B-174366, DEC 10, 1971, 51 COMP GEN 370

B-174366: Dec 10, 1971

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THE BIDS SUBMITTED WERE NONRESPONSIVE UNDER THE RULE THAT IF AN ADDENDUM TO AN INVITATION AFFECTS PRICE. 1971: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18. WAS ISSUED FOR THE PURPOSE OF STABILIZING PRICES. BIDS WHICH DO NOT CONTAIN THE REQUIRED CERTIFICATION WILL BE CONSIDERED NON-RESPONSIVE AND WILL BE REJECTED. PRICE CERTIFICATION (A) BY SUBMISSION OF THIS BID (OFFER) BIDDER (OFFEROR) CERTIFIES THAT HE IS IN COMPLIANCE AND WILL CONTINUE TO COMPLY WITH THE REQUIREMENTS OF EXECUTIVE ORDER 11615. FURTHER CERTIFIES THAT THE PRICES BID (OFFERED) HEREIN EITHER CONFORM TO THE REQUIREMENTS OF EXECUTIVE ORDER 11615 OR SHALL BE REDUCED ACCORDINGLY AT THE TIME OF ANY BILLINGS THAT ARE MADE DURING THE EFFECTIVE PERIOD OF THE EXECUTIVE ORDER.

B-174366, DEC 10, 1971, 51 COMP GEN 370

WAGE AND PRICE STABILIZATION - CONTRACT MATTERS - PRICES - CERTIFICATION THE FAILURE OF THE LOW BIDDER TO SIGN AND SUBMIT WITH ITS BIDS THE PRICE CERTIFICATION ATTACHED TO THREE SOLICITATIONS ISSUED FOR PRINTING AND BINDING SERVICES MAY NOT BE WAIVED AS A MINOR INFORMALITY. THE CERTIFICATION ADDENDUM BOUND THE BIDDER TO REDUCE, AT THE TIME OF BILLING, ANY PRICES OFFERED IN THE BID WHICH DID NOT CONFORM TO THE REQUIREMENTS OF EXECUTIVE ORDER 11615, DATED AUGUST 15, 1971, ISSUED UNDER THE AUTHORITY OF THE ECONOMIC STABILIZATION ACT OF 1970 FOR THE PURPOSE OF STABILIZING PRICES, RENTS, WAGES AND SALARIES IN ORDER TO STABILIZE THE ECONOMY, REDUCE INFLATION, AND MINIMIZE UNEMPLOYMENT, AND, THEREFORE, THE BIDS SUBMITTED WERE NONRESPONSIVE UNDER THE RULE THAT IF AN ADDENDUM TO AN INVITATION AFFECTS PRICE, QUANTITY OR QUALITY, IT CONCERNS MATERIAL MATTERS THAT MAY NOT BE WAIVED EVEN TO EFFECT A SAVINGS FOR THE GOVERNMENT.

TO THE NATIONAL GRAPHICS CORPORATION, DECEMBER 10, 1971:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18, 1971, WITH ENCLOSURES, PROTESTING AGAINST THE REJECTION OF YOUR BIDS FOR PRINTING AND BINDING SERVICES SUBMITTED DURING SEPTEMBER 1971 UNDER JACKET NUMBER 418-054, 418- 076 AND 443-262, ISSUED BY THE U.S. GOVERNMENT PRINTING OFFICE (GPO).

UNDER THE AUTHORITY OF THE ECONOMIC STABILIZATION ACT OF 1970 (PUBLIC LAW 91-379, 84 STAT. 799, 12 U.S.C. 1904 NOTE), AS AMENDED), EXECUTIVE ORDER 11615, DATED AUGUST 15, 1971, WAS ISSUED FOR THE PURPOSE OF STABILIZING PRICES, RENTS, WAGES, AND SALARIES IN ORDER TO STABILIZE THE ECONOMY, REDUCE INFLATION AND MINIMIZE UNEMPLOYMENT. IN IMPLEMENTING THE POLICIES OF EXECUTIVE ORDER 11615, GPO ATTACHED TO THE ABOVE SOLICITATIONS THE FOLLOWING PROVISION:

NOTICE

BIDDER MUST SIGN AND SUBMIT THE FOLLOWING PRICE CERTIFICATION WITH THEIR BID. BIDS WHICH DO NOT CONTAIN THE REQUIRED CERTIFICATION WILL BE CONSIDERED NON-RESPONSIVE AND WILL BE REJECTED.

