B-166040, MAR. 24, 1969

B-166040: Mar 24, 1969

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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2. 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 SEVEN BIDS RECEIVED. YOU WERE LOW ON THREE OF THE FOUR ITEMS. YOU FAILED TO INCLUDE THE FOLLOWING PORTIONS OF THE INVITATION UPON WHICH OFFERS WERE SOLICITED: 1. WE AGREE THAT THE REJECTION OF YOUR LOW BID WAS PROPER. YOU CONTEND THAT THE MISSING PORTIONS OF YOUR BID WERE CERTAIN DESCRIPTIVE PAGES AND BY YOUR LETTER DATED NOVEMBER 12. YOU CONTEND THAT THIS MINOR INFRACTION COULD HAVE BEEN CORRECTED WITH A TELEPHONE CALL. 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.

B-166040, MAR. 24, 1969

TO EASTPRINT DIVISION OF MERRIMADE, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2, 1968, TO CONGRESSMAN BATES PROTESTING THE ACTION TAKEN BY THE ADJUTANT GENERAL'S OFFICE, ARMY PUBLICATION SERVICE DIVISION, IN REJECTING YOUR BID UNDER INVITATION FOR BIDS NO. DABG15-69-B-0009.

THE SUBJECT INVITATION, ISSUED ON SEPTEMBER 17, 1968, CONTEMPLATED A REQUIREMENTS CONTRACT FOR NON-PERMANENT TYPE SENSITIVE ADHESIVE LABELS, FOR USE ON PLASTIC, IN VARIOUS QUANTITIES AND SIZES. PARAGRAPH 9 OF THE FACESHEET OF THE INVITATION (STANDARD FORM 33, JULY 1966) PROVIDED 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 SEVEN BIDS RECEIVED, YOU WERE LOW ON THREE OF THE FOUR ITEMS. HOWEVER, IN SUBMITTING YOUR BID, YOU FAILED TO INCLUDE THE FOLLOWING PORTIONS OF THE INVITATION UPON WHICH OFFERS WERE SOLICITED: 1. PAGE 4 - CONDITIONS OF AWARDING, CONSTRUCTION PAPER, INK, PRINTING, LABEL CORNERS, AND PRESERVATION, PACKAGING AND PACKING. 2. PAGE 5 - PACKING, MARKING OF SHIPMENT, EXTENT OF QUANTITY VARIATION, SAMPLES AND FOB POINT (DESTINATION). 3. PAGE 7 - REQUIREMENTS ON ORDERING. 4. PAGE 8 - DELIVERY ORDER LIMITATIONS, MINIMUM AND MAXIMUM, WAIVER NUMBER AND AVAILABILITY OF SPECIFICATIONS AND STANDARDS. 5. PAGE 9 - NOTICE OF SMALL BUSINESS SET-ASIDE. 6. PAGE 11 - CERTIFICATION OF NONSEGREGATED FACILITIES, INCLUDING SUBCONTRACTORS. PAGE 12 - REPORT OF SHIPMENT. 8. PAGE 13 - SOLICITATION INSTRUCTIONS AND CONDITIONS, SF 33A. 9. PAGE 14 - SOLICITATION INSTRUCTIONS AND CONDITIONS, SF 33A. 10. PAGE 15 - ALTERATIONS IN CONTRACT, COVERING PAGES 15 THROUGH 22, ENTITLED CHANGES IN PROVISIONS OF STANDARD FORM 32 (JUNE 1964 EDITION), GENERAL PROVISIONS, (ATTACHMENT A), AND ADDITIONAL GENERAL PROVISIONS, JULY 1, 1966, ARMY PUBLICATIONS SVC. DIV., TAGO, (ATTACHMENT B).

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 WERE CERTAIN DESCRIPTIVE PAGES AND BY YOUR LETTER DATED NOVEMBER 12, 1968, TO THE CONTRACTING OFFICER, YOU CONTEND THAT THIS MINOR INFRACTION COULD HAVE BEEN CORRECTED WITH A TELEPHONE CALL.

YOUR OMISSIONS OF THE DELIVERY REQUIREMENTS, ORDERING PROVISIONS, 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.

THE TEST OF WHETHER A BID IS RESPONSIVE IN A SITUATION SUCH AS EXISTS HERE IS WHETHER THE BIDDER'S INTENTION TO BE BOUND BY ALL SUBSTANTIVE TERMS AND CONDITIONS OF THE SOLICITATION IN ANY RESULTING CONTRACT IS EVIDENT FROM THE TERMS OF THE BID AS SUBMITTED. CLARIFICATION OF A BID AFTER BID OPENING WITH REGARD TO A MATERIAL OR SUBSTANTIVE TERM OR CONDITION OF THE SOLICITATION IS PROHIBITED BECAUSE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRES THAT ALL BIDDERS BID ON AN EQUAL BASIS, AND THE OPPORTUNITY TO CHANGE OR CLARIFY A BID AFTER OPENING WOULD GIVE THE BIDDER INVOLVED AN UNDUE ADVANTAGE OVER OTHER BIDDERS.

ALTHOUGH THE OMISSION OF THESE PAGES CONTAINING THESE PROVISIONS FROM YOUR BID MAY SEEM INSIGNIFICANT TO YOU, 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; B-164797, OCTOBER 3, 1968, 48 COMP. GEN.---; AND B-165396, DECEMBER 4, 1968.