B-165294, NOV. 15, 1968

B-165294, NOV. 15, 1968

TO WOEHRMYER PRINTING COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 19, 1968, AND TO SUBSEQUENT CORRESPONDENCE, RELATIVE TO YOUR PROTEST AGAINST AN ANTICIPATED REJECTION OF YOUR BID ON MARGINALLY PUNCHED CONTINUOUS FORMS AS DESCRIBED IN AN ADVERTISEMENT FOR BIDS ISSUED ON AUGUST 9, 1968, BY THE UNITED STATES GOVERNMENT PRINTING OFFICE, WHEREIN PROPOSALS WERE REQUESTED COVERING DELIVERIES OF SUCH FORMS DURING A 12 MONTH PERIOD BEGINNING DECEMBER 1, 1968, AND ENDING NOVEMBER 30, 1969.

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

WE REQUESTED AND RECEIVED AN ADMINISTRATIVE REPORT ON YOUR PROTEST FROM THE GOVERNMENT PRINTING OFFICE, WHICH CONCURS WITH THE CONTRACTING OFFICER'S RECOMMENDATION THAT YOUR BID BE DECLARED NON RESPONSIVE IN ITS ENTIRETY. THE CONTRACTING OFFICER CONSIDERED THAT ANY CORRECTION OF YOUR BID TO PROVIDE THE PRICING INFORMATION REQUIRED UNDER SECTION 7 AT PAGE 20 OF THE PROPOSAL FORM WOULD HAVE THE EFFECT OF VIOLATING THE ESTABLISHED RULE OF COMPETITIVE BIDDING THAT A BID MAY NOT BE CHANGED AFTER THE SCHEDULED BID OPENING TIME. THE FACT THAT YOU CROSSED OUT SECTIONS 6 AND 8 AT PAGE 20 WAS NOT CONSIDERED AS A BASIS FOR REJECTION OF YOUR BID.

IT IS REPORTED THAT THE GOVERNMENT PRINTING OFFICE ESTABLISHED PAR PRICES FOR OVER 8,000 ITEMS AND BIDDERS WERE INSTRUCTED TO QUOTE THE BASIC (PAR) PRICES MINUS A PERCENTAGE OR WITHOUT CHANGE, OR THE BASIC PRICES PLUS A PERCENTAGE. IT WAS CONTEMPLATED THAT SEQUENCES OF CONTRACTORS WOULD BE ESTABLISHED AND THAT ORDERS WOULD BE OFFERED TO CONTRACTORS IN SEQUENCE UNTIL THE OFFERS WERE ACCEPTED. IT WAS PROVIDED THAT ANY BIDDER WHO INDICATED "NO BID" FOR REGIONAL AREAS 1-5 HAD TO SUBMIT A BID FOR THE REGIONAL AREA IN WHICH HIS PRINCIPAL MANUFACTURING FACILITY IS LOCATED WITH NO CHARGE FOR SHIPMENT IN THAT AREA. IT WAS PROVIDED IN SECTION 7 AT PAGE 20 OF THE PROPOSAL FORM THAT THE QUOTED PRICES WERE TO COVER SHIPMENT F.O.B. DESTINATIONS TO REGIONAL AREAS 1-5. ALSO, SPACES WERE PROVIDED FOR THE INSERTION OF MINUS PERCENT DOWNCHARGES OR PLUS PERCENT UPCHARGES TO BE APPLIED TO COVER SHIPPING CHARGES TO REGIONAL AREAS 6 THROUGH 12. THE BASIC PRICES, ADJUSTED BY THE SHIPPING COST PERCENTAGES QUOTED, WERE TO COVER ALL COSTS OF SHIPMENT TO F.O.B. DESTINATIONS WITHIN REGIONAL AREAS 6 AND 7, CONSIDERED AS ONE UNIT; 8, 9, AND 10, CONSIDERED AS ONE UNIT; AND REGIONAL AREAS 11 AND 12, CONSIDERED AS SEPARATE UNITS.

