B-182102, SEP 10, 1974

B-182102, SEP 10, 1974

1. BID FOR REMOVAL OF JUNK VEHICLES SUBMITTED ON ADDENDUM FORM IS FOR CONSIDERATION FOR AWARD, NOTWITHSTANDING IFB AND BID FORM WERE NOT RETURNED, SINCE BID WAS UNQUALIFIED AND IS PRESUMED TO BE RESPONSIVE TO IFB. 2. FAILURE OF ONLY ACCEPTABLE BID FOR REMOVAL OF JUNK VEHICLES FOR D.C. GOVERNMENT TO BE ACCOMPANIED BY BID BOND REQUIRED BY IFB IS NOT CAUSE FOR REJECTION OF BID, SINCE D.C. MATERIEL MANAGEMENT MANUAL PROVIDES EXCEPTION, RECOGNIZED BY GAO, WHEN ONLY ONE BID IS RECEIVED.

JOHNSON AUTO PARTS:

THE MATERIEL MANAGEMENT OFFICER, DEPARTMENT OF GENERAL SERVICES, GOVERNMENT OF THE DISTRICT OF COLUMBIA, BY LETTER DATED AUGUST 26, 1974, REQUESTED AN ADVANCE DECISION AS TO WHETHER AN AWARD TO JOHNSON AUTO PARTS (JOHNSON) FOR THE REMOVAL OF JUNK VEHICLES FROM WITHIN THE DISTRICT OF COLUMBIA MAY BE MADE GIVEN THE FOLLOWING CIRCUMSTANCES.

THE REQUEST ARISES UNDER INVITATION FOR BIDS (IFB) NO. 1030-AA-23-1-4 RB, ISSUED AUGUST 2, 1974, BY THE DEPARTMENT OF ENVIRONMENTAL SERVICES. THE IFB WAS AMENDED BY ADDENDUM NO. 1 ON AUGUST 12, 1974. AMONG OTHER MODIFICATIONS, BID OPENING TIME WAS EXTENDED FROM 10:A.M., AUGUST 16, 1974, TO 10:00 A.M. AUGUST 23, 1974. AT THE TIME SET FOR BID OPENING, ONLY ONE BID, THAT OF JOHNSON, HAD BEEN SUBMITTED. A SECOND BID, SUBMITTED AFTER 10:00 A.M., WAS DETERMINED TO BE A LATE BID AND, THEREFORE, NOT FOR CONSIDERATION FOR ACCEPTANCE.

THE PROBLEM ARISES FROM THE FORMAT AND CONTENTS OF JOHNSON'S SUBMISSION. JOHNSON SIGNED AND RETURNED THE ADDENDUM WITH THE FOLLOWING NOTATION:

"MY BID IS $14.50 PER CAR TO REMOVE TO ALEXANDRIA SCRAP OR SMITH'S."

THE BASIC IFB AND BID FORM WERE NOT RETURNED. NOR DID JOHNSON SUBMIT THE REQUIRED BID BOND.

THEREFORE, TWO ISSUES ARE PRESENTED FOR CONSIDERATION:

1. IS THE DOCUMENT SUBMITTED SUFFICIENT TO ENABLE AWARD TO JOHNSON?

2. WHAT IS THE EFFECT OF THE FAILURE TO SUBMIT THE REQUIRED BID BOND?

THE QUESTION OF WHAT CONSTITUTES A PROPER SUBMISSION, SUSCEPTIBLE OF BEING CONSIDERED FOR AWARD, HAS BEEN BEFORE OUR OFFICE IN THE PAST. THE RULE IN CASES WHERE A BIDDER HAS SUBMITTED ITS BID IN THE FORM OF A LETTER OR OTHER DOCUMENT, RATHER THAN ON THE STANDARD FORM PROVIDED, HAS BEEN THAT THE DOCUMENT SUBMITTED WILL BE CONSIDERED TO BE RESPONSIVE TO THE IFB IF ACCEPTANCE OF THE BID AS SUBMITTED WILL CREATE A VALID AND BINDING CONTRACT REQUIRING THE BIDDER TO PERFORM IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE IFB. B-148548, APRIL 17, 1962; B-128399, JULY 19, 1956. THE SAME CONSIDERATION GOVERNS HERE, THAT IS, WHETHER JOHNSON HAS SUBMITTED A BID WHICH, IF ACCEPTED, WOULD BIND IT TO PERFORM IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE IFB.

