B-170044, OCT. 15, 1970

B-170044: Oct 15, 1970

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WHEN LOW BIDDER WAS REJECTED AS NONRESPONSIVE BECAUSE THROUGH OVERSIGHT. THEN THE BID SHOULD HAVE BEEN CONSIDERED RESPONSIVE. ACCORDINGLY THE AWARD TO THE SECOND LOW BIDDER IS CONSIDERED IMPROPER UNDER THE PREVAILING CIRCUMSTANCES. KUNZIG: REFERENCE IS MADE TO THE REPORT DATED JULY 20. THE REFERENCED SOLICITATION WAS FOR A REQUIREMENTS TYPE CONTRACT. AWARD WAS TO BE MADE ON AN ITEM BY ITEM BASIS AND WHEN BIDS WERE OPENED ON APRIL 7. GORNELL WAS THE LOW BIDDER ON ITEMS 183 THROUGH 186. THE GORNELL BID ON THESE ITEMS WAS FOUND NONRESPONSIVE BY THE PROCURING ACTIVITY IN THAT THE CORPORATION FAILED TO RETURN PAGES 5 AND 6 OF THE SOLICITATION WITH ITS BID. AWARD WAS MADE TO THE SECOND-LOW BIDDER.

B-170044, OCT. 15, 1970

BID PROTEST - BIDDER RESPONSIVENESS - FAILURE TO FURNISH REQUIRED INFORMATION AFFIRMING PROTEST OF E. GORNELL AND SONS, INC., AGAINST THE AWARD OF A CONTRACT FOR MAINTENANCE BRUSHED ISSUED BY THE GENERAL SERVICE ADMINISTRATION TO DIXON & RIPPEL, INC. WHEN LOW BIDDER WAS REJECTED AS NONRESPONSIVE BECAUSE THROUGH OVERSIGHT, BIDDER FAILED TO RETURN PAGES 5 & 6 OF A 28 PAGE INVITATION FOR MAINTENANCE BRUSHES BUT SINCE BIDDER SUBMITTED EVIDENCE ON THE FACESHEET OF THE "OFFER" PORTION OF THE STANDARD FORM 33, INCLUDING IT WITH THE BID, WHICH IDENTIFIED THE COMPLETE SOLICITATION AS CONSISTING OF ALL 28 PAGES EVIDENCING BIDDER'S INTENTION TO BE BOUND IN COMPLIANCE WITH THE CONDITIONS OF THE IFB, THEN THE BID SHOULD HAVE BEEN CONSIDERED RESPONSIVE. ACCORDINGLY THE AWARD TO THE SECOND LOW BIDDER IS CONSIDERED IMPROPER UNDER THE PREVAILING CIRCUMSTANCES, AND EXCEPT FOR THOSE ORDERS ALREADY PLACED, OTHERS SHOULD BE DELETED FROM THE CONTRACT, AND THE REMAINING REQUIREMENTS AWARDED TO LOW BIDDER, UNLESS THE GROUNDS EXIST FOR OBJECTION.

TO MR. KUNZIG:

REFERENCE IS MADE TO THE REPORT DATED JULY 20, 1970, FROM YOUR GENERAL COUNSEL RELATIVE TO THE PROTEST OF E. GORNELL AND SONS, INC. (GORNELL) AGAINST THE AWARD OF A CONTRACT TO DIXON & RIPPEL, INC., UNDER INVITATION FOR BIDS (IFB) NO. FPNGH-E-70825-A4-7-70, ISSUED MARCH 13, 1970, BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, WASHINGTON, D.C.

THE REFERENCED SOLICITATION WAS FOR A REQUIREMENTS TYPE CONTRACT, WITH GUARANTEED MINIMUM, FOR 191 ITEMS OF MAINTENANCE BRUSHES FOR DELIVERY TO VARIOUS GSA SUPPLY DEPOTS, FOR THE PERIOD JULY 1, 1970, THROUGH DECEMBER 31, 1970. AWARD WAS TO BE MADE ON AN ITEM BY ITEM BASIS AND WHEN BIDS WERE OPENED ON APRIL 7, 1970, GORNELL WAS THE LOW BIDDER ON ITEMS 183 THROUGH 186. THE GORNELL BID ON THESE ITEMS WAS FOUND NONRESPONSIVE BY THE PROCURING ACTIVITY IN THAT THE CORPORATION FAILED TO RETURN PAGES 5 AND 6 OF THE SOLICITATION WITH ITS BID. ACCORDINGLY, ON MAY 21, 1970, AWARD WAS MADE TO THE SECOND-LOW BIDDER, DIXON & RIPPEL, INC.

