B-165545, NOV. 26, 1968

B-165545: Nov 26, 1968

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SR.: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28. PAGE 3 OF THE INVITATION FOR BIDS PROVIDED: "GUARANTEED PRODUCTION: FOR EACH CATEGORY FOR WHICH HE QUOTES PRICES THE BIDDER MUST INDICATE IN THE SPACE PROVIDED THEREFOR IN THE BASIS OF AWARD AND SCHEDULE OF PRICES' SECTION HEREINAFTER THE TOTAL NUMBER OF PRINTED PAGES (INCLUDING BLANKS) HE WILL ACCEPT DURING ANY ONE PERIOD OF 5 WORKING DAYS FOR PRODUCTION UNDER THE SCHEDULE LIMITATIONS ESTABLISHED HEREIN. NOTE: BID WILL NOT BE ACCEPTED BY THE GOVERNMENT IF GUARANTEED PRODUCTION IS LESS THAN 50. THE "BASIS OF AWARD AND SCHEDULE OF PRICES" SECTION REFERRED TO ABOVE PROVIDED: "BIDDER SHALL INDICATE BELOW THE TOTAL NUMBER OF PRINTED PAGES HE WILL ACCEPT DURING THE SPECIFIED PERIOD OF CONSECUTIVE WORKING DAYS FOR PRODUCTION UNDER THE SCHEDULE LIMITATIONS IMPOSED HEREIN.

B-165545, NOV. 26, 1968

TO MR. GEORGE O. WRIGHT, SR.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28, 1968, REGARDING THE REJECTION OF YOUR BID UNDER GOVERNMENT PRINTING OFFICE INVITATION FOR BIDS FOR PRINTING PROGRAM 315-M, DEFENSE SURPLUS BIDDERS CATALOG, FOR THE PERIOD OF NOVEMBER 1, 1968, THROUGH OCTOBER 31, 1969.

PAGE 3 OF THE INVITATION FOR BIDS PROVIDED:

"GUARANTEED PRODUCTION: FOR EACH CATEGORY FOR WHICH HE QUOTES PRICES THE BIDDER MUST INDICATE IN THE SPACE PROVIDED THEREFOR IN THE BASIS OF AWARD AND SCHEDULE OF PRICES' SECTION HEREINAFTER THE TOTAL NUMBER OF PRINTED PAGES (INCLUDING BLANKS) HE WILL ACCEPT DURING ANY ONE PERIOD OF 5 WORKING DAYS FOR PRODUCTION UNDER THE SCHEDULE LIMITATIONS ESTABLISHED HEREIN. NOTE: BID WILL NOT BE ACCEPTED BY THE GOVERNMENT IF GUARANTEED PRODUCTION IS LESS THAN 50,000 PAGES PER 5 WORKING-DAY PERIOD FOR CATEGORY 1, OR LESS THAN 350,000 PAGES PER 5 WORKING-DAY PERIOD FOR CATEGORY 2, OR LESS THAN 1,000,000 PAGES PER 5 WORKING-DAY PERIOD FOR CATEGORY 3. "THE LOW BIDDER FOR EACH CATEGORY HEREBY GUARANTEES TO ACCEPT ORDERS TOTALING UP TO HIS STATED NUMBER OF PAGES DURING ANY 5-WORKING-DAY PERIOD.'

THE "BASIS OF AWARD AND SCHEDULE OF PRICES" SECTION REFERRED TO ABOVE PROVIDED: "BIDDER SHALL INDICATE BELOW THE TOTAL NUMBER OF PRINTED PAGES HE WILL ACCEPT DURING THE SPECIFIED PERIOD OF CONSECUTIVE WORKING DAYS FOR PRODUCTION UNDER THE SCHEDULE LIMITATIONS IMPOSED HEREIN. BIDDER MUST INSERT QUANTITIES FOR EACH CATEGORY ON WHICH HE HAS QUOTED PRICES.'

FURTHER, THE INVITATION STATED:

"* * * FAILURE TO QUOTE ON ALL ITEMS, OR ANY OTHER OMISSION, OBLITERATION, OR ALTERATION TO THESE SPECIFICATIONS OR THE ORDER AND MANNER OF SUBMITTING PRICES HEREIN WILL BE REASON FOR REJECTION OF BID.'

YOU FAILED TO COMPLY WITH THE "GUARANTEED PRODUCTION" REQUIREMENT IN THAT YOU DID NOT STATE IN YOUR BID THE TOTAL NUMBER OF PRINTED PAGES YOU WOULD ACCEPT DURING THE SPECIFIED CONSECUTIVE WORKING DAY PERIOD.

