B-174062, OCT 22, 1971

B-174062: Oct 22, 1971

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ASPR 2-406.2 IS NOT FOR APPLICATION BECAUSE THE ERROR IS NEITHER APPARENT ON THE FACE OF THE BID FORM. NOR IS IT AN OBVIOUS CLERICAL ERROR. THE EXCEPTIONS FROM THE REQUIREMENTS OF THE INVITATION ARE MATERIAL. IT WAS DETERMINED THAT 5 OF THE 8 BIDS RECEIVED DID NOT CONFORM TO THE F.O.B. CLAUSES WERE ON THE SAME PAGE OF THE INVITATION. BECAUSE ALTON IRON WORKS WAS ONE OF THOSE WHO HAD INSERTED ITS NAME AND ADDRESS IN THE F.O.B. THE CONTRACTING OFFICER DETERMINED THAT FIRM TO HAVE TAKEN EXCEPTION TO THE DELIVERY REQUIREMENTS OF THE INVITATION. YOU CONTEST THE REJECTION OF THE BID ON THE GROUNDS THAT THE EXTRANEOUS INSERTION OF YOUR FIRM'S NAME AND ADDRESS IN AN INAPPLICABLE CLAUSE OF THE INVITATION IS MERELY AN INFORMAL CLERICAL ERROR WHICH MAY BE CORRECTED.

B-174062, OCT 22, 1971

BID PROTEST - BID RESPONSIVENESS - CLERICAL ERROR DECISION DENYING PROTEST BY ALTON IRON WORKS, INC. AGAINST REJECTION OF ITS BID AS NONRESPONSIVE TO AN IFB ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, HILL AFB, UTAH, FOR A QUANTITY OF CAMERA SYSTEM HOUSING ASSEMBLIES. WHERE THE INVITATION SPECIFIED F.O.B. DESTINATION AS THE CLAUSE GOVERNING THE PROCUREMENT AND PROTESTANT INSERTED ITS NAME AND ADDRESS IN THE F.O.B. ORIGIN CLAUSE, ASPR 2-406.2 IS NOT FOR APPLICATION BECAUSE THE ERROR IS NEITHER APPARENT ON THE FACE OF THE BID FORM, NOR IS IT AN OBVIOUS CLERICAL ERROR. IN SUCH A CASE, THE EXCEPTIONS FROM THE REQUIREMENTS OF THE INVITATION ARE MATERIAL, AND THE BID MUST BE CONSIDERED NONRESPONSIVE AS A COUNTER OFFER.

TO ALTON IRON WORKS, INC.:

WE REFER TO YOUR LETTER OF OCTOBER 14, 1971, AND PRIOR CORRESPONDENCE, PROTESTING THE REJECTION OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS NO. F42600-72-B-3150, ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, HILL AIR FORCE BASE, UTAH.

THE INVITATION REQUESTED THAT BIDS BE SUBMITTED ON AN F.O.B. DESTINATION BASIS FOR A QUANTITY OF 18 KS72 CAMERA SYSTEM HOUSING ASSEMBLIES. AT BID OPENING ON AUGUST 27, 1971, IT WAS DETERMINED THAT 5 OF THE 8 BIDS RECEIVED DID NOT CONFORM TO THE F.O.B. DESTINATION REQUIREMENT SPECIFIED IN THE INVITATION INASMUCH AS IN EACH THE BIDDER'S NAME AND ADDRESS HAD BEEN INSERTED IN THE F.O.B. ORIGIN CLAUSE. ALTHOUGH BOTH F.O.B. CLAUSES WERE ON THE SAME PAGE OF THE INVITATION, THE F.O.B. DESTINATION CLAUSE HAD BEEN MARKED AS THE ONE GOVERNING THE PROCUREMENT. BECAUSE ALTON IRON WORKS WAS ONE OF THOSE WHO HAD INSERTED ITS NAME AND ADDRESS IN THE F.O.B. ORIGIN CLAUSE, THE CONTRACTING OFFICER DETERMINED THAT FIRM TO HAVE TAKEN EXCEPTION TO THE DELIVERY REQUIREMENTS OF THE INVITATION, AND HE REJECTED THE BID AS NONRESPONSIVE. YOU CONTEST THE REJECTION OF THE BID ON THE GROUNDS THAT THE EXTRANEOUS INSERTION OF YOUR FIRM'S NAME AND ADDRESS IN AN INAPPLICABLE CLAUSE OF THE INVITATION IS MERELY AN INFORMAL CLERICAL ERROR WHICH MAY BE CORRECTED.

PARAGRAPH 2-406.2 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES, IN PERTINENT PART, AS CONCERNS CLERICAL ERRORS:

"APPARENT CLERICAL MISTAKES. ANY CLERICAL MISTAKE APPARENT ON THE FACE OF A BID MAY BE CORRECTED BY THE CONTRACTING OFFICER PRIOR TO AWARD, IF THE CONTRACTING OFFICER HAS FIRST OBTAINED FROM THE BIDDER WRITTEN OR TELEGRAPHIC VERIFICATION OF THE BID ACTUALLY INTENDED. *** ".

IT IS THE RULE OF OUR OFFICE THAT THE ABOVE-CITED REGULATION IS NOT FOR APPLICATION IN THIS CASE, SINCE THE ERROR COMMITTED HERE IS NEITHER APPARENT ON THE FACE OF THE BID FORM NOR IS IT AN OBVIOUS CLERICAL ERROR. BIDDERS NOT INFREQUENTLY INSERT CONDITIONS IN THEIR BID FORMS, AND SUCH STATEMENTS MUST BE RECOGNIZED AS A PART OF THE BID. TYPEWRITTEN PROVISIONS, OR AS HERE, A PROVISION ADDED BY RUBBER STAMP, INSERTED BY THE BIDDER MUST BE GIVEN PRECEDENCE OVER PRINTED CONDITIONS IN THE GOVERNMENT BID FORM. REGARDLESS OF WHAT MAY HAVE BEEN INTENDED, THE INSERTION OF YOUR FIRM'S NAME AND ADDRESS IN THE F.O.B. ORIGIN CLAUSE RENDERED THE BID AT LEAST SUSCEPTIBLE TO AN INTERPRETATION WHICH WOULD HAVE THE EFFECT OF VARYING THE BIDDER'S OBLIGATION FROM THAT CONTEMPLATED BY THE INVITATION WITH RESPECT TO THE DELIVERY OF THE HOUSING ASSEMBLIES, ALL TRANSPORTATION CHARGES PAID, TO THEIR DESTINATION POINT. IN SUCH CASES, THE EXCEPTIONS OR DEVIATIONS FROM THE REQUIREMENTS OF THE INVITATION ARE MATERIAL, AND THE BID MUST BE CONSIDERED NONRESPONSIVE AS A COUNTEROFFER. SEE B-166872, JUNE 25, 1969; 40 COMP. GEN. 432 (1961).

ACCORDINGLY, THE PROTEST IS DENIED.