B-148272, APR. 2, 1962

B-148272: Apr 2, 1962

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TO SPRAGUE ENGINEERING CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 27. THE INVITATION STATED THAT THE EQUIPMENT SOUGHT TO BE PROCURED SHOULD HAVE A MAXIMUM HEIGHT OF 30 INCHES AND A MAXIMUM WEIGHT OF 3. THERE WAS INCLUDED IN THE INVITATION A DESCRIPTIVE LITERATURE REQUIREMENT THAT PROVIDED THAT THE DESCRIPTIVE LITERATURE SHALL CONSIST OF OUTLINE DRAWINGS OF THE OVER-ALL EQUIPMENT ITEM SHOWING THE SIZE AND WEIGHT. THE DESCRIPTIVE LITERATURE REQUIREMENT CLAUSE EXPLAINED THAT THE REQUIREMENT WAS INCLUDED FOR THE PURPOSE OF BID EVALUATION AND AWARD AND THAT FAILURE OF THE DATA TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE REQUIREMENTS OF THE INVITATION WILL REQUIRE REJECTION OF THE BID.

B-148272, APR. 2, 1962

TO SPRAGUE ENGINEERING CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 27, 1962, PROTESTING AGAINST THE REJECTION OF THE BID SUBMITTED UNDER NAVY IFB600-647-62.

THE INVITATION STATED THAT THE EQUIPMENT SOUGHT TO BE PROCURED SHOULD HAVE A MAXIMUM HEIGHT OF 30 INCHES AND A MAXIMUM WEIGHT OF 3,000 POUNDS. AMENDMENT 1 TO THE INVITATION STATED THAT ,DIMENSIONS AND WEIGHT OF THE EQUIPMENT, AS STATED IN THE SPECIFICATIONS, MUST BE MET.'

THERE WAS INCLUDED IN THE INVITATION A DESCRIPTIVE LITERATURE REQUIREMENT THAT PROVIDED THAT THE DESCRIPTIVE LITERATURE SHALL CONSIST OF OUTLINE DRAWINGS OF THE OVER-ALL EQUIPMENT ITEM SHOWING THE SIZE AND WEIGHT, AMONG OTHER FEATURES. THE DESCRIPTIVE LITERATURE REQUIREMENT CLAUSE EXPLAINED THAT THE REQUIREMENT WAS INCLUDED FOR THE PURPOSE OF BID EVALUATION AND AWARD AND THAT FAILURE OF THE DATA TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE REQUIREMENTS OF THE INVITATION WILL REQUIRE REJECTION OF THE BID.

THE OUTLINE DRAWING THAT ACCOMPANIED THE BID OF YOUR COMPANY SHOWED THE EQUIPMENT HAD A HEIGHT OF 32 INCHES AND A WEIGHT OF 3,620 POUNDS. SINCE THAT EXCEEDED THE MAXIMUM LIMITATIONS SPECIFIED IN THE INVITATION THE CONTRACTING OFFICER DETERMINED THAT THE BID SHOULD BE REJECTED AS NONRESPONSIVE.

IN YOUR LETTER OF FEBRUARY 27, 1962, YOU CONTEND THAT THE FAILURE OF THE OUTLINE DRAWING TO MEET THE INVITATION REQUIREMENT SHOULD BE WAIVED AS AN INFORMALITY. YOU STATE THAT AN OUTLINE DRAWING THAT WOULD CONFORM TO THE INVITATION REQUIREMENT HAD BEEN PREPARED IN ADVANCE OF THE SUBMISSION OF BIDS AND IN THE RUSH TO MEET THE BID OPENING DEADLINE THE INCORRECT DRAWING WAS INCLUDED WITH THE BID BY MISTAKE BUT THAT PROMPTLY AFTER THE MATTER CAME TO THE ATTENTION OF REPRESENTATIVES OF YOUR COMPANY AFTER THE OPENING OF BIDS IMMEDIATE STEPS WERE TAKEN TO CORRECT THE SITUATION BY FLYING IN THE CORRECT DRAWING. FURTHER, YOU STATE THAT THE COMPANY IS NOT NOW PROPOSING A NEW BID, REVISED PRICE OR ANY CHANGE IN QUANTITY, QUALITY OR DELIVERY. THEREFORE, YOU CONTEND THAT THE FAILURE TO CONFORM COULD BE WAIVED UNDER THE RULE SET OUT IN ASPR 2-405 PERTAINING TO MINOR INFORMALITIES OR IRREGULARITIES IN BIDS OR TREATED AS AN ERROR IN BID UNDER THE RULES GOVERNING MISTAKES IN BIDS SET OUT IN ASPR 2-406.3. YOU INDICATE THAT THE ACCEPTANCE OF THE BID OF YOUR COMPANY MIGHT RESULT IN A SIGNIFICANT SAVINGS TO THE GOVERNMENT.

WITH RESPECT TO YOUR CONTENTION THAT THE FAILURE OF THE OUTLINE DRAWING TO MEET THE INVITATION REQUIREMENT SHOULD BE WAIVED AS AN INFORMALITY BECAUSE IT IS NOT AT VARIANCE WITH THE FACTORS THAT YOU ENUMERATED, IT HAS BEEN THE VIEW OF OUR OFFICE THAT WHERE THE LANGUAGE OF AN INVITATION REQUIRES THE SUBMISSION OF DATA WITH THE BID ANY FAILURE OF THE DATA TO COMPLY WITH THE INVITATION REQUIREMENTS MUST BE REGARDED AS A MATERIAL DEVIATION THAT REQUIRES THE BID TO BE REJECTED. SEE 40 COMP. GEN. 132 AND DECISIONS CITED THEREIN.

WITH REGARD TO THE CONTENTION THAT THE DEVIATION SHOULD BE DISPOSED OF AS AN ERROR IN BID, IN 38 COMP. GEN. 876, AT PAGE 878, IT WAS STATED:

"* * * ERRORS IN BID WHICH MAY BE CORRECTED AFTER OPENING ARE THOSE WHICH DO NOT AFFECT THE RESPONSIVENESS OF THE BID, B-139132, MAY 14, 1959.'

ALSO, IN B-134931, JANUARY 30, 1958, THE FOLLOWING STATEMENT WAS MADE:

"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.'

FINALLY, WITH RESPECT TO THE SUGGESTION THAT THE BID OF YOUR COMPANY SHOULD BE ACCEPTED BECAUSE OF A RESULTANT SAVINGS TO THE GOVERNMENT UNDER THE INVITATION, IN 37 COMP. GEN. 110, AT PAGE 112, IT WAS STATED:

"* * * INFORMALITIES WHICH PROPERLY MAY BE WAIVED ARE THOSE THAT DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, BUT MATERIAL CONDITIONS IMPOSED BY A BIDDER MAY NOT BE WAIVED AS AN INFORMALITY OR MINOR IRREGULARITY. SEE 20 COMP. GEN. 4. PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS, OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED, WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. CF. UNITED STATES V. BROOKRIDGE, 111 F.2D 461, 464, AND THE OPINION OF THE SUPREME COURT OF ILLINOIS IN CITY OF CHICAGO V. MOHR, 74 N.E. 1056.'

IN THE CIRCUMSTANCES, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE REJECTION OF YOUR BID.