B-177441, FEB 21, 1973

B-177441: Feb 21, 1973

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OR QUANTITY OF THE ITEM AND IS NOT PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. 37 COMP. DOES NOT RENDER A BID NON-RESPONSIVE WITH RESPECT TO ITEMS ACTUALLY BID UPON WHEN IT IS IN THE GOVERNMENT'S BEST INTEREST TO MAKE THE AWARD ON THE ITEMS BID UPON RATHER THAN THE ALTERNATE OMITTED. 45 COMP. SINCE EIKENBERG'S PRICE OMISSION WAS PROPERLY WAIVED BY GPO AS AN IMMATERIAL DEVIATION. THE PROTEST IS DENIED. INC.: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 15. PROGRAM 1378-S IS A REQUIREMENTS CONTRACT FOR THE PRODUCTION OF VARIOUS TYPES OF FORMS FOR THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION. AWARD WAS TO BE MADE TO THE BIDDER WHOSE TOTAL AGGREGATE COST RESULTS IN THE LOWEST BID. TWENTY FIRMS WERE SOLICITED AND FOUR BIDS WERE RECEIVED.

B-177441, FEB 21, 1973

BID PROTEST - ALTERNATE BIDDING - WAIVER OF DEVIATION DECISION DENYING THE PROTEST OF GOODWAY, INC., AGAINST THE AWARD OF A CONTRACT FOR A GOVERNMENT PRINTING OFFICE PROGRAM TO THE H.L. EIKENBERG CO. SINCE THE INVITATION CLEARLY STATED TWO ALTERNATIVE NUMBERING FORMS, A BIDDER'S FAILURE TO SUBMIT PRICES FOR ONE NUMBERING METHOD DOES NOT RENDER ITS BID NON-RESPONSIVE BECAUSE THE FAILURE CAN BE WAIVED AS AN IMMATERIAL DEFICIENCY WHICH DOES NOT AFFECT EITHER THE PRICE, QUALITY, OR QUANTITY OF THE ITEM AND IS NOT PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. 37 COMP. GEN. 190 (1957). ALSO, A FAILURE TO BID ON AN ALTERNATE, EVEN THOUGH REQUIRED BY THE INVITATION, DOES NOT RENDER A BID NON-RESPONSIVE WITH RESPECT TO ITEMS ACTUALLY BID UPON WHEN IT IS IN THE GOVERNMENT'S BEST INTEREST TO MAKE THE AWARD ON THE ITEMS BID UPON RATHER THAN THE ALTERNATE OMITTED. 45 COMP. GEN. 682 (1966). ACCORDINGLY, SINCE EIKENBERG'S PRICE OMISSION WAS PROPERLY WAIVED BY GPO AS AN IMMATERIAL DEVIATION, THE PROTEST IS DENIED.

TO GOODWAY, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 15, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF THE CONTRACT FOR GOVERNMENT PRINTING OFFICE (GPO) PROGRAM 1378-S TO THE H. L. EIKENBERG COMPANY.

PROGRAM 1378-S IS A REQUIREMENTS CONTRACT FOR THE PRODUCTION OF VARIOUS TYPES OF FORMS FOR THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, GODDARD SPACE FLIGHT CENTER, FOR THE TERM ENDING AUGUST 31, 1973. AWARD WAS TO BE MADE TO THE BIDDER WHOSE TOTAL AGGREGATE COST RESULTS IN THE LOWEST BID. TWENTY FIRMS WERE SOLICITED AND FOUR BIDS WERE RECEIVED. AFTER EVALUATION OF BIDS, EIKENBERG WAS AWARDED THE CONTRACT AT A TOTAL PRICE OF $62,860.55.

