B-177662(1), FEB 21, 1973

B-177662(1): Feb 21, 1973

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FAILURE TO CONFORM THERETO WILL RENDER THE BID NONRESPONSIVE. INC.: REFERENCE IS MADE TO YOUR TELEGRAMS OF DECEMBER 15 AND 24. IT WAS STIPULATED THAT A BINDING AWARD WOULD TAKE EFFECT: *** IF THIS OFFER IS ACCEPTED WITHIN CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE OFFEROR) FROM THE DATE FOR RECEIPT OF OFFERS SPECIFIED ABOVE ***. PARAGRAPH D1 ADMONISHED THAT: BIDS PROVIDING LESS THAN THIRTY (30) CALENDAR DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE OF OPENING WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED. IT WAS DISCOVERED THAT YOUR BID SET FORTH AN ACCEPTANCE PERIOD OF 5 DAYS BY VIRTUE OF A FIGURE 5 HAVING BEEN INSERTED INTO THE BLANK APPEARING BEFORE THE WORDS "CALENDAR DAYS" ON PAGE 1 OF DPSC FORM 3113.

B-177662(1), FEB 21, 1973

BID PROTEST - NONRESPONSIVE BID - ACCEPTANCE DATE AS MATERIAL REQUIREMENT DECISION DENYING A PROTEST BY SOUTHERN EMPIRE EGG FARM, INC., AGAINST A DETERMINATION OF NONRESPONSIVENESS OF ITS BID UNDER AN ADVERTISED NOTICE OF INTENT TO PURCHASE (ADNIP) ISSUED BY THE DEFENSE SUPPLY AGENCY, SUBSISTENCE RH NEW ORLEANS, DPSC, NEW ORLEANS, LA. BIDDER'S SUBMISSION OF A 5 DAY ACCEPTANCE PERIOD WHEN A SUBPARAGRAPH OF THE ADNIP REQUIRED THAT AN ACCEPTANCE DATE OF LESS THAN 30 DAYS WOULD RENDER THE BID NONRESPONSIVE GOES TO A MATERIAL REQUIREMENT OF THE BID, AND FAILURE TO CONFORM THERETO WILL RENDER THE BID NONRESPONSIVE. COMP. GEN. 779, 780 (1960). MOREOVER, NOTWITHSTANDING A BIDDER'S INADVERTANT FAILURE TO CONFORM TO THE GOVERNMENT'S ACCEPTANCE DATES, TO PERMIT A BIDDER TO ALTER A MATERIAL PART OF ITS BID AFTER THE OPENING DATE WOULD BE TANTAMOUNT TO A BIDDER SUBMITTING A NEW BID AND THEREBY PREJUDICE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. 38 COMP. GEN. 819 (1959).

TO SOUTHERN EMPIRE EGG FARM, INC.:

REFERENCE IS MADE TO YOUR TELEGRAMS OF DECEMBER 15 AND 24, 1972, AND JANUARY 23, 1973, PROTESTING THE REJECTION OF YOUR BID AS NON RESPONSIVE UNDER ADDENDUM NO. 7, DATED NOVEMBER 21, 1972, TO ADVERTISED NOTICE OF INTENT TO PURCHASE (ADNIP) DSA 135-72-E-0183, ISSUED BY THE DEFENSE SUPPLY AGENCY, SUBSISTENCE RH NEW ORLEANS, DPSC, NEW ORLEANS, LOUISIANA.

THE REFERENCED ADDENDUM, WHICH INCORPORATED THE TERMS OF THE ADNIP, SET THE OPENING OF BIDS FOR DECEMBER 8, 1972, AND REQUIRED THE SUCCESSFUL BIDDER TO SUPPLY SPECIFIED QUANTITIES OF EGGS TO MILITARY INSTALLATIONS ENUMERATED THEREIN.

ON PAGE 1 OF THE ADDENDUM, DPSC FORM 3113, IT WAS STIPULATED THAT A BINDING AWARD WOULD TAKE EFFECT:

*** IF THIS OFFER IS ACCEPTED WITHIN CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE OFFEROR) FROM THE DATE FOR RECEIPT OF OFFERS SPECIFIED ABOVE ***.

