B-182838, MAR 11, 1975, 54 COMP GEN 750

B-182838, MAR 11, 1975, 54 COMP GEN 750

BIDS - ACCEPTANCE TIME LIMITATION - BIDS OFFERING DIFFERENT ACCEPTANCE PERIODS WHERE INVITATION FOR BIDS FOR COPPER CATHODES STATED THAT BIDS OFFERING LESS THAN 72-HOUR ACCEPTANCE PERIOD WILL BE CONSIDERED NONRESPONSIVE. REQUIREMENT FOR ADHERENCE TO SPECIFIED ACCEPTANCE PERIOD IS MATERIAL SINCE BIDDER OFFERING LESSER PERIOD WOULD BE IN MORE ADVANTAGEOUS POSITION THAN COMPLYING BIDDERS, PARTICULARLY FOR ITEM SUBJECT TO FLUCTUATING MARKET PRICES. MOREOVER, NONRESPONSIVE BID MAY NOT BE CORRECTED AFTER BID OPENING SINCE RULES PERMITTING CORRECTION OF MISTAKES IN BIDS ARE FOR APPLICATION ONLY WHEN THE BID AS SUBMITTED IS RESPONSIVE.

IN THE MATTER OF MILES METAL CORPORATION, MARCH 11, 1975:

MILES METAL CORPORATION (MILES) PROTESTS THE BUREAU OF THE MINT'S REJECTION OF ITS BID UNDER INVITATION FOR BIDS (IFB) NO. BM-75-23 AS NONRESPONSIVE.

SOLICITATION NO. BM-75-23 FOR 40 MILLION POUNDS OF COPPER CATHODES WAS ISSUED NOVEMBER 21, 1974. PAGE 1 OF THE IFB STATED IN UPPER CASE LETTERS AS FOLLOWS:

BID ACCEPTANCE PERIOD. BIDS OFFERING LESS THAN 72 HOURS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE AND HOUR SET FOR OPENING, WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.

THE IDENTICAL LANGUAGE APPEARS AGAIN AT PAGE 8 OF THE INVITATION.

OPENING OF BIDS WAS SET FOR 11:00 A.M. ON DECEMBER 10, 1974, AT MINT HEADQUARTERS, WASHINGTON, D.C. MILES' BID WAS HAND CARRIED TO THE OPENING AT WHICH FOURTEEN BIDS WERE RECEIVED. THE UNIT PRICE OFFERED BY MILES FOR VARIOUS QUANTITIES OF COPPER CATHODES WOULD HAVE QUALIFIED IT AMONG THE LOW BIDDERS. HOWEVER, ITS BID WAS REJECTED AS NONRESPONSIVE BY THE CONTRACTING OFFICER BECAUSE OF MILES' OFFER OF "2 CALENDAR DAYS" ACCEPTANCE PERIOD RATHER THAN THE 72 HOURS ACCEPTANCE PERIOD REQUIRED BY THE ABOVE-QUOTED LANGUAGE OF THE IFB.

AT BID OPENING AND AFTER A NUMBER OF BIDS HAD BEEN OPENED AND READ, MILES BECAME AWARE OF THE DEVIATION OF ITS BID FROM THE INVITATION'S REQUIREMENTS AND REQUESTED TO BE PERMITTED TO EXTEND ITS OFFERED PERIOD OF ACCEPTANCE TO CONFORM WITH THE GOVERNMENT'S 72-HOUR REQUIREMENT. THE CONTRACTING OFFICER REJECTED THE OFFER, CONCLUDING THAT IT WOULD HAVE BEEN PREJUDICIAL TO OTHER BIDDERS TO PERMIT MILES TO CHANGE THE TERMS OF ITS BID.