PRICE CERTIFICATION (A) BY SUBMISSION OF THIS BID (OFFER) BIDDER (OFFEROR) CERTIFIES THAT HE IS IN COMPLIANCE AND WILL CONTINUE TO COMPLY WITH THE REQUIREMENTS OF EXECUTIVE ORDER 11615, AUGUST 15, 1971, FOR THE DURATION THEREOF, AND FURTHER CERTIFIES THAT THE PRICES BID (OFFERED) HEREIN EITHER CONFORM TO THE REQUIREMENTS OF EXECUTIVE ORDER 11615 OR SHALL BE REDUCED ACCORDINGLY AT THE TIME OF ANY BILLINGS THAT ARE MADE DURING THE EFFECTIVE PERIOD OF THE EXECUTIVE ORDER.

(B) PRIOR TO THE PAYMENT OF INVOICES UNDER THIS CONTRACT, THE CONTRACTOR SHALL PLACE ON EACH INVOICE SUBMITTED THE FOLLOWING CERTIFICATION:

"I HEREBY CERTIFY THAT AMOUNTS INVOICED HEREIN DO NOT EXCEED THE LOWER OF (I) THE CONTRACT PRICE, OR (II) MAXIMUM LEVELS ESTABLISHED IN ACCORDANCE WITH EXECUTIVE ORDER 11615 DATED AUGUST 15, 1971."

(C) THE CONTRACTOR AGREES TO INSERT THE SUBSTANCE OF THIS CLAUSE, INCLUDING THIS PARAGRAPH (C) IN ALL SUBCONTRACTS FOR SUPPLIES OR SERVICES ISSUED UNDER THIS CONTRACT.

CONTRACTOR (SIGNED)

WE NOTE THAT THE FEDERAL PROCUREMENT REGULATIONS (FPR), WHICH GPO USES AS A GUIDE ON MATTERS NOT COVERED BY ITS OWN REGULATIONS, ALSO IMPLEMENTED EXECUTIVE ORDER 11615 BY REQUIRING A PRICE CERTIFICATION, SIMILAR TO THE ABOVE CERTIFICATION, IN SOLICITATIONS SUBJECT TO THE ORDER. SEE SECTION 1 -1.321 ADDED BY FPR TEMPORARY REGULATION 22, SEPTEMBER 9, 1971. AS IN THE CASE OF THE ABOVE GPO PROVISION, FPR 1 1.321-3(C) PROVIDED THAT WHERE INVITATIONS FOR BIDS INCLUDE THE CERTIFICATION REQUIREMENT AND BIDDERS DECLINED TO COMPLY WITH THE CERTIFICATION, THEIR BIDS WOULD BE DEEMED TO BE NONRESPONSIVE.

WHEN THE BIDS FOR EACH PROCUREMENT WERE OPENED IT WAS DISCOVERED THAT YOUR FIRM WAS THE LOW BIDDER ON ALL THREE SOLICITATIONS, BUT YOU HAD FAILED TO SIGN THE PRICE CERTIFICATION IN EACH OF YOUR BIDS. CONSEQUENTLY, YOUR BIDS WERE DECLARED NONRESPONSIVE AND AWARD WAS MADE TO THE NEXT LOW BIDDERS.

IT IS YOUR CONTENTION THAT ON PREVIOUS OCCASIONS WHEN YOU SUBMITTED BIDS TO GPO YOU WERE REQUIRED ONLY TO EXECUTE TWO COPIES OF THE BID AND ACCEPTANCE FORM (GPO FORM 183). YOU ADMIT THAT YOU OVERLOOKED THE NECESSITY FOR SIGNING THE PRICE CERTIFICATION IN EACH OF YOUR BIDS UNDER THE SUBJECT PROCUREMENTS. HOWEVER, YOU POINT OUT THAT THE INFORMATION CONTAINED IN THE ABOVE NOTICE WAS SUBSTANTIALLY THE SAME AS THAT CONTAINED IN A GPO LETTER DATED SEPTEMBER 1, 1971, CONCERNING IMPLEMENTATION OF EXECUTIVE ORDER 11615, AND IN VIEW OF THE SIGNATURE LINE BEING CAPTIONED "CONTRACTOR," IN CONTRAST TO THE SIGNATURE LINE OF THE BID AND ACCEPTANCE FORM WHICH WAS CAPTIONED "BIDDER," YOU ASSUMED THAT THE CERTIFICATION WAS TO BE SIGNED ONLY AFTER YOU HAD RECEIVED THE AWARD AND HAD BECOME THE CONTRACTOR. ALSO, YOU STATE THAT WHILE YOUR BIDS MAY BE TECHNICALLY NONRESPONSIVE, THE TOTAL OF YOUR BID PRICES FOR THE THREE SOLICITATIONS WAS $4,500 LOWER THAN THE NEXT LOWEST BIDDER ON THE THREE SOLICITATIONS AND YOUR FAILURE TO SIGN THE CERTIFICATION SHOULD BE WAIVED AS A MINOR INFORMALITY.

