B-166694, JUN. 10, 1969

B-166694: Jun 10, 1969

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TO RAY PROOF CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAM DATED APRIL 16. WHEN THE BIDS WERE OPENED ON APRIL 10. FIVE BIDS WERE RECEIVED. 900 WAS THE LOWEST BID BUT WAS FOUND TO BE QUALIFIED AND THUS NONRESPONSIVE. WAS AWARDED THE CONTRACT. YOU CONTEND THAT YOU WERE REJECTED DUE TO A CLERICAL ERROR AND THAT UNDER THE LAST SENTENCE OF STANDARD FORM 22. YOU SHOULD HAVE RECEIVED THE CONTRACT AWARD. THE ERROR YOU REFER TO IS THE INSERTION OF THE FOLLOWING STATEMENT ON YOUR BID FORM: "USING OUR SERIES 81 CONSTRUCTION.'. WITH THE SHIELD AND FRAMEWORK FREE OF ANY COMPRESSIBLE MATERIAL SUCH AS PLYWOOD. * * *" PAGE 3 OF THE CATALOG ENCLOSED WITH YOUR BID PROVIDED THAT THE "SERIES 81 PANELS ARE CONSTRUCTED OF A LAYER OF ZINC-COVERED STEEL.

B-166694, JUN. 10, 1969

TO RAY PROOF CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM DATED APRIL 16, 1969, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS (IFB) NO. N62473 69-B- 0005, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, SAN DIEGO, CALIFORNIA.

THE INVITATION PROVIDED FOR THE SECURING OF A COMMUNICATIONS DEVELOPMENT INSTALLATION, COMPLETE AND READY FOR USE. WHEN THE BIDS WERE OPENED ON APRIL 10, 1969, FIVE BIDS WERE RECEIVED. YOUR BID OF $81,900 WAS THE LOWEST BID BUT WAS FOUND TO BE QUALIFIED AND THUS NONRESPONSIVE. ON APRIL 18, 1969, FIRE DETECTION SERVICE, INC., THE SECOND LOWEST BIDDER AT $82,210, WAS AWARDED THE CONTRACT.

YOU CONTEND THAT YOU WERE REJECTED DUE TO A CLERICAL ERROR AND THAT UNDER THE LAST SENTENCE OF STANDARD FORM 22, PARAGRAPH 7, YOU SHOULD HAVE RECEIVED THE CONTRACT AWARD, SINCE YOU CORRECTED YOUR ERROR WITH NO CHANGE IN PRICE. THE ERROR YOU REFER TO IS THE INSERTION OF THE FOLLOWING STATEMENT ON YOUR BID FORM: "USING OUR SERIES 81 CONSTRUCTION.' YOU ALSO ENCLOSED YOUR CATALOG NO. 568 WHICH DETAILS SERIES 81 CONSTRUCTION. TELEGRAM OF APRIL 16, 1969 -- AFTER BID OPENING -- YOU WITHDREW THE ABOVE STATEMENT AND THE ENCLOSED CATALOG FROM YOUR BID, WITHOUT CHANGING YOUR BID PRICE, AND REQUESTED THAT YOU BE CONSIDERED FOR AWARD AS THE QUALIFIED LOW BIDDER.

THE PERTINENT TECHNICAL SECTION OF THE IFB PROVIDED, IN PART, AS FOLLOWS: "2A.3.1.2 SHIELDED ENCLOSURE CONSTRUCTION. THE SHIELDED ENCLOSURE AS INDICATED ON THE DRAWINGS AND SPECIFIED HEREIN SHALL BE CONSTRUCTED OF MODULAR DOUBLE PANELS OF ZINC CLAD STEEL SHEET ON A FRAMEWORK OF ZINC CLAD STEEL PANEL POSTS, WITH THE SHIELD AND FRAMEWORK FREE OF ANY COMPRESSIBLE MATERIAL SUCH AS PLYWOOD. * * *"

PAGE 3 OF THE CATALOG ENCLOSED WITH YOUR BID PROVIDED THAT THE "SERIES 81 PANELS ARE CONSTRUCTED OF A LAYER OF ZINC-COVERED STEEL, LAMINATED TO EACH SIDE OF SPECIALLY CONSTRUCTED 3/4-INCH EXTERIOR GRADE PLYWOOD.'

