B-155810, FEB. 4, 1965

B-155810: Feb 4, 1965

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VICE PRESIDENT: REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED DECEMBER 18 AND 22. THERE WERE AMENDMENTS TO THE INVITATION. AMENDMENT 3 IS PARTICULARLY PERTINENT IN THAT IT CONTAINED A SUBSTANTIAL CHANGE ADDING TO THE ADVERTISED SPECIFICATIONS A REQUIREMENT THAT ONE ENGINE BE SUBJECTED TO ADDITIONAL TESTING. TABLE THE TOTAL BID PRICES RECEIVED ON THE PROCUREMENT WERE AS FOLLOWS: WAUKESHA MOTOR COMPANY $ 969. A TELEGRAM RECEIVED FROM WAUKESHA PRIOR TO THE OPENING OF BIDS CONFIRMED THE BID BUT DID NOT STATE A BID FOR ITEMS 12 OR 15 OR INDICATE THAT THE BID WAS BASED UPON COMPLYING WITH THE SPECIFICATION CHANGES SET FORTH IN AMENDMENT 3. THE INVITATION FOR BIDS STATES: "AWARD WILL BE MADE ONLY TO ONE BIDDER/OFFEROR FOR ALL UNITS OF ITEMS 1 THRU 13 AND 15 THRU 17 AND FOR ITEMS 14 AND 18 SUBJECT TO EXERCISE OF OPTION FOR REPAIR PARTS (E AND M).

B-155810, FEB. 4, 1965

TO MR. F. C. SCHULZE, VICE PRESIDENT:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED DECEMBER 18 AND 22, 1964, RESPECTIVELY, PROTESTING THE REJECTION OF THE LOW BID SUBMITTED BY YOUR COMPANY UNDER UNITED STATES NAVY PURCHASING OFFICE INVITATION FOR BIDS IFB-600-189-65-S.

THE SUBJECT INVITATION FOR BIDS SOLICITED PRICES ON 600BHP NONMAGNETIC DIESEL ENGINES AND RELATED MATERIAL AND SERVICES. THERE WERE AMENDMENTS TO THE INVITATION. AMENDMENT 3 IS PARTICULARLY PERTINENT IN THAT IT CONTAINED A SUBSTANTIAL CHANGE ADDING TO THE ADVERTISED SPECIFICATIONS A REQUIREMENT THAT ONE ENGINE BE SUBJECTED TO ADDITIONAL TESTING.

TABLE

THE TOTAL BID PRICES RECEIVED ON THE PROCUREMENT WERE AS FOLLOWS:

WAUKESHA MOTOR COMPANY $ 969,600

NAPCO INDUSTRIES, INCORPORATED 1,498,000

DETROIT DIESEL ENGINE DIVISION

GENERAL MOTORS CORPORATION 2,142,900

CONTINENTAL MOTORS CORPORATION 2,828,600

HOWEVER, WAUKESHA DID NOT BID UPON ITEM 12 WHICH CALLED FOR TWO 600BHP NONMAGNETIC DIESEL ENGINES AND ATTACHED ACCESSORIES NOR UPON ITEM 15 WHICH CALLED FOR 100 MAN-DAYS OF ENGINEERING SERVICES, NOR DID THE COMPANY ACKNOWLEDGE ANY OF THE AMENDMENTS TO THE INVITATION FOR BIDS. A TELEGRAM RECEIVED FROM WAUKESHA PRIOR TO THE OPENING OF BIDS CONFIRMED THE BID BUT DID NOT STATE A BID FOR ITEMS 12 OR 15 OR INDICATE THAT THE BID WAS BASED UPON COMPLYING WITH THE SPECIFICATION CHANGES SET FORTH IN AMENDMENT 3.

WITH REGARD TO THE BASIS FOR CONTRACT AWARD, THE INVITATION FOR BIDS STATES:

"AWARD WILL BE MADE ONLY TO ONE BIDDER/OFFEROR FOR ALL UNITS OF ITEMS 1 THRU 13 AND 15 THRU 17 AND FOR ITEMS 14 AND 18 SUBJECT TO EXERCISE OF OPTION FOR REPAIR PARTS (E AND M). BIDS/PROPOSALS THEREFORE MUST BE ON THE BASIS OF FURNISHING (I) ALL UNITS OF ITEMS 1 THRU 13 AND 15 THRU 17 AND (II) SUBJECT TO EXERCISE OF OPTION FOR REPAIR PARTS (E AND M) ITEMS 14 AND 18.'

IN YOUR LETTER OF DECEMBER 22 YOU STATE THAT THE FAILURE TO SUBMIT PRICES FOR ITEMS 12 AND 15 WAS DUE TO AN "ERROR OF OVERSIGHT" AND YOU INDICATE THAT YOU BELIEVE THAT ALL THAT IS INVOLVED IS A MINOR DEVIATION. CANNOT AGREE. IT HAS BEEN WELL ESTABLISHED BY DECISIONS OF OUR OFFICE THAT A BID UNACCOMPANIED BY AN EXECUTED AMENDMENT TO THE INVITATION WHICH AFFECTS THE SUBSTANCE OF THE CONTRACT TO BE PERFORMED IS A NONRESPONSIVE BID WHICH IS REQUIRED TO BE REJECTED WITHOUT FURTHER CONSIDERATION. SEE FOR EXAMPLE 30 COMP. GEN. 179; 33 ID. 508; 37 ID. 785; AND 40 ID. 126. MOREOVER, OUR OFFICE HAS STATED THAT THE OMISSION OF A PRICE IN A BID FOR AN ITEM WHICH BIDDERS WERE ADVISED WOULD BE INCLUDED IN THE AWARDED CONTRACT CANNOT BE CONSIDERED A MINOR INFORMALITY WHICH MAY BE WAIVED BY THE CONTRACTING OFFICER BECAUSE IT GOES TO THE SUBSTANCE OF THE CONTRACT TO BE AWARDED. B-141395, DECEMBER 15, 1959. IN THAT CONNECTION, OUR OFFICE HAS STATED IN 38 COMP. GEN. 819, 821:

"IT IS PROBABLE THAT THE MAJORITY OF UNRESPONSIVE BIDS ARE DUE TO OVERSIGHT OR ERROR, SUCH AS THE FAILURE TO QUOTE A PRICE * * *. 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.'

IN THE CIRCUMSTANCES, IT APPEARS THAT THE WAUKESHA BID PROPERLY WAS REJECTED. HOWEVER, BECAUSE OF THE GREAT DIFFERENCE BETWEEN THE WAUKESHA AND THE NEXT LOW BID, APPROXIMATING $400,000, IT IS OUR BELIEF THAT CONSIDERATION SHOULD BE GIVEN TO READVERTISEMENT OF THE PROCUREMENT. RECOMMENDATION FOR SUCH CONSIDERATION IS BEING MADE TO THE CONTRACTING AGENCY TODAY.