B-173484(2), DEC 21, 1971

B-173484(2): Dec 21, 1971

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GAO AGREES WITH THE PROCURING ACTIVITY THAT THE TERMS OF THE GUARANTEE ARE UNQUESTIONABLY MATERIAL REGARDING PRICE AND QUALITY CONSIDERATIONS AND THAT QUALIFICATION OF THOSE TERMS REQUIRES REJECTION OF THE NONCONFORMING BID UNDER FPR 1-2.404-2(A). THE PROTEST IS DENIED. INC.: REFERENCE IS MADE TO YOUR LETTERS DATED JULY 27. IFB ST-71-71 WAS ISSUED MAY 21. INCLUDED IN THE IFB WAS THE FOLLOWING CAVEAT: "VII-D. REPLACEMENT OF DEFECTIVE PARTS OR SETS WILL BE MADE FREE OF CHARGE TO THE GOVERNMENT. *** " IT IS YOUR CONTENTION THAT YOUR FAILURE TO INCLUDE THE WRITTEN GUARANTEE SHOULD HAVE BEEN WAIVED AS A MINOR IRREGULARITY OR INFORMALITY PURSUANT TO FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.405.

B-173484(2), DEC 21, 1971

BID PROTEST - NONRESPONSIVE BID - WRITTEN GUARANTEE REQUIRED DENIAL OF PROTEST BY RAVEN INDUSTRIES, INC., AGAINST THE REJECTION OF THEIR BID FOR FAILURE TO INCLUDE A WRITTEN GUARANTEE AS REQUIRED UNDER AN IFB ISSUED BY THE SUPPLY AND TRANSPORTATION DIVISION, DEPARTMENT OF STATE, FOR 827 MINIATURE SIX-CHANNEL VLE RECEIVERS. GAO AGREES WITH THE PROCURING ACTIVITY THAT THE TERMS OF THE GUARANTEE ARE UNQUESTIONABLY MATERIAL REGARDING PRICE AND QUALITY CONSIDERATIONS AND THAT QUALIFICATION OF THOSE TERMS REQUIRES REJECTION OF THE NONCONFORMING BID UNDER FPR 1-2.404-2(A), (B), AND (B)(5). ACCORDINGLY, THE PROTEST IS DENIED.

TO RAVEN INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR LETTERS DATED JULY 27, 1971, AND OCTOBER 4, 1971, PROTESTING REJECTION OF YOUR BID FOR FAILURE TO INCLUDE A WRITTEN GUARANTEE AS REQUIRED BY INVITATION FOR BIDS (IFB) ST-71-71 ISSUED BY THE SUPPLY AND TRANSPORTATION DIVISION, DEPARTMENT OF STATE, ARLINGTON, VIRGINIA.

IFB ST-71-71 WAS ISSUED MAY 21, 1971, FOR 827 MINIATURE SIX-CHANNEL VLF RECEIVERS. INCLUDED IN THE IFB WAS THE FOLLOWING CAVEAT:

"VII-D. GUARANTEE: THE BIDDER SHALL FURNISH WITH HIS BID A WRITTEN GUARANTEE THAT SETS SHALL BE FREE OF DEFECTS OF MATERIAL WORKMANSHIP OR PERFORMANCE FOR A PERIOD OF ONE (1) YEAR FROM DATE OF ACCEPTANCE OF THE SETS. SHOULD SUCH DEFECTS APPEAR, REPLACEMENT OF DEFECTIVE PARTS OR SETS WILL BE MADE FREE OF CHARGE TO THE GOVERNMENT, *** "

IT IS YOUR CONTENTION THAT YOUR FAILURE TO INCLUDE THE WRITTEN GUARANTEE SHOULD HAVE BEEN WAIVED AS A MINOR IRREGULARITY OR INFORMALITY PURSUANT TO FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.405, WHICH PROVIDES FOR SUCH ACTION WHEN THE DEVIATION FROM THE TERMS OF THE IFB IS IMMATERIAL OR INCONSEQUENTIAL AS TO PRICE, QUANTITY, QUALITY OR DELIVERY. HOWEVER, WE AGREE WITH THE PROCUREMENT ACTIVITY THAT THE TERMS OF THE GUARANTEE ARE UNQUESTIONABLY MATERIAL REGARDING PRICE AND QUALITY CONSIDERATIONS AND QUALIFICATION OF THOSE TERMS REQUIRES REJECTION OF THE NONCONFORMING BID UNDER FPR 1-2.404-2(A), AND (B), AND (B)(5). 42 COMP. GEN. 96 (1962), B- 168567, APRIL 16, 1970.

IT IS WELL SETTLED THAT THE QUESTION OF CONTRACTUAL OBLIGATIONS RESULTING FROM AN AWARD UNDER AN ADVERTISED PROCUREMENT MUST BE DETERMINED FROM THE BID AS SUBMITTED, NOT FROM THE BIDDER'S UNANNOUNCED INTENTION. MOREOVER, WHEN THE TERMS OF AN IFB REQUIRE AFFIRMATIVE ACTION RELATING TO THE RESPONSIVENESS OF THE BID, INACTION BY THE BIDDER MUST BE TREATED AS IF THE BIDDER HAD TAKEN DELIBERATE EXCEPTION TO A MATERIAL ADVERTISED PROVISION, THEREBY RENDERING THE BID NONRESPONSIVE. 48 COMP. GEN. 689 (1969). ACCORDINGLY, WE MUST REJECT YOUR ASSERTION THAT THE SUBMISSION OF YOUR SIGNED BID WOULD HAVE BEEN SUFFICIENT TO CONTRACTUALLY BIND RAVEN TO THE GUARANTEE PROVISIONS IN THE EVENT OF AWARD TO RAVEN.

HOWEVER, WE HAVE BEEN ADVISED BY THE PROCUREMENT ACTIVITY THAT FUTURE SOLICITATIONS WILL BE DRAFTED TO MINIMIZE REQUIREMENTS FOR ADDITIONAL SUBMISSIONS BY A BIDDER WHEN POSSIBLE WITHOUT PREJUDICE TO THE GOVERNMENT TO AVOID SIMILAR SITUATIONS AS ENCOUNTERED HERE.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.