ON PAGE 3 OF THE ADNIP, PARAGRAPH D1 ADMONISHED THAT:

BIDS PROVIDING LESS THAN THIRTY (30) CALENDAR DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE OF OPENING WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED, EXCEPT AS MAY BE OTHERWISE SPECIFIED IN THE ADDENDA.

THE ADDENDUM CONTAINED NO FURTHER REFERENCE TO THE PERIOD FOR ACCEPTANCE OF BIDS.

UPON THE OPENING OF BIDS, IT WAS DISCOVERED THAT YOUR BID SET FORTH AN ACCEPTANCE PERIOD OF 5 DAYS BY VIRTUE OF A FIGURE 5 HAVING BEEN INSERTED INTO THE BLANK APPEARING BEFORE THE WORDS "CALENDAR DAYS" ON PAGE 1 OF DPSC FORM 3113, QUOTED ABOVE IN PERTINENT PART. IN VIEW OF THE ADMONITION OF PARAGRAPH D1, YOUR BID WAS REJECTED AS NONRESPONSIVE.

YOU CONTEND THAT THE INSERTION OF A 5-DAY ACCEPTANCE PERIOD WAS AN ADMINISTRATIVE ERROR WHICH IS EXPLAINED BY THE FACT THAT YOUR COMMERCIAL BIDS, CONTAINING A 5-DAY ACCEPTANCE CLAUSE, WERE BEING PREPARED AT THE SAME TIME AS YOUR BID UNDER THIS SOLICITATION. YOU ADVISE THAT YOU HAVE REGULARLY SUBMITTED THE SAME TYPE OF BID OVER THE PAST 10 YEARS AND HAVE NEVER PLACED A TIME LIMIT FOR THE ACCEPTANCE OF YOUR BIDS ON GOVERNMENT CONTRACTS. YOU FURTHER CONTEND THAT THE ERROR DOES NOT AFFECT COST, SERVICE, OR THE PERFORMANCE OF THE PROSPECTIVE CONTRACT, AND THEREFORE PARAGRAPH D1 SHOULD NOT APPLY TO THIS PURCHASE.

OUR OFFICE HAS HELD THAT A BID MAY BE CONSIDERED FOR AWARD ONLY IF IT COMPLIES IN ALL MATERIAL RESPECTS WITH THE TERMS OF THE INVITATION. PROVISION IN AN INVITATION REQUIRING THAT A BID REMAIN AVAILABLE FOR ACCEPTANCE FOR A DESIGNATED PERIOD, IS A MATERIAL REQUIREMENT AND FAILURE TO CONFORM THERETO WILL RENDER THE BID NONRESPONSIVE. SEE 39 COMP. GEN. 779, 780 (1960) AND CASES CITED THEREIN. MOREOVER, THE FACT THAT SUCH FAILURE IS ATTRIBUTABLE TO OVERSIGHT OR ERROR DOES NOT JUSTIFY CORRECTION OF THE BID TO REMEDY THE DEFECT, SINCE THE RULES UNDER WHICH CORRECTION OF MISTAKES IN BIDS ARE PERMITTED ARE APPLICABLE ONLY WHEN THE BID, AS SUBMITTED, IS RESPONSIVE TO THE INVITATION AND OTHERWISE ACCEPTABLE. COMP. GEN. 418, 422 (1966). CONTRARY TO YOUR ALLEGATION THAT PARAGRAPH D1 SHOULD NOT APPLY TO THIS PURCHASE, THAT DECISION HOLDS (AT PAGE 422) THAT A BID INVITATION MAY PROPERLY REQUIRE THAT BIDS OFFER A PRESCRIBED PERIOD DURING WHICH THE GOVERNMENT MAY MAKE ITS ACCEPTANCE, AND THAT SUCH REQUIREMENT IS MATERIAL AND MAY NOT BE WAIVED.

WHILE WE CAN APPRECIATE AND UNDERSTAND THE MANNER IN WHICH THE ERROR WAS MADE, TO PERMIT A BIDDER TO MAKE A BID, WHICH IS NOT RESPONSIVE TO THE INVITATION, RESPONSIVE BY CHANGING A MATERIAL PART OF THE BID ON THE BASIS OF AN ERROR ALLEGED AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID AND THEREBY PREJUDICE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. SEE 38 COMP. GEN. 819 (1959).

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.