B-166360, APR. 17, 1969

B-166360: Apr 17, 1969

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TO SCHULTZ COMPANY: FURTHER REFERENCE IS MADE TO A COPY OF YOUR LETTER DATED MARCH 4. ON THE BASIS THAT IT WAS NONRESPONSIVE TO THE INVITATION. TWO MILLION NINE HUNDRED THOUSAND SUCH BOTTLES WERE ESTIMATED TO BE REQUIRED FOR THE UNRESTRICTED PORTION DURING THE PERIOD OF ANY RESULTANT CONTRACT. BIDS WERE OPENED ON DECEMBER 2. THE LOWEST BID RECEIVED WAS SUBMITTED BY AIROSOL COMPANY. SINCE ITS BID WAS RESPONSIVE. AWARD OF THE UNRESTRICTED PORTION OF THE PROCUREMENT WAS MADE TO THAT FIRM ON FEBRUARY 9. THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE BECAUSE YOU HAD CONDITIONED ITS ACCEPTANCE UPON THE RECEIPT OF A MINIMUM QUANTITY WHICH WOULD REPRESENT $750. THIS DETERMINATION WAS BASED UPON THE INTERPRETATION OF A STATEMENT CONTAINED IN A LETTER DATED NOVEMBER 29.

B-166360, APR. 17, 1969

TO SCHULTZ COMPANY:

FURTHER REFERENCE IS MADE TO A COPY OF YOUR LETTER DATED MARCH 4, 1969, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. DSA-400 -69-B-2580, ON THE BASIS THAT IT WAS NONRESPONSIVE TO THE INVITATION.

THE INVITATION, ISSUED NOVEMBER 8, 1968, SOLICITED BIDS FOR FURNISHING ONE-HALF OF THE GOVERNMENT'S REQUIREMENTS OF TWO OUNCE BOTTLES OF INSECT REPELLENT. TWO MILLION NINE HUNDRED THOUSAND SUCH BOTTLES WERE ESTIMATED TO BE REQUIRED FOR THE UNRESTRICTED PORTION DURING THE PERIOD OF ANY RESULTANT CONTRACT, WITH A LIKE QUANTITY REQUIRED FOR THE LABOR SURPLUS AREA SET-ASIDE PORTION OF THE PROCUREMENT.

BIDS WERE OPENED ON DECEMBER 2, 1968, AND THE LOWEST BID RECEIVED WAS SUBMITTED BY AIROSOL COMPANY, INC. SINCE ITS BID WAS RESPONSIVE, AND THE BIDDER RESPONSIBLE, AWARD OF THE UNRESTRICTED PORTION OF THE PROCUREMENT WAS MADE TO THAT FIRM ON FEBRUARY 9, 1969.

THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE BECAUSE YOU HAD CONDITIONED ITS ACCEPTANCE UPON THE RECEIPT OF A MINIMUM QUANTITY WHICH WOULD REPRESENT $750,000 IN ORDERS. THIS DETERMINATION WAS BASED UPON THE INTERPRETATION OF A STATEMENT CONTAINED IN A LETTER DATED NOVEMBER 29, 1968, ACCOMPANYING YOUR BID, WHICH READS AS FOLLOWS: "THE SUBJECT BID ATTACHED IS SUBMITTED ON THE BASIS OF RECEIVING A MINIMUM AWARD OF $750,000 BECAUSE COSTS TO US ON RAW MATERIALS FOR THIS REQUIREMENT ARE PREDICATED ON BULK PURCHASING.' PAGE 28 OF THE SCHEDULE PROVIDED THAT: "REQUIREMENTS (OCT 67) 305A SECTION G

