B-169531, JUN. 11, 1970

B-169531: Jun 11, 1970

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000 TOOL POUCHES WAS AMENDED TO CORRECT INCONSISTENT MONTHLY AND TOTAL REQUIREMENT AND GUARANTEED MINIMUM QUANTITY FROM 900 TO 9000. APPARENT LOW BIDDER WHO SIGNED AND RETURNED AMENDMENT BUT INDICATED MONTHLY SUPPLY POTENTIAL OF ONLY 900 POUCHES WAS PROPERLY DECLARED NONRESPONSIVE AND DENIED AWARD SINCE ONE WHO OFFERS LESS THAN REQUIRED MONTHLY SUPPLY POTENTIAL SUBSTANTIALLY DEVIATES FROM TERMS OF INVITATION AND HAS SUBMITTED NONRESPONSIVE BID THAT IS PROPERLY FOR REJECTION. GAO DOES NOT AGREE THAT SUCH ACKNOWLEDGMENT NEGATED LIMITATION IN MONTHLY SUPPLY POTENTIAL AS SPECIFICALLY SET OUT IN OFFER OR EFFECTED BINDING PROMISE TO INCREASE PRODUCTION CAPACITY AND BID WAS PROPERLY REJECTED AS NONRESPONSIVE.

B-169531, JUN. 11, 1970

CONTRACTS--SPECIFICATIONS--DEVIATIONS--REQUIREMENTS POTENTIAL WHEN INVITATION FOR BIDS FOR ESTIMATED REQUIREMENTS OF 72,000 TOOL POUCHES WAS AMENDED TO CORRECT INCONSISTENT MONTHLY AND TOTAL REQUIREMENT AND GUARANTEED MINIMUM QUANTITY FROM 900 TO 9000, APPARENT LOW BIDDER WHO SIGNED AND RETURNED AMENDMENT BUT INDICATED MONTHLY SUPPLY POTENTIAL OF ONLY 900 POUCHES WAS PROPERLY DECLARED NONRESPONSIVE AND DENIED AWARD SINCE ONE WHO OFFERS LESS THAN REQUIRED MONTHLY SUPPLY POTENTIAL SUBSTANTIALLY DEVIATES FROM TERMS OF INVITATION AND HAS SUBMITTED NONRESPONSIVE BID THAT IS PROPERLY FOR REJECTION. SEE COMP. GEN. DECS. CITED. CONTRACTS--SPECIFICATIONS- AMENDMENTS--PURPOSE WHILE AMENDMENT MAY BE USED TO CHANGE QUANTITIES, SPECIFICATIONS, DELIVERY SCHEDULES, OPENING DATES, ETC; OR TO CORRECT AMBIGUITIES OR DEFECTIVE INVITATION, NOT ALL AMENDMENTS REQUIRE CHANGING OFFER, BUT SINCE AMENDMENT TO INVITATION FOR TOOL POUCHES CORRECTED INCONSISTENT MONTHLY REQUIREMENT AND GUARANTEED MINIMUM QUANTITY FROM 900 TO 9000, EVEN THOUGH BIDDER SIGNED AND RETURNED AMENDMENT, GAO DOES NOT AGREE THAT SUCH ACKNOWLEDGMENT NEGATED LIMITATION IN MONTHLY SUPPLY POTENTIAL AS SPECIFICALLY SET OUT IN OFFER OR EFFECTED BINDING PROMISE TO INCREASE PRODUCTION CAPACITY AND BID WAS PROPERLY REJECTED AS NONRESPONSIVE. SEE COMP. GEN. DECS. CITED.

TO CAPITOL FUR INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 10, 1970, AND YOUR LETTER DATED MAY 2, 1970, REQUESTING THE AWARD OF ITEM 14 ON INVITATION FOR BIDS (IFB) NO. FPNTP-B3-70727-A-3-3-70, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, REGION 3, ON FEBRUARY 2, 1970.

ITEM 14 WAS FOR AN ESTIMATED 72,000 MECHANIC'S TOOL POUCHES TO BE DELIVERED DURING THE PERIOD JULY 1, 1970, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH APRIL 30, 1971.

PARAGRAPH 6 OF THE IFB PROVIDED IN PART:

" *** SET FORTH IN THE SCHEDULE OF ITEMS ARE THE GOVERNMENT'S ESTIMATED REQUIREMENTS FOR THE PERIOD OF THIS CONTRACT AND ESTIMATED PEAK MONTHLY REQUIREMENTS FOR EACH ITEM OR GROUP OF ITEMS COVERED BY THIS SOLICITATION. IN ORDER TO PRECLUDE THE PLACEMENT OF ORDERS WITH ANY CONTRACTOR IN EXCESS OF HIS PRODUCTION CAPACITY, OFFERORS ARE REQUESTED TO INDICATE IN THE SPACES PROVIDED, THE TOTAL QUANTITY PER MONTH WHICH THEY ARE WILLING TO FURNISH OF ANY ITEM OR GROUP OF ITEMS INVOLVING THE USE OF THE SAME PRODUCTION FACILITIES. ***

"FOR EACH ITEM OR GROUP OF ITEMS AWARDED HIM PURSUANT TO THIS SOLICITATION, THE SUCCESSFUL OFFEROR (CONTRACTOR) SHALL BE OBLIGATED TO FILL ALL ORDERS RECEIVED BY HIM DURING ANY ONE CALENDAR MONTH, CALCULATED FROM THE DATE OF AWARD, THE TOTAL OF WHICH DOES NOT EXCEED EITHER HIS STATED MONTHLY SUPPLY POTENTIAL OR, ONE HUNDRED AND TWENTY FIVE PERCENT (125%) OF THE ESTIMATED PEAK MONTHLY REQUIREMENT FOR THE ITEM OR GROUP OF ITEMS, WHICHEVER IS LESS.