FORTY-FOUR BIDS WERE RECEIVED AND OPENED, AS SCHEDULED, ON SEPTEMBER 5, 1968. YOUR STANDING FOR THE QUOTATIONS MADE IN YOUR BID PLACED YOU IN A SEQUENCE OF ABOUT FORTIETH DOWN FROM THE LOWEST BIDDER. YOUR PRINCIPAL PLANT IS LOCATED IN REGIONAL AREA 8. HOWEVER, SINCE SECTION 7 AT PAGE 20 OF THE PROPOSAL FORM WAS CROSSED OUT IN THE BID AS SUBMITTED BY YOUR COMPANY, THERE EXISTS NO BASIS FOR DETERMINING FROM THE BID ITSELF WHAT YOUR INTENDED PRICES WERE FOR MAKING DELIVERIES WITHIN ANY OF THE SPECIFIED REGIONAL AREAS. SECTION 7 PERMITTED A BIDDER TO BLOCK OUT ANY REGIONAL AREAS AS INDICATING "NO BID" AND, SINCE THAT SECTION WAS CROSSED OUT IN ITS ENTIRETY, IT COULD NOT EVEN BE PRESUMED THAT THE BASIC (PAR) PRICES, AS ADJUSTED ON THE BASIS OF YOUR STATED PLUS OR MINUS PERCENTAGES, WERE INTENDED TO COVER DELIVERIES WITHIN REGIONAL AREAS 1-5 OR WITHIN REGIONAL AREA 8.

ALTHOUGH IT IS REPORTED THAT CORRECTIONS WERE AGREED TO IN CONNECTION WITH YOUR 1967 CONTRACT, THE GOVERNMENT PRINTING OFFICE HAS INDICATED THAT SUCH CORRECTIONS INVOLVED ONLY MATTERS OF FORM OR IMMATERIAL VARIANCES.

OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE AUTHORITY TO WAIVE DEFECTS OR VARIATIONS IN BIDS MUST BE LIMITED TO THE WAIVER OF DEFECTS OR VARIATIONS WHICH DO NOT MATERIALLY AFFECT THE SUBSTANCE OF A BID, AS DISTINGUISHED FROM THE FORM OF A BID. YOUR FAILURE TO COMPLETE SECTION 7 AT PAGE 20 OF THE PROPOSAL FORM MATERIALLY AFFECTED THE SUBSTANCE OF YOUR BID FROM THE STANDPOINT OF PRICE, AND WE AGREE WITH THE CONTRACTING OFFICER THAT TO PERMIT YOU TO CHANGE THE BID IN SUCH MANNER THAT YOUR DELIVERED PRICES TO DESTINATIONS WITHIN ONE OR MORE OF THE 12 SPECIFIED REGIONAL AREAS CAN BE DETERMINED WOULD HAVE THE EFFECT OF VIOLATING THE ESTABLISHED RULE THAT BIDS MAY NOT BE CHANGED AFTER THE SCHEDULED BID OPENING TIME. AS INDICATED IN 17 COMP. GEN. 554, THERE ARE FUNDAMENTAL RULES GOVERNING THE AWARD OF CONTRACTS BY GOVERNMENTAL AGENCIES ON A COMPETITIVE BASIS, AND TO PERMIT A BID TO BE CHANGED AFTER OPENING WOULD SERIOUSLY AFFECT THE INTEGRITY OF THE WHOLE PROCEDURE OF AWARDING GOVERNMENT CONTRACTS ON AN OPEN COMPETITIVE BASIS.

WHILE YOU HAVE NOT REQUESTED CORRECTION OF YOUR BID UNDER THE ERROR IN BID PROCEDURES, WE THINK IT APPROPRIATE TO NOTE THAT SUCH PROCEDURE IS NOT AVAILABLE IN A CASE SUCH AS THIS TO PERMIT THE FURNISHING OF INFORMATION AFTER BID OPENING NEEDED TO MAKE A BID RESPONSIVE. SEE B 161504, JUNE 13, 1967, COPY ENCLOSED.

ACCORDINGLY, AND REGARDLESS OF YOUR APPARENT STATUS AS A SMALL BUSINESS CONCERN, OR WHATEVER AGREEMENT WAS MADE IN CONNECTION WITH YOUR 1967 CONTRACT, YOUR PROTEST TO OUR OFFICE IN THE MATTER MUST BE, AND IS, HEREBY DENIED.