B-172227, MAY 13, 1971

B-172227, MAY 13, 1971

BID PROTEST - LATE BID - DEVIATION FROM SPECIFICATIONS DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO IRVING L. WILSON COMPANY UNDER AN IFB ISSUED BY THE BUREAU OF INDIAN AFFAIRS FOR THE PROCUREMENT OF POLICE UNIFORMS. BECAUSE SUCCESSFUL BIDDER WOULD HAVE SUBMITTED A TIMELY BID BUT FOR MISHANDLING BY THE GOVERNMENT, THE CONTRACTING OFFICER PROPERLY DECIDED TO CONSIDER THE BID PURSUANT TO PARAGRAPH 8(A) STANDARD FORM 33A. ALSO THE DEVIATIONS IN THE SPECIFICATIONS - FIVE BUTTONS ON THE JACKET, INSTEAD OF FOUR, AND SCALLOPED POCKET FLAPS INSTEAD OF PLAIN - WERE REASONABLY DETERMINED TO BE MINOR AND PROPERLY WAIVED.

TO S. LIVINGSTON & SON, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 17, 1971, PROTESTING THE AWARD OF A CONTRACT TO THE IRVING L. WILSON COMPANY, BALA-CYNWYD, PENNSYLVANIA, PURSUANT TO INVITATION FOR BIDS NO. DIA-K51 575, ISSUED BY THE BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, FOR THE PROCUREMENT OF POLICE UNIFORMS.

YOU INDICATED THAT THE BID OF THE IRVING L. WILSON COMPANY WAS NOT AMONG THOSE OPENED AND READ DURING THE PUBLIC OPENING OF BIDS WHICH COMMENCED AT 10:00 A.M., JANUARY 15, 1971; AND THAT, UPON YOUR INSPECTION OF SAMPLES SUBMITTED BY THE COMPANY AFTER AWARD OF THE CONTRACT, IT WAS FOUND THAT THERE EXISTED A LACK OF CONFORMITY WITH THE ADVERTISED SPECIFICATIONS FOR ITEMS NOS. 3 AND 4 OF THE BIDDING SCHEDULE.

AT THE BID OPENING ON JANUARY 15, 1971, FIVE BIDS WERE OPENED AND READ. REPRESENTATIVES OF TWO OF THE FIVE BIDDERS, YOUR COMPANY AND ANOTHER FIRM LOCATED IN WASHINGTON, D.C., WERE PRESENT. BIDS HAD BEEN REQUESTED ON EIGHT ITEMS OF CLOTHING, AND THE LOWEST OF THE FIVE BIDS WAS SUBMITTED BY YOUR COMPANY. THE BID OPENING OFFICER WAS ALERTED TO THE POSSIBILITY THAT A BID HAD BEEN OR WOULD BE RECEIVED FROM ANOTHER COMPANY, THE IRVING L. WILSON COMPANY, SINCE A LETTER DATED JANUARY 14, 1971, HAD BEEN RECEIVED FROM METCALF BROTHERS & COMPANY, NEW YORK, NEW YORK, CERTIFYING THE AVAILABILITY OF METCALF MATERIALS, AND CARRYING THE NOTATION: "C.C. IRVING L. WILSON COMPANY."

AT APPROXIMATELY 11:00 A.M., JANUARY 15, 1971, IT WAS DISCOVERED THAT THE IRVING L. WILSON COMPANY HAD SUBMITTED A BID WHICH WAS RECEIVED IN THE MAILROOM OF THE BUREAU OF INDIAN AFFAIRS AT 9:26 A.M., JANUARY 14, 1971. AN EMPLOYEE OF THE BUREAU TELEPHONED HER OFFICE ON JANUARY 15, 1971, STATING THAT SHE WOULD COME IN LATE AND THAT AN ENVELOPE CONTAINING A BID HAD BEEN PLACED IN A LOCKED FILE DRAWER. IT WAS EXPLAINED THAT THE PLACE FOR DEPOSITING OF SEALED BIDS WAS NOT KNOWN AND THAT RECEIPT OF THE ENVELOPE WAS NOT MENTIONED TO ANYONE ON JANUARY 14 AS MANY EMPLOYEES WERE ABSENT ON THAT DATE DUE TO THE ICY CONDITION OF THE ROADS.

