B-166858, JUN. 19, 1969

B-166858: Jun 19, 1969

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WAS INITIATED PURSUANT TO A REQUISITION RECEIVED FROM ROCK ISLAND ARSENAL. BIDS WERE SOLICITED ON AN F.O.B. BID OPENING WAS SCHEDULED AT 4:00 P.M. INFORMED BIDDERS THAT BIDS WERE SUBJECT TO SOLICITATION INSTRUCTIONS AND CONDITIONS. PAGES 7 THROUGH 7.5 WERE ENTITLED GENERAL REQUIREMENTS. ON PAGE 7.2 SPACE WAS PROVIDED FOR BIDDERS TO DESIGNATE THE PLACE OF CONTRACT PERFORMANCE. PROVIDED THAT WHEN DELIVERY WAS TO BE F.O.B. ON PAGES 10 THROUGH 10.6 WAS ENTITLED QUALITY ASSURANCE PROVISIONS. AMONG THE VARIOUS ADDITIONAL PROVISIONS WHICH WERE CHECKED AND MADE APPLICABLE TO THE PROCUREMENT WAS A PROVISION ON PAGE 10.4 STATING THAT NOTWITHSTANDING THE ACCEPTABLE QUALITY LEVELS SET FORTH IN THE APPLICABLE QUALITY ASSURANCE DOCUMENT.

B-166858, JUN. 19, 1969

TO IMCO PRECISION PRODUCTS, INC.:

WE REFER TO YOUR PROTEST BY LETTER OF APRIL 29, 1969, AGAINST THE REJECTION BY THE DEPARTMENT OF THE ARMY OF YOUR BID UNDER INVITATION FOR BIDS (IFB) DAAG31-69-B-0145, ISSUED MARCH 11, 1969, BY THE UNITED STATES ARMY CINCINNATI PROCUREMENT AGENCY. THE PROCUREMENT, A TOTAL SMALL BUSINESS SET-ASIDE, WAS INITIATED PURSUANT TO A REQUISITION RECEIVED FROM ROCK ISLAND ARSENAL, ILLINOIS, COVERING A REQUIREMENT FOR 912 LOCK BOLTS FOR LETTERKENNY ARMY DEPOT, PENNSYLANIA.

BIDS WERE SOLICITED ON AN F.O.B. DESTINATION BASIS ONLY WITH DELIVERY TO LETTERKENNY ARMY DEPOT TO BE MADE WITHIN 150 DAYS AFTER DATE OF AWARD DOCUMENT. BID OPENING WAS SCHEDULED AT 4:00 P.M., EASTERN STANDARD TIME, MARCH 25.

THE FACE SHEET OF THE IFB, STANDARD FORM 33, INFORMED BIDDERS THAT BIDS WERE SUBJECT TO SOLICITATION INSTRUCTIONS AND CONDITIONS, STANDARD FORM 33A, AND GENERAL PROVISIONS (SUPPLY CONTRACT), STANDARD FORM 32, AS WELL AS THE SCHEDULE AND SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND SPECIFICATIONS AS ATTACHED TO OR INCORPORATED BY REFERENCE IN THE SOLICITATION.

PAGES 7 THROUGH 7.5 WERE ENTITLED GENERAL REQUIREMENTS. PAGE 7 INCLUDED A SPECIFIC INSTRUCTION RELATING TO RESPONSIVENESS TO THE EFFECT THAT IN THE CASE OF OFFERS SUBMITTED ON THE BIDDER'S LETTERHEAD OR OTHER FORM (IN LIEU OF THE BID FORM PROVIDED BY THE GOVERNMENT) IT WOULD BE NECESSARY FOR THE BIDDER TO DELETE, OR BY EXPLICIT LANGUAGE EXCLUDE, ANY CONDITIONS (PRE -PRINTED OR OTHERWISE) APPEARING ON THE LETTERHEAD WHICH MIGHT BE IN CONFLICT WITH THE SOLICITATION SCHEDULE, SOLICITATION INSTRUCTIONS AND CONDITIONS, OR THE GENERAL PROVISIONS OF THE SOLICITATION AND THAT FAILURE TO ELIMINATE ANY SUCH CONDITIONS MIGHT RESULT IN REJECTION OF THE OFFER AS NONRESPONSIVE. ON PAGE 7.2 SPACE WAS PROVIDED FOR BIDDERS TO DESIGNATE THE PLACE OF CONTRACT PERFORMANCE.

