B-166466, APR. 22, 1969

B-166466, APR. 22, 1969

TO HARVEY DAIRY, INCORPORATED:

THIS LETTER CONCERNS THE PROTEST BY HARVEY DAIRY, INCORPORATED, BY LETTERS OF MARCH 17, 27 AND 28, AND APRIL 14, 1969, AGAINST ANY AWARD TO THOMPSON HONOR DAIRY UNDER INVITATION FOR BIDS NO. DSA 138-69-B 0082. THAT INVITATION FOR BIDS WAS ISSUED BY THE DEFENSE SUPPLY AGENCY FOR THE MILK AND MILK PRODUCTS REQUIREMENTS AT ANDREWS AIR FORCE BASE FOR THE PERIOD OF APRIL 25, 1969, THROUGH OCTOBER 31, 1969.

BIDS IN RESPONSE TO THIS INVITATION WERE OPENED ON MARCH 13, 1969, WITH THE THOMPSON BID, AT $546,351.75 (BASED ON ESTIMATED REQUIREMENTS STATED IN THE SOLICITATION), BEING LOW AND THE BID BY HARVEY, $557,116.50, SECOND LOW. WHILE ITEM 10 OF THE INVITATION CALLED FOR PINTS OF WHIPPING CREAM, THOMPSON IN ITS BID HAD OFFERED AN EQUAL AMOUNT OF WHIPPING CREAM TO BE SUPPLIED IN HALF PINTS. YOU CONTEND THAT THIS DEVIATION RENDERED THOMPSON'S BID NONRESPONSIVE. THE PRIMARY BASIS FOR THAT CONCLUSION, IN SUMMARY, ARE: (1) PINTS WERE REQUESTED AND WERE OFFERED BY OTHER IDDERS; (2) A BID ON HALF PINTS HAS A COMPETITIVE OR MONETARY ADVANTAGE INASMUCH AS PINTS ARE NOT A NORMAL PRODUCTION ITEM; AND (3) ARMED SERVICES PROCUREMENT REGULATION 2-404.2 (B) REQUIRES REJECTION OF THE THOMPSON BID.

BEFORE CONSIDERING THE MAJOR ISSUE WE REJECT TWO ARGUMENTS AS UNSUPPORTABLE. THE FIRST, THAT THOMPSON WAS MISLED BY THE GOVERNMENT'S AMENDMENT ALLOWING SUBSTITUTION OF HALF GALLONS FOR GALLONS TO BELIEVE THAT A SIMILAR SUBSTITUTION COULD BE MADE FOR PINTS, IS REJECTED IN VIEW OF THE UNCONTESTED EVIDENCE THAT THOMPSON HAS BID IN THE SAME MANNER IN THE PAST WHERE THERE WAS NO SUCH AMENDMENT. THE SECOND, THAT PINTS OF WHIPPING CREAM WERE ACTUALLY REQUIRED FOR DELIVERY, IS CONTRADICTED BY A PAST HISTORY OF SIMILAR CONTRACTS UNDER WHICH EITHER PINTS WERE NOT ORDERED OR HALF PINTS WERE DELIVERED AND ACCEPTED FOR THE COMMISSARY AT ANDREWS IN PLACE OF PINTS. ADDITIONALLY, PINTS OF WHIPPING CREAM ARE NOT AVAILABLE COMMERCIALLY IN THE WASHINGTON METROPOLITAN AREA AND ARE NOT REQUIRED.

GOVERNMENT SPECIFICATIONS ARE REQUIRED TO ACCURATELY REFLECT ACTUAL NEEDS. SEE 40 COMP. GEN. 294. A BID NOT CONFORMING TO THE INVITATION FOR BIDS NORMALLY MUST BE REJECTED BECAUSE THE CONTRACT AWARDED MUST BE THE CONTRACT ADVERTISED. TO MAKE AN AWARD ON A NONCONFORMING BID WOULD, IN GENERAL, STRIKE AT THE HEART OF THE COMPETITIVE BID PROCESS TO THE DETRIMENT OF THE GOVERNMENT AND OTHER BIDDERS.

HOWEVER, THIS CASE INVOLVES A MINOR ITEM IN A REQUIREMENTS CONTRACT FOR MILK SUPPLIES. PAST EXPERIENCE CLEARLY DEMONSTRATES THAT ITEM 10 FOR PINTS OF WHIPPING CREAM DID NOT REFLECT AN ACTUAL NEED OF THE GOVERNMENT. IT IS UNLIKELY THAT ANY PINTS WILL BE ORDERED, AND WHERE ORDERED HALF PINTS WILL SERVE AS WELL. NOR CAN WE FIND ANY COMPETITIVE ADVANTAGE OR DETRIMENT TO OTHER BIDDERS. WHILE IT MAY NOT BE POSSIBLE TO FURNISH PINTS THROUGH A NORMAL PROCESS RUN, THE BIDS DO NOT REFLECT ANY MATERIAL ADVANTAGE TO THOMPSON BY BIDDING ON PRODUCTION RUN HALF PINTS. IN FACT HARVEY'S BID FOR THE ITEM BASED ON THE PROJECTED REQUIREMENT WAS $4.40 LOWER THAN THOMPSON-S. IN THE CIRCUMSTANCES, THE RULE SET OUT IN 43 COMP. GEN. 23, AT PAGE 26, IS APPLICABLE:

"UNDER ORDINARY CIRCUMSTANCES, THE INVITATION MIGHT PROPERLY BE REGARDED AS SO DEFECTIVE AS TO REQUIRE READVERTISING. HOWEVER, WHERE COMPETITION HAS NOT BEEN ADVERSELY AFFECTED, WHERE THE AGENCY BY AWARD WOULD ENTER INTO A BINDING CONTRACT FOR WHAT IT WANTED, AND WHERE NO BIDDER OBTAINED AN OPTION OR OTHER UNDUE ADVANTAGE BECAUSE OF THE DEFECT IN THE INVITATION, WE HAVE, INSTEAD OF REQUIRING THAT THE PROCUREMENT BE READVERTISED, PERMITTED AWARD UNDER THE INVITATION WITH THE OMISSION OR CORRECTION OF THE PROVISION WHICH WOULD OTHERWISE RENDER THE AWARD INVALID. 40 COMP. GEN. 561, 563; 39 COMP. GEN. 834; ID. 563; B-147370, MARCH 28, 1962.'

WE DO NOT BELIEVE THAT EITHER ASPR 2-404.2 OR ASPR 2-301 (A) CONTEMPLATES THE REJECTION OF A BID FOR FAILURE TO CONFORM TO A REQUIREMENT WHICH IS OMITTED IN ACTUAL PERFORMANCE. THEREFORE, WE CONCLUDE THAT AWARD TO THOMPSON ON ITS BID AS SUBMITTED WOULD NOT BE IN VIOLATION OF LAW OR REGULATION.