B-182445, APR 15, 1975

B-182445: Apr 15, 1975

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BID ON "LOT" BASIS WHICH WAS CLEARLY HIGHER THAN NEXT HIGH BID ON "UNIT" BASIS CONSIDERING MAXIMUM QUANTITY OF DELIVERABLE PROPERTY. WAS NOT MAJOR DEVIATION WHICH WOULD REQUIRE REJECTION OF BID. INC.: SALES INVITATION FOR BIDS (IFB) NO. 27-5084 WHICH WAS ISSUED BY THE DEFENSE SUPPLY AGENCY (DSA). INSIDE - UNPACKED - IN BOXES & CARTONS WHICH ARE INCLUDED IN THE WEIGHT & SALE - UNUSED - POOR CONDITION TOTAL COST $31. WAS FOUND TO BE THE HIGH BIDDER AT BID OPENING WITH A BID IN THE AMOUNT OF $901. WHOLESALE'S BID WAS SUBMITTED ON A "LOT" BASIS RATHER THAN ON A "UNIT" BASIS IN POUNDS AS REQUIRED BY THE IFB. IT ARGUES THAT ITS BID WAS SIGNIFICANTLY HIGHER IN PRICE THAN THE NEXT HIGH RESPONSIVE BIDDER AT $427.50 OR $0.03 PER POUND.

B-182445, APR 15, 1975

BID ON "LOT" BASIS WHICH WAS CLEARLY HIGHER THAN NEXT HIGH BID ON "UNIT" BASIS CONSIDERING MAXIMUM QUANTITY OF DELIVERABLE PROPERTY, WAS NOT MAJOR DEVIATION WHICH WOULD REQUIRE REJECTION OF BID, EVEN THOUGH SALES IFB REQUIRED BIDS ON UNIT BASIS.

WHOLESALE TOOL CO., INC.:

SALES INVITATION FOR BIDS (IFB) NO. 27-5084 WHICH WAS ISSUED BY THE DEFENSE SUPPLY AGENCY (DSA), DEFENSE PROPERTY DISPOSAL SERVICE (DPDS), BATTLE CREEK, MICHIGAN, ON OCTOBER 2, 1974, INCLUDED ITEM 195 FOR:

"TOOLS, SPECIAL HAND: INCLUDING BURNISHER, REMOVER, REPLACER, MASONRY DRILL, PULLER, EXTRACTOR, AND WRENCHES. VARIOUS MFGS.

INSIDE - UNPACKED - IN BOXES & CARTONS WHICH ARE INCLUDED IN THE WEIGHT & SALE - UNUSED - POOR CONDITION

TOTAL COST $31,461 14,250 POUND"

PARAGRAPH 3 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE IFB STATES THAT "*** UNLESS THE INVITATION OTHERWISE PROVIDES, A BID COVERING ANY LISTED ITEM MUST BE SUBMITTED ON THE BASIS OF THE UNIT SPECIFIED FOR THAT ITEM AND MUST COVER THE TOTAL NUMBER OF UNITS DESIGNATED FOR THAT ITEM." IT ALSO PROVIDES THAT THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS, AND TO WAIVE ANY TECHNICAL DEFECTS IN BIDS.

WHOLESALE TOOL CO., INC. (WHOLESALE), WAS FOUND TO BE THE HIGH BIDDER AT BID OPENING WITH A BID IN THE AMOUNT OF $901. HOWEVER, WHOLESALE'S BID WAS SUBMITTED ON A "LOT" BASIS RATHER THAN ON A "UNIT" BASIS IN POUNDS AS REQUIRED BY THE IFB. BECAUSE OF THIS, AND THE ABOVE-QUOTED PARAGRAPH FROM THE TERMS AND CONDITIONS OF THE IFB, THE CONTRACTING OFFICER REJECTED WHOLESALE'S BID AS NONRESPONSIVE. HOWEVER, COUNSEL TO DPDS AND THE ASSISTANT COUNSEL, DSA HEADQUARTERS, RECOMMEND THAT AWARD BE MADE TO WHOLESALE SINCE ITS FAILURE TO BID ON A UNIT BASIS COULD BE WAIVED AS A MINOR INFORMALITY.

WHOLESALE PROTESTS THE REJECTION OF ITS BID BY THE CONTRACTING OFFICER. WHOLESALE ASSERTS THAT ITS LOT PRICE COULD BE EASILY CONVERTED INTO A UNIT PRICE IN POUNDS BY DIVIDING THE LOT AMOUNT OFFERED BY THE NUMBER OF POUNDS OF THE ITEMS FOR SALE. MOREOVER, IT ARGUES THAT ITS BID WAS SIGNIFICANTLY HIGHER IN PRICE THAN THE NEXT HIGH RESPONSIVE BIDDER AT $427.50 OR $0.03 PER POUND, THUS PROVIDING A GREATER PROFIT TO THE GOVERNMENT.

