B-161234, MAY 1, 1967

B-161234: May 1, 1967

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CONNER AND CUNEO: REFERENCE IS MADE TO YOUR LETTER OF APRIL 8. THE INVITATION CONTAINED ON PAGE 13 THEREOF THE FOLLOWING PERTINENT PROVISIONS WITH RESPECT TO DELIVERY: "DELIVERY IS REQUIRED TO BE MADE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE: CHART: "ITEM NO. QUANTITY 1 1 JOB DURING SHIPYARD AVAILABILITY (OVERHAUL) PERIOD COMMENCING 26 JULY 1967 COMPLETING 12 SEPT 1967 2 1 JOB COMMENCING 18 MAY 1967 COMPLETING 5 JULY 1967 3 1 JOB COMMENCING 25 OCT. 1967 COMPLETING 28 NOV. 1967 "BIDS/PROPOSALS OFFERING DELIVERY OF EACH QUANTITY WITHIN THE APPLICABLE DELIVERY PERIOD SPECIFIED ABOVE WILL BE EVALUATED EQUALLY AS REGARDS TIME OF DELIVERY. BIDS OFFERING DELIVERY OF A QUANTITY UNDER SUCH TERMS OR CONDITIONS THAT DELIVERY WILL NOT CLEARLY FALL WITHIN THE APPLICABLE DELIVERY PERIOD SPECIFIED ABOVE WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.

B-161234, MAY 1, 1967

TO SELLERS, CONNER AND CUNEO:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1967, WITH ENCLOSURES, WRITTEN ON BEHALF OF THE RANGE SYSTEMS DIVISION, LTV AEROSPACE CORPORATION, DALLAS, TEXAS, PROTESTING AGAINST THE AWARD OF CONTRACT TO A BIDDER OTHER THAN LTV UNDER DEPARTMENT OF THE NAVY INVITATION FOR BIDS NO. N00600-67-B-0797 ISSUED BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C., ON MARCH 6, 1967.

THE ORIGINAL INVITATION SOLICITED BIDS FOR THE MODIFICATION OF INSTRUMENTATION COMPLEXES, WITH ANCILLARY ITEMS OF DRAWINGS AND PHOTOGRAPHS, ABOARD THREE INSTRUMENTATION SHIPS DURING SCHEDULED SHIPYARD AVAILABILITY PERIODS. THE INVITATION CONTAINED ON PAGE 13 THEREOF THE FOLLOWING PERTINENT PROVISIONS WITH RESPECT TO DELIVERY:

"DELIVERY IS REQUIRED TO BE MADE IN ACCORDANCE WITH THE FOLLOWING SCHEDULE:

CHART:

"ITEM NO. QUANTITY

1 1 JOB DURING SHIPYARD AVAILABILITY

(OVERHAUL) PERIOD COMMENCING

26 JULY 1967 COMPLETING

12 SEPT 1967

2 1 JOB COMMENCING 18 MAY 1967 COMPLETING

5 JULY 1967

3 1 JOB COMMENCING 25 OCT. 1967 COMPLETING

28 NOV. 1967

"BIDS/PROPOSALS OFFERING DELIVERY OF EACH QUANTITY WITHIN THE APPLICABLE DELIVERY PERIOD SPECIFIED ABOVE WILL BE EVALUATED EQUALLY AS REGARDS TIME OF DELIVERY. BIDS OFFERING DELIVERY OF A QUANTITY UNDER SUCH TERMS OR CONDITIONS THAT DELIVERY WILL NOT CLEARLY FALL WITHIN THE APPLICABLE DELIVERY PERIOD SPECIFIED ABOVE WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED. PROPOSALS OFFERING DELIVERY OF A QUANTITY UNDER SUCH TERMS OR CONDITIONS THAT DELIVERY WILL NOT CLEARLY FALL WITHIN THE REQUIRED DELIVERY TIME SPECIFIED ABOVE MAY NOT BE CONSIDERED. WHEN A BID/PROPOSAL OFFERS AN EARLIER DELIVERY SCHEDULE THAN THAT CALLED FOR ABOVE, THE GOVERNMENT RESERVES THE RIGHT TO AWARD EITHER IN ACCORDANCE WITH THE REQUIRED SCHEDULE OR IN ACCORDANCE WITH THE SCHEDULE OFFERED BY THE BIDDER/OFFEROR. IF THE BID/PROPOSAL OFFERS NO OTHER DELIVERY SCHEDULE, THE DELIVERY SCHEDULE STATED ABOVE SHALL APPLY.

