B-164655, NOV. 8, 1968

B-164655: Nov 8, 1968

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INC.: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR BID AND AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. WAS ISSUED ON MAY 14. THE PROCUREMENT WAS ALSO SYNOPSIZED IN THE COMMERCE BUSINESS DAILY. YOU WERE NOT ON THE BIDDERS' MAILING LIST FOR THIS EQUIPMENT AND DID NOT RECEIVE THE INVITATION IN THE MAIL. IT IS REPORTED THAT YOU SECURED THE INVITATION FROM THE PROCURING ACTIVITY AND SUBMITTED A BID. WERE OPENED. YOU WERE THE APPARENT LOW BIDDER AT $630. WAS SECOND LOW AT $666. YOUR BID WAS REJECTED AS NONRESPONSIVE FOR FAILING TO INCLUDE AMENDMENT NO. WHICH WAS ISSUED ON MAY 21. THE CONTRACT WAS AWARDED TO FOURDEE ON JUNE 28. YOU CONTEND THAT YOUR BID SHOULD NOT HAVE BEEN REJECTED AS NON REPONSIVE BECAUSE (1) YOU WERE NOT FURNISHED A COPY OF OR ADVISED OF THE EXISTENCE OF THE AMENDMENT AND (2) YOUR FAILURE TO TIMELY FURNISH THE AMENDMENT SHOULD BE WAIVED AS A MINOR INFORMALITY OR IRREGULARITY SINCE THE AMENDMENT DOES NOT AFFECT PRICE.

B-164655, NOV. 8, 1968

TO MEYER LABS, INC.:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR BID AND AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. DAAK01-68-B-6346, ISSUED BY THE UNITED STATES ARMY MOBILITY EQUIPMENT COMMAND, ST. LOUIS, MISSOURI.

THE SUBJECT INVITATION, A TOTAL SMALL BUSINESS SET-ASIDE, WAS ISSUED ON MAY 14, 1968, FOR BIDS ON 2,105 BATTERY CHARGING DISTRIBUTION PANEL ASSEMBLIES AND DATA. THE PROCUREMENT WAS ALSO SYNOPSIZED IN THE COMMERCE BUSINESS DAILY. YOU WERE NOT ON THE BIDDERS' MAILING LIST FOR THIS EQUIPMENT AND DID NOT RECEIVE THE INVITATION IN THE MAIL. HOWEVER, IT IS REPORTED THAT YOU SECURED THE INVITATION FROM THE PROCURING ACTIVITY AND SUBMITTED A BID. ON JUNE 17, 1968, 30 BIDS, INCLUDING YOURS, WERE OPENED. YOU WERE THE APPARENT LOW BIDDER AT $630,105.40, AND FOURDEE, INC., WAS SECOND LOW AT $666,510. HOWEVER, YOUR BID WAS REJECTED AS NONRESPONSIVE FOR FAILING TO INCLUDE AMENDMENT NO. P001, WHICH WAS ISSUED ON MAY 21, 1968. THE CONTRACT WAS AWARDED TO FOURDEE ON JUNE 28, 1968.

YOU CONTEND THAT YOUR BID SHOULD NOT HAVE BEEN REJECTED AS NON REPONSIVE BECAUSE (1) YOU WERE NOT FURNISHED A COPY OF OR ADVISED OF THE EXISTENCE OF THE AMENDMENT AND (2) YOUR FAILURE TO TIMELY FURNISH THE AMENDMENT SHOULD BE WAIVED AS A MINOR INFORMALITY OR IRREGULARITY SINCE THE AMENDMENT DOES NOT AFFECT PRICE, QUALITY, QUANTITY OR DELIVERY. YOU REPORT THAT WHEN YOU WENT TO THE PROCURING ACTIVITY TO PICK UP THE INVITATION AND WHEN YOU DELIVERED YOUR COMPLETED BID, YOU INQUIRED ABOUT AMENDMENTS AND WERE ADVISED THAT THERE WERE NONE. ALSO, YOU REPORT THAT ON BOTH OCCASIONS YOU CHECKED THE BID BOARD AND NO AMENDMENT WAS POSTED, ALTHOUGH THE INVITATION WAS POSTED. FURTHER, YOU REPORT THAT UPON LEARNING OF THE AMENDMENT AFTER BIDS WERE OPENED, YOU IMMEDIATELY SECURED A COPY AND COMPLETED AND FILED IT WITH "NO CHARGE" ENTRIES FOR ALL ITEMS.

