B-175329, JUN 28, 1972

B-175329: Jun 28, 1972

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IT IS CLEAR THAT MINSTER'S PROPOSAL WAS NONRESPONSIVE TO THE REQUIREMENT THAT ALL TAXES BE INCLUDED IN THE BID PRICE. O'HEY & HORSEY: REFERENCE IS MADE TO A LETTER DATED FEBRUARY 23. OUR DECISION WILL BE CONFINED TO THE ISSUES OF WHETHER MINSTER'S BID WAS NONRESPONSIVE TO THE INVITATION AND. WHETHER ITS REJECTION WAS PROPER. THE ABOVE REFERENCED INVITATION WAS ISSUED ON DECEMBER 15. THE BIDDERS' ATTENTION WAS CALLED TO PARAGRAPH 10. SUBPARAGRAPH (A) OF WHICH PROVIDES: "THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE OFFEROR WHOSE OFFER CONFORMING TO THE SOLICITATION WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT. BID OPENING WAS HELD ON JANUARY 27. MINSTER WAS THE LOW BIDDER UNDER ITEM IB.

B-175329, JUN 28, 1972

BID PROTEST - NONRESPONSIVENESS DECISION DENYING THE PROTEST OF THE MINSTER MACHINE COMPANY AGAINST REJECTION OF ITS BID AS NONRESPONSIVE TO AN IFB ISSUED BY THE BUREAU OF THE MINT, DEPARTMENT OF THE TREASURY. IT IS CLEAR THAT MINSTER'S PROPOSAL WAS NONRESPONSIVE TO THE REQUIREMENT THAT ALL TAXES BE INCLUDED IN THE BID PRICE, THAT THE OFFER INCLUDE A 12- MONTH WARRANTY, AND THAT THE BIDDER SUBMIT TO THE RIGHTS OF THE PARTIES AS DEFINED BY THE "DEFAULT" AND "TERMINATION FOR THE CONVENIENCE OF THE GOVERNMENT" CLAUSES. THESE FAILURES CONSTITUTE MATERIAL DEVIATIONS, THE CORRECTION OF WHICH WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW OFFER. 46 COMP. GEN. 418 (1966). FURTHER, THE BID'S DEFICIENCIES COULD NOT BE CURED BY A STATEMENT OF GENERAL COMPLIANCE WITH THE SPECIFICATIONS SINCE SUCH STATEMENT COULD REASONABLY BE CONSTRUED AS APPLYING SOLELY TO TECHNICAL REQUIREMENTS. IN VIEW OF THE FOREGOING, THE PROTEST MUST BE DENIED.

TO HENDERSON, WETHERILL, O'HEY & HORSEY:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 23, 1972, AND SUBSEQUENT CORRESPONDENCE, FROM YOUR CLIENT, THE MINSTER MACHINE COMPANY (MINSTER), PROTESTING AGAINST THE REJECTION OF ITS BID UNDER INVITATION FOR BIDS (IFB) NO. BM 72-13, ISSUED BY THE BUREAU OF THE MINT, DEPARTMENT OF THE TREASURY. IN ITS INITIAL SUBMISSION, MINSTER ALLEGED THAT THE BID OF ANOTHER CONCERN HAD BEEN IMPROPERLY EVALUATED UNDER THE BUY AMERICAN ACT, 41 U.S.C. 10A-D. THIS ALLEGATION HAS BEEN WITHDRAWN, AND OUR DECISION WILL BE CONFINED TO THE ISSUES OF WHETHER MINSTER'S BID WAS NONRESPONSIVE TO THE INVITATION AND, IF SO, WHETHER ITS REJECTION WAS PROPER.

