B-165396, DEC. 4, 1968

B-165396, DEC. 4, 1968

TO C. P. ASSOCIATES:

REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 7, 1968, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. F41608-69-B 0087, ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS.

THE SUBJECT INVITATION, ISSUED ON JULY 18, 1968, SOLICITED BIDS FOR THE FURNISHING OF THE SERVICES AND MATERIAL NECESSARY TO TEST AND REPAIR INDEFINITE QUANTITIES OF AIRCRAFT CLOCKS FOR THE PERIOD OF 1 YEAR. PARAGRAPH 9 OF THE FACESHEET OF THE INVITATION (STANDARD FORM 33, JULY 1966) PROVIDES THAT ALL OFFERS WOULD BE SUBJECT TO THE FOLLOWING: "1. THE ATTACHED SOLICITATION INSTRUCTIONS AND CONDITIONS, SF 33A. "2. THE GENERAL PROVISIONS "3. THE SCHEDULE INCLUDED BELOW AND/OR ATTACHED HERETO. "4. SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED HEREIN BY REFERENCE. (ATTACHMENTS ARE LISTED IN THE SCHEDULE.)"

IT IS REPORTED BY THE ADMINISTRATIVE OFFICE THAT OF THE EIGHT BIDS RECEIVED, THE LOWEST BID WAS RECEIVED FROM YOUR FIRM. HOWEVER, IN SUBMITTING YOUR BID, YOU FAILED TO INCLUDE THE FOLLOWING PORTIONS OF THE INVITATION UPON WHICH OFFERS WERE SOLICITED:

A. STANDARD FORM 33A - SOLICITATION INSTRUCTIONS AND CONDITIONS.

1. PAGE 7 - DELIVERY.

2. PAGE 8 - ORDERING PROVISIONS, MINIMUM AND MAXIMUM PROVISIONS, CONTRACT PERIOD AND DELIVERY ORDER LIMITATIONS.

3. PAGE 9 - INDEFINITE QUANTITY CLAUSE, QUALITY AUDIT PROVISIONS AND CONDEMNATION OF END ITEMS PROVISION.

4. PAGE 12 - RIGHTS IN DATA CLAUSE, MARKING TECHNICAL DATA CLAUSE, LIMITATION ON TECHNICAL DATA REQUIREMENTS CLAUSE AND DATA REQUIREMENTS NOTICE.

5. PAGE 14 - NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE.

6. PAGE 15 - PRESIDENT'S JOB OPPORTUNITIES IN THE BUSINESS SECTOR (JOBS) PROGRAM AND OPTION TO EXTEND SERVICES.

C. PRESERVATION, PACKAGING, PACKING AND MARKING FORMS AS FOLLOWS:

1. AFLC FORM 872 (1 PAGE)

2.AFLC FORM 53 (1 PAGE)

D. EXHIBIT "A" AND REVERSE OF DD FORM 1423 (2 PAGES); WITH AFLC/AFSC FORM 9 (7 PAGES).

E. FOLLOWING PAGES OF SCHEDULE SECTION II OF THE INVITATION:

1. PAGE 1 - BID EVALUATION PROVISIONS, PROGRESS PAYMENTS PROVISION AND MIL STAMP PROVISION.

2. PAGE 5 - LABOR SURPLUS INFORMATION AND INSTRUCTIONS ON AVAILABILITY OF SPECIFICATIONS AND STANDARDS.

3. PAGE 6 - FINANCIAL AND TECHNICAL ABILITY PROVISION.

4. PAGE 7 - CERTIFICATION OF NONSEGREGATED FACILITIES AND REPAIR OF GOVERNMENT-OWNED PROPERTY DAMAGED BY CONTRACTOR.

F. GENERAL PROVISIONS AS FOLLOWS:

1. SAP 71-18, JULY 1, 1968

G. APPENDICES:

APPENDIX "A" (WORK SPECIFICATION), FILE NO. SA/PME/I-R DATED APRIL 1, 1968 (6 PAGES), WITH THE FOLLOWING ADDENDUM: FILES NOS. SA/6645/1 DATED APRIL 9, 1968 (2 PAGES)

SA/6645/2 DATED APRIL 9, 1968 (2 PAGES)

SA/6645/3 DATED APRIL 10, 1968 (2 PAGES)

SA/6645/5 DATED APRIL 10, 1968 (2 PAGES)

SA/6645/6 DATED APRIL 10, 1968 (2 PAGES)

SA/6645/4 DATED APRIL 10, 1968 (2 PAGES)

SA/6645/10 DATED APRIL 10, 1968 (2 PAGES)

SA/6645/8 DATED APRIL 10, 1968 (2 PAGES)

SA/6645/9 DATED APRIL 10, 1968 (2 PAGES)

SA/6645/7 DATED APRIL 10, 1968 (2 PAGES)

SA/6645/2 DATED APRIL 10, 1968 (2 PAGES) APPENDIX "B," FILE NO. SA/6645/900 WITH ATTACHMENT NO. 1 (7 PAGES).

