B-179674, APR 2, 1974

B-179674, APR 2, 1974

1. INSERTION IN LOW BID FOR SECURITY GUARD SERVICES OF HOURLY RATE INSTEAD OF MONTHLY UNIT PRICE AS REQUIRED BY IFB WAS NOT A MATERIAL DEVIATION REQUIRING REJECTION OF BID AS NONRESPONSIVE, INASMUCH AS THERE WAS SUFFICIENT INFORMATION IN IFB FROM WHICH EXTENDED PRICE FOR NINE-MONTH CONTRACT PERIOD COULD BE ASCERTAINED; AND THEREFORE GAO WILL NOT OBJECT TO CONTRACTING AGENCY DETERMINATION TO TERMINATE CONTRACT AWARDED TO NEXT LOW BIDDER AND TO MAKE AWARD TO LOW BIDDER. 2. ALTHOUGH BID AMOUNT ASCERTAINED BY EXTENDING HOURLY RATE OFFERED BY LOW BIDDER WAS IN EXCESS OF EXTENDED PRICE BID AFFIRMED BY BIDDER, BOTH OF WHICH AMOUNTS WERE LOWER THAN NEXT LOW BID, ACCEPTANCE ON LATTER BASIS WOULD BE PROPER, SINCE THERE WOULD BE NO PREJUDICE TO OTHER BIDDERS.

TO BID PROTEST - CHEMICAL TECHNOLOGY, INC.:

INVITATION FOR BIDS (IFB) N00612-74-B-0010, WAS ISSUED ON JULY 30, 1973, BY THE NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA, FOR SECURITY GUARD SERVICES AT THE UNITED STATES NAVAL STATION, ROOSEVELT ROADS ANNEX, SAN JUAN, PUERTO RICO, FOR THE PERIOD OCTOBER 1, 1973, THROUGH JUNE 30, 1974.

THREE BIDS WERE SUBMITTED IN RESPONSE TO THE IFB. THE CONTRACTING OFFICER INITIALLY DETERMINED THAT THE BID OF UNITED STATES SECURITY SERVICES CORPORATION (USSSC), WHICH OFFERED A UNIT PRICE OF $2.70 PER HOUR PLUS TIME AND ONE HALF FOR HOLIDAYS AND AN EXTENDED PRICE OF $29,569.05, WAS NONRESPONSIVE TO THE IFB, SINCE IT OFFERED AN HOURLY UNIT PRICE IN LIEU OF THE MONTHLY UNIT PRICE SOLICITED IN THE IFB. AWARD WAS MADE TO THE CHECKER SERVICES DIVISION, CHEMICAL TECHNOLOGY, INC. (CTI), AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER AT A UNIT PRICE OF $3,975 PER MONTH AND AN EXTENDED PRICE FOR 9 MONTHS OF $35,775.

USSSC PROTESTED THE REJECTION OF ITS BID AND THE AWARD OF THE CONTRACT TO CTI. ALSO, USSSC FILED SUIT IN THE UNITED STATES DISTRICT COURT FOR MARYLAND SEEKING TO ENJOIN THE AWARD TO CTI.

THE CONTRACTING OFFICER RECONSIDERED THE USSSC BID AND CONCLUDED THAT THE INITIAL DETERMINATION THAT THE BID WAS NONRESPONSIVE WAS ERRONEOUS. ACCORDINGLY, THE CONTRACT AWARDED TO CTI WAS TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT, AND AN AWARD WAS MADE TO USSSC. CTI PROTESTED TO GAO THE TERMINATION OF ITS CONTRACT AND THE AWARD TO USSSC.