WE ARE ADVISED THAT THE LANGUAGE REQUIRING BIDDERS TO SIGN AND SUBMIT THE PRICE CERTIFICATION WITH THEIR BIDS, OR HAVE THEIR BIDS DECLARED NONRESPONSIVE, WAS DEEMED NECESSARY BECAUSE (1) THE REGULAR GPO SOLICITATION PACKAGE REQUIRES ONLY THE SIGNING AND RETURN OF THE BID AND ACCEPTANCE FORM, AND (2) THE ONLY DOCUMENTS THAT THE FORM INCORPORATES BY REFERENCE ARE THE SPECIFICATIONS AND CERTAIN STANDARD PREPRINTED CONTRACT PROVISIONS AND STIPULATIONS NOT RELEVANT IN THE PRESENT CASE. WITHOUT THE REQUIREMENT FOR EXECUTION AND RETURN OF THE CERTIFICATION, THE CERTIFICATION PROVISIONS WOULD NOT BE BINDING ON THE BIDDER SINCE SUCH PROVISIONS WERE NOT OTHERWISE INCORPORATED INTO THE SOLICITATION. THUS, THE MERE ATTACHMENT OF THE CERTIFICATION TO THE BID PAPERS WITHOUT THE REQUIREMENT FOR ITS EXECUTION AND RETURN WOULD NOT BIND THE CONTRACTOR TO THE TERMS CONTAINED THEREIN.

AS A GENERAL RULE, IF AN ADDENDUM TO AN INVITATION AFFECTS PRICE, QUANTITY OR QUALITY, IT CONCERNS MATERIAL MATTERS WHICH MAY NOT BE WAIVED, AND FAILURE BY A BIDDER TO ACKNOWLEDGE ITS RECEIPT IN THE MANNER REQUIRED BY THE INVITATION RENDERS THE BID NONRESPONSIVE. 37 COMP. GEN. 785 (1958). THE BASIS FOR SUCH RULE IS THAT A BIDDER WOULD OTHERWISE HAVE AN OPTION TO DECIDE AFTER BID OPENING TO BECOME ELIGIBLE FOR THE AWARD BY COMING FORTH WITH EVIDENCE OUTSIDE THE BID ITSELF ESTABLISHING THAT THE ADDENDUM HAD BEEN CONSIDERED, OR TO AVOID AWARD BY REMAINING SILENT. HERE, THE CERTIFICATION CLEARLY RELATED TO PRICE INASMUCH AS IT BOUND THE BIDDER TO REDUCE, AT THE TIME OF BILLING, ANY PRICES OFFERED IN THE BID WHICH DID NOT CONFORM TO THE REQUIREMENTS OF EXECUTIVE ORDER 11615. THEREFORE, WE CANNOT CONCLUDE THAT YOUR FAILURE TO SIGN THE PRICE CERTIFICATION WAS A MINOR INFORMALITY WHICH COULD BE WAIVED, OR THAT GPO'S DETERMINATION THAT YOUR THREE BIDS WERE NONRESPONSIVE IN SUCH RESPECT WAS ERRONEOUS. ALTHOUGH, AWARDS TO YOUR FIRM MIGHT HAVE REALIZED A SAVING TO THE GOVERNMENT, IT HAS BEEN OUR CONSISTENT POSITION THAT STRICT MAINTENANCE OF THE ESTABLISHED PRINCIPLES OF COMPETITIVE PROCUREMENT BY GOVERNMENT AGENCIES IS INFINITELY MORE IN THE PUBLIC INTEREST THAN FOR THE GOVERNMENT TO OBTAIN A PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY VIOLATION OF THE RULES. 43 COMP. GEN. 268 (1963).

IN REGARD TO YOUR STATEMENT THAT THE SIGNATURE LINE OF THE CERTIFICATION WAS DESIGNATED "CONTRACTOR" AND WAS MISLEADING, WE CAN ONLY POINT OUT THAT THE FIRST LINE OF THE NOTICE, AS QUOTED ABOVE, CLEARLY STATES THAT THE BIDDER MUST SIGN AND SUBMIT THE PRICE CERTIFICATION WITH HIS BID. IN THIS CONNECTION, THE RECORD DOES NOT INDICATE THAT ANY OTHER BIDDER WAS CONFUSED BY THE USE OF THE TERM "CONTRACTOR" UNDER THE SIGNATURE LINE. ANY EVENT, IN VIEW OF THE EXPRESS WARNING THAT A BID NOT CONTAINING THE REQUIRED CERTIFICATION WOULD BE CONSIDERED NONRESPONSIVE, IT APPEARS THAT A PRUDENT COURSE OF ACTION WOULD HAVE REQUIRED THAT ANY UNCERTAINTIES ON YOUR PART IN THE MATTER BE RESOLVED PRIOR TO THE SUBMISSION OF YOUR BIDS.

FOR THE ABOVE REASONS, YOUR PROTEST MUST BE DENIED.