"BIDDER-S/OFFEROR'S PROPOSED DELIVERY SCHEDULE

"ITEM NO.QUANTITY TIME BY ITEM 4 OF MODIFICATION 0003 DATED MARCH 23, 1967, THE SHIPYARD AVAILABILITY PERIOD FOR ITEM 1, VESSEL T-AGM-11, WAS CHANGED TO READ ,COMMENCING 12 JULY COMPLETING 30 AUGUST 1967.'

THE ABSTRACT OF BIDS SHOWS THAT FIVE BIDS WERE RECEIVED AND OPENED ON APRIL 4, 1967, AND THAT THE LOWEST AGGREGATE BID WAS RECEIVED FROM LTV. HOWEVER, OPPOSITE THE STATEMENT ,BIDDER-S/OFFEROR'S PROPOSED DELIVERY SCHEDULE" APPEARING ON PAGE 13 OF THE SCHEDULE, QUOTED ABOVE, LTV INSERTED OPPOSITE ITEM 1 AND UNDER "TIME" THE FOLLOWING: "12 SEPTEMBER 1967.'

IT IS REPORTED THAT ON APRIL 7, 1967, REPRESENTATIVES OF LTV VISITED THE CONTRACTING OFFICE AND ADVISED THE CONTRACTING OFFICER THAT THERE WAS AN APPARENT CLERICAL ERROR IN ITS BID IN THAT IT INDICATED SEPTEMBER 12, 1967, AS THE COMPLETION DATE FOR ITEM 1, WHEREAS THE BIDDER'S INTENT WAS TO COMPLY WITH INVITATION REQUIREMENTS BY COMPLETING ITEM 1 BY AUGUST 30, 1967, AS REQUIRED BY ITEM 4 OF MODIFICATION 0003. LTV'S REPRESENTATIVES WERE ADVISED BY THE CONTRACTING OFFICER AND COUNSEL THAT THE INSERTION OF A LATER COMPLETION DATE "12 SEPTEMBER 1967" FOR ITEM 1 IN THE DELIVERY PORTION OF THE BID RENDERED ITS BID NONRESPONSIVE TO THE INVITATION WHICH REQUIRED A COMPLETION DATE OF "30 AUGUST 1967" FOR THAT ITEM. LTV REPRESENTATIVES INDICATED AT THAT TIME THAT IT WAS THEIR OPINION THE CLERICAL ERROR WAS OBVIOUS AND THAT THE CONTRACTING OFFICE SHOULD HAVE THE MEANS TO CORRECT SUCH AN ERROR.

ON THE BASIS THAT THE CORPORATION'S BID AS SUBMITTED SPECIFIED A COMPLETION DATE OF SEPTEMBER 12, 1967, FOR ITEM 1, CONTRARY TO THE ADVERTISED TERMS PROVIDING FOR A COMPLETION DATE OF AUGUST 30, 1967, FOR THAT ITEM, THE CONTRACTING OFFICER DETERMINED THAT THE BID OF LTV WAS NOT RESPONSIVE AND, THEREFORE, CORRECTION OF ITS MISTAKE COULD NOT BE PERMITTED UNDER THE MISTAKE IN BID PROCEDURES BY ACCEPTANCE OF ITS EXPLANATION AFTER BID OPENING. ACCORDINGLY, THE BID WAS REJECTED AS BEING NONRESPONSIVE TO THE INVITATION, AS AMENDED. SUBSEQUENTLY, SINCE THERE WAS AN URGENT NEED FOR AN IMMEDIATE AWARD IN ORDER TO MEET THE SCHEDULED SHIPYARD AVAILABILITY OF THE THREE INSTRUMENTATION SHIPS, AWARD WAS MADE TO PROGRESS ELECTRONICS OF OREGON, INC., THE NEXT LOWEST BIDDER, ON APRIL 13, 1967. WE FIND NO LEGAL BASIS TO DISTURB THAT AWARD.