CONSIDERING THE FACT THAT THE SPECIFICATION CLEARLY PROHIBITED THE USE OF PLYWOOD, WHILE YOUR BID OFFERED A LAYER OF PLYWOOD BETWEEN THE ZINC- COVERED STEEL PANELS, THIS OFFICE IS IN FULL AGREEMENT WITH THE CONTRACTING OFFICER'S DETERMINATION THAT YOU SUBMITTED A QUALIFIED, NONRESPONSIVE, BID.

SECTION 2-404.2 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION, STATES THAT "ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS * * * SHALL BE REJECTED AS NONRESPONSIVE.' SUBSECTION (D) ADDS "ORDINARILY, A BID SHOULD BE REJECTED WHERE THE BIDDER ATTEMPTS TO IMPOSE SUCH 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.'

WHERE ONE BIDDER LIMITS THE RIGHT OR INTEREST WHICH THE GOVERNMENT HAS IN THE SUBJECT MATTER OF THE CONTRACT, SUCH LIMITATION NOT BEING PERMITTED TO THE OTHER BIDDERS BY THE ADVERTISED CONDITIONS AND SPECIFICATIONS, IT IS CLEAR THAT A CONTRACT AWARDED ON THE BASIS OF SUCH A BID WOULD NOT BE A CONTRACT OFFERED TO ALL BIDDERS. THE ADVERTISED CONDITIONS AND SPECIFICATIONS MAKE NO PROVISION FOR, AND IN FACT EXPRESSLY PROHIBIT, A LAYER OF PLYWOOD BETWEEN THE ZINC-COVERED STEEL PANELS, AND SINCE THE CONTRACT OFFERED TO THE SUCCESSFUL BIDDER MUST BE THE CONTRACT OFFERED ALL BIDDERS, 44 COMP. GEN. 193; 36 COMP. GEN. 534, 539; 16 COMP. GEN. 392, TO PERMIT YOUR CORPORATION TO QUALIFY ITS BID IN THIS MANNER WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, EVEN IF THE GOVERNMENT WERE WILLING TO WAIVE THE DEVIATION FROM THE SPECIFICATIONS. THE QUALIFICATION IN YOUR BID MUST THEREFORE BE CONSIDERED A MATERIAL DEVIATION WHICH CANNOT BE WAIVED. SEE 30 COMP. GEN. 179; B-146039, JULY 20, 1961. YOUR OFFER AFTER BID OPENING TO WITHDRAW THE MATERIAL DEVIATION WITHOUT AN INCREASE IN THE BID PRICE, COULD NOT PROPERLY BE CONSIDERED BY THE PROCURING AGENCY. SEE B-164522, JULY 17, 1968, AND B-161003, APRIL 19, 1967.

WE ARE ALSO IN FULL AGREEMENT WITH THE PROCURING AGENCY'S POSITION THAT THE LAST SENTENCE OF PARAGRAPH 7 OF STANDARD FORM 22 IS NOT APPLICABLE TO SITUATIONS OF THIS NATURE. THE LAST SENTENCE OF STANDARD FORM 22, PARAGRAPH 7, ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" READS: ,HOWEVER, A MODIFICATION WHICH MAKES THE TERMS OF THE OTHERWISE SUCCESSFUL BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.'

BY ITS VERY LANGUAGE, THEREFORE, THIS PARAGRAPH IS APPLICABLE ONLY TO AN "OTHERWISE SUCCESSFUL" BID AND NOT TO A QUALIFIED, NONRESPONSIVE BID, AS SUBMITTED BY YOUR CORPORATION, WHICH COULD NOT BE ACCEPTED AS SUBMITTED. (SEE B-164362, JUNE 28, 1968.)

ACCORDINGLY, WE MUST CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED AND YOUR PROTEST MUST BE DENIED.