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; MATTER OF CHEMICAL TECHNOLOGY, INC., B- 179674, APRIL 2, 1974. 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 IN EACH CASE. B-176425, OCTOBER 18, 1972.

UNDER THE CIRCUMSTANCES OF THE INSTANT CASE, IT DOES NOT APPEAR THAT THE SUBMISSION OF WHOLESALE'S BID ON A "LOT" BASIS RATHER THAN ON A "UNIT" BASIS IN POUNDS AS REQUIRED BY THE IFB IS A MAJOR DEVIATION. COUNSEL FOR DPDS INDICATES IN THE AGENCY REPORT THAT ITEM 195 WAS OFFERED FOR SALE BY THE POUND AND THE GOVERNMENT WAS OBLIGATED TO DELIVER 14,250 POUNDS PLUS OR MINUS 25 PERCENT. THE MAXIMUM QUANTITY OF PROPERTY DELIVERABLE UNDER THE CONTRACT WOULD BE 17,812.5 POUNDS WHICH AT $.03 PER POUND TOTALS $534.37. WHOLESALE'S BID FOR THE LOT WAS $901. COUNSEL STATES THAT WHERE AN ITEM IS ADVERTISED FOR SALE ON THE BASIS OF A UNIT OF "EACH" OR "POUNDS" AND THE QUANTITY AVAILABLE FOR DELIVERY IS WITHIN THE PERMISSIBLE VARIATION, A BID ON A "LOT" BASIS SHOULD BE CONSIDERED TO BE RESPONSIVE SO LONG AS THE "LOT" BID IS HIGHER THAN THE TOTAL PRICE WHICH WOULD BE RECEIVED BY THE GOVERNMENT IF THE TOTAL PERMISSIBLE QUANTITY WERE AVAILABLE FOR DELIVERY.

IN B-162922, DECEMBER 13, 1967, THERE WAS CONSIDERED A SITUATION WHERE THE GOVERNMENT ADVERTISED FOR SALE FIVE ROUND STEEL BARS IN VARYING LENGTHS WITH A TOTAL FOOTAGE OF 44 FEET. THE IFB STATED THAT BIDS SHOULD BE SUBMITTED ON A UNIT OF "EACH" BASIS. B & J METAL COMPANY (B&J), HOWEVER, SUBMITTED ITS BID IN THE UNIT OF POUNDS AND ITS TOTAL BID PRICE WAS HIGH. RESPONDING TO THE PROTEST OF CAPCO ALLOY STEEL COMPANY (CAPCO) THAT B&J'S FAILURE TO BID ON AN "EACH" BASIS HAD RENDERED IT NONRESPONSIVE, OUR OFFICE STATED:

"BECAUSE OF THE ABOVE FACTORS IT IS OUR VIEW THAT THE BID OF B&J METAL COMPANY OF $.31153 PER POUND IS READILY CONVERTIBLE TO A DEFINITE BID PRICE FOR THE ITEM AND THEREFORE SHOULD HAVE BEEN CONSIDERED FOR AWARD. -159018, JUNE 6, 1966, 37 COMP. GEN. 190. WE HELD IN THE LATTER CASE THAT WHERE A HIGH BIDDER ENTERED HIS BID ON GROSS TON RATHER THAN POUND UNIT BASIS AS SPECIFICALLY REQUIRED BY THE INVITATION, THE DEVIATION DID NOT AFFECT THE PRICE OR SUBSTANCE OF THE BID OR WORK AN INJUSTICE TO THE OTHER BIDDERS AND THAT THEREFORE THE TECHNICAL DEVIATION SHOULD HAVE BEEN WAIVED. WE HAVE HELD FURTHER THAT AN AUTOMATIC REJECTION OF A BID BECAUSE OF FAILURE TO CONFORM TO A PURELY TECHNICAL OR OVERLITERAL READING OF THE STATED REQUIREMENTS MAY BE AS ARBITRARY AS THE WAIVER OF NONRESPONSIVENESS TO MATERIAL AND SUBSTANTIAL REQUIREMENTS. 40 COMP. GEN. 435."

ON THE BASIS OF THE FOREGOING, WE FIND NO LEGAL OBJECTION TO THE AWARD OF THE CONTRACT TO WHOLESALE.

ACCORDINGLY, THE PROTEST IS AFFIRMED.