B-160474, FEB. 27, 1967

B-160474: Feb 27, 1967

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TO METAL-NAX SALES DIVISION: REFERENCE IS MADE TO YOUR TELEFAX AND LETTER OF NOVEMBER 29. THE BIDS WERE OPENED ON AUGUST 29. YOUR BID IN THE AMOUNT OF $302.83 PER UNIT WAS THE LOWEST RECEIVED. THE BID OF STAR MACHINE AND TOOL COMPANY IN THE AMOUNT OF $368.46 PER UNIT WAS THE NEXT LOW BID. THERE WAS TYPED "METAL NAX SALES DIVISION MODEL NO. 501.'. STAPLED TO THE BACK OF THE BID WAS A SHEET. YOUR BID WAS INTERPRETED AS OFFERING YOUR MODEL 501. AS THE INFORMATION SUBMITTED WITH THE BID WAS NOT SUFFICIENT FOR THE PROCUREMENT OFFICE TO ASCERTAIN WHETHER THE MODEL WOULD SATISFY THE SPECIFICATIONS REQUIREMENTS. YOU WERE CONTACTED TO ASCERTAIN WHAT YOU PROPOSED TO OFFER. UPON FURTHER CONSIDERATION OF THE MATTER THE ADMINISTRATIVE OFFICE DECIDED THAT YOUR BID WAS RENDERED NONRESPONSIVE BY THE DESIGNATION OF YOUR MODEL IN THE BID.

B-160474, FEB. 27, 1967

TO METAL-NAX SALES DIVISION:

REFERENCE IS MADE TO YOUR TELEFAX AND LETTER OF NOVEMBER 29, 1966, AND JANUARY 6, 1967, RESPECTIVELY, PROTESTING AN AWARD TO STAR MACHINE AND TOOL COMPANY UNDER ARMY INVITATION FOR BIDS DAAG11-67-B-0032.

THE INVITATION ISSUED AUGUST 4, 1966, SOLICITED BIDS ON A MINIMUM OF 148, AND UP TO 592, BRAKE AND CLUTCH RELINERS, WITH CAPACITOR-START ELECTRIC MOTORS, IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-R 13495C, TYPE I.

THREE COMPANIES SUBMITTED BIDS. THE BIDS WERE OPENED ON AUGUST 29, 1966. YOUR BID IN THE AMOUNT OF $302.83 PER UNIT WAS THE LOWEST RECEIVED. THE BID OF STAR MACHINE AND TOOL COMPANY IN THE AMOUNT OF $368.46 PER UNIT WAS THE NEXT LOW BID.

THE INVITATION DID NOT REQUEST BIDDERS TO FURNISH MODEL INFORMATION OR LITERATURE WITH THEIR BIDS. HOWEVER, IN TWO PLACES IN YOUR BID, BETWEEN THE ITEM DESCRIPTION AND THE BID PRICE, THERE WAS TYPED "METAL NAX SALES DIVISION MODEL NO. 501.' ALSO, STAPLED TO THE BACK OF THE BID WAS A SHEET, APPARENTLY TAKEN FROM A SALES CATALOG, WHICH DESCRIBED THE METAL- NAX "MODEL 501 HEAVY DUTY COMBINATION BRAKE RELINER.'

YOUR BID WAS INTERPRETED AS OFFERING YOUR MODEL 501. AS THE INFORMATION SUBMITTED WITH THE BID WAS NOT SUFFICIENT FOR THE PROCUREMENT OFFICE TO ASCERTAIN WHETHER THE MODEL WOULD SATISFY THE SPECIFICATIONS REQUIREMENTS, YOU WERE CONTACTED TO ASCERTAIN WHAT YOU PROPOSED TO OFFER. YOU STATED THAT YOUR MODEL 501 WOULD BE MODIFIED TO CONFORM TO THE INVITATION WITHOUT EXCEPTION. YOU ALSO WROTE TO THE CONTRACTING OFFICER ON SEPTEMBER 12 AND 15, 1966, TO THE EFFECT THAT YOU FOUND YOUR QUOTATION TO BE THE SAME AS THE GOVERNMENT SPECIFICATION, THAT REFERENCE TO YOUR MODEL 501 SHOULD BE REMOVED FROM THE BID, AND THAT YOU WOULD MANUFACTURE RIVETING MACHINES TO CONFORM TO THE APPLICABLE SPECIFICATIONS.

UPON FURTHER CONSIDERATION OF THE MATTER THE ADMINISTRATIVE OFFICE DECIDED THAT YOUR BID WAS RENDERED NONRESPONSIVE BY THE DESIGNATION OF YOUR MODEL IN THE BID. ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2 404.2 (D) (V) WAS RELIED UPON IN REACHING THIS CONCLUSION. THAT SECTION PROVIDES THAT BIDS SHALL BE REJECTED WHICH REQUIRE THE GOVERNMENT TO DETERMINE THAT THE BIDDER'S PRODUCT MEETS GOVERNMENT SPECIFICATIONS. YOUR BID WAS THEREFORE REJECTED AND AN AWARD WAS MADE TO STAR MACHINE AND TOOL COMPANY ON NOVEMBER 25,1966. AN ORDER FOR THE DELIVERY OF 148 UNITS WAS ISSUED TO THE CONTRACTOR ON THE SAME DATE.