ONE OF THE SCHEDULE ITEMS WAS SETS OF MULTIPART CARBONLESS FORMS OF VARIOUS SIZES. TWO METHODS OF NUMBERING THESE FORMS WERE PROVIDED FOR IN THE SOLICITATION: THE INDIVIDUAL NUMBERING METHOD AND THE CRASH IMPRESSION NUMBERING METHOD. THE ADMINISTRATIVE REPORT STATES THAT THE LATTER METHOD IS A PRODUCTION METHOD WHEREBY MULTIPART FORMS ARE SERIALLY NUMBERED AFTER THE FORMS ARE PRINTED AND ASSEMBLED, WITH THE NUMBER APPEARING ON THE SEVERAL PARTS AS "CARBON" IMPRESSIONS, RATHER THAN AS PRINTED ORIGINALS ON EACH PART OF THE FORM WHICH IS THE INDIVIDUAL NUMBERING METHOD. ESTIMATED QUANTITIES FOR BOTH OF THESE NUMBERING METHODS WERE SET OUT IN THE INVITATION PARAGRAPH "BASIS OF AWARD," EVEN THOUGH THE INVITATION MADE IT CLEAR THAT SUCH METHODS WERE ALTERNATIVES ACCOMPLISHING THE SAME TASK WITH THE CHOICE LEFT TO THE BIDDER. EIKENBERG DID NOT SUBMIT PRICES FOR THE CRASH NUMBERING ITEMS LISTED IN THE SCHEDULE OF PRICES.

YOU PROTEST THE AWARD ON THE BASIS THAT EIKENBERG'S FAILURE TO SUBMIT PRICES FOR THE CRASH NUMBERING ITEMS RENDERED ITS BID NONRESPONSIVE, IN VIOLATION OF THE FIRST PARAGRAPH OF INVITATION PAGE 10 UNDER THE SCHEDULE OF PRICES, WHICH PROVIDES:

*** BIDDER MUST SUBMIT A QUOTATION FOR EACH ITEM LISTED. FAILURE TO QUOTE ON ALL ITEMS OR ANY OTHER OMISSION, OBLITERATION, OR ALTERATION TO THESE SPECIFICATIONS OR THE ORDER AND MANNER OF SUBMITTING PRICES HEREIN WILL BE REASON FOR REJECTION OF BID.

IN RESPONSE TO THIS CONTENTION, GPO STATES THAT THE METHOD OF PRODUCTION WAS OPTIONAL WITH THE CONTRACTOR, AND THAT EIKENBERG EXERCISED ITS OPTION WHEN IT SUBMITTED A PRICE FOR THE INDIVIDUAL NUMBERING METHOD ONLY. GPO FURTHER CONTENDS THAT, IN ANY EVENT, A FAILURE TO SUBMIT A PRICE FOR THE CRASH NUMBERING METHOD COULD BE WAIVED AS BEING IN THE BEST INTERESTS OF THE GOVERNMENT ON THE THEORY THAT THIS WAIVER WOULD NOT PREJUDICE ANY OTHER BIDDER.

FOR THE REASONS SET OUT BELOW, YOUR PROTEST MUST BE DENIED.

THE GENERAL RULE IN THIS AREA IS THAT A MATERIAL DEFICIENCY OR DEVIATION WHICH GOES TO THE SUBSTANCE OF THE BID BY AFFECTING THE PRICE, QUANTITY OR QUALITY OF THE ITEM SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS CANNOT BE WAIVED. ON THE OTHER HAND, AN IMMATERIAL DEFICIENCY OR DEVIATION WHICH DOES NOT AFFECT EITHER THE PRICE, QUALITY OR QUANTITY OF THE ITEM AND IS NOT PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS CAN BE CURED OR WAIVED. 37 COMP. GEN. 190 (1957); B-172227, MAY 13, 1971.