THE ABOVE REFERENCED INVITATION WAS ISSUED ON DECEMBER 15, 1971, FOR THE SUPPLY OF COINAGE PRESSES OF VARIOUS CAPACITIES, LISTED IN THE IFB SCHEDULE AS ITEMS IA, IB AND II. THE BIDDERS' ATTENTION WAS CALLED TO PARAGRAPH 10, STANDARD FORM 33A (MARCH 1969 ED.), A PART OF THE SOLICITATION, SUBPARAGRAPH (A) OF WHICH PROVIDES:

"THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE OFFEROR WHOSE OFFER CONFORMING TO THE SOLICITATION WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED."

BID OPENING WAS HELD ON JANUARY 27, 1972. AS IT HAD RESERVED THE RIGHT TO DO, THE MINT ELECTED NOT TO MAKE AN AWARD UNDER ITEM IA. MINSTER WAS THE LOW BIDDER UNDER ITEM IB.

THE PORTIONS OF THE SOLICITATION RELEVANT TO THE INSTANT PROTEST ARE A "GUARANTEE" CLAUSE, WHICH PROVIDED:

"THE CONTRACTOR WILL GUARANTEE MATERIAL AND WORKMANSHIP FOR A PERIOD OF ONE (1) YEAR AFTER INSTALLATION AND ACCEPTANCE OF THE SUBJECT EQUIPMENT." AND THE "FEDERAL, STATE AND LOCAL TAXES" CLAUSE PRESCRIBED BY FEDERAL PROCUREMENT REGULATIONS (FPR) 1-11.401-1(C), PARAGRAPH (A) OF WHICH STATES:

"EXCEPT AS MAY BE OTHERWISE PROVIDED IN THIS CONTRACT, THE CONTRACT PRICE INCLUDES ALL APPLICABLE FEDERAL, STATE AND LOCAL TAXES AND DUTIES."

ANY CONTRACT LET ON THE BASIS OF THE SOLICITATION WOULD ALSO INCLUDE THE "DEFAULT" CLAUSE (PARAGRAPH 11, STANDARD FORM 32, NOVEMBER 1969 ED.) AND THE CLAUSE "TERMINATION FOR CONVENIENCE OF THE GOVERNMENT" (FPR 1-8.701).

MINSTER'S BID CONSISTED OF THREE DOCUMENTS, EACH OF WHICH SPECIFICALLY REFERRED TO THE INSTANT SOLICITATION, AND WHICH WERE SUBMITTED IN THE SAME ENVELOPE. THE FIRST DOCUMENT WAS THE IFB, WHICH WAS SIGNED BY MINSTER ON JANUARY 24, 1972. THE IFB SCHEDULE PROVIDED INADEQUATE SPACE IN WHICH TO SET FORTH THE PRICES FOR ALTERNATE QUANTITIES OF PRESSES OF DIFFERING CAPACITIES. THEREFORE, IMMEDIATELY PRECEDING THE SCHEDULE, MINSTER INSERTED A LETTER DATED JANUARY 26, 1972, WHICH WAS ALMOST WHOLLY DEVOTED TO PROVIDING PRICES. THE OPENING PARAGRAPH OF THIS LETTER PROVIDED IN PART:

" *** PRESSES AS BID MEET OR EXCEED THE REQUIREMENTS OF THE SPECIFICATIONS. WE TAKE NO EXCEPTION TO THESE SPECIFICATIONS."

IMMEDIATELY BENEATH THIS LETTER WAS ANOTHER LETTER DATED JANUARY 25, 1972, WHICH AGAIN SET FORTH MINSTER'S BID PRICES IN ADDITION TO RECITING THE MECHANICAL CHARACTERISTICS OF ITS EQUIPMENT. THIS LETTER CONSISTS OF 10 CONSECUTIVELY-NUMBERED PAGES, ON THE LAST OF WHICH APPEARS, AMONG OTHERS, THE FOLLOWING PROVISIONS:

" *** PRICES ARE EXCLUSIVE OF ALL LOCAL, STATE AND FEDERAL TAXES WHICH MAY BE IMPOSED HEREON.

