B-162885, NOV. 16, 1967

B-162885: Nov 16, 1967

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A BIDDER WHO IN A LETTER ACCOMPANYING HIS LOW BID FOR WASHING MACHINES INDICATED THAT THE PRICE WAS BASED ON ASSUMPTION THAT THE AGENCY WOULD PROVIDE AN OPENING IN THE BUILDING LARGE ENOUGH FOR ENTRY OF THE MACHINE HAS ATTEMPTED TO SHIFT THE RESPONSIBILITY FOR DELIVERY WITHIN THE BUILDING TO THE GOVT. LUSSIER: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 3. ALTERATIONS TO BUILDING AND REMOVAL OF EXISTING EQUIPMENT TO GAIN ACCESS TO LAUNDRY ROOM WILL BE CORRECTED AND RESTORED TO ORIGINAL OR BETTER CONDITIONS BY THE VENDOR.'. FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE SECOND LOW BID WAS SUBMITTED BY PELLERIN MILNOR IN THE AMOUNT OF $13. BRAUN STATED THAT ITS PRICE WAS BASED ON THE ASSUMPTION THAT THE STATION WILL PROVIDE AN OPENING IN THE BUILDING LARGE ENOUGH TO PERMIT THE ENTRY OF THE BRAUN WASHER EXTRACTOR.

B-162885, NOV. 16, 1967

BIDS - DEVIATION - DELIVERY PROVISIONS DECISION TO CONTRACTING OFFICER OF VA CONCERNING PROPRIETY OF A PROPOSED AWARD OF A CONTRACT FOR WASHING MACHINES TO LOW BIDDER G.A. BRAUN, INC., FOR VA HOSPITAL AT POPULAR BLUFF, MO. A BIDDER WHO IN A LETTER ACCOMPANYING HIS LOW BID FOR WASHING MACHINES INDICATED THAT THE PRICE WAS BASED ON ASSUMPTION THAT THE AGENCY WOULD PROVIDE AN OPENING IN THE BUILDING LARGE ENOUGH FOR ENTRY OF THE MACHINE HAS ATTEMPTED TO SHIFT THE RESPONSIBILITY FOR DELIVERY WITHIN THE BUILDING TO THE GOVT. ACCORDINGLY, THE BID MUST BE REJECTED AS NONRESPONSIVE TO THE INVITATION.

TO MR. LUSSIER:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 3, 1967, FILE REFERENCE 134J3, REQUESTING A DECISION AS TO WHETHER THE BID OF G. A. BRAUN, INC., SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. M3-18-68, ISSUED SEPTEMBER 15, 1967, MAY BE CONSIDERED FOR AWARD OF A CONTRACT.

THE SUBJECT INVITATION REQUESTED BIDS FOR FURNISHING A WASHER EXTRACTOR COMBINATION TO THE VETERANS ADMINISTRATION HOSPITAL, POPLAR BLUFF, MISSOURI. PAGE 7, PARAGRAPH 6C OF THE ADDITIONAL SOLICITATION INSTRUCTIONS AND CONDITIONS OF THE INVITATION, PROVIDED AS FOLLOWS:

"C. PRICES: OFFEROR SHOULD QUOTE PRICES F.O.B. DESTINATION WITHIN CONSIGNEE'S BUILDING WITHOUT ADDITIONAL COST TO THE GOVERNMENT, UNLESS OTHERWISE SPECIFIED IN THIS INVITATION TO COVER SPECIFIC VETERANS ADMINISTRATION REQUIREMENTS. ALTERATIONS TO BUILDING AND REMOVAL OF EXISTING EQUIPMENT TO GAIN ACCESS TO LAUNDRY ROOM WILL BE CORRECTED AND RESTORED TO ORIGINAL OR BETTER CONDITIONS BY THE VENDOR.'

FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. BRAUN SUBMITTED THE LOW BID OF $13,049 LESS 1-PERCENT DISCOUNT FOR PAYMENT WITHIN 20 CALENDAR DAYS. THE SECOND LOW BID WAS SUBMITTED BY PELLERIN MILNOR IN THE AMOUNT OF $13,441.72. IN A POSTSCRIPT TO A LETTER DATED OCTOBER 13, 1967, ACCOMPANYING ITS BID, BRAUN STATED THAT ITS PRICE WAS BASED ON THE ASSUMPTION THAT THE STATION WILL PROVIDE AN OPENING IN THE BUILDING LARGE ENOUGH TO PERMIT THE ENTRY OF THE BRAUN WASHER EXTRACTOR.

IT IS AXIOMATIC THAT A BID MAY BE CONSIDERED FOR AWARD ONLY IF IT COMPLIES IN ALL MATERIAL RESPECTS WITH THE TERMS OF THE INVITATION. SEE 17 COMP. GEN. 554. A PROVISION IN THE INVITATION REQUIRING THAT THE BIDDER MUST BEAR THE COST OF DELIVERY WITHIN THE GOVERNMENT'S BUILDING IS A MATERIAL REQUIREMENT AND FAILURE TO CONFORM THEREWITH RENDERS THE BID NONRESPONSIVE. CONSIDERING THE LANGUAGE CONTAINED IN BRAUN'S LETTER ACCOMPANYING ITS BID IT SEEMS CLEAR THAT BRAUN CONDITIONED DELIVERY OF ITS PRODUCT BY ATTEMPTING TO SHIFT TO THE GOVERNMENT THE RESPONSIBILITY FOR MAKING ANY ALTERATIONS TO THE BUILDING WHICH WERE REQUIRED TO GAIN ACCESS TO THE LAUNDRY ROOM. WHILE THE CONDITION IS CONTAINED IN A POSTSCRIPT TO BRAUN'S LETTER WE THINK IT MUST BE CONSIDERED AS A PART OF THE BID. ALSO, WHILE BRAUN CONTENDS THAT IT DID NOT SAY THAT ITS PRODUCT COULD NOT GO THROUGH THE PRESENT OPENINGS OF THE BUILDING WE THINK THAT IF THE CONTRACT WAS AWARDED TO BRAUN IT COULD, IN THE EVENT IT BECAME NECESSARY TO ENLARGE THE OPENINGS OF THE BUILDING, SUCCESSFULLY ARGUE THAT UNDER ITS BID THE GOVERNMENT WOULD BE RESPONSIBLE FOR ENLARGING THE OPENINGS.

ACCORDINGLY, THE BID OF BRAUN, CONDITIONED AS IT IS, PROPERLY MUST BE REJECTED AS NOT BEING RESPONSIVE TO THE INVITATION FOR BIDS.