B-170023, JUN. 24, 1970

B-170023: Jun 24, 1970

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LATTER IS QUALIFIED BECAUSE IT TAKES EXCEPTION TO MATERIAL TERM OF INVITATION FOR BIDS. SECOND LOW BID CAN BE CONSIDERED FOR AWARD SINCE OMISSION OF TOTAL ITEM AND LUMP SUM PRICE IS MINOR DEVIATION BECAUSE TOTALS CAN BE READILY DETERMINED FROM EXTENSION OF UNIT PRICE BID. UNIT PRICES WERE REQUIRED BECAUSE THE INVITATION RESERVES TO THE GOVERNMENT THE RIGHT TO INCREASE THE QUANTITIES SET OUT IN THE SCHEDULE UP TO 15 PERCENT AT THE TIME OF AWARD WITH PAYMENT FOR THE OPTIONAL FIXTURES TO BE MADE AT THE UNIT PRICES QUOTED BY THE BIDDER AND ACCEPTED BY THE GOVERNMENT. WAS QUALIFIED BECAUSE IT TOOK EXCEPTION TO THE ADVERTISED DELIVERY REQUIREMENTS. SUCH OMISSION RENDERS THE LOW BID NONRESPONSIVE AND THEREFORE IS FOR REJECTION.

B-170023, JUN. 24, 1970

BIDS--EVALUATION--OPTIONS--FAILURE TO BID ON ALL OPTION INCREMENTS INVITATION REQUIRED BIDS FOR TWO ITEM LIGHTING FIXTURES TO INCLUDE UNIT PRICE, TOTAL ITEM PRICE AND LUMP-SUM TOTAL WITH RESERVED RIGHT IN GOVERNMENT TO INCREASE QUANTITY AT UNIT PRICE. LOW AND THIRD LOW BIDS MAY NOT BE CONSIDERED FOR AWARD SINCE FORMER FAILED TO INCLUDE UNIT PRICES, THEREBY DEPRIVING GOVERNMENT OF RIGHT TO EXERCISE RESERVED OPTION, AND LATTER IS QUALIFIED BECAUSE IT TAKES EXCEPTION TO MATERIAL TERM OF INVITATION FOR BIDS, I.E; DELIVERY PROVISIONS. SECOND LOW BID CAN BE CONSIDERED FOR AWARD SINCE OMISSION OF TOTAL ITEM AND LUMP SUM PRICE IS MINOR DEVIATION BECAUSE TOTALS CAN BE READILY DETERMINED FROM EXTENSION OF UNIT PRICE BID. SEE COMP. GEN. DECS. CITED.

TO MR. CAMPIOLI:

YOUR LETTER DATED JUNE 10, 1970, REQUESTS OUR ADVICE AS TO WHETHER AWARD MAY BE MADE TO THE LOW BIDDER UNDER INVITATION FOR BIDS (IFB) NO. 7034, ISSUED BY THE ARCHITECT OF THE CAPITOL.

THE SUBJECT INVITATION, FOR 50 EACH OF TWO TYPES OF FLUORESCENT LIGHTING FIXTURES FOR USE AT THE LIBRARY OF CONGRESS, REQUIRES UNIT PRICES FOR EACH TYPE OF FIXTURE, A TOTAL OF THE QUOTED UNIT PRICES FOR EACH OF THE TWO TYPES OF FIXTURES, AND A LUMP-SUM PRICE FOR AWARD OF THE TOTAL QUANTITY OF BOTH TYPES OF FIXTURES. UNIT PRICES WERE REQUIRED BECAUSE THE INVITATION RESERVES TO THE GOVERNMENT THE RIGHT TO INCREASE THE QUANTITIES SET OUT IN THE SCHEDULE UP TO 15 PERCENT AT THE TIME OF AWARD WITH PAYMENT FOR THE OPTIONAL FIXTURES TO BE MADE AT THE UNIT PRICES QUOTED BY THE BIDDER AND ACCEPTED BY THE GOVERNMENT.

THE LOW BIDDER, DOMINION ELECTRIC SUPPLY CO; INC; FAILED TO FURNISH UNIT PRICES OR TOTALS FOR EACH OF THE TWO TYPES OF FIXTURES, BUT SUCH BIDDER DID QUOTE A LUMP-SUM BID FOR BOTH ITEMS. THE SECOND LOW BIDDER, GENERAL ELECTRIC SUPPLY COMPANY, QUOTED UNIT PRICES FOR EACH TYPE OF FIXTURE BUT DID NOT QUOTE TOTAL ITEM PRICES OR A LUMP-SUM PRICE FOR BOTH ITEMS. THE THIRD LOW BID OF THE THREE BIDS RECEIVED, SUBMITTED BY GRAYBAR ELECTRIC CO; INC; WAS QUALIFIED BECAUSE IT TOOK EXCEPTION TO THE ADVERTISED DELIVERY REQUIREMENTS.

BECAUSE THE OMISSION OF UNIT PRICES BY THE LOW BIDDER DEPRIVES THE GOVERNMENT OF THE RIGHT TO EXERCISE THE OPTION RESERVED BY THE INVITATION TERMS TO INCREASE THE SCHEDULE QUANTITIES BY UP TO 15 PERCENT AT THE UNIT PRICES BID, SUCH OMISSION RENDERS THE LOW BID NONRESPONSIVE AND THEREFORE IS FOR REJECTION. SEE, IN THIS REGARD, 46 COMP. GEN. 434 (1966).

WHILE GENERAL ELECTRIC SUPPLY COMPANY FAILED TO QUOTE TOTAL ITEM PRICES FOR EACH ITEM OR A LUMP-SUM PRICE FOR THE AWARD OF THE TOTAL QUANTITY OF BOTH ITEMS AS REQUESTED BY THE IFB, THE OMISSION OF THOSE PRICES IS A MINOR DEVIATION INASMUCH AS THOSE TOTALS MAY BE ASCERTAINED ARITHMETICALLY BY A SIMPLE EXTENSION OF THE UNIT PRICES BID. HENCE, SUCH OMISSION MAY BE WAIVED AS A MINOR INFORMALITY. SEE, IN THIS REGARD, FEDERAL PROCUREMENT REGULATIONS 1-2.405.

THE THIRD LOW BID SUBMITTED BY GRAYBAR IS NONRESPONSIVE AND SHOULD BE REJECTED BECAUSE IT TAKES EXCEPTION TO A MATERIAL TERM OF THE IFB, I.E; THE DELIVERY PROVISIONS. WE HAVE HELD THAT AN EXCEPTION DELIBERATELY TAKEN TO THE ADVERTISED REQUIREMENTS MAY NOT BE CONSTRUED AS TRIVIAL OR MINIMAL. 47 COMP. GEN. 496, 499 (1968).

ACCORDINGLY, ON THE RECORD, THE ONLY BID THAT MAY BE CONSIDERED FOR AWARD IS THAT SUBMITTED BY THE GENERAL ELECTRIC SUPPLY COMPANY.