OUR OFFICE HAS HELD CONSISTENTLY THAT A DEFICIENCY OR DEVIATION WHICH GOES TO THE SUBSTANCE OF THE BID BY AFFECTING THE PRICE, QUANTITY OR QUALITY OF AN ARTICLE OFFERED, SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, IS A MAJOR DEVIATION WHICH MAY NOT BE WAIVED OR CURED AND REQUIRES THE BID TO BE REJECTED AS NONRESPONSIVE. 30 COMP. GEN. 179 (1950); B-175243, JUNE 16, 1972. HOWEVER, A DEFICIENCY WHICH IS A MATTER OF FORM, OR WHICH CONSTITUTES SOME IMMATERIAL DEVIATION FROM THE EXACT REQUIREMENTS OF THE SPECIFICATIONS WHICH WOULD NOT AFFECT EITHER THE PRICE, QUANTITY OR QUALITY OF THE ARTICLE OFFERED, IS A MINOR INFORMALITY WHICH MAY BE WAIVED OR CURED. 37 COMP. GEN. 190, 192 (1957); 52 COMP. GEN. 265 (1972). WHAT CONSTITUTES A MINOR DEVIATION IS DEPENDENT ON THE PARTICULAR CIRCUMSTANCES PRESENT IN EACH CASE. B 176425, OCTOBER 18, 1972.

IN THE PRESENT CASE, WE AGREE WITH CTI'S CONTENTION THAT THE IFB CALLED FOR A MONTHLY UNIT PRICE. HOWEVER, THE FAILURE TO INSERT A MONTHLY UNIT PRICE WAS NOT A MATERIAL DEVIATION REQUIRING REJECTION OF THE LOW BID.

THE IFB REQUIRED THAT THERE BE ONE GUARD ON DUTY AT THE MAIN GATE EVERY DAY FOR THREE 8-HOUR SHIFTS AND ANOTHER GUARD ON PATROL DUTY EVERY DAY FOR TWO 8-HOUR SHIFTS. THE RECORD INDICATES THAT FOR THE PERIOD OF OCTOBER 1, 1973, TO JUNE 30, 1974, THERE ARE 273 CALENDAR DAYS, SEVEN OF WHICH ARE HOLIDAYS. THE HOURLY UNIT RATE BID BY USSSC WAS APPLIED TO THE IFB REQUIREMENTS AND THE EXTENDED PRICE WAS DETERMINED TO BE $29,862. THUS, ALTHOUGH USSSC DID NOT PROVIDE A MONTHLY PRICE IN THE BID, SUCH OMISSION WAS A MATTER OF FORM SINCE FROM THE INFORMATION CONTAINED IN THE IFB AND THE BID, THE EXTENDED PRICE FOR THE NINE MONTH CONTRACT PERIOD COULD BE ASCERTAINED. ALTHOUGH THE AMOUNT ASCERTAINED BY EXTENDING THE HOURLY RATE WAS IN EXCESS OF THE $29,569.05 EXTENDED PRICE STATED IN THE BID, IT IS NOTED THAT USSSC HAS CONTENDED THAT THE LATTER AMOUNT WAS INTENDED TO BE THE BID FOR THE NINE-MONTH PERIOD.

SINCE IT IS CLEAR THAT USSSC WAS A LOWER BIDDER THAN CTI IN EITHER CASE AND USSSC CONTENDED THE LOWER OF THE TWO PRICES WAS THE INTENDED BID, NO PREJUDICE WOULD HAVE RESULTED TO CTI BY ACCEPTANCE OF THE BID ON THE LATTER BASIS. IN THAT REGARD, OUR OFFICE HAS INDICATED THAT, IF IT IS CLEAR THAT A BIDDER WOULD STILL BE THE LOWEST BIDDER IF THE BID WAS CORRECTED, NO PREJUDICE TO OTHER BIDDERS WOULD RESULT IF THE BIDDER CHOSE TO FOREGO CORRECTION TO THE HIGHER PRICE. SEE 42 COMP. GEN. 723, 725 (1963).

THEREFORE, WE AGREE WITH THE CONTRACTING OFFICER THAT THE USSSC BID SHOULD NOT HAVE BEEN REJECTED. ACCORDINGLY, OUR OFFICE WILL NOT OBJECT TO THE DETERMINATION TO TERMINATE THE CONTRACT WITH CTI AND TO MAKE AN AWARD TO USSSC. IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.