JOHNSON HAS OFFERED TO FURNISH SERVICES AS REQUIRED. THE IFB SOLICITED BIDS ON A PER VEHICLE BASIS FOR REMOVAL TO ALEXANDRIA SCRAP CORP. OR JOSEPH SMITH & SONS INC. THE ADDENDUM CITED THE IFB NUMBER. THE LEGEND ABOVE THE SIGNATURE ON THE ADDENDUM STATED: "THIS ADDENUM IS ACKNOWLEDGED AND IS CONSIDERED A PART OF THE SUBJECT INVITATION." THE BODY OF THE ADDENDUM, AFTER INDICATING THE AMENDMENTS MADE IN THE IFB, CONTAINED A STATEMENT THAT "ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED." IN THE CIRCUMSTANCES, JOHNSON HAS IMPLIEDLY AGREED TO ABIDE BY ALL PROVISIONS OF THE IFB, AS AMENDED. B-113920, FEBRUARY 27, 1953.

IN THE PRESENT CASE, THE FAILURE TO SUBMIT THE BID ON THE FORM PROVIDED CLEARLY IS NOT SUCH A DEVIATION AS WOULD AFFECT EITHER THE PRICE, QUALITY, OR QUANTITY OF THE SERVICES OFFERED AND WOULD NOT HAVE BEEN PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, HAD THERE BEEN ANY. IN THAT CONNECTION, PARAGRAPH 3 OF THE "INSTRUCTIONS TO BIDDERS" PROVIDED THAT THE BIDS SUBMITTED ON OTHER THAN THE INVITATION BID AND CONTRACT FORM MIGHT BE CONSIDERED AN INFORMALITY. THE INFORMALITY INVOLVED IS NOT ONE OF SUBSTANCE AND PROPERLY MAY BE WAIVED FOR THE PROCURING ACTIVITY. CF. 50 COMP. GEN. 733 (1971). SINCE A BID IS PRESUMED TO BE RESPONSIVE TO THE TERMS AND CONDITIONS OF THE IFB, UNLESS CLEARLY QUALIFIED BY THE BIDDER, AND THERE IS NOTHING IN THE JOHNSON OFFER QUALIFYING THE IFB AND JOHNSON HAS OFFERED TO PERFORM AS REQUIRED BY THE IFB, THE OFFER PROPERLY IS FOR CONSIDERATION FOR AWARD. B-173746(1), OCTOBER 26, 1971.

AS CONCERNS THE FAILURE TO SUBMIT THE REQUIRED BID BOND, THE DISTRICT OF COLUMBIA MATERIEL MANAGEMENT MANUAL, PART I, SECTION 2620.29(B)(2), PROVIDES:

"WHERE A SOLICITATION REQUIRES THAT BIDS BE SUPPORTED BY A BID GUARANTEE, NONCOMPLIANCE WITH THE REQUIREMENTS WILL REQUIRE REJECTION OF THE BID EXCEPT THAT REJECTION IS NOT NORMALLY REQUIRED IN SITUATIONS WHERE ONLY ONE BID IS RECEIVED."

OUR OFFICE HAS RECOGNIZED THE EXCEPTION WHERE ONLY ONE ACCEPTABLE BID IS RECEIVED. 39 COMP. GEN. 796 (1960). ACCORDINGLY, JOHNSON'S FAILURE TO INCLUDE A BID BOND DOES NOT PROVIDE A BASIS FOR REJECTION OF THE BID.