THE INVITATION WAS ISSUED ON STANDARD FORM 33 WHICH, IN THE PORTION HEADED "SOLICITATION" ADVISED BIDDERS IN PERTINENT PART AS FOLLOWS:

"ALL OFFERS ARE SUBJECT TO THE FOLLOWING:

"1. THE ATTACHED SOLICITATION INSTRUCTIONS AND CONDITIONS, SF 33A.

"2. THE GENERAL PROVISIONS, SF 32 6/64 EDITION, WHICH IS ATTACHED OR INCORPORATED HEREIN BY REFERENCE.

"3. THE SCHEDULE INCLUDED BELOW AND/OR ATTACHED HERETO.

"4. SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED HEREIN BY REFERENCE. (ATTACHMENTS ARE LISTED IN THE SCHEDULE.)"

GORNELL CLAIMS THAT ITS BID SHOULD NOT HAVE BEEN CONSIDERED NONRESPONSIVE SINCE PAGES 5 AND 6 CONTAINED INFORMATION MATTER ONLY, WITH NO ENTRIES REQUIRED THEREON. THE CORPORATION STATES THESE PAGES WERE OMITTED ENTIRELY IN ERROR, STRICTLY AS A RESULT OF AN OVERSIGHT, AND HAVING BID ON MANY CONTRACTS IN THE PAST THIS IS THE FIRST TIME THE CORPORATION HAD MADE AN ERROR OF THIS NATURE.

PAGE 5 OF THE SOLICITATION PROVIDES FOR THE INCORPORATION BY REFERENCE OF GSA FORMS 1126, STORES DEPOTS AND CONSIGNMENT INSTRUCTIONS, DECEMBER 1969 EDITION; 1424, GSA SUPPLEMENTAL PROVISIONS, SEPTEMBER 1969 EDITION; AND 1790, SUBCONTRACTING PROGRAMS, AUGUST 1969 EDITION (APPLICABLE TO CONTRACTS EXCEEDING $500,000). PAGE 6 CONTAINS, INTER ALIA, THE SCOPE OF CONTRACT AND MINIMUM ORDER LIMITATION CLAUSES. GSA FORM 1424 SUPPLEMENTS AND MODIFIES STANDARD FORMS 32 AND 33A WITH CLAUSES DEALING WITH CHANGES; VARIATION IN QUANTITY; INSPECTION; RESPONSIBILITY FOR SUPPLIES; ASSIGNMENT OF CLAIMS; EXAMINATION OF RECORDS; NOTICE OF SHIPMENT; DEFAULT; EQUAL OPPORTUNITY; FEDERAL, STATE AND LOCAL TAXES; PACKAGING AND PACKING FOR DELIVERY TO GSA SUPPLY DEPOTS; MARKING; PATENT INDEMNITY, ETC.

THE POSITION OF YOUR AGENCY IS THAT MANY CLAUSES IN GSA FORM 1424, ALONG WITH THE SCOPE OF CONTRACT AND MINIMUM ORDER LIMITATION CLAUSES, ARE SUBSTANTIVE AND THAT IT IS DIFFICULT TO PERCEIVE HOW GORNELL COULD BE OBLIGATED TO COMPLY WITH ANY OF THESE SUBSTANTIVE PROVISIONS SINCE THE CORPORATION FAILED TO INCLUDE WITH ITS BID THE ONLY PAGES OF THE INVITATION INCORPORATING BY REFERENCE GSA FORM 1424, AND CONTAINING THE SCOPE OF CONTRACT AND MINIMUM ORDER LIMITATION CLAUSES.

