B-161287, JUN. 28, 1967

B-161287, JUN. 28, 1967

TO NORTHWESTERN MOTOR COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM DATED APRIL 17, 1967, AND SUBSEQUENT COMMUNICATIONS PROTESTING THE REJECTION BY DEFENSE SUPPLY CENTER OF YOUR BID UNDER INVITATION NO. DSA-400-67-B-4352 AS NONRESPONSIVE.

THE TWO BIDS RECEIVED PURSUANT TO THE INVITATION WERE OPENED ON FEBRUARY 13, 1967, AND NORTHWESTERN WAS THE APPARENT LOW BIDDER. EXAMINATION OF YOUR BID REVEALED THAT YOU HAD FAILED TO COMPLETE DGSC FORM 350 ENTITLED " PRODUCTION FACILITIES AND TRANSPORTATION DATA," ATTACHED TO THE INVITATION, OR TO OTHERWISE INCLUDE THE PLACE OF MANUFACTURE OR THE SHIPPING POINT IN YOUR BID, EXCEPT FOR REFERENCE IN UNSOLICITED DESCRIPTIVE LITERATURE TO YOUR EAU CLAIRE, WISCONSIN, PLANT. THIS UNSOLICITED LITERATURE WAS NOT REFERRED TO IN YOUR BID AND WAS NOT CONSIDERED PART OF YOUR BID BY THE CONTRACTING OFFICER. ACCORDINGLY, ON MARCH 8, 1967, NORTHWESTERN WAS REQUESTED TO FURNISH PLACE OF MANUFACTURE. THAT REQUEST WAS IMMEDIATELY COMPLIED WITH, BUT SUBSEQUENTLY THE CONTRACTING OFFICER WAS ADVISED THAT NORTHWESTERN'S FAILURE TO FURNISH THE SHIPPING POINT RENDERED ITS BID NONRESPONSIVE AND THAT THIS INFORMATION COULD NOT PROPERLY BE FURNISHED AFTER BID OPENING. THEREFORE, YOUR BID WAS REJECTED AS NONRESPONSIVE AND AWARD WAS MADE TO THE OTHER BIDDER ON APRIL 12, 1967.

YOU CONTEND THAT FAILURE TO FURNISH SHIPPING POINT WAS A TECHNICALITY AND THAT DGSC FORM 350 DOES NOT REQUIRE MANDATORY REJECTION OF YOUR BID AS NONRESPONSIVE. DGSC FORM 350 READS IN PART:

"SECTION 1: BIDDERS MUST STIPULATE IN THEIR BIDS THE PLANTS WHERE WORK IS TO BE PERFORMED, * * *. FAILURE TO FURNISH COMPLETE INFORMATION MAY BE THE CAUSE FOR REJECTION OF THE BID.' YOU STATE THAT THE WORDS "MAY BE CAUSE" IMPLIES REJECTION OF YOUR BID IS DISCRETIONARY WITH THE CONTRACTING OFFICER EVEN THOUGH FORM 350 STATES BIDDERS "MUST STIPULATE.' REJECTING THIS CONTENTION IN THE PAST WE STATED AT 40 COMP. GEN. 132, 135:

"NOTWITHSTANDING THE APPARENT DISCRETION CONFERRED ON THE CONTRACTING OFFICER IN THE INVITATION FOR BIDS TO DETERMINE WHETHER THE FAILURE TO COMPLY MAY BE REGARDED AS AN INFORMALITY, WHERE THE LANGUAGE OF AN INVITATION REQUIRES THE SUBMISSION OF DATA WITH THE BID ANY FAILURE TO COMPLY THEREWITH MUST BE REGARDED MATERIAL.'

FURTHER IN THE SELECTION OF A LOW BID SUBMITTED ON AN F.O.B. ORIGIN BASIS ONE OF THE FACTORS FOR CONSIDERATION IS THE COST TO THE GOVERNMENT OF TRANSPORTATION TO DESTINATION. THE PURPOSE OF SUCH EVALUATION IS TO FIX THE COST OF THE ITEM TO THE GOVERNMENT. 40 COMP. GEN. 160, AND B-147284, NOVEMBER 12, 1961. DEVIATIONS FROM THE SPECIFICATIONS MAY BE WAIVED AS AN INFORMALITY PROVIDED THE DEVIATIONS WHICH AFFECT PRICE, QUANTITY, OR QUALITY GO TO THE SUBSTANCE OF THE BID AND WAIVER OF SUCH DEVIATIONS IS PREJUDICIAL TO THE OTHER BIDDERS. SEE 30 COMP. GEN. 179, AND 17 COMP. GEN. 554.

YOUR LETTER DATED JUNE 1, 1967, STATES THAT THE INFORMATION REQUIRED IN DGSC FORM 350 WAS WELL KNOWN AND DID NOT DELAY THE AWARD. THE RESPONSIVENESS OF A BIDDER IS DETERMINED BY THE INTENTION OF THE BIDDER MANIFESTED IN THE BID AND NOT BY INFORMATION OUTSIDE THE BID. SEE B- 158269, JANUARY 17, 1956. IT IS FUNDAMENTAL TO COMPETITIVE BIDDING THAT BIDS BE FIRM AND DEFINITE AS TO PRICE, AND BIDS SO QUALIFIED AS TO RENDER PRICE INDEFINITE ARE FOR REJECTION FOR UNCERTAINTY. 19 COMP. GEN. 614; 37 ID. 780. THEREFORE, THE CONTRACTING OFFICER COULD NOT ACCEPT YOUR BID ON THE BASIS OF INDEPENDENT KNOWLEDGE BY WHICH YOU WOULD NOT BE BOUND, NOR COULD ACCEPTANCE OF YOUR BID BE BASED UPON THE DESCRIPTIVE LITERATURE SUBMITTED WITH THE BID IN THAT THE LITERATURE RESERVED TO YOU THE RIGHT TO CHANGE SPECIFICATIONS AND IN NO WAY OBLIGATED YOU TO MANUFACTURE AT YOUR PLANT IN EAU CLAIRE, WISCONSIN. THIS WOULD BE TANTAMOUNT TO GIVING YOU THE OPTION OF ACCEPTING THE AWARD OR ALLEGING THAT THE BID CONTEMPLATED MANUFACTURE AT A PLANT OTHER THAN EAU CLAIRE. THIS IS CONTRARY TO THE PRINCIPLE THAT NO BIDDER HAS A RIGHT, AFTER OPENING, TO ANOTHER OPPORTUNITY TO BID IN DEROGATION OF THE RIGHTS OF OTHER BIDDERS. 34 COMP. GEN. 82; 35 ID. 33; 36 ID. 705.

ACCORDINGLY, WE FIND NO LEGAL OBJECTION TO THE ADMINISTRATIVE ACTION IN THIS MATTER.