B-151915, NOV. 18, 1963

B-151915: Nov 18, 1963

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TO TECHNOLOGY INSTRUMENT CORPORATION OF CALIFORNIA: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE REJECTION OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS NO. 09-603-63-742 ISSUED BY WRAMA. THERE WAS ADDED TO THE INVITATION ITEM 3. PARAGRAPH 24 TO THE IFB SCHEDULE IS HEREBY ADDED AS FOLLOWS: "24. VALUE ENGINEERING INCENTIVE (DEC 1962) - WRP FORM 71-1 IS ATTACHED HERETO AND AMENDED BY INSERTING 50 PERCENT IN BLANK SPACE PROVIDED IN PARAGRAPH (D) THEREOF.'. SIX BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THERE WERE CERTAIN OTHER AMBIGUITIES IN YOUR BID WITH RESPECT TO QUANTITY. DELIVERY SCHEDULE AND UPON INQUIRY BY THE CONTRACTING OFFICER THESE WERE CLEARED UP BY YOU ORALLY AND WERE CONFIRMED BY LETTER OF APRIL 26.

B-151915, NOV. 18, 1963

TO TECHNOLOGY INSTRUMENT CORPORATION OF CALIFORNIA:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE REJECTION OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS NO. 09-603-63-742 ISSUED BY WRAMA, ROBINS AIR FORCE BASE, GEORGIA.

THE INVITATION AS ISSUED ON FEBRUARY 1, 1963, REQUESTED BIDS ON A TOTAL OF 422 VARIABLE RESISTORS SET FORTH UNDER ITEMS 1 AND 2. BY AMENDMENT NO. 1 ISSUED ON FEBRUARY 12, 1963, THERE WAS ADDED TO THE INVITATION ITEM 3, COVERING 1204 RESISTORS OF THE SAME TYPE, MAKING A TOTAL OF 1626 RESISTORS. AMENDMENT NO. 1 ALSO ADDED PARAGRAPH 24 TO THE SCHEDULE OF THE INVITATION AS FOLLOWS:

"E. PARAGRAPH 24 TO THE IFB SCHEDULE IS HEREBY ADDED AS FOLLOWS:

"24. VALUE ENGINEERING INCENTIVE (DEC 1962) - WRP FORM 71-1 IS ATTACHED HERETO AND AMENDED BY INSERTING 50 PERCENT IN BLANK SPACE PROVIDED IN PARAGRAPH (D) THEREOF.'

SIX BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. YOU BID INCLUDED THE WORD "NONE" IN THE BLANK SPACE PROVIDED IN PARAGRAPH (D) OF THE PROVISION ENTITLED "VALUE ENGINEERING INCENTIVE" WITHOUT OTHERWISE DELETING OR ALTERING THE FIFTY PERCENT INSERTED IN THIS BLANK SPACE BY THE GOVERNMENT BY AMENDMENT NO. 1. THERE WERE CERTAIN OTHER AMBIGUITIES IN YOUR BID WITH RESPECT TO QUANTITY, F.O.B. POINT, AND DELIVERY SCHEDULE AND UPON INQUIRY BY THE CONTRACTING OFFICER THESE WERE CLEARED UP BY YOU ORALLY AND WERE CONFIRMED BY LETTER OF APRIL 26, 1963. QUESTION WAS ALSO RAISED AS TO THE WORD "NONE" INSERTED BY YOU IN PARAGRAPH (D) OF THE PROVISION ENTITLED "VALUE ENGINEERING INCENTIVE" AND IN THE LETTER OF APRIL 26, YOU ADVISED WITH RESPECT THERETO AS FOLLOWS:

"/4) THE VALUE ENGINEERING INCENTIVE CLAUSE ON WRP 71-1 FORM, WAS ACCEPTED BY TECHNOLOGY INSTRUMENT CORPORATION THOUGH THIS WAS NOT MADE CLEAR BY OUR FILL IN NOTE. THE AMOUNT REALIZED IN SAVINGS BY VALUE ENGINEERING WILL REDUCE THE CONTRACT BY 25 PERCENT OF SUCH RESULTED SAVINGS.'

IT IS CLEAR THAT BY INSERTING THE WORD "NONE" IN PARAGRAPH (D) OF WRP FORM 71-1 RATHER THAN FIFTY PERCENT OR LEAVING IT BLANK, IN WHICH EVENT FIFTY PERCENT WOULD HAVE BEEN INCLUDED BY REFERENCE AS PROVIDED IN AMENDMENT NO. 1, YOU TOOK EXCEPTION TO THE SPECIFICATION AND RESTRICTED THE GOVERNMENT'S RIGHT TO SHARE IN THE ESTIMATED SAVINGS FROM VALUE ENGINEERING CHANGE PROPOSALS CONTRARY TO THE EXPRESS REQUIREMENTS OF THE INVITATION. WHILE IT IS NOT MATERIAL AND CANNOT BE USED AS A BASIS TO MODIFY THE BID AS SUBMITTED SINCE IT WAS SUBMITTED AFTER THE OPENING OF THE BIDS, IT WAS STATED IN LETTER OF APRIL 26 THAT TWENTY-FIVE PERCENT OF ANY SAVINGS FROM VALUE ENGINEERING CHANGE PROPOSALS WOULD BE SHARED WITH THE GOVERNMENT. THE INVITATION SPECIFICALLY REQUIRED FIFTY PERCENT.

THE "VALUE ENGINEERING INCENTIVE" PROVISION WAS DELIBERATELY MADE A PART OF THE INVITATION AND GAVE TO THE GOVERNMENT A VALUABLE RIGHT WHICH IT WOULD NOT OTHERWISE HAVE. THUS IT MUST BE CONSIDERED THAT THE PROVISION WAS MATERIAL. IT CONSISTENTLY HAS BEEN HELD THAT A BID MAY BE CONSIDERED FOR AN AWARD ONLY IF IT COMPLIES IN ALL MATERIAL RESPECTS WITH THE TERMS OF THE INVITATION. SEE 17 COMP. GEN. 554, 39 ID. 780.

SINCE YOUR BID LIMITED THE RIGHT OF THE GOVERNMENT TO SHARE IN ANY SAVINGS FROM VALUE ENGINEERING CHANGE PROPOSALS, THE BID WAS NOT RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. THEREFORE, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE ACTION TAKEN AND YOUR PROTEST MUST BE