WITH REGARD TO MATERIALITY OF THE AMENDMENT, YOU CONTEND THAT IT DOES NOT PROVIDE FOR RIGHTS WHICH THE GOVERNMENT DID NOT ALREADY HAVE. IT IS YOUR POSITION THAT THE GOVERNMENT ALREADY HAS THE RIGHT TO THE TECHNICAL DATA CALLED FOR UNDER ITEMS 0005 THROUGH 0010 AND PARAGRAPH B OF ARTICLE 40 OF THE AMENDMENT. YOU REFER TO THE "RIGHTS IN TECHNICAL DATA" PROVISION AS WELL AS THE PROVISION ON PAGE 12 OF THE INVITATION ENTITLED "FAILURE TO INSERT DATA PRICES," WHICH PROVIDES THAT WHERE NO PRICE OR OTHER SPECIFIC RESPONSE IS INSERTED FOR A DATA ITEM, IT SHALL BE CONSIDERED THAT THE PRICE THEREFORE IS INCLUDED IN THE END ITEM PRICE. AS TO THE REMAINING PARAGRAPHS OF ARTICLE 40, WHICH RESERVE TO THE GOVERNMENT AN OPTION TO PURCHASE SPARE PARTS, YOU CONTEND THAT THE GOVERNMENT HAS THE RIGHT UNDER AN IMPLIED WARRANTY TO PURCHASE SUCH PARTS. IN ADDITION, YOU RELY ON MILITARY SPECIFICATION MIL-P-52457, WHICH PROVIDES: "NO SHIPMENT OF PANELS SHALL BE MADE UNLESS REPAIR PARTS, MAINTENANCE TOOLS, AND LITERATURE ARE INCLUDED WITH THE SHIPMENT OR UNLESS APPROVAL FOR SHIPMENT OF THE PANELS WITHOUT SUCH ITEMS HAS BEEN RECEIVED FROM THE CONTRACTING OFFICER.' YOU POINT OUT THAT PARAGRAPH A OF ARTICLE 41 IMPOSES NO OBLIGATION ON THE CONTRACTOR. AS TO PARAGRAPH B OF ARTICLE 41, WHICH REQUIRES THE TECHNICAL MANUALS TO BE PLACED INSIDE THE END ITEM'S CASE, YOU CONTEND THAT THIS IS ALREADY REQUIRED BY THE ABOVE MILITARY SPECIFICATION WHICH PROVIDES THAT "THE COMPONENTS COMPRISING A COMPLETE PANEL SHALL BE PLACED WITHIN THE CASE AS PROVIDED FOR.' FINALLY, YOU STATE THAT IN PRICING YOUR BID YOU CONSIDERED THE GOVERNMENT'S RIGHTS IN TECHNICAL DATA, NEED TO PURCHASE SPARE PARTS, AND PACKAGING METHOD FOR TECHNICAL MANUALS.

WE AGREE THAT ARTICLE 41 OF THE AMENDMENT IS NOT MATERIAL AND YOUR FAILURE TO ACKNOWLEDGE AND AGREE TO BE BOUND BY ITS TERMS WOULD NOT BE CAUSE FOR REJECTING YOUR BID. HOWEVER, WE BELIEVE THE REMAINING PROVISIONS OF THE AMENDMENT ARE CLEARLY MATERIAL. ARTICLE 27, RIGHTS IN TECHNICAL DATA, OF THE INVITATION APPLIES ONLY TO "TECHNICAL DATA * * * WHICH ARE SPECIFIED TO BE DELIVERED PURSUANT TO THIS CONTRACT * * *.' STATED IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 9-200,"IT RELATES ONLY TO THE ACQUISITION OF RIGHTS IN DATA AND DOES NOT ESTABLISH REQUIREMENTS FOR DATA.' THE ONLY DATA REQUIRED TO BE FURNISHED UNDER THE INVITATION AS ORIGINALLY ISSUED IS THAT SPECIFIED UNDER ITEMS 0003 AND 0004. THE OTHER PROVISION OF THE INVITATION WHICH YOU TE,"FAILURE TO INSERT DATA PRICES," APPLIES ONLY TO SUCH DATA AS YOU HAVE AGREED TO FURNISH BY SUBMITTING YOUR BID, THAT IS, ITEMS 0003 AND 0004.