THE INVITATION PARAGRAPH "BASIS OF AWARD" PROVIDED IN PERTINENT PART AS FOLLOWS:

AWARD WILL BE MADE TO THE BIDDER WHOSE TOTAL AGGREGATE COST RESULTS IN THE LOWEST BID. THE GOVERNMENT WILL DETERMINE THE TOTAL AGGREGATE COST BY APPLYING THE PRICES QUOTED IN THE "SCHEDULE OF PRICES" TO THE FOLLOWING LISTED UNITS OF PRODUCTION WHICH ARE THE TOTAL ESTIMATED REQUIREMENTS UNDER THIS CONTRACT. ***

AS INDICATED ABOVE, ESTIMATED QUANTITIES WERE THEN LISTED FOR BOTH THE CRASH IMPRESSION METHOD AND THE INDIVIDUAL NUMBERING METHOD AS WELL AS FOR THE OTHER ITEMS FOR WHICH BID PRICES WERE REQUIRED. HOWEVER, THE IFB INCLUDED THE FOLLOWING STATEMENT ON PAGE 11, "ADDITIONAL OPERATIONS": "*** NUMBERING, WHEN REQUIRED, IS CHARGEABLE UNDER COLUMN (3) (NUMBERING EACH PART) OR (4) (CRASH NUMBERING IN SETS) ACCORDING TO THE METHOD USED." THUS, AN ALTERNATE AWARD BASIS WAS CLEARLY STATED WITH RESPECT TO THE NUMBERING METHOD TO BE EMPLOYED AND THE ESTIMATED QUANTITIES FOR THE TWO NUMBERING METHODS SET OUT IN THE "BASIS OF AWARD" PARAGRAPH CAN ONLY BE INTERPRETED AS BEING STATED IN THE ALTERNATIVE FOR PURPOSES OF EVALUATION.

WITH RESPECT TO ALTERNATE BIDDING, IT IS THE SETTLED RULE OF OUR OFFICE THAT "A FAILURE TO BID ON AN ALTERNATE, EVEN THOUGH REQUIRED UNDER THE CLEAR MEANING OF THE INVITATION, DOES NOT RENDER A BID NON RESPONSIVE WITH RESPECT TO ITEMS ACTUALLY BID UPON WHEN *** IT IS ADMINISTRATIVELY DETERMINED THAT THE (GOVERNMENT'S) BEST INTERESTS WILL BE SERVED BY MAKING AWARD ON THE ITEMS BID UPON RATHER THAN THE ALTERNATE OMITTED." SEE 45 COMP. GEN. 682, 684 (1966) AND CASES CITED THEREIN. IN THIS CASE, THE DETERMINATION WAS MADE BY GPO THAT THE MOST ADVANTAGEOUS AWARD FROM THE GOVERNMENT'S STANDPOINT WOULD BE TO EIKENBERG ON THE INDIVIDUAL NUMBERING BASIS.

IN THIS REGARD, THE ADMINISTRATIVE REPORT SETS OUT THE FOLLOWING ALTERNATE EVALUATIONS, WITH THE BID OF EIKENBERG IN EACH CASE BEING ON THE BASIS OF THE INDIVIDUAL NUMBERING METHOD:

EIKENBERG $ 62,860.55

*GOODWAY 73,972.10

*BLOCHER 77,926.06

*UNITED LITHO 105,663.61

*EVALUATION ON THE BASIS OF INDIVIDUAL NUMBERING.

EIKENBERG $ 62,860.55

*GOODWAY 72,707.27

*BLOCHER 77,478.26

*UNITED LITHO 101,247.61

*EVALUATION ON THE BASIS OF CRASH NUMBERING.

THUS, EIKENBERG'S TOTAL PRICE IS THE LOWEST UNDER EITHER EVALUATION. COMPARING EIKENBERG'S TOTAL BID PRICE WITH YOUR TOTAL BID PRICE, GPO POINTS OUT THAT THE DIFFERENCE, EVALUATING YOUR BID ON THE MOST ADVANTAGEOUS BASIS, IS $9,846.72.

WITH RESPECT TO THE EARLIER REJECTION BY GPO OF A GOODWAY BID BECAUSE OF THE OMISSION OF AN ITEM PRICE REQUIRED BY THE INVITATION, WE MUST ADVISE THAT SUCH CIRCUMSTANCE MAY NOT BE RELIED UPON HERE TO REQUIRE A DIFFERENT CONCLUSION. SINCE EIKENBERG'S PRICE OMISSION WAS PROPERLY WAIVED BY GPO AS AN IMMATERIAL DEVIATION, YOUR PROTEST MUST BE DENIED.