B-150168, NOV. 13, 1962

B-150168, NOV. 13, 1962

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF OCTOBER 22, 1962, FILE IFB-600-54-63 S, SER 159-33, FROM THE CHIEF, BUREAU OF SHIPS, REQUESTING A DECISION AS TO WHETHER AN AWARD OF A CONTRACT CAN PROPERLY BE MADE TO WEIL PUMP COMPANY UNDER INVITATION FOR BIDS NO. IFB-600-54-63'S ISSUED BY THE U.S. NAVY PURCHASING OFFICE FOR FURNISHING CERTAIN VERTICAL FIRE AND SANITARY PUMPS, PARTS AND DATA.

THE INVITATION SOLICITED BIDS--- TO BE OPENED AUGUST 17, 1962--- FOR FURNISHING 10 ITEMS OF EQUIPMENT AND DATA. THE INVITATION PROVIDED THAT AWARD WOULD BE MADE TO ONE BIDDER FOR ALL ITEMS AS SPECIFIED, AND FOR CERTAIN REPAIR PARTS AND QUANTITIES OF CERTAIN ITEMS, FOR WHICH AN OPTION MIGHT BE EXERCISED AT TIME OF AWARD. THE INVITATION PROVIDED FURTHER THAT BIDS MUST BE BASED ON FURNISHING ALL ITEMS. ON PAGE 9 OF THE INVITATION UNDER THE HEADING "PRICING OF DATA" APPEARED AN ADMONITION TO PROSPECTIVE BIDDERS THAT A SEPARATE PRICE MUST BE STATED FOR EACH LINE ITEM SETTING FORTH A REQUIREMENT FOR DATA (DRAWINGS, MANUALS, ET CETERA) UNLESS OTHERWISE STATED IN THE SCHEDULE AND THAT FAILURE TO COMPLY WITH THIS REQUIREMENT MIGHT RESULT IN REJECTION OF A BID AS NONRESPONSIVE.

FOUR BIDS WERE RECEIVED. THE BIDS, EXCLUSIVE OF REPAIR PARTS AND OTHER OPTION EQUIPMENT ITEMS, WERE IN THE AMOUNTS OF $21,276, $23,510, $26,337 AND $36,335. THE LOWEST BID WAS THAT SUBMITTED BY WEIL PUMP COMPANY. UNDER ITEM 8 "PROVISIONING TECHNICAL DOCUMENTATION" WEIL HAD LEFT THE SPACE FOR THE BID PRICE BLANK. THE SECOND LOW BIDDER INSERTED THE FIGURE ZERO (0) OPPOSITE THAT ITEM. THE THIRD LOW BIDDER INCLUDED A STATEMENT FOLLOWING DATA ITEMS THAT THE PRICE OF ALL SUCH ITEMS WAS INCLUDED IN THE EQUIPMENT PRICE. THE FOURTH BIDDER BID ON ALL ITEMS AND BID A PRICE OF $250 FOR ITEM 8.

SUBSEQUENT TO THE BID OPENING WEIL (THE LOW BIDDER) SUBMITTED A LETTER STATING THAT THERE WOULD BE NO CHARGE FOR ITEM 8, THAT THIS STATEMENT WAS INADVERTENTLY OMITTED FROM ITS BID AND THAT AN EXAMINATION OF PREVIOUS BIDS WOULD REVEAL THAT THIS ITEM WAS ALWAYS MARKED "NO CHARGE.' IT IS STATED THAT AN EXAMINATION OF TWO RECENT BIDS INDICATED THAT THE INVITATION WAS SET UP IN A DIFFERENT MANNER AND THAT BIDDERS WERE NOT REQUIRED TO BID SEPARATE PRICES FOR DATA ITEMS, BUT STATED THAT THE PRICE OF SUCH ITEMS SHOULD BE INCLUDED IN THE PRICE OF THE EQUIPMENT ITEMS. THESE BIDS RESULTED IN AWARDS TO WEIL. IT IS STATED THAT IT HAD BEEN THE PREVIOUS PRACTICE TO STATE IN INVITATIONS FOR BIDS THAT THE PRICE OF DATA ITEMS WOULD BE INCLUDED IN THE PRICE OF THE MAJOR EQUIPMENT CALLED FOR BY THE INVITATION UNTIL RECENTLY WHEN THE REQUIREMENT FOR SEPARATE PRICING FOR ALL DATA ITEMS WAS INCLUDED IN ALL INVITATIONS FOR BIDS.

