED TESTS WERE INCLUDED IN THE PRICES QUOTED FOR THE MOTORS. BY TELEGRAM OF AUGUST 6 AND LETTER OF AUGUST 12, 1959, THE BIDDER REQUESTED CORRECTION OF ITS BID TO READ "NO CHARGE" IN LIEU OF "NO TEST REQUIRED," PURSUANT TO PARAGRAPH 2.405.1 OF THE ARMED SERVICES PROCUREMENT REGULATION.

THERE WOULD APPEAR NO QUESTION THAT THE REQUIREMENT WITH RESPECT TO TESTS FOR THE MOTORS IS A MATERIAL REQUIREMENT AND, THEREFORE, MAY NOT BE WAIVED AS A MERE INFORMALITY. SEE 30 COMP. GEN. 179 AND 37 COMP. GEN. 110. THE WORDS "NO TEST REQUIRED" ARE CLEAR AND UNAMBIGUOUS AND CAN ONLY MEAN THAT THE BID DID NOT INCLUDE ANY TEST, WHEREAS TESTS WERE REQUIRED BY THE SPECIFICATIONS. WE DO NOT BELIEVE, AS CONTENDED BY THE BIDDER, THAT THE STATEMENT "NO TEST REQUIRED" CAN BE INTERPRETED TO APPLY ONLY TO TESTS CAPABLE OF BEING WAIVED AND THAT REQUIRED TESTS WOULD BE PERFORMED AT NO COST. THE TERMS OF A BID MUST UNQUALIFIEDLY MEET THE ESSENTIAL REQUIREMENTS OF THE INVITATION. IN 36 COMP. GEN. 705 IT WAS STATED AT PAGE 707 THAT:

"* * * IF A BID IS SO PREPARED AS TO CREATE A REASONABLE DOUBT CONCERNING THE BIDDER'S INTENTION TO FURNISH EQUIPMENT MEETING THE REQUIREMENTS OF THE SPECIFICATIONS, ANY NEGOTIATIONS WITH THE BIDDER TO CLARIFY SUCH INTENTION WOULD BE OBJECTIONABLE ON THE GROUND THAT NO BIDDER SHOULD BE AFFORDED A SECOND CHANCE TO BID AFTER BIDS ARE OPENED. SEE 34 COMP. GEN. 82, 84; AND 35 ID. 33, 38.'

WITH RESPECT TO THE BIDDER'S REQUEST THAT THE BID BE CORRECTED TO CORRESPOND WITH ITS ALLEGED INTENDED MEANING THE FOLLOWING QUOTATION FROM OUR DECISION OF JUNE 5, 1959, B-139329, 38 COMP. GEN. - , WOULD APPEAR TO BE DISPOSITIVE OF THE QUESTION:

"THE QUESTION THEN ARISES AS TO WHETHER A BID WHICH IS NOT RESPONSIVE TO THE INVITATION MAY BE CORRECTED ON THE BASIS OF AN ALLEGATION THAT THE REASON FOR THE BID BEING NONRESPONSIVE WAS AN OVERSIGHT OR A MISTAKE. OUR DECISION OF JANUARY 30, 1958, B-134931, WHICH INVOLVED A SITUATION WHERE A BIDDER HAD INADVERTENTLY SUBMITTED THE WRONG SAMPLE WITH ITS BID AND ATTEMPTED TO SUBMIT A NEW SAMPLE AFTER THE BID OPENING, IT WAS STATED:

" "THE QUESTION AS TO WHETHER A BID IS RESPONSIVE TO THE INVITATION IS FOR DETERMINATION UPON THE BASIS OF THE BID AS SUBMITTED AND IT IS NOT BELIEVED THAT IT WOULD BE PROPER TO CONSIDER THE REASON FOR THE UNRESPONSIVENESS, WHETHER DUE TO MISTAKE OR OTHERWISE.'

"IT IS PROBABLE THAT THE MAJORITY OF UNRESPONSIVE BIDS ARE DUE TO OVERSIGHT OR ERROR, SUCH AS THE FAILURE TO QUOTE A PRICE, TO SIGN THE BID, TO FURNISH A BID BOND, TO SUBMIT REQUIRED SAMPLES OR DATA, OR THE SUBMISSION OF THE WRONG SAMPLE, INCOMPLETE DATA, OR STATEMENTS THE ACTUAL MEANING OF WHICH WAS NOT INTENDED, ETC. AN UNRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PART OF THE BID ON THE BASIS OF AN ERROR ALLEGED AFTER THE OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. IT IS OUR OPINION THAT AN ALLEGATION OF ERROR IS PROPER FOR CONSIDERATION ONLY IN CASES WHERE THE BID IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE PROPER FOR ACCEPTANCE.'

FOR THE FOREGOING REASONS YOU ARE ADVISED THAT THE BID OF CLEAVER BROOKS SPECIAL PRODUCTS, NC., IS NOT A RESPONSIVE BID, AND THAT IT MAY NOT BE CORRECTED TO MAKE IT A RESPONSIVE BID AND ELIGIBLE FOR AWARD.