B-154261, JUL. 31, 1964

B-154261, JUL. 31, 1964

TO SELLERS, CONNER AND CUNEO:

BY LETTER DATED JUNE 26, 1964, YOU REQUESTED RECONSIDERATION OF OUR DECISION OF JUNE 18, 1964, WHEREIN WE DENIED YOUR PROTEST AGAINST THE CANCELLATION OF INVITATION FOR BIDS NO. 251/338/64 AND THE ADMINISTRATIVE DETERMINATION THAT THE LOW BID OF MIDWESTERN INSTRUMENTS, INC., WAS NONRESPONSIVE TO THE ADVERTISED REQUIREMENTS.

IT IS YOUR BELIEF THAT MIDWESTERN'S USE OF THE TERM "ARO" (AFTER RECEIPT OF ORDER) RATHER THAN ,ADC" (AFTER DATE OF CONTRACT) IN ITS BID COVERING THE DELIVERY OF ENVIRONMENTAL AND TEST DATA WAS AN IMMATERIAL DEVIATION WHICH COULD HAVE BEEN WAIVED, APPARENTLY UNDER ASPR 2-405. ONE REASON FOR THIS BELIEF IS STATED TO BE "THE DIFFERENCE IN DELIVERY TIME FOR THIS SECONDARY ITEM WOULD AT THE MOST BE TWO DAYS," AND THAT "THERE IS NO SHOWING BY THE NAVY OR CONSIDERATION IN YOUR OPINION THAT TWO DAYS WAS AN ESSENTIAL ELEMENT IN THE DELIVERY OF THIS ITEM.'

THE TIME OF DELIVERY CLAUSE, WHICH IS DISPOSITIVE OF YOUR CONTENTION, WAS FULLY QUOTED IN OUR JUNE 18 DECISION AND WILL NOT BE REPEATED HERE. HOWEVER, CONTENTIONS SIMILAR TO THOSE ADVANCED BY YOU HAD BEEN CONSIDERED BY OUR OFFICE PREVIOUSLY AND WHAT WAS HELD IN THOSE CASES IS EQUALLY APPLICABLE HERE. IN 38 COMP. GEN. 876 (B-139521, JUNE 25, 1959), ALSO CITED IN OUR JUNE 18 DECISION, IT WAS HELD (QUOTING SYLLABUS):

"A DELIVERY SCHEDULE OFFERED IN TERMS OF A SPECIFIED TIME "AFTER RECEIPT OF CONTRACT" WHEN THE INVITATION REQUIRES DELIVERY WITHIN A SPECIFIED TIME "AFTER DATE OF CONTRACT" MAY NOT BE REGARDED AS IN COMPLIANCE WITH THE INVITATION, ON THE BASIS THAT THE MAILS MUST BE REGARDED AS THE AGENT OF THE BIDDER, IN VIEW OF THE DISTINCTION BETWEEN "MAILING" AND "RECEIPT" AND THE RULE THAT AN OFFER IS NOT ACCOMPLISHED UNTIL RECEIVED.

"UNDER AN INVITATION WHICH REQUIRES DELIVERY WITHIN A SPECIFIED TIME "AFTER DATE OF CONTRACT," TIME MUST BE REGARDED AS OF THE ESSENCE OF THE CONTRACT, AND A BID WHICH OFFERS DELIVERY WITHIN A STATED TIME "AFTER RECEIPT OF THE CONTRACT" DEVIATES FROM THE INVITATION IN A MATERIAL RESPECT EVEN THOUGH THE MAILING TIME IS INSIGNIFICANT WHEN COMPARED TO THE TIME FOR SCHEDULED DELIVERY; AND, THEREFORE, THE BID MUST BE REJECTED AS NONRESPONSIVE TO THE INVITATION.'

IN THAT DECISION IT WAS STATED:

"* * * SINCE THE MAILING TIME IS INSIGNIFICANT AS COMPARED TO THE SCHEDULE REQUIREMENT OF DELIVERIES WITHIN 10 TO 32 WEEKS YOU CONCLUDE THAT THE DIFFERENCE BETWEEN THE REQUIRED DELIVERY SCHEDULE AND THAT OFFERED IN YOUR BID SHOULD BE WAIVED BY THE CONTRACTING OFFICER AS A MINOR INFORMALITY ESPECIALLY IN VIEW OF THE MORE THAN $40,000 DIFFERENCE BETWEEN YOUR BID AND THAT OF THE NEXT HIGHER BIDDER. WHERE THE INVITATION ON ITS FACE REQUIRES DELIVERY WITHIN A STATED PERIOD, TIME MUST BE REGARDED AS OF THE ESSENCE OF THE CONTRACT EVEN IF THE INVITATION DOES NOT EXPRESSLY SO STATE. 36 COMP. GEN. 181. FAILURE OF A BID TO CONFORM TO THE REQUIRED DELIVERY SCHEDULE MUST BE REGARDED AS MATERIAL DEVIATION WHICH CANNOT BE WAIVED AND WHICH REQUIRES REJECTION OF SUCH BID. 34 COMP. GEN. 24.

"YOU NEXT ALLEGE THAT THE USE OF THE TERM "AFTER RECEIPT OF CONTRACT" IN YOUR BID WAS AN ERROR WHICH SHOULD BE SUBJECT TO CORRECTION UNDER THE RULES GOVERNING MISTAKES IN BID. 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. SINCE YOUR BID, AS INDICATED ABOVE, IS NOT RESPONSIVE IN THE FORM SUBMITTED, IT MAY NOT BE CONSIDERED FOR CORRECTION.'