IN SUPPORT OF ITS PROTEST TO THE BUREAU OF THE MINT'S DETERMINATION OF NONRESPONSIVENESS, MILES EXPLAINS THAT ITS INCLUSION OF A 48-HOUR ACCEPTANCE PERIOD WAS A MATTER OF INADVERTENCE - THAT THE MINT'S PREVIOUS SOLICITATION FOR COPPER CATHODES HAD USED A 48-HOUR ACCEPTANCE PERIOD AND THAT MILES HAD MERELY FAILED TO NOTICE THE CHANGE. IN THIS CONNECTION, THE PROTESTER CITES VARIOUS INDICIA OF ITS GOOD FAITH IN ATTEMPTING TO COMPLY WITH THE TERMS OF THE INVITATION, INCLUDING THE FACTS THAT ITS BID WAS HAND CARRIED FROM NEW YORK TO THE OPENING IN WASHINGTON, D.C., AND THAT ITS OFFER TO EXTEND THE BID ACCEPTANCE PERIOD WAS MADE AT THE OPENING PRIOR TO EVALUATION OF THE BIDS. ADDITIONALLY, MILES ASSERTS THAT THE NONCONFORMANCE OF ITS BID TO THE 72-HOUR ACCEPTANCE REQUIREMENT WAS A TECHNICAL DEVIATION OF A NONCRITICAL NATURE AND THAT THE GOVERNMENT'S BEST INTEREST WOULD BE SERVED BY ACCEPTANCE OF ITS LOW BID PRICES.

CONTRARY TO MILES' VIEW, WE HAVE CONSISTENTLY HELD THAT A PROVISION IN AN INVITATION WHICH REQUIRES THAT A BID REMAIN AVAILABLE FOR ACCEPTANCE BY THE GOVERNMENT FOR A PRESCRIBED PERIOD IN ORDER TO BE CONSIDERED FOR AWARD IS A MATERIAL REQUIREMENT AND THAT THE FAILURE TO MEET SUCH A REQUIREMENT RENDERS A BID NONRESPONSIVE. 48 COMP. GEN. 19 (1968); 46 ID. 418 (1966); B-177662(1), FEBRUARY 21, 1973. WE FEEL THAT OUR CONSISTENT LINE OF PRECEDENT IN THIS REGARD IS CORRECT, SINCE TO HOLD OTHERWISE AFFORDS THE BIDDER WHO HAS LIMITED ITS BID ACCEPTANCE PERIOD AN ADVANTAGE OVER ITS COMPETITORS. AS WE POINTED OUT IN 48 COMP. GEN. 19, SUPRA, WHEN A BIDDER LIMITS ITS BID ACCEPTANCE PERIOD, IT HAS THE OPTION TO REFUSE AWARD AFTER THAT TIME IN THE EVENT OF UNANTICIPATED INCREASES IN COST, OR BY EXTENDING ITS ACCEPTANCE PERIOD, TO ACCEPT AN AWARD IF DESIRED. BIDDERS COMPLYING WITH THE INVITATION'S ACCEPTANCE PERIOD LIMITATION WOULD NOT HAVE THAT OPTION BUT WOULD BE BOUND BY THE GOVERNMENT'S ACCEPTANCE. WE THINK THE RULE IS PARTICULARLY APPLICABLE IN THIS INSTANCE. WE UNDERSTAND THAT EVEN ONE DAY COULD HAVE HAD A SIGNIFICANT EFFECT ON BID PRICES HERE SINCE COPPER CATHODES ARE MADE BY REFINERS WHO TRADE IN THE FLUCTUATING COPPER MARKET AND THAT THE PRICE OF THE ITEM IS DIRECTLY RELATED TO THE PRICE OF COPPER LISTED ON COMMODITY EXCHANGES.

THEREFORE, THE FACT OF A BIDDER'S GOOD FAITH OR THAT ITS FAILURE TO SUBMIT A BID SPECIFYING THE CORRECT ACCEPTANCE PERIOD MAY HAVE BEEN DUE TO OVERSIGHT DOES NOT JUSTIFY CORRECTION OF THE BID TO REMEDY THAT DEFECT. THE RULES UNDER WHICH CORRECTIONS OF CERTAIN MISTAKES IN BID ARE PERMITTED ARE APPLICABLE ONLY WHEN THE BID AS SUBMITTED IS RESPONSIVE TO THE TERMS OF THE INVITATION. 40 COMP. GEN. 432 (1961).

FOR THE REASONS EXPRESSED ABOVE, WE ARE UNABLE TO AGREE WITH THE PROTESTER'S VIEW THAT ITS FAILURE TO BID ON THE BASIS OF A 72-HOUR ACCEPTANCE PERIOD IS IMMATERIAL. ACCORDINGLY, THE PROTEST OF MILES METAL CORPORATION IS DENIED.