IT IS POINTED OUT THAT ITEM 8 ON PAGE 8 OF THE INVITATION IS PLACED IN SUCH A POSITION ON THE PAGE THAT WITHOUT A CAREFUL PERUSAL BY THE BIDDER HE MIGHT HAVE BEEN MISLED INTO BELIEVING THAT THE PRICE OF THAT ITEM WAS TO BE INCLUDED IN THE PRICE OF THE EQUIPMENT UNDER ITEM 1, AS WAS THE PRICE OF ITEM 7. ALSO, IT IS POINTED OUT THAT NO PROTEST OR INQUIRY FROM ANY OTHER BIDDER HAS BEEN RECEIVED WITH RESPECT TO WEIL'S FAILURE TO BID ON ITEM 8 AND IT IS ANTICIPATED THAT NONE WILL BE FORTHCOMING. IT IS POINTED OUT FURTHER THAT EVEN HAD WEIL BID AS MUCH AS $250, THE HIGHEST BIDDER'S PRICE FOR ITEM 8, ITS TOTAL BID WOULD STILL BE $1,984 LESS THAN THE SECOND LOW BID. ADVICE IS REQUESTED AS TO WHETHER WEIL'S FAILURE TO BID ON ITEM 8 CONSTITUTES A MINOR INFORMALITY WHICH MAY PROPERLY BE WAIVED, OR A MISTAKE WHICH MAY BE CORRECTED, OR WHETHER SUCH FAILURE REQUIRES THAT THE BID BE REJECTED.

WE HAVE REPEATEDLY HELD THAT DEVIATIONS IN A BID FROM THE ADVERTISED SPECIFICATIONS RELATIVE TO FACTORS AFFECTING PRICE GO TO THE SUBSTANCE OF THE BID SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS AND THEREFORE MAY NOT BE WAIVED AS MERE INFORMALITIES. 30 COMP. GEN. 179; 36 ID. 181; 38 ID. 98; ID. 612; ID. 819; ID. 876. ALTHOUGH ITEM 8 WAS PLACED IN SUCH A POSITION ON THE INVITATION THAT WEIL MIGHT HAVE BEEN MISLED INTO BELIEVING THAT THE PRICE OF THAT ITEM WAS TO BE INCLUDED IN THE PRICE OF THE EQUIPMENT UNDER ITEM 1 AS WAS THE PRICE OF ITEM 7, THE FACT THAT THE THREE OTHER BIDS CONTAINED A PRICE OR STATEMENT AS TO THE PRICE FOR ITEM 8 DEMONSTRATES THAT THE INVITATION WAS NOT TOO UNCLEAR. THE OMISSION OF A BID PRICE ON AN ITEM MIGHT INDICATE THAT THE BIDDER DOES NOT INTEND TO FURNISH THIS ITEM AND TO PERMIT THE BIDDER WHO FAILED TO BID ON A CERTAIN ITEM TO INSERT A PRICE ON THAT ITEM OR EVEN TO SHOW THAT HE HAD INCLUDED THE PRICE ON THAT ITEM IN ANOTHER ITEM IS TANTAMOUNT TO PERMITTING HIM TO SUBMIT A NEW BID AFTER THE PRICES OF THE OTHER BIDDERS HAD BEEN ASCERTAINED. THE BID AS SUBMITTED BY WEIL MUST BE REGARDED AS NONRESPONSIVE. WE HAVE HELD THAT A BID WHICH IS NOT RESPONSIVE TO AN INVITATION MAY NOT BE CORRECTED TO MAKE IT RESPONSIVE. SEE 38 COMP. GEN. 819.

ACCORDINGLY, THE BID SUBMITTED BY WEIL SHOULD BE DISREGARDED IN MAKING AWARD.