THE TEST OF WHETHER A BID IS RESPONSIVE, IN A SITUATION SUCH AS THIS, IS WHETHER THE BIDDER'S INTENTION TO BE BOUND BY ALL SUBSTANTIVE TERMS AND CONDITIONS OF THE SOLICITATION IN ANY RESULTING CONTRACT IS EVIDENT FROM THE TERMS OF THE BID AS SUBMITTED. CLARIFICATION OF A BID AFTER BID OPENING WITH REGARD TO A MATERIAL OR SUBSTANTIVE TERM OR CONDITION OF THE SOLICITATION IS PROHIBITED BECAUSE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRES THAT ALL BIDDERS BID ON AN EQUAL BASIS, AND THE OPPORTUNITY TO CHANGE OR CLARIFY A BID AFTER OPENING WOULD GIVE THE BIDDER INVOLVED AN UNDUE ADVANTAGE OVER OTHER BIDDERS.

WE AGREE WITH YOUR AGENCY'S POSITION THAT NUMEROUS PROVISIONS CONTAINED IN GSA FORM 1424, ALONG WITH THE SCOPE OF CONTRACT AND MINIMUM ORDER LIMITATION CLAUSES, ARE SUBSTANTIVE AND THAT IT WOULD BE NECESSARY FOR ANY PROSPECTIVE CONTRACTOR TO AGREE TO BE BOUND BY THEM. THE QUESTION THEN ARISES WHETHER THERE IS SOME EVIDENCE IN THE GORNELL BID, OR LANGUAGE IN THOSE PORTIONS OF THE INVITATION SUBMITTED WITH ITS BID, THAT WOULD INCORPORATE THE ABOVE PROVISIONS INTO THE CORPORATION'S BID. IN THIS CONNECTION WE NOTE THAT THE ENTIRE INVITATION PACKAGE CONSISTED OF 28 PAGES NUMBERED IN SEQUENCE. GORNELL EXECUTED THE "OFFER" PORTION OF THE STANDARD FORM 33 USED IN THE SOLICITATION, AND INCLUDED THAT FORM WITH ITS BID. THE SOLICITATION WAS SPECIFICALLY IDENTIFIED, BY NUMBER AND DATE AND PLACE OF ISSUANCE, AT THE TOP OF THE FACESHEET OF THE FORM, AND AS BEING COMPRISED OF 28 PAGES WHICH DESIGNATED THE FACESHEET AS "PAGE 1 OF 28." SINCE GORNELL'S BID CLEARLY IDENTIFIED THE COMPLETE SOLICITATION TO WHICH IT RESPONDED AS CONSISTING OF 28 PAGES ALL OF THE 28 PAGES OF THE INVITATION AND THE CLAUSES CONTAINED OR REFERENCED THEREIN WERE, IN OUR OPINION, INCORPORATED BY SPECIFIC REFERENCE IN THE BID DOCUMENTS AS SIGNED AND SUBMITTED BY GORNELL. SUCH DOCUMENTS SHOULD THEREFORE BE CONSIDERED AS EVIDENCING GORNELL'S INTENTION TO BE BOUND BY ALL OF THE SUBSTANTIVE TERMS AND CONDITIONS OF THE IFB. SEE 47 COMP. GEN. 680 (1968).

SINCE IN OUR OPINION GORNELL'S BID INDICATES AN INTENTION TO COMPLY WITH THE PROVISIONS CONTAINED OR INCORPORATED WITHIN THE 28 PAGES OF THE INVITATION, WE BELIEVE THE CORPORATION'S BID SHOULD HAVE BEEN CONSIDERED RESPONSIVE TO THE INVITATION. ACCORDINGLY, WE MUST CONCLUDE THAT THE AWARD OF ITEMS 183 THROUGH 186 TO DIXON & RIPPEL WAS IMPROPER, AND THAT ITEMS 183 THROUGH 186, EXCEPT FOR THOSE ORDERS ALREADY PLACED THEREUNDER, SHOULD BE DELETED FROM DIXON & RIPPEL'S CONTRACT AND THE REMAINING REQUIREMENTS THEREUNDER BE AWARDED TO GORNELL, UNLESS OTHER GROUNDS EXIST FOR OBJECTION TO AN AWARD BASED UPON GORNELL'S BID ON THESE ITEMS.