SECTION II, OF THE SOLICITATION, ON PAGES 8 AND 8.1, ENTITLED DELIVERY, INSPECTION AND ACCEPTANCE, STATED THE REQUIRED DELIVERY TIME AS 150 DAYS, AND DELIVERY POINT AS F.O.B. DESTINATION. SUBSECTION 3., ENTITLED INSPECTION AND ACCEPTANCE, ON PAGE 8.1 PROVIDED SPACE UNDER SUBSECTION 3.A. FOR DESIGNATION BY THE BIDDER OF THE PLACE OF INSPECTION "FOR CONFORMITY OF ITEM/S) WITH APPLICABLE DRAWINGS AND SPECIFICATIONS," AND UNDER SUBSECTION 3.B. FOR DESIGNATION OF THE PLACE OF INSPECTION "FOR CONFORMITY WITH PACKAGING, PACKING, AND MARKING SPECIFICATIONS.' SUBSECTION 3.D. PROVIDED THAT WHEN DELIVERY WAS TO BE F.O.B. DESTINATION, INSPECTION WOULD BE AT THE PLACES SPECIFIED UNDER A. AND B. BUT FINAL INSPECTION AND ACCEPTANCE WOULD BE MADE AT DESTINATION.

SECTION IV, ON PAGES 10 THROUGH 10.6 WAS ENTITLED QUALITY ASSURANCE PROVISIONS. SUBSECTION 1.D. UNDER INSPECTION REQUIREMENTS, PAGE 10, PROVIDED THAT NOTWITHSTANDING THE INSPECTION REQUIREMENTS SET FORTH IN THE QUALITY ASSURANCE PROVISIONS THE GOVERNMENT SPECIFICALLY RESERVED ALL RIGHTS UNDER THE INSPECTION CLAUSE IN STANDARD FORM 32 TO CONDUCT ANY OR ALL INSPECTION OR TESTING REQUIRED. SUBSECTION 6., PAGE 10.2, STATED THAT INSPECTION AND ACCEPTANCE WOULD BE ACCOMPLISHED BY AN AUTHORIZED GOVERNMENT REPRESENTATIVE AT THE CONTRACTOR'S OR SUBCONTRACTOR'S PLANT IN ACCORDANCE WITH CERTAIN DOCUMENTS AND CONDITIONS CITED IN THE QUALITY ASSURANCE PROVISIONS AND AS MARKED THEREIN. AMONG THE VARIOUS ADDITIONAL PROVISIONS WHICH WERE CHECKED AND MADE APPLICABLE TO THE PROCUREMENT WAS A PROVISION ON PAGE 10.4 STATING THAT NOTWITHSTANDING THE ACCEPTABLE QUALITY LEVELS SET FORTH IN THE APPLICABLE QUALITY ASSURANCE DOCUMENT, THE GOVERNMENT RESERVED ALL RIGHTS UNDER THE INSPECTION CLAUSE (STANDARD FORM 32), AND ANOTHER ON THE SAME PAGE STATING THAT SUPPLIES BEING PROCURED WILL BE EXAMINED AT DESTINATION FOR IDENTITY, DAMAGE IN TRANSIT, QUANTITY AND CONDITION.

THE INSPECTION CLAUSE IN STANDARD FORM 32 PROVIDED, AMONG OTHER THINGS, THAT ALL SUPPLIES WOULD BE SUBJECT TO INSPECTION AND TEST BY THE GOVERNMENT TO THE EXTENT PRACTICABLE AT ALL TIMES AND PLACES INCLUDING THE PERIOD OF MANUFACTURE AND IN ANY EVENT PRIOR TO ACCEPTANCE AND THAT ACCEPTANCE OR REJECTION OF THE SUPPLIES WOULD BE MADE AS PROMPTLY AS PRACTICABLE AFTER DELIVERY EXCEPT AS OTHERWISE PROVIDED IN THE CONTRACT.

