B-162793, JAN. 18, 1968

B-162793: Jan 18, 1968

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A LOW BIDDER WHO DID NOT FURNISH PRICES FOR SEVEN LINE ITEMS IN HIS BID AND AFTER OPENING CONTENDS THAT HE WISHED TO BID "NO CHARGE" ON THE ITEMS MUST HAVE THE DEVIATION REGARDED AS A MAJOR DEVIATION FROM THE REQUIREMENTS AND THEREFORE THE BID WAS PROPERLY REJECTED AS NONRESPONSIVE. RANDALL AND HARVEY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 13. THE INVITATION WAS ISSUED ON JULY 3. ROUND TRIP BIDS WERE REQUIRED ON THE TWELVE ITEMS OF TRANSPORTATION SERVICES LISTED IN THE INVITATION. BIDS SHALL BE EVALUATED ON THE BASIS OF THE ESTIMATED QUANTITIES SHOWN AND AWARD SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE TOTAL AGGREGATE PRICE IS LOW.'. THREE BIDS WERE RECEIVED AND OPENED ON AUGUST 3.

B-162793, JAN. 18, 1968

BIDS - DEVIATIONS - OMISSIONS DECISION DENYING PROTEST OF GUITON'S CHARTER BUS SERVICE, LOW BIDDER, FOR FURNISHING BUS TRANSPORTATION OF LONGSHOREMEN IN THE SAN FRANCISCO BAY AREA. A LOW BIDDER WHO DID NOT FURNISH PRICES FOR SEVEN LINE ITEMS IN HIS BID AND AFTER OPENING CONTENDS THAT HE WISHED TO BID "NO CHARGE" ON THE ITEMS MUST HAVE THE DEVIATION REGARDED AS A MAJOR DEVIATION FROM THE REQUIREMENTS AND THEREFORE THE BID WAS PROPERLY REJECTED AS NONRESPONSIVE.

TO BERKLEY, RANDALL AND HARVEY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 13, 1967, WITH ENCLOSURES, PROTESTING, ON BEHALF OF GUITON'S CHARTER BUS SERVICE, AGAINST THE REJECTION OF ITS BID UNDER INVITATION FOR BIDS NO. DAHC23 68-B-0002, ISSUED BY THE OAKLAND ARMY BASE, OAKLAND, CALIFORNIA.

THE INVITATION WAS ISSUED ON JULY 3, 1967, AND REQUESTED BIDS FOR BUS TRANSPORTATION OF LONGSHOREMEN TO AND FROM VARIOUS WORK SITES IN THE SAN FRANCISCO BAY AREA, CALIFORNIA, AS DESCRIBED THEREIN. ROUND TRIP BIDS WERE REQUIRED ON THE TWELVE ITEMS OF TRANSPORTATION SERVICES LISTED IN THE INVITATION. CONDITION NO. 23, ON PAGE 5 OF THE INVITATION PROVIDED:

"AWARD TO SINGLE BIDDER (OCT. 1965): SUBJECT TO THE PROVISIONS CONTAINED HEREIN, AWARD SHALL BE MADE TO A SINGLE BIDDER. BIDS MUST INCLUDE UNIT PRICES FOR EACH ITEM LISTED IN ORDER THAT BIDS MAY BE PROPERLY EVALUATED. FAILURE TO DO THIS SHALL BE CAUSE FOR REJECTION OF THE ENTIRE BID. BIDS SHALL BE EVALUATED ON THE BASIS OF THE ESTIMATED QUANTITIES SHOWN AND AWARD SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE TOTAL AGGREGATE PRICE IS LOW.'

THREE BIDS WERE RECEIVED AND OPENED ON AUGUST 3, 1967, AND THE LOWEST BIDDER WAS ANDRE GUITON, DOING BUSINESS AS GUITON'S CHARTER SERVICE, WITH AN AGGREGATE BID OF $385,508. THE NEXT LOW BIDDER WAS M AND-M CHARTER LINES, INC., WITH AN AGGREGATE BID OF $467,165.50, AND THE HIGHEST BIDDER WAS SOUTHSHORE LINES WITH AN AGGREGATE BID OF $660,162.50. GUITON FAILED TO INCLUDE IN HIS BID SEPARATE UNIT PRICES AND EXTENSIONS FOR ITEMS 8 (A) AND (B), 9 (A) AND (B), 10, 11 AND 12. THESE ITEMS REQUESTED UNIT PRICE BIDS AS FOLLOWS:

"ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT

8 INTERMEDIATE RETURN TRIPS

A. EAST BAY DESTINATIONS 2414 MILE

B. REDWOOD CITY 768 MILE

9 EXTRA RETURN TRIPS

A. EAST BAY DESTINATIONS 88 TRIP

B. REDWOOD CITY 3 TRIP

10 STANDBY TIME 5 HOUR

11 SHORT NOTICE CANCELLATIONS 10 EACH

OF ROUND TRIPS

12 HOLIDAY DIFFERENTIAL 288 HOUR"

IN VIEW OF CONDITION NO. 23, ABOVE, THE LOW BID OF GUITON WAS REJECTED AS NONRESPONSIVE. AWARD WAS MADE TO M-AND-M CHARTER LINES, INC., IN AN ESTIMATED AMOUNT OF $467,165.50, ON SEPTEMBER 26, 1967, AS THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION. YOUR PROTEST AGAINST THE REJECTION OF GUITON'S BID IS ON THE BASES THAT "THE BLANK ITEMS WERE INTENDED TO BE BLANK; " THAT THE BID WAS NOT IN ERROR; AND THAT THE ITEMS WERE LEFT BLANK BECAUSE OF THEIR LACK OF IMPORTANCE TO THE TOTAL BID. YOUR LETTER CONTENDS FURTHER THAT THE ACCEPTANCE OF THE GUITON BID WOULD NOT HAVE AFFECTED THE PRICE, QUALITY, QUANTITY, OR DELIVERY DATE, AND THAT "INFORMALITIES OR MINOR IRREGULARITIES, NOT AFFECTING THE PRICE, QUALITY, QUANTITY, OR DELIVERY, HOWEVER, MAY BE WAIVED," CITING ARMED SERVICES PROCUREMENT REGULATION 2-405. YOU STATE ADDITIONALLY THAT GUITON'S EQUIPMENT WAS INSPECTED AND APPARENTLY PROVED TOTALLY SATISFACTORY AND, AFTER BEING ADVISED THAT HE WAS LOW BIDDER, GUITON PURCHASED FIVE BUSES AND MADE ARRANGEMENTS TO PURCHASE THE REMAINING BUSES REQUIRED TO SERVICE THE CONTRACT. FURTHER, YOU POINT OUT THAT GUITON WAS ADVISED THAT THE CONTRACTING AGENCY DESIRED A CLARIFICATION OF HIS BID WITH REGARD TO THE "NO-ENTRY" ITEMS, AND THAT HE ADVISED THAT THE QUESTIONED ITEMS WERE INTENDED TO BE ENTERED AT NO CHARGE.

THE RECORD BEFORE US REVEALS THAT GUITON'S EQUIPMENT WAS NOT INSPECTED IN CONNECTION WITH HIS BID UNDER THE SOLICITATION. INQUIRY WAS DIRECTED TO HIM, HOWEVER, CONCERNING THE FACT THAT NO ENTRIES WERE MADE ON HIS BID FOR THE SEVEN LINE ITEMS REFERRED TO ABOVE. IT IS FURTHER REPORTED THAT THE BASIS UPON WHICH GUITON RELIED FOR "PURCHASING" FIVE BUSES IS NOT APPARENT TO THE PROCUREMENT AGENCY. IN THIS REGARD, WE FIND NOTHING IN THE RECORD THAT GUITON TOOK THIS ACTION AT THE BEHEST OF THE GOVERNMENT. GUITON WAS PERMITTED, HOWEVER, TO MAKE MINOR CORRECTIONS TO HIS BID PURSUANT TO ASPR 2-405 ON THE GROUND THAT THE OMISSIONS AND CORRECTIONS CONSTITUTED MINOR INFORMALITIES OR IRREGULARITIES IN HIS BID.