YOU STATE THAT AFTER LTV'S BID HAD BEEN PREPARED, THE FORM WAS SUBMITTED TO A CLERK FOR COMPLETION; THAT THE CLERK INSTRUCTED THE TYPIST TO INSERT IN THE LOWER HALF OF PAGE 13 OF THE INVITATION, WHERE BLANKS WERE AVAILABLE FOR INSERTION OF THE BIDDER'S PROPOSED DELIVERY DATES, THE SAME DATES AS WERE SET FORTH IMMEDIATELY ABOVE IN THE TOP HALF OF PAGE 13; AND THAT THE CLERK TOOK IT UPON HIMSELF TO CONCLUDE THAT THERE HAD TO BE COMPATIBILITY BETWEEN THE REQUIRED DATES SET FORTH IMMEDIATELY ABOVE AND THE DATES TO BE INSERTED. YOU ALSO CONTEND THAT SINCE THE MISTAKE MADE IN THE BID WAS AN APPARENT CLERICAL ERROR, THE CONTRACTING OFFICER IS AUTHORIZED UNDER PARAGRAPH 2-406.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) TO CORRECT SUCH MISTAKE AND THAT IT IS YOUR OPINION THAT CORRECTION OF MISTAKES IS NOT RESTRICTED TO THE EXAMPLES SET FORTH IN ASPR 2-406.2, WHICH PROVIDES AS FOLLOWS:

"APPARENT CLERICAL MISTAKES. ANY CLERICAL MISTAKE APPARENT ON THE FACE OF A BID MAY BE CORRECTED BY THE CONTRACTING OFFICER PRIOR TO AWARD, IF THE CONTRACTING OFFICER HAS FIRST OBTAINED FROM THE BIDDER WRITTEN OR TELEGRAPHIC VERIFICATION OF THE BID ACTUALLY INTENDED. EXAMPLES OF SUCH APPARENT MISTAKES ARE: OBVIOUS ERROR IN PLACING DECIMAL POINT; OBVIOUS DISCOUNT ERRORS(FOR EXAMPLE--- 1 PERCENT 10 DAYS, 2 PERCENT 20 DAYS, 5 PERCENT 30 DAYS); OBVIOUS REVERSAL OF THE PRICE F.O.B. DESTINATION AND THE PRICE F.O.B. FACTORY; OBVIOUS ERROR IN DESIGNATION OF UNIT. CORRECTION OF THE BID WILL BE EFFECTED BY ATTACHING THE VERIFICATION TO THE ORIGINAL BID AND A COPY OF THE VERIFICATION TO THE DUPLICATE BID. CORRECTION WILL NOT BE MADE ON THE FACE OF THE BID; HOWEVER, IT SHALL BE REFLECTED IN THE AWARD DOCUMENT.'

APPARENTLY, REJECTION OF THE BID BY THE PROCUREMENT AGENCY WAS BASED ON A STATEMENT IN 38 COMP. GEN. 819 AT 821 AND SIMILAR CASES TO THE EFFECT THAT THE ONLY ERRORS IN BIDS WHICH MAY BE CORRECTED AFTER OPENING ARE THOSE WHICH DO NOT AFFECT THE RESPONSIVENESS OF THE BIDS. HOWEVER, IT IS YOUR POSITION THAT THE PROVISIONS OF ASPR 2-406.2 DO NOT SO QUALIFY OR CONDITION THE CORRECTION OF APPARENT CLERICAL MISTAKES. IN THIS CONNECTION, YOU REFER TO OUR DECISION AT 40 COMP. GEN. 432 AND ADVISE THAT, WHILE THE CONCLUSION REACHED IN THAT DECISION SUPPORTS THE GOVERNMENT'S CONTENTION, THE IMPORTANT POINT IN THE DECISION IS THE SPECIFIC FINDING THAT THE ASPR SECTION RELIED UPON BY THE NONRESPONSIVE BIDDER WAS NOT FOR APPLICATION SINCE THE ERROR INVOLVED WAS NEITHER APPARENT ON THE FACE OF THE BID FORM AND ACCOMPANYING PAPERS, NOR WAS IT AN OBVIOUS CLERICAL ERROR.

WE CANNOT AGREE THAT THE LTV'S PROPOSAL OF A NONCONFORMING DELIVERY SCHEDULE WAS AN APPARENT CLERICAL ERROR WHICH WAS AMENABLE TO CORRECTION UNDER ASPR 2-406.2. THE PARAGRAPH UPON WHICH YOU RELY DOES PERMIT CORRECTION OF AN OBVIOUS ERROR, WHICH IS APPARENT ON THE FACE OF THE BID, BY THE CONTRACTING OFFICER UNDER CERTAIN CIRCUMSTANCES. HOWEVER, THE CHANGING OF A COMPLETION DATE OF AN ITEM INSERTED BY A BIDDER IN RESPONSE TO A MANDATORY REQUIREMENT OF A SOLICITATION SO THAT IT WOULD CONFORM TO THE REQUIRED COMPLETION DATE IS NOT THE KIND OF CORRECTION CONTEMPLATED BY ASPR 2-406.2.