SEE, ALSO, 34 COMP. GEN. 24; ID. 82; ID. 119; 36 ID. 181; 37 ID. 110; 39 ID. 259; B-144139, NOVEMBER 3, 1960.

IT IS ALSO ARGUED THAT, BASED ON SUBSEQUENT EVENTS, THE RELIABILITY PROGRAM WAS NOT ESSENTIAL TO THE PROCUREMENT OF THE END ITEM ADVERTISED. HOWEVER, ON THE RECORD BEFORE US, WE FIND NO BASIS TO CONCLUDE THAT THE RELIABILITY PROGRAM WAS MINOR IN RELATION TO THE PROCUREMENT OF THE END ITEM. AS STATED IN OUR PREVIOUS DECISION, THE MATERIALITY OF THE PROGRAM IS MANIFESTED BY THE LANGUAGE OF THE INVITATION ITSELF, THAT IS,"TO ASSURE THAT THE OSCILLOGRAPHS FURNISHED ARE OF HIGH RELIABILITY.' WE ARE NOT AWARE OF ANY BASIS UPON WHICH THIS OFFICE MAY RELEGATE AN INTEGRAL PART OF AN ADVERTISED PROCUREMENT TO ONE OF MINOR INSIGNIFICANCE ON THE GROUND ADVANCED THAT SUBSEQUENT EVENTS MAY HAVE RENDERED IT NONESSENTIAL.

THE NAVY IN ITS REPORT TO US ADMITTED THAT THE NOTICE OF CANCELLATION WAS ERRONEOUSLY ISSUED ON THE BASIS THAT THE SPECIFICATIONS WERE TO BE AMENDED AT A LATER DATE. HOWEVER, THIS NOTICE WAS SUBSEQUENTLY CORRECTED AND ALL BIDDERS WERE NOTIFIED THAT THE INVITATION HAD BEEN CANCELED SINCE NO RESPONSIVE BIDS HAD BEEN RECEIVED. WE ARE FURTHER ADVISED THAT THE CONTRACTING OFFICER CONTACTED BOTH BIDDERS AND THE REASONS FOR THE REJECTION OF THEIR BIDS WERE THOROUGHLY DISCUSSED. SINCE THE ONLY TWO BIDS SUBMITTED WERE NONRESPONSIVE, THE CONTRACTING OFFICER HAD NO ALTERNATIVE BUT TO CANCEL THE INVITATION AS NO AWARD THEREUNDER LEGALLY COULD HAVE BEEN MADE. 10 U.S.C. 2305 (C). WE BELIEVE THAT THE MATERIALITY OF TERMS AND CONDITIONS IN AN INVITATION MUST, OF NECESSITY, BE DETERMINED AS OF THE TIME BIDS ARE PUBLICLY OPENED, OTHERWISE THERE IS LACKING THE EQUALITY OF COMPETITION IMPOSED BY LAW. SUBSEQUENT EVENTS WHICH MAY OR MAY NOT AFFECT THE MATERIALITY OF CERTAIN ADVERTISED REQUIREMENTS THEREFORE WERE NOT RELEVANT TO THE CONSIDERATION OF THE INSTANT PROTEST AND WE DO NOT BELIEVE IT NECESSARY OR REQUIRED TO REVIEW THE MATERIALITY OF THE RELIABILITY PROGRAM BECAUSE OF THE ALLEGED SUBSEQUENT NONINTEREST OF THE NAVY IN THE PROGRAM.

IT IS FURTHER CONTENDED THAT THE RULE (38 COMP. GEN. 876, 878) THAT NONRESPONSIVE BIDS MAY NOT BE CORRECTED UNDER THE PRINCIPLES RESPECTING MISTAKES IN BID IS NOT APPLICABLE TO A CASE WHERE THE ERROR IS CLEAR ON THE FACE OF THE BID. WE HAVE CONSISTENTLY APPLIED THIS RULE WHETHER THE ERROR BE APPARENT OR NOT. IN B-150611 DATED FEBRUARY 25, 1963, WE HELD:

"WITH RESPECT TO THE CONTENTION THAT THE 30 DAYS' ACCEPTANCE TIME WAS INSERTED IN THE BID THROUGH ERROR, IT HAS BEEN HELD 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, AND THAT TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PROVISION AFTER THE BID OPENING WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW OFFER. 38 COMP. GEN. 819; 40 ID. 432.'

WE FIND NO SUBSTANTIAL DIFFERENCE BETWEEN THAT CASE AND THE ONE DISCUSSED HERE. OUR DECISION B-147566 DATED DECEMBER 21, 1961, WHICH IS CITED BY YOU IN SUPPORT OF YOUR THEORY THAT APPARENT ERRORS ARE CORRECTABLE EVEN THOUGH THEY CONSTITUTE DEVIATIONS FROM THE ADVERTISED SPECIFICATIONS, DOES NOT CONSTITUTE AN EXCEPTION TO THE RULE ABOVE STATED AND AFFORDS NO BASIS FOR A DEPARTURE FROM THAT RULE. THAT DECISION DOES NOT HOLD THAT A MISTAKE, IF APPARENT ON THE FACE OF THE BID, MAY BE CORRECTED EVEN IF TO DO SO WOULD RENDER A NONRESPONSIVE BID RESPONSIVE BECAUSE OF THE CORRECTION ALONE.