ON MARCH 25, THE BIDS WERE OPENED AS SCHEDULED. THE STANDING OF THE FOUR BIDDERS WAS AS FOLLOWS:

UNIT

BIDDER PRICE DISCOUNT

JO-BAR CORPORATION $18.80 NONE

IMCO PRECISION

PRODUCTS, INC. 19.79 1/2 PERCENT 20 DAYS

SUFFOLK ENVIRONMENTAL

MAGNETICS, INC. 19.87 1/2 PERCENT 20 DAYS

THE MATHEWSON TOOL

COMPANY 22.00 1 PERCENT 20 DAYS

YOUR BID WAS SUBMITTED IN THE FORM OF A LETTER SHOWING YOUR NAME AND ADDRESS IN THE LETTERHEAD AND ADDRESSED TO THE PROCURING ACTIVITY. IN THE UPPER RIGHT CORNER THE PROCUREMENT WAS IDENTIFIED BY NUMBER, OPENING DATE, AND PROCUREMENT ITEM. THE BODY OF THE LETTER READS AS FOLLOWS: (THE UNDERSCORED PORTIONS APPEAR TO HAVE BEEN A PREPRINTED FORM, WITH THE REMAINDER FILLED IN BY TYPEWRITER.)

"IN LIEU OF STANDARD FORM 33, PLEASE ACCEPT OUR LETTER BID AS FOLLOWS:

ITEM 0001 P/N-7791181 LOCK BOLT L.H.

912 PCS. AT $19.79 EACH - TOTAL $18,045.48 DELIVERY: 150 DAYS AFTER DATE OF AWARD DOCUMENT. BID ACCEPTANCE TIME: 60 DAYS. TERMS: 1/2 PERCENT 20 DAYS NET 30 DAYS

WE ARE A SMALL BUSINESS OPERATING AS A CORPORATION IN THE STATE OF NEW YORK.

ALL TERMS AND CONDITIONS OF THE ABOVE IFB APPLY AND ARE INCORPORATED IN OUR BID BY REFERENCE.

PERFORMANCE, INSPECTION, ACCEPTANCE AND PACKAGING AT IMCO PRECISION PRODUCTS, INC.

FINAL INSPECTION EQUIPMENT TO BE SHIPPED TO IMCO PRECISION PRODUCTS, INC.' THE LETTER WAS SIGNED BY ISIDORE MARGULIES, PRESIDENT.

ON THE BASIS OF AN ADVERSE PRE-AWARD SURVEY REPORT, JO-BAR CORPORATION WAS DETERMINED TO BE NON-RESPONSIBLE AND ITS BID WAS THEREFORE ELIMINATED FROM CONSIDERATION.

AT THE SAME TIME, THE CONTRACTING OFFICER ISSUED A DETERMINATION STATING THAT YOUR BID, NEXT LOW AS TO PRICE, HAD BEEN EVALUATED ON MARCH 25, 1969, AND HAD BEEN FOUND TO BE PREDICATED ON INSPECTION AND ACCEPTANCE AT YOUR PLANT (ORIGIN) WHEREAS PARAGRAPH 3.D. ON PAGE 8.1 OF THE SOLICITATION SPECIFIED THAT THE F.O.B. POINT (DESTINATION) WOULD BE THE PLACE OF FINAL INSPECTION AND ACCEPTANCE. THEREFORE, THE BID WAS DECLARED TO BE NONRESPONSIVE, AND YOU WERE SO ADVISED BY LETTER DATED APRIL 18, WHICH ALSO INFORMED YOU THAT THE PROCEDURES FOR FORMALLY ADVERTISED SOLICITATIONS PROHIBIT EXCEPTIONS TO SPECIFICATIONS AND REQUIREMENTS REFERENCED IN THE IFB.

ON APRIL 21, SUFFOLK ENVIRONMENTAL MAGNETICS, INC. (SUFFOLK), WHOSE BID WAS THIRD LOW AS TO PRICE, WAS NOTIFIED THAT ITS BID HAD BEEN ACCEPTED.

