B-148399, JUL. 9, 1962

B-148399, JUL. 9, 1962

TO WALTER H. EAGAN COMPANY, INC.:

FURTHER REFERENCE IS MADE TO LETTER DATED APRIL 5, 1962, FROM THE ABOVE- CAPTIONED LAW FIRM, WRITTEN IN YOUR BEHALF, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 600-419-62-S, ISSUED ON JANUARY 3, 1962, BY THE DEPARTMENT OF THE NAVY.

AN EXAMINATION OF THE RECORD NOW BEFORE THIS OFFICE INDICATES THAT BIDS RECEIVED IN RESPONSE TO INVITATION FOR BIDS NO. 600-419-62-S, ISSUED ON JANUARY 3, 1962, BY THE DEPARTMENT OF THE NAVY. COVERING TWENTY-TWO HORIZONTAL FRESH WATER PUMPS AND TWENTY SETS OF OUTBOARD REPAIR PARTS, WERE OPENED ON FEBRUARY 13, 1962, AT THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C. THE INVITATION CLEARLY STIPULATED THAT BIDS OFFERING LESS THAN SIXTY (60) DAYS FROM THE DATE OF OPENING FOR ACCEPTANCE BY THE GOVERNMENT WOULD BE CONSIDERED NONRESPONSIVE AND WOULD BE REJECTED. EIGHT BIDS WERE RECEIVED, AND ALL COMPLIED WITH THE ABOVE- MENTIONED STIPULATION EXCEPT THE ONE RECEIVED FROM YOUR COMPANY, WHICH PROVIDED FOR AN ACCEPTANCE PERIOD OF ONLY THIRTY DAYS. SUBSEQUENTLY, A REPRESENTATIVE OF YOUR FIRM ALLEGED THAT THE THIRTY-DAY ACCEPTANCE PERIOD WAS THE RESULT OF AN OVERSIGHT AND, ACCORDINGLY, REQUESTED PERMISSION TO CORRECT THE BID BY CHANGING THE OFFERED ACCEPTANCE PERIOD TO SIXTY DAYS. THE ADMINISTRATIVE OFFICE DECLINED THIS REQUEST FOR THE REASON THAT, IN ITS OPINION, THIS WAS NOT THE TYPE OF ERROR WHICH COULD BE CONSIDERED FOR CORRECTION BUT, INSTEAD, AMOUNTED TO A BID WHICH FAILED TO RESPOND TO THE TERMS OF THE INVITATION. IN REACHING THIS CONCLUSION THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, REPORTEDLY WAS AWARE OF OUR DECISION DATED JUNE 5, 1959, 38 COMP. GEN. 819, WHICH, IN QUOTING FROM A PRIOR DECISION DATED JANUARY 30, 1958,STATED, IN PERTINENT PART, AS FOLLOWS:

"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.'

WITH RESPECT TO THE MATTER OF NONRESPONSIVENESS OF A BID WHICH PROPOSES AN ACCEPTANCE PERIOD DIFFERENT FROM THAT CALLED FOR IN THE INVITATION, WE FREQUENTLY HAVE HELD THAT SUCH A DEPARTURE FROM THE INVITATION REQUIREMENTS COULD NOT BE ACCEPTED AS BEING RESPONSIVE. FOR EXAMPLE, IN A DECISION DATED OCTOBER 29, 1959, B-140978, WE STATED, IN PERTINENT PART, AS FOLLOWS:

"A DEVIATION IN THE TIME ALLOWED FOR ACCEPTANCE FROM THAT SPECIFICALLY SET FORTH IN AN INVITATION IS NOT BELIEVED TO BE A MINOR INFORMALITY OR IRREGULARITY WHICH MAY PROPERLY BE WAIVED IN THE INTEREST OF THE GOVERNMENT. IT IS REPORTED THAT THE 30 DAYS ACCEPTANCE PERIOD WAS DELIBERATELY SET FORTH IN THE INVITATION AS FROM PAST EXPERIENCE IT WAS CONSIDERED THAT 30 DAYS WOULD BE NECESSARY TO EFFECT AN AWARD IN THE PURCHASE OF LARGE QUANTITIES OF PAPER OF THE TYPE INVOLVED.

"UNDER THE SPECIFIC TERMS OF THE INVITATION, BIDDERS WERE REQUIRED TO ALLOW 30 DAYS FOR THE ACCEPTANCE OF THEIR BIDS AND IT IS OUR OPINION THAT TO ALLOW A BIDDER TO DECIDE AFTER THE OPENING OF THE BIDS WHETHER OR NOT HE WILL GRANT AN EXTENSION OF TIME FOR THE ACCEPTANCE OF HIS BID WOULD BE PREJUDICIAL TO OTHER BIDDERS WHO COMPLIED WITH THE PROVISION AND AGREED UNQUALIFIEDLY TO KEEP THEIR BIDS OPEN FOR 30 DAYS.'

SEE, ALSO, OUR DECISION DATED MAY 17, 1960, REPORTED IN 39 COMP. GEN. 779.

IN THE LIGHT OF THE FOREGOING, THEREFORE, IT MUST BE CONCLUDED THAT THE INCLUSION BY THE CONTRACTING OFFICER OF A PROVISION IN THE INVITATION PROVIDING FOR REJECTION OF BIDS OFFERING LESS THAN A MINIMUM ACCEPTANCE PERIOD OF 60 DAYS WAS REASONABLE, AND SINCE YOUR BID CONTAINED A 30-DAY ACCEPTANCE CLAUSE, THE CONTRACTING OFFICER PROPERLY REJECTED YOUR BID AS NONRESPONSIVE TO THE INVITATION.