B-167974, NOV. 14, 1969

B-167974: Nov 14, 1969

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LOW BID WHICH FAILED TO LIST PLACE OF PERFORMANCE WAS PROPERLY REJECTED SINCE DISCREPANCY IN BID RESULTED IN MATERIAL DEVIATION FROM ADVERTISED TERMS AND SPECIFICATIONS AND. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22. WAS EXPRESSLY RESTRICTED TO SMALL BUSINESS FIRMS ON THE QUALIFIED MANUFACTURERS LIST (QML) FOR THE ITEM PRIOR TO BID OPENING. YOUR LOW BID WAS REJECTED FOR FAILURE TO LIST THE PLACE OF PERFORMANCE. IT IS YOUR POSITION THAT YOUR COMPANY HAS BEEN A SUPPLIER TO DPSC SINCE 1960 ON APPROXIMATELY 150 CONTRACTS ALL OF WHICH WERE BID FOR YOUR FACILITY AT MILWAUKEE. WHICH IS ON THE QML FOR THIS ITEM. YOU SUGGEST THAT YOUR FAILURE TO LIST A PLANT LOCATION COULD HAVE BEEN CONSIDERED AN INADVERTENT ERROR WHICH SHOULD HAVE BEEN WAIVED OR CORRECTED.

B-167974, NOV. 14, 1969

SPECIFICATIONS--FAILURE TO FURNISH SOMETHING REQUIRED--INFORMATION UNDER INVITATION FOR BIDS FOR ALUMINIZED ASBESTOS FIREFIGHTER COATS, EXPRESSLY RESTRICTED TO SMALL BUSINESS FIRMS ON QUALIFIED MANUFACTURERS LIST WHICH REQUIRED THAT BIDDERS MUST STATE PLACE OF PERFORMANCE OR BE CONSIDERED NONRESPONSIVE, LOW BID WHICH FAILED TO LIST PLACE OF PERFORMANCE WAS PROPERLY REJECTED SINCE DISCREPANCY IN BID RESULTED IN MATERIAL DEVIATION FROM ADVERTISED TERMS AND SPECIFICATIONS AND, NOTWITHSTANDING NUMBER OF PRIOR CONTRACTS WITH PROCUREMENT ACTIVITY, UNDER ADVERTISING PROCEDURES, BID TO BE ACCEPTABLE MUST CONFORM TO ALL MATERIAL REQUIREMENTS OF INVITATION AND CANNOT BE CORRECTED TO MAKE IT RESPONSIVE TO INVITATION AND ELIGIBLE FOR AWARD. SEE 40 COMP. GEN. 432 (1961).

TO BRILL BROTHERS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22, 1969, WITH ENCLOSURE, PROTESTING THE AWARD OF A CONTRACT TO A HIGHER BIDDER UNDER INVITATION FOR BIDS NO. DSA100-70-B-0104, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC), PHILADELPHIA, PENNSYLVANIA.

THE SOLICITATION REQUESTED BIDS FOR A QUANTITY OF ALUMINIZED ASBESTOS FIREFIGHTER COATS, AND WAS EXPRESSLY RESTRICTED TO SMALL BUSINESS FIRMS ON THE QUALIFIED MANUFACTURERS LIST (QML) FOR THE ITEM PRIOR TO BID OPENING. THE INVITATION REQUIRED BIDDERS TO STATE THE EXACT PLACE OF PERFORMANCE IN THEIR BIDS, AND PROVIDED THAT AN OFFER, OTHERWISE ACCEPTABLE, WOULD BE CONSIDERED NONRESPONSIVE IF THE OFFER FAILS TO LIST THE PLACE OF PERFORMANCE (CLAUSES 170.14 AND 176.1). YOUR LOW BID WAS REJECTED FOR FAILURE TO LIST THE PLACE OF PERFORMANCE.

IT IS YOUR POSITION THAT YOUR COMPANY HAS BEEN A SUPPLIER TO DPSC SINCE 1960 ON APPROXIMATELY 150 CONTRACTS ALL OF WHICH WERE BID FOR YOUR FACILITY AT MILWAUKEE, WHICH IS ON THE QML FOR THIS ITEM. IN VIEW THEREOF, YOU SUGGEST THAT YOUR FAILURE TO LIST A PLANT LOCATION COULD HAVE BEEN CONSIDERED AN INADVERTENT ERROR WHICH SHOULD HAVE BEEN WAIVED OR CORRECTED.

THE REQUIREMENT THAT BIDDERS LIST THE SPECIFIC FACILITY WHICH WILL BE UTILIZED IN THE PERFORMANCE OF THE CONTRACT IS TO OBTAIN A BINDING CONTRACTUAL COMMITMENT FOR COMPLIANCE WITH THE ESSENTIAL PROVISION THAT THE ITEM WILL BE MANUFACTURED IN AN APPROVED FACILITY. IN THE ABSENCE OF SUCH A LISTING A BIDDER COULD NOT BE REQUIRED UPON AWARD TO MANUFACTURE THE ITEMS IN A FACILITY WHICH HAS BEEN APPROVED PRIOR TO BID OPENING. THIS IS THE CASE NOTWITHSTANDING THE NUMBER OF PRIOR CONTRACTS YOU HAVE HAD WITH THE PROCUREMENT ACTIVITY UTILIZING YOUR FACILITY AT MILWAUKEE. THE REQUIREMENT FOR LISTING OF THE MANUFACTURING FACILITY MUST THEREFORE BE CONSIDERED A MATERIAL REQUIREMENT OF THE INVITATION FOR BIDS.

UNDER FORMAL ADVERTISING PROCEDURES FOR GOVERNMENT CONTRACTS, IT IS AN ESTABLISHED RULE THAT A BID, TO BE ACCEPTABLE, MUST CONFORM TO ALL MATERIAL REQUIREMENTS OF THE ADVERTISED TERMS AND SPECIFICATIONS. IF, DUE TO A MISTAKE, A BID RESULTS IN A MATERIAL DEVIATION FROM THE ADVERTISED REQUIREMENTS, SUCH A BID IS NONRESPONSIVE AND CANNOT UNDER ANY CIRCUMSTANCES BE CORRECTED SO AS TO MAKE IT RESPONSIVE TO THE INVITATION AND THUS ELIGIBLE FOR AWARD. 40 COMP. GEN. 432 (1961).

SINCE THE DISCREPANCY IN YOUR BID RESULTED IN A MATERIAL DEVIATION FROM THE ADVERTISED REQUIREMENTS, YOUR BID COULD NOT BE CORRECTED AND THE DEVIATION COULD NOT BE WAIVED. WE MUST THEREFORE CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED. ACCORDINGLY, YOUR PROTEST IS DENIED.