"THE CONTRACTOR MAY, WITH RESPECT OT ANY ITEMS) OR GROUP OF ITEMS, REFUSE TO ACCEPT ORDERS, OR PORTIONS THEREOF, RECEIVED DURING ANY ONE CALENDAR MONTH WHICH EXCEED THE MONTHLY QUANTITIES HE IS REQUIRED TO ACCEPT; *** "

PARAGRAPH 8, CONCERNING THE METHOD OF AWARD, ALSO STATED IN PART, THAT:

" *** WITHIN THE LIMITS PRESCRIBED BY THE OFFEROR, THE GOVERNMENT WILL APPLY OFFEROR'S MONTHLY SUPPLY POTENTIAL TO ANY ITEMS OFFERED, AS THE GOVERNMENT'S INTERESTS REQUIRE. IN ORDER TO QUALIFY FOR AN AWARD, THE OFFEROR'S MONTHLY QUANTITY LIMITATION MUST COVER THE GOVERNMENT'S ESTIMATED PEAK MONTHLY REQUIREMENT FOR EACH INDIVIDUAL ITEM TO BE AWARDED TO THE OFFEROR. *** "

ALTHOUGH THE ESTIMATED PEAK MONTHLY REQUIREMENT FOR ITEM 14 WAS SET FORTH IN THE SCHEDULE UNDER THE HEADING "EST. PEAK MON. SUP. POTENTIAL" THE INADVERTENT USE OF THE WORD "POTENTIAL" DOES NOT APPEAR TO HAVE CAUSED ANY MISUNDERSTANDING AS TO THOSE REQUIREMENTS WHICH, TOGETHER WITH THE GUARANTEED MINIMUM QUANTITY, WERE SET AT "900." ON FEBRUARY 6, 1970, AN AMENDMENT TO THE INVITATION WAS ISSUED TO CORRECT THE INCONSISTENCY CONCERNING THE MONTHLY AND TOTAL REQUIREMENTS, AND CHANGED THE GOVERNMENT'S ESTIMATED PEAK MONTHLY REQUIREMENT, AND THE GUARANTEED MINIMUM QUANTITY, FROM 900 TO 9,000 EACH. YOU SIGNED BOTH YOUR OFFER AND THE AMENDMENT ON FEBRUARY 26, 1970, AND INDICATED IN THE SPACE PROVIDED A MONTHLY SUPPLY POTENTIAL FOR ITEM 14 OF 900. BIDS WERE OPENED ON MARCH 20, 1970, AND EASTERN CANVAS PRODUCTS (EASTERN) WAS THE APPARENT LOW BIDDER ON ITEM 14, AND YOU WERE SECOND LOW. HOWEVER, WHEN EASTERN WAS DETERMINED TO BE NONRESPONSIVE, YOU BECAME THE APPARENT LOW BIDDER. WAS THEN DISCOVERED THAT ALTHOUGH YOU HAD SIGNED AND RETURNED THE AMENDMENT TO THE INVITATION, YOUR INDICATED MONTHLY SUPPLY POTENTIAL OF ONLY 900 DID NOT CONFORM WITH THE 9,000 PEAK MONTHLY REQUIREMENT SPECIFIED IN THE AMENDMENT. YOUR BID WAS THEREFORE DECLARED NONRESPONSIVE FOR ITEM 14, SINCE IT DID NOT QUALIFY FOR AWARD BY COMPLYING WITH THE REQUIREMENT IN PARAGRAPHS 6 AND 8 FOR OFFERING A MONTHLY SUPPLY WHICH WOULD COVER THE GOVERNMENT'S ESTIMATED PEAK MONTHLY REQUIREMENT OF 9,000 FOR THAT ITEM.