"MINSTER WARRANTS TO THE ORIGINAL PURCHASER THAT EQUIPMENT OF ITS OWN MANUFACTURE IS FREE FROM DEFECTS IN MATERIAL OR WORKMANSHIP FOR A PERIOD OF SIX MONTHS. *** "

THE MINT REGARDED THESE PROVISIONS, WHICH CONFLICTED WITH THE "GUARANTEE" AND "FEDERAL, STATE AND LOCAL TAXES" CLAUSES QUOTED ABOVE, AS SUBSTANTIVE IN NATURE AND REJECTED THE BID AS NONRESPONSIVE PURSUANT TO FPR 1-2.404- 2(B) WHICH STATES IN PART:

" *** A BID SHALL BE REJECTED WHERE THE BIDDER IMPOSES CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT SO AS TO GIVE HIM AN ADVANTAGE OVER OTHER BIDDERS. *** "

THE MINT SUBSEQUENTLY DENIED MINSTER'S PROTEST AGAINST THE REJECTION OF ITS BID AND AWARDED ITEMS IB AND II TO TWO OTHER BIDDERS. MINSTER THEN PROTESTED TO THIS OFFICE.

YOU CONTEND THAT PAGE 10 OF YOUR LETTER OF JANUARY 25, 1972, WAS PART OF YOUR STANDARD COMMERCIAL QUOTATION FORM WHICH WAS INADVERTENTLY INCLUDED BY A TYPIST PREPARING THE BID ON AN AUTOMATIC TYPEWRITER. THUS, YOU STATE THE INCLUSION OF PAGE 10 WAS THE RESULT OF A MISTAKE, WHICH YOU SHOULD HAVE BEEN PERMITTED TO CORRECT UNDER THE PROCEDURES FOR CORRECTING MISTAKES IN BIDS. ALTERNATIVELY, YOU MAINTAIN THAT TO THE EXTENT THE SPECIFIC PROVISIONS ON PAGE 10 OF YOUR LETTER OF JANUARY 25 CONFLICTED WITH THE INVITATION, THEY WERE SUPERSEDED BY THE GENERAL STATEMENT IN THE LETTER OF JANUARY 26 THAT YOU TOOK NO EXCEPTION TO THE SPECIFICATIONS.

WE BELIEVE IT IS CLEAR THAT THE ABOVE-QUOTED PROVISIONS ON PAGE 10 OF YOUR LETTER OF JANUARY 25, STANDING ALONE, IMPOSE CONDITIONS MATERIALLY VARYING FROM THE SOLICITATION AND WOULD RENDER YOUR BID NONRESPONSIVE. THE PROVISION IN YOUR LETTER EXCLUDING FROM THE PRICE ALL LOCAL, STATE AND FEDERAL TAXES IS VIRTUALLY IDENTICAL TO THAT CONTAINED IN THE BID WHICH WAS THE SUBJECT OF OUR DECISION REPORTED AT 41 COMP. GEN. 289, 292-93 (1961), WHEREIN WE STATED:

"UNDER THE PROVISIONS OF SECTION 303 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 41 U.S.C. 253, BIDS ARE REQUIRED TO CONFORM WITH THE TERMS OF THE ADVERTISED INVITATION TO BE ELIGIBLE FOR AWARD. PURSUANT THERETO SUBPART 1-2.404-2(B) OF THE FEDERAL PROCUREMENT REGULATIONS PROVIDES FOR THE REJECTION OF A BID IN WHICH THE BIDDER IMPOSES CONDITIONS MODIFYING REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMITING HIS LIABILITY TO THE GOVERNMENT SO AS TO GIVE HIM AN ADVANTAGE OVER OTHER BIDDERS, WHILE SUBPART 1-2.404-2(B)(5) REQUIRES THE REJECTION OF ANY BID CONTAINING A CONDITION LIMITING THE RIGHTS OF THE GOVERNMENT UNDER ANY CONTRACT CLAUSE UNLESS SUCH CONDITIONS DO NOT GO TO THE PRICE, QUALITY, OR DELIVERY OF THE ITEMS OFFERED. IN EFFECT, THESE REGULATIONS RESTATE THE PRINCIPLES, SET OUT IN VARIOUS DECISIONS OF THIS OFFICE, THAT THE CONTRACT OFFERED TO ONE BIDDER MUST BE THE SAME CONTRACT OFFERED ALL BIDDERS, THAT ALL BIDDERS ARE ENTITLED TO COMPETE ON THE SAME BASIS, THAT ALL BIDS MUST BE EVALUATED ON AN EQUAL BASIS, AND THAT ANY BID WHICH IS SO CONDITIONED AS TO GIVE THE BIDDER A COMPETITIVE ADVANTAGE AND PRECLUDE ITS EVALUATION ON AN EQUAL BASIS WITH OTHER BIDS SUBMITTED IN ACCORDANCE WITH THE TERMS OF THE INVITATION MUST BE REJECTED AS NONRESPONSIVE.

"WE ARE ADVISED THAT THE HISTORY OF THE TAX CLAUSE HERE IN QUESTION, AS QUOTED ABOVE, SHOWS THAT ITS OPENING PHRASE 'EXCEPT AS MAY BE OTHERWISE PROVIDED IN THIS CONTRACT' CONTEMPLATED ONLY SITUATIONS WHERE THE GOVERNMENT MIGHT WISH TO STIPULATE IN THE ADVERTISED INVITATION, FOR THE INFORMATION OF ALL BIDDERS, THAT CERTAIN TAXES WOULD NOT BE APPLICABLE AND SHOULD NOT BE INCLUDED IN THE BID PRICE, AND WE WOULD NOT FEEL JUSTIFIED IN CONSTRUING THE CLAUSE AS SOLICITING BIDS ON A TAX EXCLUDED BASIS. THE QUESTION PRESENTED BY (THE PROTESTANT'S) BID IS THEREFORE WHETHER IT HAS BEEN SUBMITTED IN A FORM WHICH IS CAPABLE OF EVALUATION ON AN EQUAL BASIS WITH OTHER BIDS COMPUTED, IN ACCORDANCE WITH THE INTENT OF THE INVITATION FOR BIDS, TO INCLUDE ALL APPLICABLE TAXES. THE BID ITSELF GIVES NO INDICATION OF THE AMOUNT OF TAXES, IF ANY, WHICH HAVE BEEN EXCLUDED FROM THE BID PRICE. *** (WE) WOULD NOT DEEM IT APPROPRIATE TO IMPOSE UPON THE SEVERAL CONTRACTING AGENCIES THE BURDEN OF EXAMINING INTO THE TAX SITUATION OF EACH BIDDER WHO MAY ELECT TO SUBMIT A BID PRICE ON AN UNSOLICITED TAX-EXCLUDED BASIS, AND OF MAKING UNILATERAL DETERMINATIONS OF THE AMOUNT OF APPLICABLE TAXES WHICH MAY OR MAY NOT BE CORRECT AND ACCEPTABLE TO SUCH BIDDERS.

WE MUST THEREFORE CONCLUDE THAT WHERE, AS IN THE INSTANT CASE, THE INVITATION FOR BIDS INCLUDES THE STANDARD FEDERAL, STATE AND LOCAL TAXES CLAUSE, AND NO PROVISION IS OTHERWISE MADE IN THE INVITATION FOR THE EVALUATION OF TAX-EXCLUDED BID PRICES AND THE AWARD OF A CONTRACT ON THAT BASIS, A BID WHICH IS SUBMITTED ON A TAX-EXCLUDED BASIS, WITHOUT SPECIFICALLY IDENTIFYING THE CLASSES AND AMOUNTS OF TAXES WHICH HAVE BEEN EXCLUDED, MUST BE CONSIDERED NONRESPONSIVE TO THE INVITATION. CF. 37 COMP. GEN. 864. NOTWITHSTANDING THE FACT THAT IN THIS CASE THE DIFFERENCE IN BID PRICES MAY BE MORE THAN SUFFICIENT TO COVER ANY TAXES INCLUDED FROM (PROTESTANT'S) BID PRICE, WE MUST THEREFORE CONCLUDE THAT THE BID IS NONRESPONSIVE TO THE INVITATION AND THAT AN AWARD AT THE PRICE BID WOULD BE IMPROPER."