ALTHOUGH YOU CONTEND THAT THE BID FULLY CONFORMS TO THE ADVERTISED SPECIFICATIONS SINCE THE ALLEGED INADVERTENT ERROR INVOLVED TIME FOR PERFORMANCE--- AN ELEMENT WHICH, YOU ALLEGE, IS NOT PART OF THE "ADVERTISED SPECIFICATIONS"--- WE MUST CONCLUDE THAT TIME OF DELIVERY WAS AN ESSENTIAL REQUIREMENT OF THE ADVERTISEMENT. SEE ASPR 1-305, ET SEQ.

UNDER 10 U.S.C. 2305 AND ASPR 2-404.2 (A) BIDS ARE REQUIRED TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE ADVERTISED INVITATION. MOREOVER, ASPR 2 -404.2 (C) PROVIDES THAT ANY BID WHICH FAILS TO CONFORM TO THE DELIVERY SCHEDULE STATED IN THE INVITATION SHALL BE REJECTED AS NONRESPONSIVE. PARAGRAPH 9 (A) OF THE SOLICITATION TERMS WHICH PROVIDED THAT THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE OFFEROR WHOSE OFFER CONFORMING TO THE SOLICITATION WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, IS CONSISTENT WITH THE ABOVE-CITED STATUTE AND REGULATION. FURTHER, WHILE ASPR 2-405 PERMITS WAIVER OF MINOR INFORMALITIES OR IRREGULARITIES IN BIDS, SUCH DEVIATIONS ARE LIMITED TO THOSE OF FORM OR TO IMMATERIAL VARIATIONS FROM THE EXACT ADVERTISED REQUIREMENTS, HAVING NO EFFECT ON QUALITY, QUANTITY OR DELIVERY AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE OTHERWISE PREJUDICIAL TO OTHER BIDDERS. THE FACT THAT A DEVIATION WAS OCCASIONED BY A MISTAKE ON THE PART OF THE BIDDER DOES NOT AFFORD A BASIS TO PERMIT CORRECTION OF THE MISTAKE AFTER BID OPENING SINCE CORRECTION OF A MISTAKE UNDER THE RULES RELATING THERETO IS AUTHORIZED ONLY WHEN THE BID IS RESPONSIVE IN THE FORM IN WHICH IT IS SUBMITTED. 38 COMP. GEN. 819; 40 ID. 132, 134.

THERE IS ALSO FOR CONSIDERATION THE FACT THAT A BID SUBMITTED UNDER AN ADVERTISED SOLICITATION CONSTITUTES AN OFFER AND THE AWARD BY THE GOVERNMENT IS AN ACCEPTANCE OF THE OFFER WHICH EFFECTS A BINDING AGREEMENT BETWEEN THE BIDDER AND THE GOVERNMENT. WHERE THE BIDDER'S RESPONSE DOES NOT OFFER COMPLIANCE WITH THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS AND ANY AMENDMENTS THEREOF, THE GOVERNMENT CANNOT, WITHOUT THE BIDDER'S CONSENT, ACCEPT THE OFFER AND REQUIRE PERFORMANCE IN ACCORDANCE WITH THE SOLICITATION AS AMENDED. TO PERMIT A BIDDER AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY AGREEING TO ABIDE BY THE ADVERTISED SPECIFICATIONS, INCLUDING DELIVERY REQUIREMENTS, THROUGH THE CORRECTION PROCEDURES OF ASPR 2-406.2, WOULD DO VIOLENCE TO THE WELL-ESTABLISHED PRINCIPLES GOVERNING FORMAL ADVERTISED PROCUREMENTS. SEE 36 COMP. GEN. 181; B-128645, SEPTEMBER 28, 1956; B-131796, JUNE 14, 1957; AND B-140412, SEPTEMBER 30, 1959.

THEREFORE, NOTWITHSTANDING THAT THE NONRESPONSIVENESS WAS DUE TO A MISTAKE ON THE PART OF LTV, OR THAT THE BID AS CORRECTED WOULD STILL HAVE BEEN THE LOWEST RECEIVED, THE MISTAKE MAY NOT NOW BE CORRECTED TO RENDER THE BID RESPONSIVE SINCE SUCH ACTION WOULD BE IN VIOLATION OF THE RULES OF COMPETITIVE BIDDING AS WELL AS THE TERMS OF THE SOLICITATION, THE PROCUREMENT STATUTE AND THE REGULATIONS. SEE B 146170, SEPTEMBER 15, 1961.