B-161628, JUL. 20, 1967

B-161628: Jul 20, 1967

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PROCURING AGENCY IS ADVISED THAT IN FUTURE PROCUREMENTS REFERENCE SHOULD BE MADE ON FACE SHEET OF THE INVITATION TO A LATER PROVISION WHICH PRESCRIBES A MANDATORY BID ACCEPTANCE PERIOD. INC.: REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF MAY 26. YOUR BID WAS THE LOWEST RECEIVED. CONDITIONS PROVIDED: "BIDS OFFERING LESS THAN SIXTY (60) DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE SET FOR OPENING OF BIDS WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.'. YOUR BID WAS THEREFORE REJECTED AS NONRESPONSIVE TO A MANDATORY PROVISION OF THE INVITATION. YOU STATED THAT THE INSERTION OF THE 30- DAY PERIOD WAS AN OBVIOUS ERROR AND THAT A NONRESPONSIVE LOW BID MAY BE ACCEPTED WHERE NO PREJUDICE TO OTHER BIDDERS WOULD RESULT.

B-161628, JUL. 20, 1967

BIDS - DEVIATIONS - ACCEPTANCE PERIOD LOW BIDDER WHO LIMITED BID ACCEPTANCE TO 30 DAYS UNDER NAVY INVIATION SPECIFYING NOT LESS THAN 60 DAYS HAD BID PROPERLY REJECTED AS NONRESPONSIVE, NOTWITHSTANDING BIDDER'S EXPLANATION AFTER OPENING. HOWEVER, PROCURING AGENCY IS ADVISED THAT IN FUTURE PROCUREMENTS REFERENCE SHOULD BE MADE ON FACE SHEET OF THE INVITATION TO A LATER PROVISION WHICH PRESCRIBES A MANDATORY BID ACCEPTANCE PERIOD.

TO MR. NEVILLE SILVERMAN, PROJECT MANAGER, J. CARNER COMPANY, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF MAY 26, 1967, PROTESTING AGAINST THE REJECTION OF YOUR LOW BID SUBMITTED UNDER INVITATION FOR BIDS (IFB) NO. N00019-67-B-0198, ISSUED ON MARCH 29, 1967, BY THE NAVAL AIR SYSTEMS COMMAND, WASHINGTON, D.C.

OF THE FOUR BIDS OPENED ON APRIL 28, 1967, YOUR BID WAS THE LOWEST RECEIVED. HOWEVER, YOU LIMITED YOUR BID ACCEPTANCE PERIOD TO 30 DAYS FROM THE DATE OF OPENING. PARAGRAPH THREE OF THE ADDITIONAL BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS PROVIDED:

"BIDS OFFERING LESS THAN SIXTY (60) DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE SET FOR OPENING OF BIDS WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.'

YOUR BID WAS THEREFORE REJECTED AS NONRESPONSIVE TO A MANDATORY PROVISION OF THE INVITATION.

IN YOUR LETTER OF MAY 26, 1967, YOU STATED THAT THE INSERTION OF THE 30- DAY PERIOD WAS AN OBVIOUS ERROR AND THAT A NONRESPONSIVE LOW BID MAY BE ACCEPTED WHERE NO PREJUDICE TO OTHER BIDDERS WOULD RESULT. YOU ALSO INFORMED US THAT THE INSERTION OF A 30-DAY PERIOD INDICATED IT MUST HAVE BEEN AN OBVIOUS MISTAKE, SINCE YOU WOULD NOT GO TO THE TROUBLE AND EXPENSE OF PREPARING AN INVITATION AND PURPOSELY MAKE IT NONRESPONSIVE. FURTHER, YOU STATE THAT FROM A PRACTICAL POINT OF VIEW, THE GOVERNMENT NEEDED 30, NOT 60 DAYS, TO EVALUATE THE BIDS. ALSO, YOU OBSERVE THAT A SAVING WOULD HAVE BEEN REALIZED BY THE GOVERNMENT HAD AWARD OF THE CONTRACT BEEN MADE TO YOUR FIRM.

