B-169480, MAY 26, 1970

B-169480: May 26, 1970

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WHO PROTESTS AWARD AFTER VOLUNTARILY SUBMITTING WITH BID BROCHURE AND COVER LETTER WHICH DESCRIPTIVE LITERATURE WAS CONSIDERED BY CONTRACTING OFFICER AS QUALIFYING BID INASMUCH AS IT REFERRED TO INVITATION. TO LINDBERG HEVI-DUTY DIVISION OF SOLA BASIC INDUSTRIES: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 2. THE CITED INVITATION WAS ISSUED ON FEBRUARY 13. THE SPECIFICATIONS FOR ALL THREE ITEMS WERE IDENTICAL EXCEPT ITEM 3 REQUIRED A LARGER FURNACE THAN DID ITEMS 1 AND 2. SINCE FUNDS FOR PROCUREMENT OF ITEM 3 WERE WITHDRAWN BEFORE BID EVALUATION AND AWARD. THAT ITEM WAS CANCELED. THE ITEMIZED EQUIPMENT WAS REQUIRED TO BE FURNISHED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-F-80113.

B-169480, MAY 26, 1970

BIDS--QUALIFIED DESCRIPTIVE DATA VOLUNTEERED UNDER INVITATION FOR VACUUM FURNACES WHICH DID NOT REQUEST BIDDERS TO FURNISH DESCRIPTIVE LITERATURE WITH BIDS, UNSUCCESSFUL LOW BIDDER, WHO PROTESTS AWARD AFTER VOLUNTARILY SUBMITTING WITH BID BROCHURE AND COVER LETTER WHICH DESCRIPTIVE LITERATURE WAS CONSIDERED BY CONTRACTING OFFICER AS QUALIFYING BID INASMUCH AS IT REFERRED TO INVITATION, SECTION, LOT AND ITEM NUMBER AND OFFERED NONCONFORMING FURNACE, OFFERS NO BASIS FOR OBJECTION, NOTWITHSTANDING PROTESTANT OFFERED TO FURNISH REQUIRED FURNACES WITHOUT EXCEPTION, SINCE OVERALL OFFER TO CONFORM CAN CURE SPECIFICATION DEVIATION ONLY WHERE OFFER MAKES IT CLEAR THAT OFFEROR DID IN FACT INTEND TO SO CONFORM. SEE COMP. GEN. DECS. CITED.

TO LINDBERG HEVI-DUTY DIVISION OF SOLA BASIC INDUSTRIES:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 2, 1970, PROTESTING AGAINST THE AWARD OF A CONTRACT TO A COMPANY OTHER THAN YOUR FIRM UNDER DEPARTMENT OF THE NAVY INVITATION FOR BIDS NO. N00204-70-B 0069, ISSUED BY THE NAVAL AIR STATION, PENSACOLA, FLORIDA.

THE CITED INVITATION WAS ISSUED ON FEBRUARY 13, 1970, REQUESTING BIDS FOR FURNISHING THREE VACUUM FURNACES (ITEMS 1, 2, AND 3) AND RELATED DATA AND CONTRACT FIELD SERVICES. THE SPECIFICATIONS FOR ALL THREE ITEMS WERE IDENTICAL EXCEPT ITEM 3 REQUIRED A LARGER FURNACE THAN DID ITEMS 1 AND 2. SINCE FUNDS FOR PROCUREMENT OF ITEM 3 WERE WITHDRAWN BEFORE BID EVALUATION AND AWARD, THAT ITEM WAS CANCELED. THE ITEMIZED EQUIPMENT WAS REQUIRED TO BE FURNISHED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-F-80113, "FURNACES, VACUUM, HEAT TREATING AND BRAZING, ELECTRICALLY HEATED, COLD WALL DESIGN," DATED MARCH 7, 1967, EXCEPT AS MODIFIED IN THE INVITATION ON PAGES 6, 7, AND 8. THE INVITATION DID NOT REQUEST PROSPECTIVE BIDDERS TO FURNISH DESCRIPTIVE LITERATURE WITH THEIR BIDS.

