B-176074, AUG 7, 1972

B-176074: Aug 7, 1972

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ONLY THOSE DEVIATIONS WHICH ARE IMMATERIAL AND DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO PREJUDICE THE RIGHTS OF OTHER BIDDERS MAY BE WAIVED. TO MONSANTO RESEARCH CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 26. THAT THESE TERMS GRANTED YOU VALUABLE RIGHTS WHICH WERE NOT AVAILABLE TO OTHER BIDDERS UNDER THE PROVISIONS OF THE SOLICITATION. NASA HAS SUMMARIZED YOUR TERMS AS FOLLOWS: "PARAGRAPH 7 ALLOWS IT TO ADJUST ITS PRICE AFTER AWARD IF THE COST OF RAW MATERIALS (WHICH IS CONTROLLED BY THE GOVERNMENT) IS INCREASED. OR TO TERMINATE THE CONTRACT IF SUCH INCREASE IS RESTRICTED BY THE GOVERNMENT. PARAGRAPH 14 WOULD HAVE MISSOURI LAW APPLY. BECAUSE THESE RIGHTS WERE NOT SET FORTH IN THE IFB PROVISIONS THE CONTRACTING OFFICER FOUND YOUR BID NONRESPONSIVE.

B-176074, AUG 7, 1972

BID PROTEST - NONRESPONSIVE BID DENIAL OF PROTEST BY MONSANTO RESEARCH CORPORATION AGAINST THE REJECTION OF THEIR BID AS BEING NONRESPONSIVE TO AN IFB ISSUED BY NASA FOR 100 MICROGRAMS OF CALIFORNIUM 252 NEUTRON SOURCE. ONLY THOSE DEVIATIONS WHICH ARE IMMATERIAL AND DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO PREJUDICE THE RIGHTS OF OTHER BIDDERS MAY BE WAIVED. DEVIATIONS AFFECTING PRICE, QUALITY, QUANTITY, OR DELIVERY GO TO THE SUBSTANCE OF THE PROCUREMENT. 30 COMP. GEN. 179 (1950). GAO BELIEVES THAT NASA PROPERLY REJECTED THE BID IN ACCORDANCE WITH NASA PROCUREMENT REGULATION 2.301 AND 2.402-2, AND THE ABOVE CITED DECISION.

TO MONSANTO RESEARCH CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 26, 1972, CONCERNING YOUR PROTEST UNDER INVITATION FOR BIDS (IFB) 3-517563, ISSUED ON APRIL 27, 1972, BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) FOR 100 MICROGRAMS OF CALIFORNIUM 252 NEUTRON SOURCE.

NASA REPORTS THAT YOU SUBMITTED THE LOWEST BID FOR THE REQUIREMENT; THAT YOUR BID CONTAINED THE GENERAL SALE TERMS OF YOUR CONCERN; AND THAT THESE TERMS GRANTED YOU VALUABLE RIGHTS WHICH WERE NOT AVAILABLE TO OTHER BIDDERS UNDER THE PROVISIONS OF THE SOLICITATION.

NASA HAS SUMMARIZED YOUR TERMS AS FOLLOWS:

"PARAGRAPH 7 ALLOWS IT TO ADJUST ITS PRICE AFTER AWARD IF THE COST OF RAW MATERIALS (WHICH IS CONTROLLED BY THE GOVERNMENT) IS INCREASED; OR TO TERMINATE THE CONTRACT IF SUCH INCREASE IS RESTRICTED BY THE GOVERNMENT;

PARAGRAPH 10 GIVES MONSANTO THE RIGHT TO ADJUST ITS PRICE AFTER AWARD TO REFLECT INCREASES IN FREIGHT RATES OR TAXES OR THE IMPOSITION OF NEW TAXES;

PARAGRAPH 13 GIVES THE CONTRACTOR THE RIGHT TO ASSESS THE GOVERNMENT INTEREST ON INVOICES NOT PAID WITHIN 30 DAYS;

PARAGRAPH 14 WOULD HAVE MISSOURI LAW APPLY, RATHER THAN THE FEDERAL LAW OF CONTRACTS; AND

PARAGRAPH 5 SETS FORTH A CHANGES CLAUSE WHICH DEVIATES FROM THE STANDARD GOVERNMENT CLAUSE IN THE IFB.