WHILE MINOR VARIATIONS AND INFORMALITIES IN BIDS MAY BE WAIVED (SEE ASPR 2-405), WE HAVE CONSISTENTLY HELD THAT A PROVISION IN AN INVITATION WHICH REQUIRES THAT A BID MUST REMAIN AVAILABLE FOR ACCEPTANCE BY THE GOVERNMENT FOR A PRESCRIBED PERIOD IN ORDER TO BE CONSIDERED FOR AWARD IS A MATERIAL REQUIREMENT, AND THAT FAILURE TO MEET SUCH REQUIREMENT RENDERS A BID NONRESPONSIVE. SEE B-160252, NOVEMBER 18, 1966, 46 COMP. GEN.---: 39 COMP. GEN. 779. FURTHER, THE FACT THAT SUCH FAILURE IS ALLEGED TO BE ATTRIBUTABLE TO OVERSIGHT OR ERROR DOES NOT JUSTIFY CORRECTION OF THE BID TO REMEDY THE DEFECT, SINCE THE RULES UNDER WHICH CORRECTION OF CERTAIN MISTAKES IN BID IS PERMITTED ARE APPLICABLE ONLY WHEN THE BID IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE ACCEPTABLE. SUCH RULES CAN NOT BE INVOKED TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PROVISION AFTER THE BID OPENING, SINCE SUCH ACTION WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW BID. B-154793, SEPTEMBER 21, 1964; B-150611, FEBRUARY 25, 1963.

CONCERNING THE NECESSITY OF THE 60-DAY PERIOD AND THAT AWARD TO YOUR FIRM WOULD HAVE RESULTED IN SAVINGS TO THE GOVERNMENT, WE HAVE BEEN INFORMED BY THE PROCUREMENT ACTIVITY THAT A PERIOD IN EXCESS OF 30 DAYS WAS USED TO EVALUATE THE BIDS. THE BID ACCEPTANCE PERIOD OF 60 DAYS WAS INCLUDED IN THE INVITATION FOR THE BENEFIT OF THE GOVERNMENT TO PERMIT A THOROUGH REVIEW OF ALL BIDS AND TO ARRANGE FUNDING AND ADMINISTRATIVE CONTRACT MANAGEMENT MATTERS. FURTHER, WHILE YOUR BID WAS THE LOWEST RECEIVED, THE PRESERVATION OF THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM PRECLUDES THE FAVORABLE CONSIDERATION OF A NONRESPONSIVE BID ON THE BASIS OF EXPLANATIONS MADE AFTER BID OPENING.

THE FACT THAT THE PAGE CONTAINING THE 60-DAY BID ACCEPTANCE PROVISION WAS INSERTED TOWARD THE END OF THE BIDDING PAPERS DOES NOT CONSTITUTE A VALID EXCUSE FOR INSERTING A 30-DAY PERIOD. THE RESPONSIBILITY FOR PREPARING A BID IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF AN INVITATION IS SOLELY THAT OF THE BIDDER. THE FACE SHEET OF THE INVITATION CLEARLY STATED THAT THE BIDDER AGREED TO ALLOW A BID ACCEPTANCE PERIOD OF 60 DAYS UNLESS OTHERWISE INDICATED BY THE BIDDER. HOWEVER, A FURTHER EXAMINATION OF THE BID DOCUMENTS WOULD HAVE REVEALED THAT A60-DAY PERIOD WAS THE MINIMUM PERMISSIBLE. IN ORDER THAT BIDDERS MAY BE FULLY ADVISED IN THE FUTURE THAT A DEFINITE BID ACCEPTANCE PERIOD IS REQUIRED BY THE GOVERNMENT, WE ARE SUGGESTING TO THE PROCUREMENT ACTIVITY THAT AN APPROPRIATE REFERENCE BE MADE ON THE FACE SHEET OF THE INVITATION TO A LATER PROVISION IN THE INVITATION WHICH PRESCRIBES A MANDATORY BID ACCEPTANCE PERIOD.

ACCORDINGLY, YOUR PORTEST IS DENIED. FOR YOUR FURTHER INFORMATION, WE ARE ENCLOSING A COPY OF OUR DECISION OF NOVEMBER 18, 1966, B 160252.