IT IS YOUR CONTENTION THAT WHEN YOU SIGNED THE AMENDMENT TO THE INVITATION, YOU APPROVED AND AGREED TO THE CHANGES STATED IN THE AMENDMENT AND THEREBY CHANGED YOUR MONTHLY SUPPLY POTENTIAL TO CORRESPOND TO THE MODIFICATION, AND THUS AGREED TO INCREASE YOUR PRODUCTION CAPACITY FROM 900 TO 9,000 PER MONTH. ALTHOUGH BY SIGNING AND RETURNING THE AMENDMENT YOU ACKNOWLEDGED THE CHANGES MADE IN THE INVITATION, WE CANNOT AGREE THAT SUCH ACKNOWLEDGMENT NEGATED THE LIMITATION IN YOUR MONTHLY SUPPLY POTENTIAL WHICH YOU SPECIFICALLY SET OUT IN YOUR OFFER, OR EFFECTED A BINDING PROMISE TO INCREASE YOUR PRODUCTION CAPACITY, AS YOU CONTEND. OUR VIEW, YOUR COMPLETE BID, INCLUDING SIGNED AMENDMENTS, ONLY OFFERS (UNDER PARAGRAPH 6) TO FURNISH ITEM 14 POUCHES AT A MAXIMUM RATE OF 900 A MONTH, AND AFTER AN ACCEPTANCE OF YOUR OFFER THE GOVERNMENT COULD NOT REQUIRE YOU TO ACCEPT ORDERS IN EXCESS OF THAT NUMBER FOR ANY PARTICULAR MONTH. WHILE SUCH MONTHLY FIGURE FOR THE APPROXIMATELY 10 MONTHS DURATION OF THE INTENDED CONTRACT IS INCONSISTENT WITH THE TOTAL ESTIMATED REQUIREMENTS OF 72,000 POUCHES, SUCH AN OBVIOUS DISCREPANCY CAN HAVE NO BEARING IN YOUR SITUATION INASMUCH AS BIDS MUST FIRST BE RESPONSIVE TO THE SOLICITATION BEFORE CORRECTION OF OBVIOUS ERRORS MAY BE CONSIDERED.

A BID SUBMITTED IN EXACT ACCORD WITH THE INVITATION AND WITHIN THE TIME SPECIFIED FOR RECEPTION OF BIDS IS RESPONSIVE. A BID WHICH IS NOT SUBMITTED IN ACCORDANCE WITH THE INVITATION IS NONRESPONSIVE AND MUST BE REJECTED, AND A BID IS NONRESPONSIVE WHEN IT CONTAINS A MATERIAL DEVIATION FROM THE ADVERTISED REQUIREMENTS PERTAINING TO THE SUBSTANCE OF THE BID. A DEVIATION GOES TO THE SUBSTANCE OF THE BID WHEN IT EFFECTS THE PRICE, QUALITY OR QUANTITY OF THE ARTICLES OR SERVICES TO BE FURNISHED TO THE GOVERNMENT. 30 COMP. GEN. 179 (1950), 39 COMP. GEN. 570 (1960). THIS OFFICE HAS HELD THAT ONE WHO OFFERS LESS THAN THE REQUIRED MONTHLY SUPPLY POTENTIAL SUBSTANTIALLY DEVIATES FROM THE TERMS OF THE INVITATION, AND HAS SUBMITTED A NONRESPONSIVE BID THAT IS PROPERLY FOR REJECTION. 45 COMP. GEN. 611 (1966).

WHILE WE NOTE THAT YOUR BID AND THE AMENDMENT WERE SIGNED ON THE SAME DAY, THE AMENDMENT (STANDARD FORM 30, JULY 1966) TO THE INVITATION SPECIFICALLY PROVIDED IN BLOCK 9:

"IF, BY VIRTUE OF THIS AMENDMENT YOU DESIRE TO CHANGE AN OFFER ALREADY SUBMITTED, SUCH CHANGE MAY BE MADE BY TELEGRAM OR LETTER, PROVIDED SUCH TELEGRAM OR LETTER MAKES REFERENCE TO THE SOLICITATION AND THIS AMENDMENT, AND IS RECEIVED PRIOR TO THE OPENING HOUR AND DATE SPECIFIED."

AN AMENDMENT MAY BE USED TO CHANGE QUANTITIES, SPECIFICATIONS, DELIVERY SCHEDULES, OPENING DATES, ETC; OR TO CORRECT A DEFECTIVE OR AMBIGUOUS INVITATION. NATURALLY, NOT ALL AMENDMENTS REQUIRE CHANGING AN OFFER, HOWEVER, THE LANGUAGE QUOTED ABOVE PROVIDES A PROCEDURE TO BE FOLLOWED WHERE A BIDDER BELIEVES AN AMENDMENT REQUIRES A CHANGE IN A PRIOR BID EITHER TO MAKE IT RESPONSIVE TO THE NEW PROVISIONS, DELETE LIMITATIONS, OR OTHERWISE RELATE THE BID TO THE AMENDED REQUIREMENTS. CONTRARY TO YOUR CONTENTION THAT A BIDDER WOULD HAVE TO SUBMIT A SEPARATE LETTER AGREEING TO ALL CHANGES MADE IN THE AMENDMENT, A SEPARATE LETTER OR TELEGRAM WOULD BE INDICATED UNDER SUCH PROVISION ONLY IN THOSE INSTANCES WHERE A PRIOR OFFER IS NO LONGER CONSONANT WITH THE REVISED OR NEW TERMS IMPOSED BY THE AMENDMENT.

ACCORDINGLY, SINCE WE CONCUR IN THE VIEW OF THE GENERAL SERVICES ADMINISTRATION THAT YOUR BID WAS NONRESPONSIVE AS TO ITEM 14, YOUR REQUEST FOR AWARD OF A CONTRACT ON THAT ITEM IS DENIED.