B-175243, JUN 16, 1972

B-175243: Jun 16, 1972

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THE AGENCY'S DETERMINATION OF NONRESPONSIVENESS WAS IMPROPER SINCE A REQUIREMENT WHICH DOES NOT AFFECT CONTRACT PRICE OR A DETERMINATION OF THE LOW BIDDER CANNOT COMPEL BID REJECTION MERELY BECAUSE A WARNING OF SUCH IS CONTAINED IN THE INVITATION. IS UNABLE TO AGREE THAT THE REQUIREMENT IS MATERIAL BECAUSE. THE SUCCESSFUL CONTRACTOR IS OBLIGED TO FURNISH A DEFINITE MINIMUM. REGARDLESS OF WHETHER THE NUMBER OF FEET PER POUND IS SPECIFIED. IT IS RECOMMENDED THAT UNSUCCESSFUL LOWER BIDDERS BE GIVEN PROMPT NOTICE OF REJECTION. AGAINST A DETERMINATION THAT ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS FPNGH-J-19174-A-12-1-71 WAS NONRESPONSIVE. THE IFB WAS ISSUED BY THE FEDERAL SUPPLY SERVICE (FSS) ON NOVEMBER 1.

B-175243, JUN 16, 1972

BID PROTEST - NONRESPONSIVENESS - MATERIALITY OF SOLICITATION REQUIREMENT CONCERNING THE PROTEST OF HOOVEN AND ALLISON COMPANY AGAINST REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE GENERAL SERVICES ADMINISTRATION. THE AGENCY'S DETERMINATION OF NONRESPONSIVENESS WAS IMPROPER SINCE A REQUIREMENT WHICH DOES NOT AFFECT CONTRACT PRICE OR A DETERMINATION OF THE LOW BIDDER CANNOT COMPEL BID REJECTION MERELY BECAUSE A WARNING OF SUCH IS CONTAINED IN THE INVITATION. HERE, THE COMP. GEN. IS UNABLE TO AGREE THAT THE REQUIREMENT IS MATERIAL BECAUSE, UNDER THE TERMS OF THE IFB, THE SUCCESSFUL CONTRACTOR IS OBLIGED TO FURNISH A DEFINITE MINIMUM, REGARDLESS OF WHETHER THE NUMBER OF FEET PER POUND IS SPECIFIED. ACCORDINGLY, THE CONTRACT WITH SCHLICHTER PRODUCTS COMPANY SHOULD BE TERMINATED AND AWARD MADE TO HOOVEN AND ALLISON. FURTHER, IT IS RECOMMENDED THAT UNSUCCESSFUL LOWER BIDDERS BE GIVEN PROMPT NOTICE OF REJECTION, AS REQUIRED BY FPR 1- 2.408(A)(1), IN FUTURE PROCUREMENTS.

TO MR. ARTHUR F. SAMPSON:

WE REFER TO THE APRIL 5, 1972, ADMINISTRATIVE REPORT FROM THE GENERAL COUNSEL RESPONSIVE TO THE PROTEST FILED BY THE HOOVEN & ALLISON COMPANY, AGAINST A DETERMINATION THAT ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS FPNGH-J-19174-A-12-1-71 WAS NONRESPONSIVE.

THE IFB WAS ISSUED BY THE FEDERAL SUPPLY SERVICE (FSS) ON NOVEMBER 1, 1971, FOR 37 ITEMS OF JUTE TWINE COVERING ESTIMATED REQUIREMENTS FOR THE PERIOD MARCH 1, 1972, THROUGH FEBRUARY 28, 1973. THE IFB CONTAINED THE FOLLOWING REQUIREMENT PERTAINING TO THE METHOD OF AWARD AND RELEVANT TO THE SUBJECT PROTEST:

"OFFERS (PER POUND) WILL BE EVALUATED AND AWARD WILL BE MADE ON THE BASIS OF THE LOWEST DELIVERED COST TO THE GOVERNMENT PER FOOT. OFFERORS ARE THEREFORE REQUIRED TO SPECIFY IN THE SPACES PROVIDED IN THE SCHEDULE OF ITEMS, THE NUMBER OF FEET PER POUND FOR EACH ITEM OFFERED. FAILURE TO FURNISH THE FOOTAGE PER POUND WILL BE CAUSE FOR REJECTION OF THE OFFER."

THE SOLICITATION ALLOWED BIDDERS TO BID ON ANY OR ALL OF THE INDIVIDUAL ITEMS REQUIRED. HOOVEN & ALLISON ELECTED TO BID ONLY ON ITEM 18 FOR TWO PLY JUTE TWINE WITH A MINIMUM LENGTH OF 140 FEET PER POUND AND A MINIMUM BREAKING STRENGTH OF 260 POUNDS. THE ESTIMATED QUANTITY SHOWN WAS 31,100 POUNDS AND A BLANK WAS PROVIDED IN WHICH THE BIDDER WAS TO STATE THE NUMBER OF FEET PER POUND IN CONFORMITY WITH THE QUOTED REQUIREMENT. THE CITED MINIMUM PHYSICAL REQUIREMENTS WERE RESTATED IN PARAGRAPH 3.2.4 OF THE SPECIFICATION.