THE CONTRACTING OFFICER REJECTED THE BID AS NONRESPONSIVE ON THE BASIS OF OUR DECISION B-161504, JUNE 13, 1967, 46 COMP. GEN. 856. THAT DECISION CONSIDERED A SITUATION WHERE A BIDDER INADVERTENTLY FAILED TO STATE THE PAGE GUARANTEE IN HIS BID SUBMITTED IN RESPONSE TO A GOVERNMENT PRINTING OFFICE INVITATION FOR BIDS CONTAINING A GUARANTEE REQUIREMENT PROVISION SUBSTANTIALLY SIMILAR TO THE ONE INVOLVED HERE. THE DECISION HELD THAT THE OMISSION AFFECTED NOT ONLY THE QUANTITY OF THE WORK TO BE PERFORMED, BUT COULD POSSIBLY AFFECT THE PRICE OF THE BID AS WELL AND WAS A MATERIAL DEVIATION REQUIRING THE REJECTION OF THE BID. IN THAT CONNECTION, IT WAS STATED:

"WHILE THE OMISSION OF THE REQUIRED FIGURE PROBABLY WAS THE RESULT OF AN INADVERTENT ERROR BY CRAFTSMAN, A NONRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A BIDDER TO MAKE ITS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PART OF THE BID ON THE BASIS OF ALLEGED ERROR AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. AN ALLEGATION OF ERROR IS PROPER FOR CONSIDERATION ONLY IN CASES WHERE A BID IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE PROPER FOR ACCEPTANCE. 38 COMP. GEN. 819; 45 ID. 800.'

SUBSEQUENTLY, THAT DECISION WAS RECONSIDERED AND SUSTAINED IN DECISION B- 161504 OF JULY 13, 1967. WE FIND NOTHING IN THE IMMEDIATE CASE WHICH DISTINGUISHES IT FROM OUR PRIOR DECISIONS CITED ABOVE; INSTEAD, IT APPEARS TO PARALLEL THE FACTS AND CIRCUMSTANCES INVOLVED HERE.

IT IS UNFORTUNATE THAT, BECAUSE OF INADVERTENCE ON YOUR PART, YOUR COMPANY WILL STAND TO LOSE A SUBSTANTIAL AMOUNT OF BUSINESS WHICH MIGHT HAVE BEEN PROVIDED BY A CONTRACT AWARDED UNDER THE SUBJECT INVITATION. COURSE, THIS IS THE RESULT WHICH EVERY BIDDER FACES WHEN HE FAILS IN A MATERIAL RESPECT TO BID RESPONSIVELY TO AN INVITATION FOR BIDS. IN THAT REGARD, IT WAS RECOGNIZED IN 38 COMP. GEN. 819, AT PAGE 821,"THAT THE MAJORITY OF UNRESPONSIVE BIDS ARE DUE TO OVERSIGHT OR ERROR, SUCH AS THE FAILURE TO QUOTE A PRICE, TO SIGN THE BID, TO FURNISH A BID BOND, TO SUBMIT REQUIRED SAMPLES OR DATA, OR THE SUBMISSION OF THE WRONG SAMPLE, INCOMPLETE DATA, OR STATEMENTS THE ACTUAL MEANING OF WHICH WAS NOT INTENDED, ETC.' HOWEVER, AS INDICATED ABOVE, A BID NONRESPONSIVE IN A MATERIAL RESPECT CANNOT PROPERLY BE CORRECTED OR ACCEPTED.

WE RECOGNIZE THAT IT IS TO THE PECUNIARY DISADVANTAGE OF THE GOVERNMENT TO DISREGARD YOUR LOW BID. HOWEVER, AS WAS STATED IN 17 COMP. GEN. 554, AT PAGES 558 AND 559:

"THESE ARE FUNDAMENTAL RULES GOVERNING THE AWARD OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. AS WAS SAID BY THE COURT IN CITY OF CHICAGO V MOHR, 216 ILL. 320; 74 N.E. 1056--

"-* * * WHERE A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD -- A DIRECT VIOLATION OF LAW -- AND CANNOT BE TOO STRONGLY CONDEMNED.-"

IN VIEW OF THE FOREGOING, THE REJECTION OF YOUR BID WILL NOT BE QUESTIONED BY OUR OFFICE.