B-141564, JAN. 15, 1960

B-141564: Jan 15, 1960

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GENERAL SERVICES ADMINISTRATION: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 23. THE INVITATION PROVIDED FOR A BID ACCEPTANCE PERIOD OF 90 DAYS AS "THE MINIMUM TIME THE GOVERNMENT SHALL HAVE TO ACCEPT FROM THE DATE SET FOR THE OPENING OF THE BIDS.'. IT IS REPORTED THAT. IT IS ALLEGED THAT THE 30-DAY ACCEPTANCE PERIOD WAS THE RESULT OF A TYPOGRAPHICAL ERROR AND THAT IT WAS THE BIDDER'S INTENTION TO COMPLY WITH THE REQUIREMENTS OF THE INVITATION AND HOLD ITS OFFER OPEN FOR ACCEPTANCE FOR THE 90-DAY PERIOD REQUIRED BY THE INVITATION. AFFIDAVITS TO THIS EFFECT WERE SUBMITTED BY THE PRESIDENT OF GARNETT CONSTRUCTION COMPANY. IN VIEW OF THE SPECIFIC REQUIREMENT CONTAINED IN THE INVITATION THAT 90 DAYS IS "THE MINIMUM TIME THE GOVERNMENT SHALL HAVE TO ACCEPT FROM THE DATE SET FOR THE OPENING OF THE BIDS.

B-141564, JAN. 15, 1960

TO HONORABLE FRANKLIN FLOETE, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 23, 1959, REQUESTING A DECISION AS TO WHETHER THE BID SUBMITTED BY GARNETT CONSTRUCTION COMPANY, INC., IN RESPONSE TO INVITATION FOR BIDS NO. 9-59-R-219, MAY BE CONSIDERED A RESPONSIVE BID.

THE INVITATION ISSUED ON SEPTEMBER 25, 1959, REQUESTED BIDS FOR THE LEASING TO THE GOVERNMENT OF APPROXIMATELY 6,800 SQUARE FEET OF OFFICE AND STORAGE SPACE IN FRESNO, CALIFORNIA, FOR THE USE OF THE DEPARTMENT OF AGRICULTURE. THE INVITATION PROVIDED FOR A BID ACCEPTANCE PERIOD OF 90 DAYS AS "THE MINIMUM TIME THE GOVERNMENT SHALL HAVE TO ACCEPT FROM THE DATE SET FOR THE OPENING OF THE BIDS.'

THE BID SUBMITTED BY GARNETT CONSTRUCTION COMPANY, INC., PROVIDED FOR AN ACCEPTANCE PERIOD OF ONLY 30 DAYS. IT IS REPORTED THAT, PROMPTLY AFTER THE OPENING OF THE BIDS, THE BIDDER REQUESTED PERMISSION TO CORRECT ITS BID AND WAIVED ALL RIGHTS TO STAND ON THE 30-DAY ACCEPTANCE PERIOD SHOWN IN ITS BID. IT IS ALLEGED THAT THE 30-DAY ACCEPTANCE PERIOD WAS THE RESULT OF A TYPOGRAPHICAL ERROR AND THAT IT WAS THE BIDDER'S INTENTION TO COMPLY WITH THE REQUIREMENTS OF THE INVITATION AND HOLD ITS OFFER OPEN FOR ACCEPTANCE FOR THE 90-DAY PERIOD REQUIRED BY THE INVITATION. AFFIDAVITS TO THIS EFFECT WERE SUBMITTED BY THE PRESIDENT OF GARNETT CONSTRUCTION COMPANY, INC., AND BY THE INDIVIDUAL WHO PREPARED THE BID ON BEHALF OF THE CORPORATION.

IN VIEW OF THE SPECIFIC REQUIREMENT CONTAINED IN THE INVITATION THAT 90 DAYS IS "THE MINIMUM TIME THE GOVERNMENT SHALL HAVE TO ACCEPT FROM THE DATE SET FOR THE OPENING OF THE BIDS," THERE WOULD APPEAR NO QUESTION THAT THE 90-DAY ACCEPTANCE PERIOD IS A MATERIAL REQUIREMENT AND, THEREFORE, MAY NOT BE WAIVED AS A MERE INFORMALITY. SEE 30 COMP. GEN. 179.

WITH RESPECT TO THE BIDDERS REQUEST THAT THE BID BE CORRECTED TO CORRESPOND WITH ITS ALLEGED INTENTION, THE FOLLOWING QUOTATION FROM OUR DECISION OF JUNE 5, 1959, B-139329, 38 COMP. GEN. 819, 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 CORRECTIVE 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 GARNETT CONSTRUCTION COMPANY, INC., IS NOT A RESPONSIVE BID AND THAT IT MAY NOT BE CORRECTED TO MAKE IT A RESPONSIVE BID AND ELIGIBLE FOR AWARD.