WE BELIEVE THE ADMINISTRATIVE AGENCY ACTED CORRECTLY IN REJECTING YOUR BID. YOU DESIGNATED YOUR MODEL IN THE BID FURNISHED LITERATURE PERTAINING TO THE MODEL WITH THE BID. ASPR 2-202.5 (F) PROVIDES THAT IF THE FURNISHING OF DESCRIPTIVE LITERATURE IS NOT REQUIRED BY THE INVITATION FOR BIDS, BUT SUCH LITERATURE IS FURNISHED WITH A BID, IT WILL NOT BE CONSIDERED AS QUALIFYING THE BID AND WILL BE DISREGARDED, UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPER THAT IT WAS THE INTENTION OF THE BIDDER TO QUALIFY THE BID. THE CIRCUMSTANCES IN THIS CASE WARRANT THE LATTER CONCLUSION. THE LITERATURE FURNISHED WAS NOT SUFFICIENT FOR THE AGENCY TO READILY ASCERTAIN THAT THE MODEL WOULD MEET THE MILITARY SPECIFICATION REQUIREMENTS. THE ADMINISTRATIVE OFFICE THEREFORE COULD NOT ASCERTAIN FROM YOUR BID AND THE LITERATURE FURNISHED THAT THE MODEL WAS RESPONSIVE TO AND WOULD MEET THE GOVERNMENT'S SPECIFICATIONS. OUR OFFICE HAS HELD THAT A NONRESPONSIVE BID MAY NOT BE CONSIDERED FOR CORRECTION REGARDLESS OF THE CIRCUMSTANCES, SINCE TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY ALTERATION OF HIS BID AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW OFFER. 38 COMP. GEN. 819; 40 ID. 132, 134; 40 ID. 432, 435. IN THIS REGARD, IT SHOULD BE UNDERSTOOD THAT A BID SUBMITTED UNDER AN INVITATION ISSUED BY A GOVERNMENT AGENCY CONSTITUTES AN OFFER AND THE AWARD BY THE AGENCY IS AN ACCEPTANCE OF THE OFFER WHICH EFFECTS A BINDING AGREEMENT BETWEEN THE BIDDER AND THE GOVERNMENT. WHERE A BIDDER DOES NOT PROPOSE TO COMPLY WITH THE PROVISIONS OF THE INVITATION FOR BIDS, THE GOVERNMENT CANNOT, WITHOUT THE BIDDER'S CONSENT, ACCEPT THE OFFER AND REQUIRE PERFORMANCE IN ACCORDANCE WITH THE INVITATION. TO GIVE THE BIDDER AN OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY AGREEING TO ABIDE BY THE INVITATION OR TO PRECLUDE AWARD BY INSISTING ON ADHERENCE TO ITS OFFER, PROVIDES AN UNFAIR ADVANTAGE OVER THOSE OTHER BIDDERS WHOSE BIDS CONFORMED IN EVERY WAY TO THE INVITATION AND WERE LEFT WITHOUT OPTIONS. SUCH AN ADVANTAGE IS CONTRARY TO THE PURPOSE OF THE STATUTES GOVERNING PUBLIC PROCUREMENT. B-128645, SEPTEMBER 28, 1956; B- 131796, JUNE 14, 1957; AND B-140412, SEPTEMBER 30, 1959.

MOREOVER, IN DECISION B-149684 OF NOVEMBER 16, 1962, IT WAS STATED THAT THE PROVISIONS OF ASPR 2-404.2 (D) (V) WERE DESIGNED TO APPLY TO A SITUATION WHERE, IN THE FACE OF A COMPLETE AND DEFINITE SPECIFICATION, A BIDDER OFFERS A PARTICULAR ARTICLE BY BRAND NAME OR MODEL NUMBER OR OTHER GENERAL DEFINITION WITHOUT EITHER REPRESENTING THAT IT DOES MEET THE SPECIFICATION OR OTHERWISE OBLIGATING HIMSELF TO FURNISH AN ARTICLE WHICH WILL. SEE ALSO B-155584, JUNE 29, 1965, WHEREIN A BIDDER DESIGNATED A MODEL NUMBER IN ITS BID WITHOUT FURNISHING DATA INDICATING THE MODEL WOULD MEET GOVERNMENT SPECIFICATIONS. OUR OFFICE HELD, CITING B-149684, SUPRA, THAT THERE WAS NO LEGAL BASIS TO QUESTION THE REJECTION OF THAT BID AS NONRESPONSIVE.

FOR THE FOREGOING REASONS, WE FIND NO LEGAL BASIS TO QUESTION THE AWARD TO STAR MACHINE AND TOOL COMPANY.