B-164810, AUG. 23, 1968

B-164810: Aug 23, 1968

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MANST MAINTAINS THAT THE BID OF GENERAL ELECTRIC WAS NONRESPONSIVE SINCE IT FAILED TO QUOTE A PRICE FOR THE CLASSROOM TRAINING OF WEATHER BUREAU PERSONNEL. MANST ALSO PROTESTS ON THE BASIS THAT THE GENERAL ELECTRIC BID IS NONRESPONSIVE BECAUSE IT BID ON THE BASIS OF SLIDING SCALE PRICES FOR THE INCREMENTAL QUANTITIES RATHER THAN AS STIPULATED IN THE INVITATION. WE ARE ADVISED THAT GENERAL ELECTRIC STATED AT THE BID OPENING THAT THERE WAS NO CHARGE FOR TRAINING. IT IS FUNDAMENTAL PRINCIPLE OF THE COMPETITIVE BIDDING SYSTEM THAT IN ORDER TO BE CONSIDERED FOR AN AWARD A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE INVITATION AT THE TIME OF BID OPENING. A BIDDER MAY NOT BE PERMITTED TO ADD TO OR MODIFY ITS BID AFTER THE OPENING TO MAKE HIS BID COMPLY WITH THE REQUIREMENTS OF THE INVITATION AND IT DOES NOT MATTER WHETHER THE FAILURE TO COMPLY WAS DUE TO INADVERTENCE.

B-164810, AUG. 23, 1968

TO MR. SECRETARY:

BY LETTER DATED AUGUST 5, 1968, WITH ENCLOSURES, THE ADMINISTRATOR OF ENVIRONMENTAL SCIENCE SERVICES FURNISHED US WITH A REPORT ON THE PROTEST OF THE MANST CORPORATION AGAINST ANY AWARD TO THE GENERAL ELECTRIC COMPANY UNDER INVITATION FOR BIDS NO. E-9-69A FOR INCREMENTAL QUANTITIES OF VHF-FM CONTINUOUS BROADCAST AND EMERGENCY WARNING SYSTEMS.

MANST MAINTAINS THAT THE BID OF GENERAL ELECTRIC WAS NONRESPONSIVE SINCE IT FAILED TO QUOTE A PRICE FOR THE CLASSROOM TRAINING OF WEATHER BUREAU PERSONNEL. MANST ALSO PROTESTS ON THE BASIS THAT THE GENERAL ELECTRIC BID IS NONRESPONSIVE BECAUSE IT BID ON THE BASIS OF SLIDING SCALE PRICES FOR THE INCREMENTAL QUANTITIES RATHER THAN AS STIPULATED IN THE INVITATION.

THE INVITATION REQUESTED UNIT PRICE BIDS UNDER ITEMS 1 (A) AND 1 (B) FOR THE SYSTEMS "IN ANY QUANTITY FROM 1 TO 4, INCLUSIVE," AND "IN ANY QUANTITY FROM 5 TO 10 INCLUSIVE.' ALSO, THE INVITATION SPECIFICALLY PROVIDED THAT PERSONNEL TRAINING SHALL BE SEPARATELY PRICED UNDER ITEM 2.

RESPECTING THE FAILURE TO OFFER SEPARATE PRICING FOR TRAINING UNDER ITEM 2, WE ARE ADVISED THAT GENERAL ELECTRIC STATED AT THE BID OPENING THAT THERE WAS NO CHARGE FOR TRAINING. HOWEVER, IT IS FUNDAMENTAL PRINCIPLE OF THE COMPETITIVE BIDDING SYSTEM THAT IN ORDER TO BE CONSIDERED FOR AN AWARD A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE INVITATION AT THE TIME OF BID OPENING. A BIDDER MAY NOT BE PERMITTED TO ADD TO OR MODIFY ITS BID AFTER THE OPENING TO MAKE HIS BID COMPLY WITH THE REQUIREMENTS OF THE INVITATION AND IT DOES NOT MATTER WHETHER THE FAILURE TO COMPLY WAS DUE TO INADVERTENCE, MISTAKE OR OTHERWISE. SEE 38 COMP. GEN. 819; AND 40 ID. 132.

THE FAILURE TO BID PRICES FOR ITEM 2 WAS A MATERIAL DEVIATION FROM AN EXPRESS REQUIREMENT OF THE INVITATION AND DEPRIVED THE PROCUREMENT AGENCY OF RELEVANT COST INFORMATION APPLICABLE TO THE HARDWARE AND TO THE TRAINING OF PERSONNEL. FURTHERMORE, BIDDERS WERE REQUESTED IN MANDATORY TERMS TO BID PRICES FOR THE TRAINING OF PERSONNEL. SEE 46 COMP. GEN. 434. HENCE, WE AGREE THAT THE BID OF GENERAL ELECTRIC IS NOT RESPONSIVE AND FOR THAT REASON SUCH BIDDER MAY NOT BE REGARDED AS ELIGIBLE FOR AN AWARD UNDER THE INVITATION.

SINCE THE BID OF GENERAL ELECTRIC IS NOT FOR CONSIDERATION IN MAKING ANY AWARD, WE NEED NOT DISCUSS IN DETAIL THE OTHER POINT OF PROTEST WHICH INVOLVES THE MODE OF BIDDING USED BY GENERAL ELECTRIC. HOWEVER, WE BELIEVE THAT GENERAL ELECTRIC'S BID WOULD BE OTHERWISE ELIGIBLE FOR AN AWARD SINCE THE EXACT AMOUNTS OF ITS BID CAN BE ASCERTAINED WITH MATHEMATICAL CERTAINTY FOR ANY QUANTITY OF THE SYSTEMS UP TO 10 UNITS. WHILE THE BID FORMAT OF THE INVITATION MAY HAVE SUGGESTED TO BIDDERS THAT THE BID PRICE FOR EACH UNIT OF ITEMS 1 (A) AND 1 (B) BE THE SAME, THERE WAS NOTHING IN THE INVITATION TO PRECLUDE A BIDDER FROM SUBMITTING VARYING INDIVIDUAL UNIT PRICES FOR THE QUANTITIES 1 THROUGH 10.

THE ADMINISTRATOR RAISES A QUESTION AS TO WHETHER AWARD MAY BE MADE TO MANST IN THE EVENT FUNDS SHOULD BECOME AVAILABLE IN THE FUTURE TO PURCHASE THE SYSTEMS. HIS DOUBT ARISES FROM THE FACT THAT MANST'S BID FOR FOUR SYSTEMS AT $88,000 IS MORE THAN THE COST OF BUYING FIVE SYSTEMS AT $87,275. HE THEREFORE SUGGESTS THAT THE MANST BID CONTAINS INCONSISTENCIES WHICH MIGHT AFFECT AN AWARD IF AND WHEN FUNDS BECOME AVAILABLE. WE DO NOT FEEL THAT MANST'S BID IS INCONSISTENT OR SUBJECT TO QUESTION MERELY BECAUSE ITS BID PRICES DECREASE WHEN THE QUANTITY INCREASES. THERE IS NOTHING IN THE INVITATION WHICH WOULD INDICATE TO BIDDERS THAT THEY COULD NOT OFFER A LESSER BID PRICE FOR A GREATER NUMBER OF UNITS.

ACCORDINGLY, YOU ARE ADVISED THAT THE BID OF GENERAL ELECTRIC COMPANY MAY NOT BE CONSIDERED FOR AWARD AND THAT THE BID OF MANST IS OTHERWISE ELIGIBLE FOR AWARD PROVIDED FUNDS BECOME AVAILABLE TO ACCOMPLISH THE PROCUREMENT.