SIX BIDS WERE RECEIVED AND OPENED ON MARCH 17, 1970. THE SIX BIDS ON ITEMS 1 AND 2 WERE IN THE FOLLOWING AMOUNTS:

TOTAL TOTAL TOTAL

BIDDER ITEM 1 ITEM 2 ITEMS 1 & 2

LINDBERG HEVI-DUTY $ 84,300 $ 86,340 $170,640

IPSEN INDUSTRIES 113,440 113,270 226,710

VACUUM INDUSTRIES, INC. 129,450 129,900 259,350

RICHARD D. BREW & CO. 131,500 132,000 263,500

SUNBEAM VACUUM 151,010 151,210 302,220

TENVAC, INC. 168,550 168,750 337,300

YOUR BID, WHICH WAS THE LOWEST RECEIVED, WAS ACCOMPANIED BY A GENERAL BROCHURE ON VARIOUS MODELS OF LINDBERG HEVI-DUTY AUTOMATIC VERTICAL COLD WALL VACUUM FURNACES AND BY A 4-PAGE COVER LETTER DATED MARCH 13, 1970, WHICH STATED IN PART AS FOLLOWS:

"REFERENCE: N00204-70-B-0069

SECTION 1.0; LOT 1.0:ITEMS 1 & 2.

"PRODUCT SPECIFICATIONS AND QUOTATION

"AUTOMATIC VERTICAL COLD WALL VACUUM & ATMOSPHERE HEAT TREATING

FURNACE MODEL 22-GR-4848

"ONE - LINDBERG HEVI-DUTY MODEL 22-GR-4848 AUTOMATIC COLD WALL VERTICAL VACUUM & ATMOSPHERE HEAT TREATING FURNACE CAPABLE OF BRAZING, ANNEALING, SINTERING, AND HEAT TREATING VARIOUS METALS AND ALLOYS. THE FURNACE IS CAPABLE OF OPERATING CONTINUOUSLY AT TEMPERATURES UP TO 2400 DEGREE F. IN A VACUUM RANGE OF 10-4 TORR, WITH A CLEAR USABLE WORK SPACE OF 48" DIAMETER X 48" HIGH, CAPABLE OF HANDLING LOADS OF 1800 LBS. GROSS, ARRANGED FOR 460 VOLT, 3 PHASE, 60 HZ POWER SUPPLY. THE SYSTEM INCLUDES:"

YOUR BID WAS REJECTED BY THE CONTRACTING OFFICER AFTER IT WAS DETERMINED, BASED ON THE DESCRIPTIVE LITERATURE FURNISHED WITH THE BID, THAT THE BID DID NOT CONFORM TO THE SPECIFICATIONS CONTAINED IN THE INVITATION. THE UNSOLICITED DESCRIPTIVE LITERATURE WAS CONSIDERED AS QUALIFYING YOUR BID SINCE IT REFERRED TO THE INVITATION, APPLICABLE SECTION, LOT, AND ITEM NUMBERS. THE DESCRIPTIVE LITERATURE SUBMITTED BY YOUR FIRM SHOWED THAT THE FURNACE OFFERED UNDER ITEMS 1 AND 2 DID NOT CONFORM TO THE SPECIFICATIONS IN THE INVITATION AS FOLLOWS:

(A) THE FURNACE OFFERED BY YOUR FIRM WAS DESIGNED FOR A 1,800 POUND GROSS LOAD INSTEAD OF A 2,700-POUND GROSS LOAD AS REQUIRED BY THE SPECIFICATIONS.

(B) THE CHAMBER LEAKAGE RATE OF 10 MICRONS HG PER HOUR AT AN UNSPECIFIED PRESSURE EXCEEDED THE MAXIMUM 5 MICRONS HG PER HOUR AT 0.1 MICRONS HG PRESSURE REQUIRED BY THE SPECIFICATIONS. THE CONTRACTING OFFICER THEREFORE AWARDED CONTRACT NO. N00204-70-C-0112 TO THE LOWEST RESPONSIVE BIDDER, IPSEN INDUSTRIES, ON MARCH 27, 1970.