EXCEPT FOR THE AMENDMENT, THE GOVERNMENT WOULD HAVE NO RIGHT TO THE DATA SPECIFIED IN ITEMS 0005 THROUGH 0010. SIGNIFICANT ALSO IS THE FACT THAT THE BIDS FOR THESE SIX ITEMS TOTALED AS MUCH AS $37,425. SINCE THE PROCURING ACTIVITY HAS DETERMINED A NEED FOR SUCH DATA, AND IT IS NOT OTHERWISE REQUIRED BY THE INVITATION, THE AMENDMENT IS MATERIAL. SINCE THE AMENDMENT IS MATERIAL IN THIS RESPECT, THERE IS NO NEED TO CONSIDER IN DETAIL YOUR ARGUMENTS CONCERNING ARTICLE 40. HOWEVER, WESEE LITTLE, IF ANY, RELATIONSHIP BETWEEN AN IMPLIED WARRANTY OF FITNESS AND AN OPTION TO PURCHASE SPARE PARTS. THEREFORE, FAILURE TO ACKNOWLEDGE AND SUBMIT THE AMENDMENT WITH THE BID MAY NOT BE WAIVED AS A MINOR INFORMALITY OR IRREGULARITY UNDER ASPR 2-405.

REMAINING FOR CONSIDERATION IS YOUR CONTENTION THAT YOUR BID SHOULD NOT HAVE BEEN FOUND NONRESPONSIVE FOR FAILING TO TIMELY SUBMIT THE AMENDMENT SINCE IT WAS NOT YOUR FAULT THAT YOU DID NOT RECEIVE OR HAVE KNOWLEDGE OF IT. OUR OFFICE HAS LONG HELD THAT THE FAILURE IN SUCH CIRCUMSTANCES TO PROPERLY ACKNOWLEDGE THE RECEIPT OF AN AMENDMENT MAKING MATERIAL CHANGES CLEARLY PRECLUDES AWARD ON AN ADVERTISED PROCUREMENT REGARDLESS OF THE REASONS FOR THE FAILURE. 41 COMP. GEN. 417. AS WAS STATED IN 40 COMP. GEN. 126 --

"ALTHOUGH IT WAS UNFORTUNATE THAT YOUR CLIENT WAS NOT SENT COPIES OF AMENDMENT NO. 2 TIMELY, THE FACT REMAINS THAT THE GENERAL EQUIPMENT COMPANY DID NOT, PRIOR TO THE SCHEDULED OPENING OF BIDS, BID UPON THE MANDATORY -C- (DESTINATION) BASIS CALLED FOR BY THE AMENDMENT AND, THEREFORE, THE BID WAS NONRESPONSIVE TO THE INVITATION, AS AMENDED. WHILE THE GOVERNMENT SHOULD MAKE EVERY EFFORT TO SEE THAT INTERESTED BIDDERS RECEIVE TIMELY COPIES OF THE INVITATION FOR BIDS AND AMENDMENTS THERETO, THE FACT THAT THERE WAS A FAILURE TO DO SO IN A PARTICULAR CASE DOES NOT WARRANT THE ACCEPTANCE OF A BID OR A MODIFICATION THEREOF AFTER THE TIME FIXED FOR OPENING. SEE 37 COMP. GEN. 785. MOREOVER, SINCE YOUR CLIENT'S BID WAS RESPONSIVE ONLY TO THE ORIGINAL INVITATION BUT NOT TO THE ADVERTISED REQUIREMENTS OF THE GOVERNMENT AS EMBODIED IN AMENDMENT NO. 2, THE ACCEPTANCE OF SUCH A BID ON THE BASIS OF THE AMENDMENT RECEIVED AFTER THE OPENING OF BIDS WOULD HAVE BEEN PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, WHO WERE ENTIRELY RESPONSIVE, AND TO THE GOVERNMENT AS WELL. UNDER SUCH CIRCUMSTANCES, THE CONTRACTING OFFICER WAS WITHOUT LEGAL AUTHORITY TO ACCEPT SUCH A BID.'

ACCORDINGLY, WE MUST CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED AS NONRESPONSIVE.