THE RECORD INDICATES THAT IN A TELEPHONE CONVERSATION OF APRIL 24 WITH THE PROCURING ACTIVITY YOU PROTESTED THE REJECTION OF YOUR BID AS NONRESPONSIVE. A MEMORANDUM OF THE CONVERSATION STATES THAT YOU CLAIMED THAT THE DISPUTED WORDING IN YOUR LETTER BID MERELY REPEATED THE CAPTION ,INSPECTION AND ACCEPTANCE" ON PAGE 8.1 AND RELATED TO THAT PAGE; THAT HAD YOU INTENDED TO CHANGE THE PLACE OF INSPECTION AND ACCEPTANCE SUCH CHANGE WOULD HAVE BEEN NOTED IN THE PARAGRAPH RELATED TO "DELIVERY" IN YOUR LETTER BID; AND THAT THE STATEMENT IN YOUR LETTER BID READING "ALL TERMS AND CONDITIONS OF THE ABOVE IFB APPLY AND ARE INCORPORATED IN OUR BID BY REFERENCE," PRESERVED THE PLACE OF INSPECTION AND ACCEPTANCE TO THAT SPECIFIED IN THE SOLICITATION. THE MEMORANDUM QUOTES THE PROCURING ACTIVITY LEGAL REPRESENTATIVE AS HAVING INFORMED YOU THAT THE QUESTIONED SENTENCE APPLIED ONLY TO THOSE IFB TERMS AND CONDITIONS WHICH HAD NOT ACTUALLY BEEN CHANGED IN YOUR LETTER BID; THAT BY USING THE PHRASE "ACCEPTANCE AT IMCO'S PLANT" YOU HAD CHANGED THE PLACE OF ACCEPTANCE FROM DESTINATION AS SPECIFIED IN THE SOLICITATION TO CONTRACTOR'S PLANT (ORIGIN), THEREBY RENDERING THE BID NONRESPONSIVE; AND THAT WHAT WAS STATED IN YOUR BID CONTROLLED ITS INTERPRETATION RATHER THAN YOUR UNEXPRESSED INTENT.

THE RECORD FURTHER INDICATES THAT IN A RELATED TELEPHONE CONVERSATION OF APRIL 25 YOU ADVISED THE PROCURING ACTIVITY THAT YOUR BID CONFORMED TO ALL REQUIREMENTS OF THE IFB AND SPECIFICALLY WITH THE PROVISION ON PAGE 10.2 PROVIDING THAT INSPECTION AND ACCEPTANCE WOULD BE ACCOMPLISHED AT THE CONTRACTOR'S OR SUBCONTRACTOR'S PLANT, WHICH YOU CONSTRUED AS INDICATING THAT FINAL ACCEPTANCE WAS TO BE AT ORIGIN. THE PROCURING ACTIVITY ADVISED YOU THAT THE ACCEPTANCE POINT REFERENCED ON PAGE 8.1 DETERMINED THE PLACE OF ACCEPTANCE AND SUBSEQUENTLY INFORMED YOU THAT AWARD HAD BEEN MADE TO ANOTHER BIDDER.

IN A PROTEST FILED WITH THE PROCURING ACTIVITY BY TELEGRAM OF APRIL 25 AND LETTER OF APRIL 29 YOU ASSERTED THAT YOU HAD BEEN IMPROPERLY DECLARED NONRESPONSIVE FOR THE SAME REASONS YOU ADVANCED IN THE APRIL 24 TELEPHONE CONVERSATION WITH THE PROCURING ACTIVITY.

YOUR PROTEST LETTER OF APRIL 29 TO OUR OFFICE READS, IN PART, AS FOLLOWS: "WE MAINTAIN THAT IN OUR LETTER BID THE PHRASE -INSPECTION, ACCEPTANCE AND PACKAGING- --- IS OUR ANSWER TO PAGE 8.1 PARAGRAPH 3A AND B AND THE WORD - ACCEPTANCE- SHOULD NOT HAVE BEEN PULLED OUT OF CONTEXT BY THE AGENCY TO BE CONSTRUED AS THE F.O.B. POINT. FOR IT TO BE SO CONSTRUED IS ALSO TO SAY THAT WE DID NOT ANSWER PAGE 8.1, PARAGRAPH 3A AND B, WHICH IS PATENTLY NOT ACCORDING TO THE FACTS. "THE DECISION OF THE AGENCY SEEMS TO HAVE BEEN A HASTY ONE AND THE MISTAKEN RESULT OF AN EXTREMELY NARROW INTERPRETATION OF OUR LETTER BID. THE WORD -ACCEPTANCE- IS CLEARLY STATED IN THE ABOVE MENTIONED PARAGRAPH AND AN OBVIOUS CONFLICT NOW APPEARS. ANY AMBIGUITY ON THE PART OF THE BID SET SHOULD NOT BE MADE TO REDOUND AGAINST THE BIDDER.'