YOU STATE THAT YOUR FIRM OFFERED TO FURNISH THE REQUIRED FURNACES WITHOUT ANY EXCEPTION TO THE SPECIFICATIONS ON THE BID FORM, STANDARD FORM 33, JULY 1966, "SOLICITATION, OFFER, AND AWARD"; AND THAT FOR THE CONVENIENCE OF THE GOVERNMENT, YOUR FIRM ENCLOSED THE DESCRIPTIVE TECHNICAL DATA WITHOUT KNOWING THAT SUCH DATA WAS IN MINOR CONFLICT WITH THE MILITARY SPECIFICATION CITED IN THE INVITATION. YOU CONTEND THAT IN VIEW OF THE SUBSTANTIAL DIFFERENCE OF APPROXIMATELY $56,000 BETWEEN YOUR BID AND THE NEXT LOWEST BID, IT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT TO PERMIT YOUR FIRM TO WITHDRAW THE CONFLICTING TECHNICAL DATA AND TO CONSIDER OTHER AWARD EVALUATION PROCEDURES SO AS TO OBTAIN AT A MINIMUM COST A FURNACE MEETING THE TECHNICAL REQUIREMENTS.

IN SITUATIONS WHERE A BIDDER ACCOMPANIES HIS BID WITH UNSOLICITED MATERIAL WHICH ON ITS FACE QUALIFIES THE BID, THE BID MAY BE ACCEPTED ONLY WHERE THE EVIDENCE CLEARLY ESTABLISHES THAT THE BIDDER INTENDED TO CONFORM TO THE SPECIFICATIONS. OUR OFFICE HAS IN THE PAST REJECTED THE ARGUMENT THAT AN OVERALL OFFER TO CONFORM, PER SE, CURES SPECIFIC DEVIATIONS. SEE 36 COMP. GEN. 415 (1956); 40 ID. 132 (1960); AND 46 ID. 1 (1966). THE OVERALL OFFER TO CONFORM TO THE SPECIFICATIONS, IN WHATEVER FORM, CAN CURE A SPECIFIC DEVIATION ONLY IN SITUATIONS WHERE THAT PROMISE OR OFFER MAKES IT PATENTLY CLEAR THAT THE OFFEROR DID IN FACT INTEND TO SO CONFORM. THE CRUX OF THE MATTER IS THE INTENT OF THE OFFEROR AND ANYTHING SHORT OF A CLEAR INTENTION TO CONFORM ON THE FACE OF THE BID REQUIRES REJECTION. ANY CLARIFICATION OR EXPLANATION OF THE BIDDER'S INTENTION BY EXTRANEOUS INFORMATION AFTER BID OPENING WOULD VIOLATE THE RULE THAT RESPONSIVENESS MUST BE ASCERTAINED FROM THE BID ITSELF. SEE 38 COMP. GEN. 819 (1959); B- 166284, APRIL 14, 1969; B 167584, OCTOBER 3, 1969; CF. B-169057, APRIL 23, 1970.