IN VIEW OF THE OMISSION OF THE FOREGOING PROVISIONS FROM YOUR BID (SOME OF WHICH CONTAINED SUBSTANTIVE CONTRACT PROVISIONS), THE CONTRACTING OFFICER REJECTED YOUR BID AS NONRESPONSIVE. UPON REVIEW OF THE RECORD BEFORE US, WE AGREE THAT THE REJECTION OF YOUR LOW BID WAS PROPER.

YOU CONTEND THAT THE MISSING PORTIONS OF YOUR BID ARE ALREADY INCORPORATED BY REFERENCE UNDER PARAGRAPH 9 OF STANDARD FORM 33 AND THAT SINCE YOU DID NOT TAKE WRITTEN EXCEPTION TO ANY OF THE TERMS AND CONDITIONS OF THE INVITATION, YOU WOULD BE BOUND BY THE COMPLETE INVITATION AS ISSUED. YOU ALSO CONTEND THAT THE PAGES OMITTED FROM YOUR BID WERE THE RESULT OF AN OVERSIGHT AND, IN ANY EVENT, ONLY CONTAINED ADMINISTRATIVE AND INFORMATIONAL INSTRUCTION HAVING NO BEARING ON PRICE, DELIVERY, OR QUALITY OF PERFORMANCE AND THUS COULD BE WAIVED AS MINOR INFORMALITIES UNDER PARAGRAPH 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

YOUR OMISSIONS OF THE DELIVERY REQUIREMENTS, ORDERING PROVISIONS, CONTRACT PERIOD, PACKAGING REQUIREMENTS AND WORK SPECIFICATIONS WERE MATERIAL DEVIATIONS FROM THE REQUIREMENTS OF THE INVITATION AND MAY NOT BE REGARDED AS MINOR INFORMALITIES UNDER THE WAIVER PROVISIONS OF ASPR 2- 405. WHILE THE OMISSION OF THE PAGES CONTAINING THESE PROVISIONS FROM YOUR BID MAY HAVE BEEN AN "OVERSIGHT," THESE OMITTED PROVISIONS ARE "SUBSTANTIVE" IN THAT THEY IMPOSE MATERIAL OBLIGATIONS ON PROSPECTIVE CONTRACTORS. WE HAVE HELD THAT A BIDDER WOULD NOT BE OBLIGATED TO COMPLY WITH ANY PROVISIONS WHICH THE INVITATION STATED WERE ATTACHED BUT WHICH, IN FACT, WERE NOT ATTACHED WHEN THE BID WAS SUBMITTED. SEE 42 COMP. GEN. 502, WHEREIN IT WAS HELD THAT WHILE PORTIONS OF THE CONTRACT INCORPORATED BY REFERENCE IN THE INVITATION WOULD BE BINDING ON BIDDERS WHO FAILED TO TAKE EXCEPTION TO THEM, SPECIAL PROVISIONS ATTACHED TO THE INVITATION WOULD NOT BE BINDING UNLESS SUBMITTED WITH THE BID, THE LANGUAGE ON THE FIRST SIGNED PAGE ONLY BINDING THE BIDDER TO ABIDE BY THOSE SCHEDULES AND PROVISIONS ATTACHED TO THE BID WHEN IT IS SUBMITTED, NOT THOSE WHICH WERE ORIGINALLY INCLUDED WITH THE INVITATION BUT WHICH WERE REMOVED BY THE BIDDER BEFORE SUBMISSION OF THE BID. THE CITED CASE STATES:

"* * * THE DETERMINING FACTOR IS NOT WHETHER THE BIDDER INTENDS TO BE BOUND, IT IS WHETHER THIS INTENTION IS APPARENT FROM THE BID AS SUBMITTED. IN THE PRESENT SITUATION, A BIDDER COULD TAKE THE POSITION THAT HE WAS BOUND ONLY BY THE SPECIAL PROVISIONS ACTUALLY ATTACHED TO THE BID -- A CONTENTION WHICH IF MADE WOULD APPEAR TO BE LEGALLY SOUND. * *

IN VIEW THEREOF, WE WOULD NOT BE WARRANTED IN QUESTIONING THE ADMINISTRATIVE ACTION IN REJECTING YOUR BID AS NONRESPONSIVE FOR FAILURE TO RETURN SUBSTANTIVE PORTIONS OF THE INVITATION WITH YOUR BID. SEE B- 164610, JULY 22, 1968; B-163647, MAY 15, 1968; AND B 164797, OCTOBER 3, 1968, 48 COMP. GEN. ---. ..END :