SIMILARLY, THE PROVISION FOR A PRODUCT WARRANTY OF SIX MONTHS' DURATION, IN LIEU OF 12 MONTHS AS REQUIRED BY THE INVITATION, OPERATES TO RESERVE IMMUNITIES FROM A RESPONSIBILITY NOT EXTENDED TO ALL BIDDERS. WE HAVE HELD THAT A BID WHICH INCLUDES A WARRANTY PROVISION VARYING MATERIALLY FROM THE EQUIVALENT PROVISION IN THE SOLICITATION, IS NOT RESPONSIVE AND MAY NOT BE CONSIDERED FOR AWARD. B-156681, JUNE 2, 1965.

ADDITIONALLY, THERE ARE TWO OTHER PROVISIONS ON PAGE 10 OF THE JANUARY 25 LETTER WHICH WOULD RENDER YOUR BID NONRESPONSIVE, ALTHOUGH THEIR INCLUSION WAS NOT RELIED UPON BY THE MINT IN ITS REJECTION OF YOUR BID. THESE CLAUSES STATE:

"AN ORDER FOR THE ABOVE EQUIPMENT IS SUBJECT TO CANCELLATION ONLY UPON OUR WRITTEN CONSENT AND RESTITUTION FOR MATERIALS, LABOR AND OTHER COSTS INVOLVED, PLUS 12%.

"THE COMPANY WILL NOT BE RESPONSIBLE FOR DELAYS IN DELIVERY CAUSED BY STRIKES, WORK STOPPAGES, SHIPPING DELAYS, WEATHER OR OTHER ACTS BEYOND ITS CONTROL."

IN OUR DECISION B-129480, JANUARY 28, 1957, WE CONSIDERED A SITUATION ANALOGOUS TO YOURS WHEREIN A BID WAS ACCOMPANIED BY PRICING INFORMATION ON A COMPANY LETTERHEAD WHICH INCLUDED THE FOLLOWING STATEMENTS:

"SHIPMENT DATE IS CONDITIONAL UPON DELAYS, ACCIDENTS, OR NON PERFORMANCE OCCASIONED BY STRIKES, FIRES OR OTHER CAUSES BEYOND OUR CONTROL.

"ORDERS ENTERED UPON OUR BOOKS CANNOT BE CANCELLED WITHOUT OUR CONSENT, AND UPON TERMS WHICH WILL INDEMNIFY US AGAINST ACTUAL LOSS."

WE OBSERVED:

"THE PROVISION RELATIVE TO EXCUSABLE CAUSES OF DELAY (IN THE 'DEFAULT' CLAUSE) PROVIDES THAT A CONTRACTOR SHALL NOT BE HELD LIABLE FOR ANY EXCESS COST OR LIQUIDATED DAMAGES IF THE FAILURE TO PERFORM THE CONTRACT ARISES OUT OF CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, SUCH AS CERTAIN SPECIFIC CAUSES SET OUT THEREIN AND OTHER CAUSES SIMILAR THERETO. THE CAUSES SPECIFIED NOT ONLY MUST BE BEYOND THE CONTROL OF THE CONTRACTOR BUT MUST BE WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. THESE TWO CONDITIONS MUST CONCUR TO AFFORD THE CONTRACTOR IMMUNITY FROM LIABILITY FOR DELAY OR FAILURE TO PERFORM HIS CONTRACT. HOWEVER, UNDER THE CONDITION ATTACHED TO (PROTESTANT'S BID), IT IS NOT NECESSARY THAT THE CAUSE OF DELAY BE WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. THUS, ANY SUPERVENING CAUSE RENDERING PERFORMANCE MORE DIFFICULT OR BURDENSOME MIGHT BE INVOKED AS AN EXCUSE FOR DELAY OR REFUSAL TO PERFORM SO LONG AS IT IS BEYOND THE CONTROL OF THE CONTRACTOR IN ITS DURATION, ALTHOUGH IT MIGHT BE DIRECTLY ATTRIBUTABLE TO THE CONTRACTOR'S OWN FAULT OR NEGLIGENCE IN ITS INCEPTION.