MONSANTO BID A DELIVERY SCHEDULE OF 30-60 DAYS AFTER RECEIPT OF ORDER. SOLICITATION NO. 3-517563 CONTAINED PROVISIONS FOR A DESIRED DELIVERY OF 30 DAYS AFTER DATE OF AWARD AND A REQUIRED DELIVERY OF 60 DAYS AFTER DATE OF AWARD."

BECAUSE THESE RIGHTS WERE NOT SET FORTH IN THE IFB PROVISIONS THE CONTRACTING OFFICER FOUND YOUR BID NONRESPONSIVE, AND THEREFORE MADE AN AWARD TO GAMMA INDUSTRIES ON MAY 19, 1972.

YOU MAINTAIN THAT NASA SHOULD HAVE WAIVED THE EXCEPTIONS TO THE INVITATION PROVISIONS RESULTING FROM YOUR GENERAL SALE TERMS, AND MADE THE AWARD TO YOUR CONCERN.

THE SUBJECT PROCUREMENT IS GOVERNED BY 10 U.S.C. 2305(C), WHICH REQUIRES THAT AWARDS BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION. THEREFORE, IT IS A FUNDAMENTAL RULE OF FORMALLY ADVERTISED PROCUREMENT THAT THE CONTRACT AWARDED TO ONE BIDDER MUST BE THE CONTRACT OFFERED TO ALL BIDDERS. ONLY THOSE DEVIATIONS WHICH ARE IMMATERIAL AND DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO PREJUDICE THE RIGHTS OF OTHER BIDDERS MAY BE WAIVED. DEVIATIONS AFFECTING PRICE, QUALITY, QUANTITY, OR DELIVERY GO TO THE SUBSTANCE OF THE PROCUREMENT. 30 COMP. GEN. 179 (1950).

THE TERMS OF YOUR CONCERN CLEARLY AFFECTED PRICE AND DELIVERY. SINCE THESE TERMS ALSO VARIED FROM THE IFB PROVISIONS, WE BELIEVE NASA PROPERLY REJECTED YOUR BID IN ACCORDANCE WITH NASA PROCUREMENT REGULATION 2.301 AND 2.404-2 QUOTED IN PERTINENT PART:

"2.301(A) TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS, SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED.

2.301(C) BIDS SHOULD BE FILLED OUT, EXECUTED, AND SUBMITTED IN ACCORDANCE WITH THE INSTRUCTIONS WHICH ARE CONTAINED IN THE INVITATION FOR BIDS. A BIDDER USES HIS OWN BID FORM OR A LETTER TO SUBMIT A BID, THE BID MAY BE CONSIDERED ONLY IF (I) THE BIDDER ACCEPTS ALL THE TERMS AND CONDITIONS OF THE INVITATION, AND (II) AWARD ON THE BID WOULD RESULT IN A BINDING CONTRACT, THE TERMS AND CONDITIONS OF WHICH DO NOT VARY FROM THE TERMS AND CONDITIONS OF THE INVITATION.

2.404-2(B) ... A LOW BIDDER MAY BE REQUESTED TO DELETE OBJECTIONABLE CONDITIONS FROM HIS BID PROVIDED THESE CONDITIONS DO NOT GO TO THE SUBSTANCE, AS DISTINGUISHED FROM THE FORM, OF THE BID, OR WORK AN INJUSTICE ON OTHER BIDDERS. A CONDITION GOES TO THE SUBSTANCE OF A BID WHERE IT AFFECTS PRICE, QUANTITY, QUALITY OR DELIVERY OF THE ITEMS OFFERED."

FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST MUST BE DENIED.