B-155278, NOV. 5, 1964

B-155278, NOV. 5, 1964

TO ALDON O. WARD, CONTRACTOR:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 25, 1964, PROTESTING AWARD OF CONTRACT TO ANY BIDDER OTHER THAN YOUR COMPANY UNDER INVITATION FOR BIDS NO. 01-601-65-31, ISSUED BY BROOKLEY AIR FORCE BASE, ALABAMA.

THE SUBJECT INVITATION FOR BIDS FOR THE REPAIR OF CERTAIN RESTROOMS AND REPLACING OF AIR CONDITIONING UNITS AT BROOKLEY AIR FORCE BASE, ALABAMA, WAS ISSUED ON AUGUST 21, 1964, AND SCHEDULED TO BE OPENED ON SEPTEMBER 21, 1964. TWO AMENDMENTS WERE ISSUED ON SEPTEMBER 8 AND 11, 1964. ITEM NO. 6 OF THE INVITATION REQUIRED THAT THE WORK COMMENCE WITHIN 10 CALENDAR DAYS AFTER RECEIPT OF NOTICE TO PROCEED AND BE COMPLETED WITHIN 120 CALENDAR DAYS AFTER RECEIPT OF THE NOTICE TO PROCEED. IN THIS CONNECTION, ITEM NO. 6 CONTAINED THE ADMONITION THAT:

"BIDDERS ARE CAUTIONED TO CONSIDER CAREFULLY THE GOVERNMENT'S REQUIRED CONSTRUCTION SCHEDULE, AS BIDS SPECIFYING STARTING AND COMPLETION IN EXCESS OF THE TIME REQUIRED WILL BE REJECTED.'

NOTWITHSTANDING SUCH ADMONITION, WHEN BIDS WERE OPENED ON SEPTEMBER 21, 1964, YOUR BID WAS QUALIFIED BY THE INSERTION OF 130 DAYS PERFORMANCE TIME IN LIEU OF THE REQUIRED 120 DAYS. YOU STATE THAT THE FIGURE 130 WAS INSERTED THROUGH INADVERTENCE AND A TYPING ERROR, AND ON SUCH BASIS YOU FEEL THAT YOUR BID SHOULD NOT HAVE BEEN REJECTED AND AWARD OF CONTRACT SHOULD BE MADE TO YOU.

SECTION 2304/A) IN TITLE 10 OF THE U.S.C. (U.S.C.) PROVIDES AS A GENERAL RULE THAT CONTRACTS FOR SUPPLIES FOR THE MILITARY DEPARTMENTS OF THE GOVERNMENT BE AWARDED FOLLOWING FORMAL ADVERTISING FOR BIDS. IN ADDITION, 10 U.S.C. 2305/C) REQUIRES THAT UNDER FORMAL ADVERTISING PROCEDURE AWARD BE MADE TO THAT RESPONSIBLE BIDDER "WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES.' THEREFORE, BY STATUTE, A CONTRACTING OFFICER PROCURING FOR A MILITARY DEPARTMENT BY FORMAL ADVERTISING CANNOT PROPERLY ENTER INTO A CONTRACT WITH A LOW BIDDER WHOSE BID CONTAINS PROVISIONS NOT INCLUDED OR CONTEMPLATED IN THE TERMS OF THE INVITATION FOR BIDS. THAT IS NOT TO SAY THAT A CONTRACTING OFFICER MAY NOT WAIVE INFORMALITIES IN BIDS, BUT HIS AUTHORITY DOES NOT EXTEND TO WAIVER OF MATERIAL VARIATIONS TO THE TERMS AND CONDITIONS OF THE INVITATION. 30 COMP. GEN. 179. AMONG PARTICULAR DEPARTURES FROM THE TERMS OF THE INVITATION WHICH HAVE BEEN REGARDED AS MATERIAL HAVE BEEN DIFFERENCES IN THE TERMS OF DELIVERY. 36 COMP. GEN. 181. MOREOVER, IF A PROVISION IS MATERIAL, A BIDDER CANNOT CHANGE IT SUBSEQUENT TO THE OPENING OF BIDS. 17 COMP. GEN. 554.

IN THE PRESENT CASE, YOU, AS WELL AS ALL OTHER BIDDERS, WERE CAUTIONED TO CONSIDER CAREFULLY THE GOVERNMENT'S REQUIRED CONSTRUCTION SCHEDULE, AND YOU WERE WARNED THAT BIDS SPECIFYING STARTING AND COMPLETION IN EXCESS OF THE TIME REQUIRED WOULD BE REJECTED. IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS TO OBJECT TO REJECTION OF YOUR BID AS BEING NONRESPONSIVE AND YOUR PROTEST IS DENIED.