"THE PROVISION THAT ORDERS ENTERED UPON THE BIDDER'S BOOKS CANNOT BE CANCELED WITHOUT THE BIDDER'S CONSENT AND THAT SUCH CANCELLATION MUST BE UPON TERMS WHICH WILL INDEMNIFY THE BIDDER AGAINST ACTUAL LOSS, IS CLEARLY A MATERIAL DEVIATION FROM THE PROVISIONS OF (THE 'DEFAULT' CLAUSE) AND GOES SUBSTANTIALLY BEYOND THE MEANING AND INTENT OF THE LATTER IN AFFORDING THE BIDDER IMMUNITY FROM LIABILITY IN CASE OF DEFAULT, WITH A CORRESPONDING RESTRICTION OF THE RIGHTS OF THE GOVERNMENT TO HOLD THE BIDDER LIABLE IN THE EVENT OF BREACH OF ITS CONTRACT.

"ACCORDINGLY, THE (PROTESTANT'S BID), CONDITIONED AS IT IS IN THIS CASE, PROPERLY MUST BE REJECTED AS NOT BEING RESPONSIVE TO THE INVITATION FOR BIDS."

FURTHERMORE, YOUR PROVISION THAT ORDERS ARE "SUBJECT TO CANCELLATION ONLY UPON OUR WRITTEN CONSENT" IS IN DIRECT CONTRADICTION TO THE "TERMINATION FOR CONVENIENCE OF THE GOVERNMENT" CLAUSE INCORPORATED BY REFERENCE IN THE INSTANT IFB, PARAGRAPH (A) OF WHICH CLAUSE PROVIDES IN PART:

"THE PERFORMANCE OF WORK UNDER THIS CONTRACT MAY BE TERMINATED BY THE GOVERNMENT IN ACCORDANCE WITH THIS CLAUSE IN WHOLE, OR FROM TIME TO TIME IN PART, WHENEVER THE CONTRACTING OFFICER SHALL DETERMINE THAT SUCH TERMINATION IS IN THE BEST INTEREST OF THE GOVERNMENT. *** "

THUS, THERE ARE AT LEAST FOUR PROVISIONS IN THE LETTER OF JANUARY 25 WHICH MATERIALLY DEVIATE FROM THE REQUIREMENTS OF THE INVITATION, ANY ONE OF WHICH RENDERS THE BID NONRESPONSIVE.

THE QUESTION IS THEN PRESENTED WHETHER THESE DEVIATIONS ARE "CURED" BY THE STATEMENT IN THE LETTER OF JANUARY 26 THAT:

"PRESSES AS BID MEET OR EXCEED THE REQUIREMENTS OF THE SPECIFICATIONS. WE TAKE NO EXCEPTION TO THESE SPECIFICATIONS." WE BELIEVE THE PROCURING ACTIVITY COULD REASONABLY INTERPRET THIS STATEMENT TO MEAN THAT THE EQUIPMENT OFFERED MET OR EXCEEDED THE MECHANICAL AND PERFORMANCE CHARACTERISTICS REQUIRED BY THE IFB. "SPECIFICATIONS" IS GENERALLY UNDERSTOOD TO MEAN THE DESCRIPTION OF THE TECHNICAL REQUIREMENTS FOR A PRODUCT, RATHER THAN THE TERMS AND CONDITIONS UNDER WHICH BIDS ARE SUBMITTED AND THE RIGHTS OF THE PARTIES TO A CONTRACT ARE DEFINED. SEE FPR 1-1.305 AND THE LISTINGS UNDER THE HEADING "SPECIFICATIONS FOR COINING PRESSES" BEGINNING AT PAGE 6 OF THE IFB.

YOUR POSITION, IN EFFECT, WOULD REQUIRE THE ABOVE-QUOTED STATEMENT IN YOUR LETTER OF JANUARY 26 TO BE READ AS: "PRESSES AS BID MEET OR EXCEED THE REQUIREMENTS OF THE SPECIFICATIONS OF THE INVITATION FOR BIDS, INCLUDING THE REQUIREMENT THAT ALL FEDERAL, STATE OR LOCAL TAXES ARE INCLUDED IN THE BID PRICE, THE REQUIREMENT FOR A 12-MONTH PRODUCT WARRANTY, AND THE RIGHTS OF THE PARTIES AS DEFINED BY THE 'DEFAULT' AND 'TERMINATION FOR CONVENIENCE OF THE GOVERNMENT' CLAUSES. WE TAKE NO EXCEPTION TO THESE SPECIFICATIONS."

WE CANNOT ACCEPT SUCH A CONSTRUCTION. FOR EXAMPLE, WE DO NOT PERCEIVE HOW THE "PRESSES" COULD "MEET OR EXCEED" THE RIGHT OF THE GOVERNMENT TO TERMINATE THE CONTRACT IN WHOLE OR IN PART UPON A DETERMINATION BY THE CONTRACTING OFFICER THAT TERMINATION WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT. WHILE THE STATEMENT IN THE LETTER OF JANUARY 26 MAY HAVE CONSTITUTED AN OVERALL OFFER TO COMPLY WITH THE TECHNICAL REQUIREMENTS OF THE SOLICITATION, WE ARE OF THE OPINION THAT THE STATEMENT COULD NOT REASONABLY BE CONSTRUED TO APPLY TO THE OTHER TERMS AND CONDITIONS OF THE IFB. THUS, THERE WAS NO CLEAR AND PATENT INTENTION TO COMPLETELY CONFORM TO ALL PROVISIONS OF THE INVITATION, AND THE LETTER OF JANUARY 26 DOES NOT CURE THE ABOVE-MENTIONED SPECIFIC DEVIATIONS TAKEN ON PAGE 10 OF THE LETTER OF JANUARY 25. THE BID WAS THEREFORE PROPERLY CONSIDERED TO BE NONRESPONSIVE.

YOU ALSO CONTEND THAT THE INCLUSION OF PAGE 10 OF THE LETTER OF JANUARY 25 OCCURRED THROUGH MISTAKE, AND SHOULD BE CORRECTABLE PURSUANT TO FPR 1- 2.406. HOWEVER, SINCE YOUR BID, AS SUBMITTED, WAS THE PRODUCT OF A MISTAKE RESULTING IN MATERIAL DEVIATIONS FROM THE INVITATION, IT WAS NONRESPONSIVE. A NONRESPONSIVE BID CANNOT UNDER ANY CIRCUMSTANCES BE CORRECTED SO AS TO MAKE IT RESPONSIVE TO THE INVITATION AND THUS ELIGIBLE FOR AWARD. TO ALLOW SUCH A CORRECTION WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW OFFER. SEE 46 COMP. GEN. 418 (1966).

FOR THE ABOVE REASONS, WE MUST CONCLUDE THAT THE REJECTION OF YOUR BID WAS PROPER, AND YOUR PROTEST MUST THEREFORE BE DENIED.