WE BELIEVE THE ADMINISTRATIVE AGENCY ACTED CORRECTLY IN REJECTING YOUR BID AS NONRESPONSIVE. PARAGRAPH 2-202.5 (F) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT WHERE, AS HERE, DESCRIPTIVE LITERATURE IS NOT REQUIRED BY THE INVITATION, BUT IS VOLUNTARILY FURNISHED WITH A BID, IT WILL BE DISREGARDED UNLESS THE BID OR ACCOMPANYING PAPERS MANIFEST AN INTENT BY THE BIDDER TO QUALIFY ITS BID. IN YOUR COVER LETTER --WHICH MUST BE CONSIDERED A PART OF YOUR BID -WHEREIN YOU DESCRIBED IN GREAT DETAIL THE EQUIPMENT YOU PROPOSED TO FURNISH, YOU CLEARLY STATED THAT UNDER ITEMS 1 AND 2 OF THE INVITATION YOU WERE BIDDING ON YOUR MODEL 22-GR-4848 FURNACE AND THAT SUCH FURNACE WAS "CAPABLE OF HANDLING LOADS OF 1800 LBS. GROSS." THE INVITATION CALLED FOR A FURNACE CAPABLE OF HANDLING A 2,700-POUND GROSS LOAD. IN THESE CIRCUMSTANCES, THERE IS NO DOUBT THAT AT THE TIME OF BID OPENING IT WAS YOUR INTENTION TO SUPPLY A FURNACE AS DESCRIBED IN YOUR COVER LETTER. SINCE IT WAS DETERMINED BY TECHNICAL PERSONNEL THAT YOUR BID, INCORPORATING THE DEVIATING TERMS OF YOUR COVER LETTER, DID NOT COMPLY WITH THE SPECIFICATIONS, IT WAS REJECTED PURSUANT TO ASPR 2-404.2 (B) WHICH REQUIRES THE REJECTION OF ANY BID WHICH DOES NOT CONFORM TO THE SPECIFICATIONS CONTAINED OR REFERENCED IN THE INVITATION FOR BIDS UNLESS THE INVITATION AUTHORIZED THE SUBMISSION OF ALTERNATE BIDS AND THE SUPPLIES OFFERED AS ALTERNATES MEET THE REQUIREMENTS SPECIFIED IN THE INVITATION.

OUR OFFICE HAS HELD THAT A NONRESPONSIVE BID MAY NOT BE CONSIDERED FOR CORRECTION REGARDLESS OF THE CIRCUMSTANCES, SINCE TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY ALTERATION OF HIS BID AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW OFFER. 38 COMP. GEN. 819 (1959); 40 ID. 132, 134 (1960); ID. 432, 435 (1961). IN THIS REGARD, IT SHOULD BE UNDERSTOOD THAT A BID SUBMITTED UNDER AN INVITATION ISSUED BY A GOVERNMENT AGENCY CONSTITUTES AN OFFER AND THE AWARD BY THE AGENCY IS AN ACCEPTANCE OF THE OFFER WHICH EFFECTS A BINDING AGREEMENT BETWEEN THE BIDDER AND THE GOVERNMENT. WHERE A BIDDER DOES NOT PROPOSE TO COMPLY WITH THE PROVISIONS OF THE INVITATION FOR BIDS, THE GOVERNMENT CANNOT, WITHOUT THE BIDDER'S CONSENT, ACCEPT THE OFFER AND REQUIRE PERFORMANCE IN ACCORDANCE WITH THE INVITATION. TO GIVE THE BIDDER AN OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY AGREEING TO ABIDE BY THE INVITATION OR TO PRECLUDE AWARD BY INSISTING ON ADHERENCE TO ITS OFFER PROVIDES AN UNFAIR ADVANTAGE OVER THOSE OTHER BIDDERS WHOSE BIDS CONFORMED IN EVERY WAY TO THE INVITATION AND WERE LEFT WITHOUT OPTIONS. SUCH AN ADVANTAGE IS CONTRARY TO THE PURPOSE OF THE STATUTES GOVERNING PUBLIC PROCUREMENT. SEE B-128645, SEPTEMBER 28, 1956; B-131796, JUNE 14, 1957; AND B-140412, SEPTEMBER 30, 1959.

AS TO THE SAVING WHICH YOU CLAIM COULD BE REALIZED BY AWARD TO YOUR FIRM, WE HAVE HELD THAT THE STRICT MAINTENANCE OF THE COMPETITIVE BIDDING SYSTEM, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN ANY PECUNIARY ADVANTAGE WHICH MIGHT BE OBTAINED IN A PARTICULAR CASE BY A VIOLATION OF THE RULES OF COMPETITIVE BIDDING. 17 COMP. GEN. 554, 558 (1938).