BIDS WERE RECEIVED FROM TWO SUPPLIERS AND WERE OPENED ON DECEMBER 1, 1971. THE BID FROM HOOVEN & ALLISON ON ITEM 18 WAS FOR ?4169 PER POUND. THEIR BID FAILED TO STATE THE NUMBER OF FEET PER POUND AS PROVIDED FOR IN THE IFB. IT IS REPORTED THAT THIS OMISSION WAS DISCOVERED BY THE GOVERNMENT ON APPROXIMATELY JANUARY 22, 1972. GSA FORM 2112, PROPOSED AWARD TO OTHER THAN LOW BIDDER, WAS PREPARED AND SIGNED ON JANUARY 25, 1972. AWARD OF ITEM 18 WAS MADE TO SCHLICHTER PRODUCTS COMPANY ON JANUARY 28, 1972, AT A PRICE OF ?4270 PER POUND.

THE RECORD INDICATES THAT HOOVEN & ALLISON WAS NOT ADVISED THAT ITS BID FOR ITEM 18 WAS REJECTED AS NONRESPONSIVE UNTIL FEBRUARY 9, 1972. AS WE POINTED OUT IN B-171536(2), AUGUST 6, 1971, THE FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.408(A)(1) PROVIDE FOR PROMPT NOTICE TO UNSUCCESSFUL LOWER BIDDERS OF THE REJECTION OF THEIR BIDS. WE DO NOT THINK THE NOTICE IN THIS CASE COMPLIED WITH THIS REQUIREMENT OF FPR. WE RECOMMEND THAT APPROPRIATE STEPS BE TAKEN TO ASSURE THAT UNSUCCESSFUL LOWER BIDDERS WILL BE PROMPTLY NOTIFIED OF THE REJECTION OF THEIR BIDS.

THE ADMINISTRATIVE REPORT SET OUT THE BASIS FOR FINDING HOOVEN & ALLISON'S BID NONRESPONSIVE AS FOLLOWS:

"THE RESPONSIVENESS OR NONRESPONSIVENESS OF A BID IS FOR DETERMINATION UPON THE BASIS OF THE TERMS OF THE INVITATION ON WHICH THE BID IS SUBMITTED (41 COMP. GEN. 721). THE BID SUBMITTED BY HOOVEN AND ALLISON WAS INCOMPLETE AND DID NOT COMPLY WITH A MANDATORY AND MATERIAL REQUIREMENT OF THE INVITATION FOR BIDS. FAILURE OF THE BIDDER TO COMPLY WITH THE MANDATORY PROVISIONS OF AN INVITATION WILL RENDER THE BID NONRESPONSIVE (40 COMP. GEN. 132; 39 COMP. GEN. 595). THE OMISSION OF FOOTAGE FROM THE BID COULD NOT BE CONSIDERED A MINOR INFORMALITY OR IRREGULARITY PURSUANT TO FPR 1-2.405. FAILURE TO DISCLOSE THE NUMBER OF FEET PER POUND OF THE ITEM BEING OFFERED PREVENTED THE GOVERNMENT AND THE OTHER BIDDERS FROM KNOWING THE NATURE OF THE ITEM BEING OFFERED AND PREVENTED THE GOVERNMENT FROM EVALUATING THE BID IN ACCORDANCE WITH THE SOLICITATION. THE GOVERNMENT CONSIDERED THE FILLING-IN OF THE AMOUNT OF FEET PER POUND AS A MANDATORY PROVISION, SINCE WAIVER OF IT WOULD RESULT IN UNEQUAL OPPORTUNITY TO OTHER BIDDERS. THE NUMBER OF FEET PER POUND WAS USED DIRECTLY WITH THE PRICE PER POUND TO ACHIEVE A COST PER FOOT.

"UNDER AN ADVERTISED PROCUREMENT ALL BIDDERS MUST BE GIVEN AN EQUAL OPPORTUNITY TO SUBMIT BIDS WHICH ARE BASED UPON THE SAME SPECIFICATIONS AND TO HAVE SUCH BIDS EVALUATED ON THE SAME BASIS (40 COMP. GEN. 321). WAIVER OF THE FEET PER POUND PROVISION WOULD HAVE RESULTED IN AN UNFAIR COMPETITIVE ADVANTAGE TO HOOVEN AND ALLISON BY PERMITTING THE BID PRICE TO BE EVALUATED UPON A BASIS NOT COMMON TO ALL BIDS. HOOVEN AND ALLISON WOULD ALSO HAVE HAD AN ELECTION AFTER OPENING AS TO HOW MANY FEET PER POUND WOULD BE USED WHICH, ON A DIRECT RATIO, WOULD RAISE OR LOWER THE COST PER FOOT. TO ALLOW THEM TO ADD THIS INFORMATION WOULD PERMIT A SECOND OPPORTUNITY TO BID RESPONSIVELY AFTER THE BIDS HAD BEEN REVEALED (48 COMP. GEN. 689). THE ADDITION OF THIS INFORMATION WOULD HAVE BEEN SO MATERIAL AS TO BE PREJUDICIAL TO THE RIGHTS OF THE OTHER BIDDER (45 COMP. GEN. 487). THE NUMBER OF FEET PER POUND AFFECTS NOT ONLY PRICE BUT ALSO DISCLOSES VITAL INFORMATION AS TO THE QUANTITY PER POUND AND THE QUALITY OF THE ITEM. THEREFORE, FAILURE TO SUBMIT THE INFORMATION COULD NOT BE WAIVED (30 COMP. GEN. 179; 40 COMP. GEN. 679)."

