B-181739, NOV 20, 1974

B-181739: Nov 20, 1974

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VARIANT SALES PROVISIONS IN COMPANY QUOTATION FROM THAT WAS ATTACHED TO BID OF LOW BIDDER RENDERED BID AMBIGUOUS AND WERE NOT TYPE OF MISTAKES CONTEMPLATED BY ASPR 2-406.1 TO BE CALLED TO ATTENTION OF BIDDER FOR VERIFICATION AND WERE NOT FOR CORRECTION IN ANY EVENT AS SUCH VARIANT PROVISIONS RENDERED BID NONRESPONSIVE. 2. EVEN THOUGH BID WAS LOW. (INFRARED) WAS THE LOW BIDDER ON A CONTRACT FOR THIN FILM FILTERS UNDER INVITATION FOR BIDS (IFB) F29650-74-B-0898. ITS BID WAS REJECTED AS NONRESPONSIVE. THE QUOTATION FORM HAD THE NUMBER AND DATE OF THE IFB TYPED ON TOP OF IT AND WAS SIGNED BY THE SAME INDIVIDUAL WHO SIGNED THE BID FORM FOR THE COMPANY. PRINTED AT THE TOP OF INFRARED'S QUOTATION FORM WAS THE FOLLOWING STAEMENT: "WE ARE PLEASED TO QUOTE THE MATERIAL BELOW.

B-181739, NOV 20, 1974

1. VARIANT SALES PROVISIONS IN COMPANY QUOTATION FROM THAT WAS ATTACHED TO BID OF LOW BIDDER RENDERED BID AMBIGUOUS AND WERE NOT TYPE OF MISTAKES CONTEMPLATED BY ASPR 2-406.1 TO BE CALLED TO ATTENTION OF BIDDER FOR VERIFICATION AND WERE NOT FOR CORRECTION IN ANY EVENT AS SUCH VARIANT PROVISIONS RENDERED BID NONRESPONSIVE. 2. VARIANT SALES PROVISIONS IN QUOTATION FORM ATTACHED TO BID WHICH DEVIATE FROM IFB F.O.B. TERMS, ACCEPTANCE TIME, TAXES, ESCALATION, AND CONTRACT CONSTRUCTION AND CHANGES PROVISIONS CANNOT BE WAIVED AS MINOR IRREGULARITIES UNDER SECTION 2-405 OF ASPR, AND CONTRACTING OFFICER PROPERLY REJECTED BID AS NONRESPONSIVE UNDER SECTION 2-404.2(A) AND (D) OF ASPR, EVEN THOUGH BID WAS LOW.

INFRARED INDUSTRIES, INC.:

INFRARED INDUSTRIES, INC. (INFRARED) WAS THE LOW BIDDER ON A CONTRACT FOR THIN FILM FILTERS UNDER INVITATION FOR BIDS (IFB) F29650-74-B-0898, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, KIRTLAND AIR FORCE BASE, NEW MEXICO, AND OPENED ON JUNE 24, 1974. HOWEVER, ITS BID WAS REJECTED AS NONRESPONSIVE.

THE BID FORM OF INFRARED HAD ATTACHED TO IT A COMPANY QUOTATION FORM (NO. T4652). THE QUOTATION FORM HAD THE NUMBER AND DATE OF THE IFB TYPED ON TOP OF IT AND WAS SIGNED BY THE SAME INDIVIDUAL WHO SIGNED THE BID FORM FOR THE COMPANY. PRINTED AT THE TOP OF INFRARED'S QUOTATION FORM WAS THE FOLLOWING STAEMENT:

"WE ARE PLEASED TO QUOTE THE MATERIAL BELOW, SUBJECT (UNLESS OTHERWISE SPECIFIED) TO THE FOLLOWING TERMS, AS WELL AS OUR 'STANDARD CONDITIONS OF SALE' GIVEN ON THE REVERSE OF THIS PAGE:

1. F.O.B. SHIPPING POINT, TERMS ARE NET 30 DAYS FROM SHIPMENT.

2. DELIVERIES ARE ESTIMATED FROM RECEIPT OF ORDER. STOCK ITEMS ARE SUBJECT TO PRIOR SALE.

3.QUOTATIONS ARE EFFECTIVE FOR 30 DAYS."

AFTER THE WORDS "F.O.B. SHIPPING POINT" THE WORD "WALTHAM" WAS TYPED IN.

THE CONTRACTING OFFICER DETERMINED THAT THE PRINTED STATEMENT DIFFERED FROM THE IFB TERMS IN SPECIFYING F.O.B. SHIPPING POINT AS WALTHAM, THE ORIGIN, RATHER THAN F.O.B. DESTINATION, AND IN SPECIFYING 30 DAYS RATHER THAN 60 DAYS AS THE ACCEPTANCE TIME. THE "STANDARD CONDITIONS OF SALE" SET FORTH ADDITIONAL PROVISIONS GOVERNING TAXES, ESCALATION, DEFAULT, CONSTRUCTION OF THE CHAGES IN THE CONTRACT, CANCELLATION, WARRANTY, TITLE, AND RISK OF LOSS, WHICH HE CONSIDERED AS FURTHER QUALIFYING OR CONTRACDICTING THE CONDITIONS IN THE IFB. THE CONTRACTING OFFICER THEREFORE DETERMINED THAT INFRARED'S BID WAS NONRESPONSIVE AND REJECTED IT.