SINCE THE BID WAS LATE ONLY BECAUSE OF MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION, THE CONTRACTING OFFICER DECIDED TO OPEN AND CONSIDER THE BID PURSUANT TO PARAGRAPH 8(A) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, STANDARD FORM 33A. IT WAS FOUND THAT THE IRVING L. WILSON COMPANY HAD SUBMITTED THE LOWEST TOTAL BID ON THE EIGHT ITEMS OF THE BIDDING SCHEDULE. AT PAGE 25 OF THE INVITATION FOR BIDS, THE COMPANY LISTED EXCEPTIONS TO SPECIFICATIONS WHICH RELATED TO THE QUANTITIES OF WINTER WEIGHT JACKETS AND SUMMER SHIRTS SPECIFIED IN ITEMS NOS. 3 AND 4. THE COMPANY STATED THAT THE JACKETS AND SHIRTS WOULD BE FURNISHED IN STOCK SIZES AND THAT THE OFFERED WINTER JACKETS WOULD VARY FROM SPECIFICATIONS IN THE FOLLOWING RESPECTS: (1) FIVE BUTTONS ON THE JACKET WOULD BE SUPPLIED INSTEAD OF 4, AS SHOWN ON THE GOVERNMENT'S DRAWING; AND (2) THE POCKET FLAPS WOULD BE SCALLOPED INSTEAD OF PLAIN. THE STATEMENT OF EXCEPTIONS WAS DETERMINED NOT TO AFFECT THE SUBSTANCE OF THE BID IN ANY MATERIAL RESPECT, AND AWARD WAS MADE TO THE IRVING L. WILSON COMPANY IN ACCORDANCE WITH SUBPARAGRAPH 10(B) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, WHICH STATES THAT THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY AND ALL OFFERS "AND TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN OFFERS RECEIVED."

IT IS REPORTED BY THE DEPARTMENT OF THE INTERIOR THAT, WHEN YOUR REPRESENTATIVES WERE SHOWN THE SAMPLES FOR ITEMS NOS. 3 AND 4, THEY TOOK EXCEPTION TO BOTH, STATING THAT THE WINTER JACKETS HAD FIVE BUTTONS IN THE FRONT INSTEAD OF FOUR AND THAT THE POCKET IN THE SUMMER SHIRT DIFFERED FROM THE DRAWING. THE DEPARTMENTAL REPORT SETS FORTH THAT IT WAS EXPLAINED TO YOUR REPRESENTATIVES THAT THE VARIATIONS IN THE BID WERE MINOR DEVIATIONS PERMISSIBLE UNDER PARAGRAPH 10 OF STANDARD FORM 33A. FAR AS CONCERNS YOUR STATEMENT OF ACKNOWLEDGMENT BY THE CONTRACTING OFFICIALS THAT THEY WERE NOT EXPERIENCED IN HANDLING PROCUREMENTS OF POLICE UNIFORMS, THE DEPARTMENT STATES THAT THE EMPLOYEE WHO HANDLED THE TRANSACTION HAS BEEN ENGAGED IN THE PROCUREMENT OF TEXTILES FOR SEVERAL YEARS AND THAT YOUR REPRESENTATIVES WERE ADVISED ONLY THAT THERE HAD BEEN A CHANGE IN BUREAU POLICY, IT HAVING BEEN DECIDED THAT THE VARIOUS INDIAN ACTIVITIES WOULD PROCURE THEIR OWN UNIFORMS IN THE FUTURE.

SECTION 2-405 OF THE FEDERAL PROCUREMENT REGULATIONS DEFINES A MINOR INFORMALITY OR IRREGULARITY IN BID AS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO, BIDDERS. IN DECIDING WHETHER A VARIATION IN BID IS MINOR OR NOT, A CONTRACTING OFFICER MUST EXERCISE A REASONABLE DEGREE OF DISCRETION. IT DOES NOT APPEAR THAT THE TWO DEVIATIONS COMPLAINED OF HAD ANY ADVERSE EFFECT ON THE QUALITY OR UTILITY OF THE ITEMS; NOR THAT THEY REDUCED THE COST OF PRODUCING THE GARMENTS. THEREFORE, WE CANNOT FIND THAT THE CONTRACTING OFFICER'S DECISION IN THIS CASE, THAT THE DEVIATIONS IN THE BID OF THE IRVING L. WILSON COMPANY WERE MINOR AND COULD PROPERLY BE WAIVED, WAS ARBITRARY IN ANY RESPECT.

IN THE CIRCUMSTANCES, SINCE THE BID WAS RECEIVED ON A TIMELY BASIS AND THE CONTRACTING OFFICER REASONABLY DETERMINED THE DEVIATIONS IN BID TO BE MINOR, WE WOULD NOT BE WARRANTED IN TAKING EXCEPTION TO THE CONTRACT AS AWARDED TO THE IRVING L. WILSON COMPANY.

ACCORDINGLY, YOUR PROTEST IS HEREBY DENIED.