WITH RESPECT TO THE LANGUAGE ON PAGE 10.2 OF THE IFB REGARDING ACCEPTANCE AT THE CONTRACTOR'S OR SUBCONTRACTOR'S PLANT, THE PROCURING ACTIVITY REPORTS THAT NEITHER YOU NOR ANY OF THE THREE OTHER BIDDERS QUESTIONED THE PROVISION OR SOUGHT CLARIFICATION PRIOR TO AWARD. IN THE LIGHT OF THE SPECIFIC PROVISIONS REFERRED TO ABOVE WHICH CLEARLY RESERVE THE GOVERNMENT'S RIGHTS UNDER THE INSPECTION CLAUSE OF STANDARD FORM 32, AND CONSIDERING ALSO THE FACT THAT ALL OF THE PROVISIONS OF SECTION IV ARE IN THE CONTEXT OF QUALITY CONTROL AND SPECIFICATION REQUIREMENTS RATHER THAN WITH REFERENCE TO FINAL ACCEPTANCE OF DELIVERY AND TITLE, WE FIND NO REASONABLE GROUND FOR CONSIDERING THEM TO BE IN CONFLICT WITH THE DELIVERY AND ACCEPTANCE PROVISIONS OF SECTION II, OR AS CREATING ANY AMBIGUITY. ANY AMBIGUITY WAS BELIEVED BY YOU TO BE PRESENT, IT SHOULD HAVE BEEN REFERRED TO THE AGENCY BY YOU BEFORE BIDDING, UNDER THE REQUIREMENTS OF CLAUSE 3 OF STANDARD FORM 33A, THAT BIDDERS REQUEST EXPLANATION OF THE SOLICITATION PROVISIONS AND RELATED DOCUMENTS IN WRITING AND WITHIN SUFFICIENT TIME TO ALLOW FOR A REPLY TO REACH THE BIDDER BEFORE BID SUBMISSION.

WE CONCLUDE THAT THE INVITATION CLEARLY REQUIRED BIDS FOR DELIVERY OF THE SPECIFIED ITEMS AT LETTERKENNY ARMY DEPOT (DEPOT CODE BK 4 AS INDICATED IN THE SCHEDULE), F.O.B. DESTINATION, WITH FINAL INSPECTION AND ACCEPTANCE AT THAT POINT. WE DO NOT UNDERSTAND THAT YOU SERIOUSLY DISPUTE THAT THOSE WERE THE BIDDING REQUIREMENTS; YOUR PROTEST IS RATHER ON THE BASIS THAT YOUR BID WAS IMPROPERLY INTERPRETED AS BEING NONRESPONSIVE TO OR AT VARIANCE THEREWITH.

IN DETERMINING THE QUESTION WHETHER YOUR LETTER BID WAS RESPONSIVE TO THE IFB, THERE IS FOR APPLICATION THE RULE THAT THE RESPONSIVENESS OF A BID MUST BE DETERMINED FROM THE CONTENTS OF THE BID ITSELF AT THE TIME OF OPENING. UNDER THIS RULE, IF A BID AS PRESENTED CREATES ANY DOUBT CONCERNING THE BIDDER'S INTENTION TO COMPLY WITH THE INVITATION REQUIREMENTS, THE BIDDER MAY NOT BE ALLOWED AFTER THE BID OPENING TO EXPLAIN HIS MEANING SINCE HE WOULD AT THAT TIME BE IN A POSITION TO PREJUDICE THE RIGHTS OF OTHER BIDDERS OR TO AFFECT THE RESPONSIVENESS OF HIS OWN BID. 45 COMP. GEN. 800, 804 (1966); B-164711, SEPTEMBER 30, 1968. MOREOVER, A GENERAL STATEMENT IN A BID OF THE BIDDER'S INTENT TO COMPLY WITHE THE REQUIREMENTS OF THE INVITATION WILL NOT CURE A SUSTANTIVE DEVIATION IN THE BID FROM SUCH REQUIREMENTS. 41 COMP. GEN. 366, 369 (1961).

ASPR 2-301, RELATING TO RESPONSIVENESS OF BIDS, READS, IN PART, AS FOLLOWS:

"/A) TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION OFR BIDS SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED.