INFRARED'S PROTEST TO THIS OFFICE IS BASED ON THE CONTENTION THAT ITS BID WAS ACCEPTABLE UNDER THE PROVISIONS OF SEC. 2-405 AND SEC. 2-406.1 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THE FORMER PROVISION REQUIRES CONTRACTING OFFICERS TO ALLOW BIDDERS TO CURE MINOR IRREGULARITIES IN A BID OR WAIVE SUCH DEFICIENCIES WHERE IT IS TO THE GOVERNMENT'S ADVANTAGE. THE LATER PROVISION REQUIRES CONTRACTING OFFICERS TO EXAMINE BIDS FOR MISTAKES AND VERIFY THE BIDS IF A MISTAKE IS APPARENT.

THE SUBJECT PROCUREMENT WAS GOVERNED BY 10 U.S.C. 2305(C), WHICH REQUIRES THAT AWARD BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION. IT IS A FUNDAMENTAL RULE OF FORMALLY ADVERTISED PROCUREMENTS 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. B-176074, AUGUST 7, 1972.

ALTHOUGH SECTION 2-406.1 OF ASPR (1973 ED.) ADMONISHES CONTRACTING OFFICERS TO SEEK VERIFICATION OF APPARENT MISTAKES, IT IS INAPPLICABLE TO THE PRESENT SITUATION. THAT PROVISION ALLOWS CONSIDERATION OF ALLEGED MISTAKES ONLY WHERE THE BID IS OTHERWISE RESPONSIVE AND INVOLVES SUCH APPARENT MISTAKES AS MISPLACED DECIMAL POINT RATHER THAN PROVISIONS WHICH WOULD LIMIT OR VARY A BIDDER'S LIABILITY. SEE B 160567, FEBRUARY 8, 1967; B-175097, MAY 12, 1972. IN THIS CONNECTION, THIS OFFICE HAS HELD THAT VARIANT PRINTED PROVISIONS SUCH AS CONTAINED IN INFRARED'S "STANDARD CONDITIONS OF SALE" SUBMITTED WITH A BID AT LEAST RENDER AMBIGUOUS THE ANALOGOUS PROVISIONS IN THE BID AND CANNOT BE CORRECTED AFTER BID OPENING. SEE B-175660, JUNE 1, 1972. SINCE NOTHING IN INFRARED'S BID INDICATED THAT IT DID NOT INTEND ITS "STANDARD CONDITIONS OF SALE" TO APPLY, WE DO NOT BELIEVE THE CONTRACTING OFFICER HAD ANY REASON TO SUSPECT A MISTAKE AND, THEREFORE, THE PROVISIONS OF ASPR 2-406.1 WERE NOT APPLICABLE.

INFRARED ARGUES THAT THE VARIANT PROVISIONS GOVERNING THE F.O.B. POINT AND ACCEPTEANCE TIME WERE MINOR IRREGULARITIES AND THAT, THEREFORE, INFRARED SHOULD HAVE BEEN ALLOWED TO CURE THEM. THIS OFFICE HAS CONSISTENLY HELD THAT OFFERING A LESSER ACCEPTANCE TIME AND DIFFERENT F.O.B. TERMS THAN REQUIRED BY THE IFB ARE NOT MINOR DEVIATIONS WITHIN THE MEANING OF SEC. 2-405 OF ASPR, BUT MATERIAL DEVIATIONS THAT GO TO THE SUBSTANCE OF A BID. SEE B-166872, JUNE 25, 1969; B-161628, JULY 20, 1967. FURTHERMORE, DIFFERENCES IN WARRANTY, TAX, ESCALATION, AND CONTRACT CONSTRUCTION AND CHANGE PROVISIONS HAVE ALSO BEEN HELD TO BE MATERIAL DEVIATIONS. B-174097, MAY 12, 1972; B 176074, AUGUST 7, 1972. WAIVER OR CORRECTION OF THESE DEVIATIONS WOULD WORK AN INJUSTICE ON THE OTHER BIDDERS AND BE CONTRARY TO THE COMPETITIVE SYSTEM BY OFFERING INFRARED WHAT WOULD BE, IN EFFECT, A DIFFERENT CONTRACT THAN OFFERED OTHER BIDDERS. SEE 38 COMP. GEN. 508, 510 (1959). THUS, THE CONTRACTING OFFICER PROPERLY FOUND INFRARED'S BID TO BE NONRESPONSIVE AND REJECTED IT. SEE SEC. 2-404.2(A) AND (D), ASPR (1974 ED.). FURTHERMORE, WHILE INFRARED'S BID WAS LOW THE PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM PRECLUDED CONSIDERATION OF ITS NONRESPONSIVE BID. B-161628, SUPRA.

ACCORDINGLY, THE PROTEST IS DENIED.