B-183228, MAY 6, 1975

B-183228: May 6, 1975

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BID ON TAX EXCLUSIVE BASIS WAS PROPERLY REJECTED AS NONRESPONSIVE FOR DEVIATING FROM THE IFB'S TAX CLAUSE. SINCE BID WAS NONRESPONSIVE. IT COULD NOT BE CORRECTED AND CONTRACTING OFFICER WAS NOT REQUIRED TO SEEK CLARIFICATION THEREOF. BM-SF-75-48 WAS ISSUED BY THE UNITED STATES ASSAY OFFICE. ALLIS-CHALMERS MATERIAL HANDLING SALES AND SERVICE (ALLIS-CHALMERS) WAS THE LOW BIDDER. ALLIS CHALMERS' BID WAS LISTED IN THE TOTAL AMOUNT OF "$26. IT IS ALLIS CHALMERS' POSITION THAT THE WORDS "PLUS TAX" WERE INSERTED IN ITS BID BY ERROR BY ITS TYPIST. THAT THE CONTRACTING OFFICER WAS REQUIRED TO CONTACT ALLIS-CHALMERS FOR CLARIFICATION OF ITS BID PRIOR TO AWARD OF THE CONTRACT. THE PROTESTER THEREFORE CONTENDS THAT THE CONTRACT IN QUESTION SHOULD HAVE BEEN AWARDED TO IT AT ITS LOW BID PRICE.

B-183228, MAY 6, 1975

BID ON TAX EXCLUSIVE BASIS WAS PROPERLY REJECTED AS NONRESPONSIVE FOR DEVIATING FROM THE IFB'S TAX CLAUSE, WHICH REQUIRED ALL BIDS TO BE ON TAX INCLUSIVE BASIS. SINCE BID WAS NONRESPONSIVE, IT COULD NOT BE CORRECTED AND CONTRACTING OFFICER WAS NOT REQUIRED TO SEEK CLARIFICATION THEREOF.

ALLIS-CHALMERS MATERIAL HANDLING SALES AND SERVICE:

INVITATION FOR BIDS (IFB) NO. BM-SF-75-48 WAS ISSUED BY THE UNITED STATES ASSAY OFFICE, DEPARTMENT OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, FOR TWO FORKLIFTS. ON BID OPENING DATE, ALLIS-CHALMERS MATERIAL HANDLING SALES AND SERVICE (ALLIS-CHALMERS) WAS THE LOW BIDDER, WITH THE HYSTER COMPANY THE SECOND LOW BIDDER. HOWEVER, ALLIS CHALMERS' BID WAS LISTED IN THE TOTAL AMOUNT OF "$26,178 PLUS TAX." ON THIS BASIS, THE TREASURY DECLARED ALLIS-CHALMERS' BID NONRESPONSIVE TO THE IFB CLAUSE ENTITLED "FEDERAL, STATE AND LOCAL TAXES", WHICH REQUIRED BIDDERS TO BID ON A TAX INCLUSIVE BASIS. IT IS ALLIS CHALMERS' POSITION THAT THE WORDS "PLUS TAX" WERE INSERTED IN ITS BID BY ERROR BY ITS TYPIST, THAT THIS QUALIFICATION SHOULD BE CONSIDERED A MINOR INFORMALITY BECAUSE THE GOVERNMENT DOES NOT PAY SALES TAX, AND THAT THE CONTRACTING OFFICER WAS REQUIRED TO CONTACT ALLIS-CHALMERS FOR CLARIFICATION OF ITS BID PRIOR TO AWARD OF THE CONTRACT. THE PROTESTER THEREFORE CONTENDS THAT THE CONTRACT IN QUESTION SHOULD HAVE BEEN AWARDED TO IT AT ITS LOW BID PRICE.

PURSUANT TO PARAGRAPH 10(A), STANDARD FORM 33A (MARCH 1969 ED.), MADE A PART OF THE SOLICITATION, BIDDERS WERE ADVISED THAT AWARD OF THE CONTRACT WOULD BE MADE TO THAT RESPONSIBLE OFFEROR WHOSE OFFER CONFORMING TO THE SOLICITATION WOULD BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. IN THIS RESPECT, PARAGRAPH 27(A) OF THE GSA SUPPLEMENTAL PROVISIONS (GSA FORM 1424, JULY 1973 ED.) PROVIDED THAT, EXCEPT AS OTHERWISE PROVIDED, THE CONTRACT PRICE WAS TO INCLUDE ALL APPLICABLE FEDERAL, STATE, AND LOCAL TAXES AND DUTIES. THIS REQUIREMENT WAS NOT ALTERED BY ANY OTHER PROVISION OF THE IFB.

THE FAILURE OF ALLIS-CHALMERS TO INCLUDE ALL APPLICABLE TAXES IN ITS BID WAS A MATERIAL DEVIATION FROM THE TERMS OF THE IFB. B-176305, AUGUST 8, 1972. THIS OFFICE HAS CONSISTENTLY STATED THAT IN THE EVENT OF AN AWARD ON SUCH A BID AS ALLIS-CHALMERS' THE CONTRACTOR WOULD BE IN A POSITION TO INSIST THAT THE CONTRACT PRICE SHOULD BE INCREASED BY THE AMOUNT OF ANY APPLICABLE TAXES, SUCH AS STATE AND LOCAL TAXES, CONTRARY TO THE TERMS OF THE TAX CLAUSE OF THE INVITATION. 48 COMP. GEN. 93 (1968); 41 COMP. GEN. 289 (1961). THUS, ALLIS-CHALMERS' BID WAS PROPERLY REJECTED AS NONRESPONSIVE FOR FAILING TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE IFB, FEDERAL PROCUREMENT REGULATIONS SEC. 1-2.404-2(A) (1964 ED. AMEND. 121), AND FOR IMPOSING CONDITIONS WHICH WOULD MODIFY MATERIAL REQUIREMENTS OF THE IFB AND LIMIT THE CONTRACTOR'S LIABILITY TO THE GOVERNMENT SO AS TO GIVE ALLIS-CHALMERS AN ADVANTAGE OVER OTHER BIDDERS. FPR SEC. 1-2.404- 2(B)(5) (1964 ED. AMEND. 121).

WITH RESPECT TO THE PROTESTER'S CONTENTION THAT THE CONTRACTING OFFICER SHOULD HAVE CONTACTED IT FOR CLARIFICATION AND THAT IT SHOULD HAVE BEEN ENTITLED TO CORRECT ITS BID ON THE BASIS THAT ITS QUALIFICATION OF "PLUS TAX" WAS A MINOR INFORMALITY, A NONRESPONSIVE BID SUCH AS THIS CANNOT UNDER ANY CIRCUMSTANCES BE CORRECTED SO AS TO MAKE IT RESPONSIVE TO THE INVITATION AND THUS ELIGIBLE FOR AWARD. MATTER OF KIPP CONSTRUCTION CO., B-181588, JANUARY 16, 1975. THIS IS TRUE EVEN WHERE THE MATERIAL DEVIATION FROM THE IFB'S TAX CLAUSE IS ALLEGED AS HERE TO HAVE BEEN THE RESULT OF A TYPIST'S ERROR. B-175329, JUNE 28, 1972. SINCE CORRECTION WAS NOT POSSIBLE, THERE WAS NO NEED FOR THE CONTRACTING OFFICER TO SEEK CLARIFICATION OF THE PROTESTER'S BID.

ACCORDINGLY, THE PROTEST IS DENIED.