"/A) THIS IS A REQUIREMENTS CONTRACT FOR THE SUPPLIES OR SERVICES SPECIFIED IN THE SCHEDULE, AND FOR THE PERIOD AND AREAS SET FORTH THEREIN. DELIVERY OF SUPPLIES OR PERFORMANCE OF SERVICES SHALL BE MADE ONLY AS AUTHORIZED BY ORDERS ISSUED IN ACCORDANCE WITH THE CLAUSE ENTITLED -ORDERING.- THE QUANTITIES OF SUPPLIES OR SERVICES SPECIFIED HEREIN ARE ESTIMATES ONLY, AND ARE NOT PURCHASED HEREBY. EXCEPT AS MAY BE OTHERWISE PROVIDED HEREIN, IN THE EVENT THE GOVERNMENT'S REQUIREMENTS FOR SUPPLIES OR SERVICES SET FORTH IN THE SCHEDULE DO NOT RESULT IN ORDERS IN THE AMOUNTS OR QUANTITIES DESCRIBED AS -ESTIMATED- OR -MAXIMUM- IN THE SCHEDULE, SUCH EVENT SHALL NOT CONSTITUTE THE BASIS FOR AN EQUITABLE PRICE ADJUSTMENT UNDER THIS CONTRACT.'

THE COVER LETTER WHICH ACCOMPANIED YOUR BID WAS REQUIRED TO BE EVALUATED AS A PART OF THE BID AND SINCE THE MINIMUM AWARD QUALIFICATION IN THE LETTER CONSTITUTED A MATERIAL DEVIATION FROM THE INVITATION PROVISION QUOTED ABOVE, THE BID MUST BE REGARDED AS NONRESPONSIVE. SEE 46 COMP. GEN. 368. THE SUBJECT INVITATION DID NOT REQUIRE THE GOVERNMENT TO ORDER ANY SPECIFIC QUANTITY OF ITEMS, BUT ONLY TO THE EXTENT OF THE GOVERNMENT'S REQUIREMENTS WHICH MAY NEVER EQUAL $750,000. HENCE, THE STATEMENT ACCOMPANYING YOUR BID WOULD HAVE IMPOSED A MATERIAL REQUIREMENT UPON THE GOVERNMENT WHICH WAS NOT CONTEMPLATED BY THE INVITATION FOR BIDS. COMP. GEN. 179. IN THIS REGARD, SEE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.2 (D) WHICH READS:

"ORDINARILY, A BID SHOULD BE REJECTED WHERE THE BIDDER ATTEMPTS TO IMPOSE CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT, SINCE TO ALLOW THE BIDDER TO IMPOSE SUCH CONDITIONS WOULD BE PREJUDICIAL TO OTHER BIDDERS. * * *"

SINCE YOUR BID WAS NONRESPONSIVE TO THE NON-SET-ASIDE PORTION OF THE INVITATION, YOUR COMPANY WAS NOT ELIGIBLE TO PARTICIPATE IN THE NEGOTIATION OF THE SET-ASIDE PORTION. ASPR 1-804.2 (C) (1) PROVIDES IN PERTINENT PART,"NEGOTIATIONS SHALL BE CONDUCTED ONLY WITH THOSE BIDDERS OR OFFERORS WHO HAVE SUBMITTED RESPONSIVE BIDS OR PROPOSALS ON THE NON-SET- ASIDE PORTION.' ALSO, THIS LIMITATION APPEARS IN THE NOTICE OF LABOR SURPLUS AREA SET-ASIDE CONTAINED IN THE INVITATION.

YOU CONTEND THAT THE $750,000 FIGURE IS "SELF EVIDENTLY A MISCALCULATION" AND THAT YOUR "UNIT PRICE SHOULD BE THE DETERMINING FACTOR NOT THE CALCULATION OF THE EXTENSION.' HOWEVER, EVEN IF SUCH MODE OF BIDDING WAS YOUR REAL INTENTION, A NONRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH PROPERLY MAY BE ACCEPTED, AND TO PERMIT, AS HERE, 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. WE HAVE HELD THAT AN ALLEGATION OFERROR IS PROPER FOR CONSIDERATION ONLY IN CASES WHERE THE BID IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE PROPER FOR ACCEPTANCE. SEE 38 COMP. GEN. 819. SINCE YOUR BID WAS NOT RESPONSIVE TO THE INVITATION AT THE TIME OF OPENING, IT WAS PROPERLY REJECTED BY THE CONTRACTING OFFICER.