"/C) BIDS SHOULD BE FILLED OUT, EXECUTED, AND SUBMITTED IN ACCORDANCE WITH THE INSTRUCTIONS WHICH ARE CONTAINED IN THE INVITATION FOR BIDS. A BIDDER USES HIS OWN BID FORM OR A LETTER TO SUBMIT A BID, THE BID MAY BE CONSIDERED ONLY IF (I) THE BIDDER ACCEPTS ALL THE TERMS AND CONDITIONS OF THE INVITATION, AND (II) AWARD ON THE BID WOULD RESULT IN A BINDING CONTRACT THE TERMS AND CONDITIONS OF WHICH DO NOT VARY FROM THE TERMS AND CONDITIONS OF THE INVITATION.' ASPR 2-404.2 (A) REQUIRES REJECTION OF ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS. ASPR 2-404.2 (D) PROVIDES THAT ORDINARILY A BID WHICH ATTEMPTS TO IMPOSE CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT THE BIDDER'S LIABILITY TO THE GOVERNMENT SHOULD BE REJECTED SINCE TO ALLOW THE BIDDER TO IMPOSE SUCH CONDITIONS WOULD BE PREJUDICIAL TO OTHER BIDDERS. SUCH REGULATIONS ARE CONSISTENT WITH THE RULES OF COMPETITIVE BIDDING AS REFLECTED IN THE DECISIONS OF OUR OFFICE AND WITH THE REQUIREMENT IN 10 U.S.C. 2305 (C) THAT AWARDS OF ADVERTISED PROCUREMENTS BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION FOR BIDS AND WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

YOUR LETTERHEAD INDICATES THAT YOUR PLANT IS LOCATED IN THE STATE OF NEW YORK. YOUR LETTER BID STATES,"PERFORMANCE, INSPECTION, ACCEPTANCE AND PACKAGING AT IMCO PRECISION PRODUCTS, INC.' SINCE THIS STATEMENT WAS TYPED IN, AS A PART OF THE SPECIFIC RESPONSE TO THE PARTICULAR IFB UNDER CONSIDERATION, IT MUST CONTROL OVER THE GENERAL PRINTED STATEMENT IN YOUR LETTER BID FORM REGARDING APPLICABILITY OF ALL TERMS AND PROVISIONS OF THE IFB. WHILE WE DO NOT QUESTION YOUR ASSERTION THAT YOU DID NOT INTEND BY USING THE QUOTED LANGUAGE IN YOUR LETTER BID TO CHANGE THE F.O.B. POINT OR THE PLACE OF ACCEPTANCE OF THE PROCURING ACTIVITY THAT THE BID AS SUBMITTED PLAINLY CALLS FOR INSPECTION AND ACCEPTANCE AT YOUR PLANT IN NEW YORK ONLY, AND IS THEREFORE NOT RESPONSIVE TO THE IFB REQUIREMENT FOR DELIVERY AND PERFORMANCE OF FINAL ACCEPTANCE AT LETTERKENNY ARMY DEPOT IN PENNSYLVANIA. FURTHER, SINCE SUCH REQUIREMENT HAS MORE THAN A TRIVIAL EFFECT ON THE PERFORMANCE OF THE CONTRACT, WE LIKEWISE CONCUR WITH THE VIEW OF THE PROCURING ACTIVITY THAT THE BID DEVIATION MAY NOT BE WAIVED AS A MINOR IRREGULARITY UNDER ASPR 2-405.

WHILE IT IS TRUE, AS YOU POINT OUT, THAT PARAGRAPH 3 ON PAGE 8.1 IS HEADED "INSPECTION, ACCEPTANCE AND PACKAGING," THE WORD "ACCEPTANCE" DOES NOT APPEAR IN EITHER SUBPARAGRAPHS 3A OR 3B AND IT WAS IN NO WAY NECESSARY FOR YOU TO USE IT IN FURNISHING THE INFORMATION CALLED FOR. BY INCLUDING THE WORD IN YOUR BID AS YOU DID, YOU CREATED A CONFLICT WITH THE ACCEPTANCE PROVISION OF SUB-PARAGRAPH 3D, WHICH RENDERED IT DOUBTFUL WHETHER ACCEPTANCE OF YOUR BID WOULD BIND YOU TO THE TERMS CALLED FOR BY THE IFB.

IN THE CIRCUMSTANCES, WE ARE COMPELLED TO CONCLUDE THAT THE REJECTION OF YOUR BID WAS A PROPER ACTION ON THE PART OF THE CONTRACTING OFFICER, AND WE SEE NO LEGAL BASIS TO QUESTION THE AWARD TO THE NEXT LOW BIDDER. YOUR PROTEST IS THEREFORE DENIED.