B-165690, FEB. 3, 1969

B-165690: Feb 3, 1969

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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 27. IF THIS OFFER IS ACCEPTED WITHIN . - CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE OFFEROR) FROM THE DATE OF RECEIPT OF OFFERS SPECIFIED ABOVE. TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED * * *.'. ABOVE THE NUMBER "60" WAS AN ARROW WHICH POINTED TO THE PHRASE"SEE PARA 23. PAGE 5 OF THE SOLICITATION STATED THE FOLLOWING: "BIDS OFFERING LESS THAN 90 DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE OF OPENING WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.'. BIDS WERE RECEIVED FROM TWELVE FIRMS. FOLLOWING THE BID OPENING YOU ADVISED THE CONTRACTING OFFICER THAT THE 60 -DAY ACCEPTANCE PERIOD WAS AN OVERSIGHT ON THE PART OF THE PERSON TYPING THE BID.

B-165690, FEB. 3, 1969

TO AMERICAN ELECTRIC, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 27, 1968, PROTESTING THE PROPOSED REJECTION OF YOUR BID SUBMITTED UNDER SOLICITATION NO. F42600-69-B-1284, ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, OGDEN AIR MATERIEL AREA, HILL AIR FORCE BASE, UTAH.

THE SOLICITATION INVITED BIDS FOR THE FABRICATION AND FURNISHING OF A NUMBER OF ARMING FUZE DRIVE ASSEMBLIES (ITEM 1) AND GOVERNED COUPLERS (ITEM 3). ITEMS 2 AND 4 REQUIRED CERTAIN DATA APPLICABLE TO ITEMS 1 AND 3, RESPECTIVELY. THE SOLICITATION ON ITS COVER PAGE, STANDARD FORM 33, INCLUDED THE FOLLOWING STATEMENT UNDER THE PROVISION DESIGNATED,"OFFER":

"IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF THIS OFFER IS ACCEPTED WITHIN ------- CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE OFFEROR) FROM THE DATE OF RECEIPT OF OFFERS SPECIFIED ABOVE, TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED * * *.' ABOVE THE NUMBER "60" WAS AN ARROW WHICH POINTED TO THE PHRASE"SEE PARA 23, PAGE 5.' PARAGRAPH 23, PAGE 5 OF THE SOLICITATION STATED THE FOLLOWING:

"BIDS OFFERING LESS THAN 90 DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE OF OPENING WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.'

BIDS WERE RECEIVED FROM TWELVE FIRMS. YOUR BID SPECIFIED IN THE BLANK SPACE PROVIDED THAT IT MUST BE ACCEPTED WITHIN 60 CALENDAR DAYS FROM DATE OF OPENING RATHER THAN ALLOWING 90 DAYS FOR ACCEPTANCE AS REQUIRED BY PARAGRAPH 23, PAGE 5.

FOLLOWING THE BID OPENING YOU ADVISED THE CONTRACTING OFFICER THAT THE 60 -DAY ACCEPTANCE PERIOD WAS AN OVERSIGHT ON THE PART OF THE PERSON TYPING THE BID. YOU REQUESTED THAT THE ERROR BE WAIVED AS A MINOR INFORMALITY AND AN ACCEPTANCE PERIOD OF 90 DAYS BE MADE APPLICABLE TO THE BID.

THE CONTRACTING OFFICER DENIED YOUR REQUEST ON THE BASIS THAT THE ACCEPTANCE PERIOD WAS A MATERIAL REQUIREMENT AND THAT IT COULD NOT BE WAIVED AS A MINOR INFORMALITY.

WE HAVE CONSISTENTLY HELD THAT A PROVISION IN A SOLICITATION WHICH REQUIRES THAT A BID MUST REMAIN AVAILABLE FOR ACCEPTANCE BY THE GOVERNMENT FOR A PRESCRIBED PERIOD IN ORDER TO BE CONSIDERED FOR AWARD IS A MATERIAL REQUIREMENT, AND THAT FAILURE TO MEET SUCH REQUIREMENT RENDERS A BID NONRESPONSIVE. SEE 39 COMP. GEN. 779; 46 ID. 418 AND CASES CITED THEREIN. FURTHER, THE FACT THAT SUCH FAILURE IS ALLEGED TO BE ATTRIBUTABLE TO OVERSIGHT OR ERROR DOES NOT JUSTIFY CORRECTION OF THE BID TO REMEDY THE DEFECT, SINCE THE RULES UNDER WHICH CORRECTION OF CERTAIN MISTAKES IN BID IS PERMITTED ARE APPLICABLE ONLY WHEN THE BID IN THE FORM SUBMITTED IS RESPONSIVE TO THE SOLICITATION AND IS OTHERWISE ACCEPTABLE. SUCH RULES CANNOT BE INVOKED TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PROVISION AFTER THE BID OPENING. THE QUESTION OF GOOD FAITH OR INTENT IS NOT INVOLVED. AS STATED IN ONE OF OUR PREVIOUS DECISIONS, 38 COMP. GEN., AT PAGE 821:

"IT IS PROBABLE 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. AN UNRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PART OF THE BID ON THE BASIS OF AN ERROR ALLEGED AFTER THE OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. IT IS OUR OPINION THAT AN ALLEGATION OF ERROR IS PROPER FOR CONSIDERATION ONLY IN CASES WHERE THE BID IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE PROPER FOR ACCEPTANCE.'

FOR THE REASONS STATED, WE MUST CONCLUDE THAT THE CONTRACTING OFFICER ACTED PROPERLY IN REJECTING YOUR BID AS BEING NONRESPONSIVE TO A MATERIAL REQUIREMENT OF THE SOLICITATION. ACCORDINGLY, YOUR PROTEST IS DENIED.