IT IS A FUNDAMENTAL PRINCIPLE OF THE COMPETITIVE BIDDING SYSTEM THAT, IN ORDER TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS AT THE TIME OF BID OPENING. 38 COMP. GEN. 372; ID. 819; AND 46 ID. 434. YOU CONTEND, IN EFFECT, THAT THE FAILURE TO QUOTE PRICES ON THESE ITEMS WAS AT MOST AN INFORMALITY OR IRREGULARITY AND THAT THE BID WAS INTENDED TO BE AS SUBMITTED; THAT IS, THAT "NO CHARGE" OR A "ZERO" PRICE WAS THE INTENDED BID. HOWEVER, THE SEVEN LINE ITEMS WERE FOR SERVICES ON A REQUIREMENTS BASIS AND SOLICITED PRICES EITHER ON AN HOURLY, TRIP, MILEAGE, OR ON A ROUND-TRIP CANCELLATION BASIS.

PAGE 1 OF THE INVITATION PROVIDED AS FOLLOWS:

"IN COMPLIANCE WITH THE ABOVE * * * (REFERRING TO A LIST OF ALL PROVISIONS OF THE SOLICITATION), * * * THE UNDERSIGNED OFFERS AND AGREES, IF THIS OFFER IS ACCEPTED WITHIN 60 CALENDAR DAYS * * * FROM THE DATE FOR RECEIPT OF OFFERS SPECIFIED ABOVE, TO FURNISH ANY OR ALL ITEMS, UPON WHICH PRICES ARE OFFERED AT THE PRICE SET OPPOSITE EACH ITEM, DELIVERED AT THE DESIGNATED POINT/S), WITHIN THE TIME SPECIFIED IN THE SCHEDULE.'

IN VIEW OF THIS PROVISION, THE OBLIGATION TO FURNISH ALL THE SERVICES REQUIRED WAS CONTINGENT UPON THE INSERTION OF PRICES FOR ALL ITEMS. THE FAILURE TO BID ON ALL ITEMS AS REQUIRED BY THE INVITATION CONSTITUTED AN OMISSION OF SIGNIFICANT INFORMATION WHICH WAS NECESSARY TO A DETERMINATION OF THE TOTAL AMOUNT THE GOVERNMENT WOULD BE REQUIRED TO PAY FOR ALL ITEMS ADVERTISED. HENCE, THE PRICE OMISSIONS WERE NOT MINOR DEFICIENCIES WHICH COULD HAVE BEEN WAIVED AS INFORMALITIES. SEE 41 COMP. GEN. 412. SUCH A BID IS NONRESPONSIVE AND DOES NOT CONSTITUTE AN OFFER WHICH COULD HAVE BEEN ACCEPTED UNDER THE PROCUREMENT STATUTE. WHILE INQUIRY WAS DIRECTED TO GUITON CONCERNING HIS FAILURE TO DESIGNATE PRICES FOR ITEMS NOS. 8 THROUGH 12, THE INQUIRY AND GUITON'S EXPLANATION THEREOF DID NOT CONSTITUTE A WAIVER OF THE DEFICIENCY. TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY ADDING TO A MATERIAL PART OF HIS BID AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. 38 COMP. GEN. 819.

THE RULE IS WELL ESTABLISHED IN ADVERTISED PROCUREMENTS THAT A BIDDER'S FAILURE TO SUPPLY INFORMATION IN HIS BID WHICH IS NECESSARY TO A COMPLETE AND FULL EVALUATION OF THE BID WILL RENDER THE BID NONRESPONSIVE TO THE INVITATION FOR BIDS. 41 COMP. GEN. 412. HAD GUITON WISHED TO BID ,NO CHARGE" FOR THE ITEMS IN QUESTION, HE COULD HAVE DONE SO BY BIDDING "NO CHARGE" FOR THE ITEMS.

UNDER THE CIRCUMSTANCES, AND SINCE WE FIND THAT ACCEPTANCE OF GUITON'S BID WOULD NOT HAVE LEGALLY OBLIGATED HIM TO FURNISH ALL THE SERVICES REQUIRED BY THE INVITATION, WE CONCLUDE THAT HIS FAILURE TO QUOTE PRICES ON THE ITEMS IN QUESTION WAS A MATERIAL DEVIATION FROM THE ADVERTISED REQUIREMENTS AND THEREFORE COULD NOT PROPERLY BE WAIVED BY THE CONTRACTING OFFICER.