WE CANNOT ACCEPT THESE CONCLUSIONS. WE DO AGREE IT IS WELL ESTABLISHED THAT BIDS WHICH DO NOT CONFORM TO THE REQUIREMENTS OF A SOLICITATION MUST BE REJECTED AS NONRESPONSIVE, UNLESS THE DEVIATION IS IMMATERIAL OR IS A MATTER OF FORM RATHER THAN SUBSTANCE. ANY DEVIATION WHICH AFFECTS PRICE, QUANTITY OR QUALITY IS CONSIDERED MATERIAL AND IS CAUSE FOR REJECTION. COMP. GEN. 179 (1950). HOWEVER, A REQUIREMENT IN THE IFB IS NOT NECESSARILY MATERIAL SIMPLY BECAUSE IT IS EXPRESSED IN POSITIVE TERMS WITH A WARNING THAT FAILURE TO COMPLY "MAY" OR "WILL" RESULT IN REJECTION OF THE BID AS NONRESPONSIVE. 39 COMP. GEN. 595 (1960).

IN THIS INSTANCE WE THINK THAT THE FAILURE TO COMPLETE THE BLANK PROVIDED FOR INDICATING THE NUMBER OF FEET PER POUND WAS NOT A MATERIAL DEVIATION FROM THE TERMS OF THE INVITATION. ALTHOUGH THE IFB SPECIFICALLY STATED THAT FAILURE TO SPECIFY THE NUMBER OF FEET PER POUND TO BE PROVIDED WOULD BE CAUSE FOR REJECTION, WE THINK IT IS CLEAR FROM THE TERMS OF THE IFB THAT THE SUCCESSFUL BIDDER WOULD BE OBLIGATED TO FURNISH NOT LESS THAN THE STATED MINIMUM FEET PER POUND (140) WITH OR WITHOUT COMPLETING THE BLANK PROVIDED. A BIDDER, BY SIGNING THE BID FORM, BINDS HIMSELF TO SUPPLY IN ACCORDANCE WITH ATTACHED AND REFERENCED SPECIFICATIONS, SCHEDULES, DRAWINGS AND CONDITIONS. A FURTHER EVIDENCING OF THE BIDDER'S INTENTION TO COMPLY WITH THE SPECIFICATIONS WOULD NOT GIVE THE GOVERNMENT ANY ADDITIONAL RIGHTS OR REMEDIES NOT ALREADY PART OF ANY RESULTING CONTRACT. OF COURSE WE RECOGNIZE THAT BY NOT INSERTING THE NUMBER OF FEET PER POUND IT INTENDED TO SUPPLY, THE BIDDER IS NOT BOUND TO SUPPLY ANY MORE THAN THE MINIMUM REQUIRED. HOWEVER, IN THIS CASE IT IS CLEAR THAT IN SUPPLYING EVEN THE MINIMUM FOOTAGE REQUIRED, HOOVEN & ALLISON REMAINS THE LOW RESPONSIVE, RESPONSIBLE BIDDER.

WHERE INFORMATION IS REQUIRED BY THE IFB TO BE INCLUDED IN THE BID FOR PURPOSES OF EVALUATION, FAILURE TO FURNISH SUCH INFORMATION DOES NOT REQUIRE REJECTION OF THE BID, NOTWITHSTANDING THE MANDATORY LANGUAGE OF THE IFB, IF THE OMISSION CANNOT AFFECT THE CONTRACT PRICE OR DETERMINATION OF THE LOW BID. FOR CASES DEALING WITH THE ANALOGOUS AREA OF GUARANTEED SHIPPING WEIGHT, SEE 49 COMP. GEN. 496 (1970); 48 COMP. GEN. 357 (1968); B -165160, SEPTEMBER 30, 1968; B-159329, DECEMBER 8, 1966.

WE THEREFORE CONCLUDE THAT ITEM 18 WAS NOT AWARDED TO THE LOW RESPONSIVE BIDDER. ACCORDINGLY, THE CONTRACT AWARDED TO THE SCHLICHTER COMPANY FOR ITEM 18 SHOULD BE TERMINATED AND THE REMAINING PORTION (I.E; THROUGH FEBRUARY 28, 1973) SHOULD BE AWARDED TO HOOVEN & ALLISON.