B-209161, NOV 2, 1982

B-209161: Nov 2, 1982

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COVER SHEET ATTACHED TO BID CONTAINING ACCEPTANCE PERIOD SHORTER THAN THAT SPECIFIED IN SOLICITATION IS A MATERIAL DEFECT AND MAY NOT BE WAIVED. THE BID WAS REJECTED BECAUSE IT INCLUDED TERMS AND CONDITIONS WHICH THE AGENCY VIEWED AS INCONSISTENT WITH THE DEFAULT AND INSPECTION CLAUSES OF THE SOLICITATION. UNION METAL CONTENDS THAT THE 60-DAY ACCEPTANCE TERM IS NOT MATERIAL AND THEREFORE MAY BE WAIVED. THIS IS NOT THE CASE. THE BID ACCEPTANCE PERIOD STATED IN AN INVITATION IS A MATERIAL REQUIREMENT SINCE IT CLEARLY AFFECTS THE BIDDER'S PRICE. A BIDDER OFFERING A SHORTER ACCEPTANCE PERIOD IS NOT EXPOSED TO RISKS AND FLUCTUATIONS OF THE MARKETPLACE FOR AS LONG AS ITS COMPETITORS. UNION METAL FURTHER CONTENDS THAT THE ACCEPTANCE PERIOD STATED IN THE COVER SHEET WAS A CLEAR MISTAKE THAT IS OVERRIDDEN BY A UNION METAL OFFICIAL'S SIGNING OF BID DOCUMENTS.

B-209161, NOV 2, 1982

DIGEST: 1. COVER SHEET ATTACHED TO BID CONTAINING ACCEPTANCE PERIOD SHORTER THAN THAT SPECIFIED IN SOLICITATION IS A MATERIAL DEFECT AND MAY NOT BE WAIVED, SINCE ACCEPTANCE PERIOD CLEARLY AFFECTS BIDDER'S PRICE. 2. PRESENCE OF TWO CONFLICTING ACCEPTANCE PERIODS, ONE IN BIDDER'S COVER SHEET AND THE OTHER SPECIFIED BY THE GOVERNMENT, RENDERS THE BID AMBIGUOUS, AND IT MUST BE REJECTED AS NONRESPONSIVE. 3. BIDDER MAY NOT MODIFY BID CONTAINING NONCONFORMING ACCEPTANCE PERIOD AFTER OPENING. POSSIBLE MONETARY SAVINGS DO NOT OUTWEIGH THE IMPORTANCE OF MAINTAINING THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM.

UNION METAL MANUFACTURING COMPANY, ELECTROLINE DIVISION:

UNION METAL MANUFACTURING COMPANY, ELECTROLINE DIVISION, PROTESTS THE REJECTION OF ITS BID UNDER SOLICITATION NO. N00104-82-B-0644, ISSUED BY THE NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA. THE BID WAS REJECTED BECAUSE IT INCLUDED TERMS AND CONDITIONS WHICH THE AGENCY VIEWED AS INCONSISTENT WITH THE DEFAULT AND INSPECTION CLAUSES OF THE SOLICITATION, AND BECAUSE THE FIRM OFFERED A 30-DAY ACCEPTANCE PERIOD RATHER THAN THE 60 DAYS REQUIRED BY THE SOLICITATION. WE DENY THE PROTEST.

THE NAVY OPENED BIDS ON JULY 19, 1982 AND, ON AUGUST 23, ADVISED UNION METAL BY TELEPHONE THAT ITS BID MIGHT BE CONSIDERED NONCONFORMING BECAUSE OF THE TERMS AND CONDITIONS ON THE PRINTED "COVER SHEET" ATTACHED TO IT. UNION METAL IMMEDIATELY PROTESTED TO THE NAVY AND, ON AUGUST 26, OFFERED TO EXTEND ITS 30-DAY ACCEPTANCE PERIOD TO 120 DAYS. THE NAVY REJECTED BOTH THE PROTEST AND UNION METAL'S OFFER TO EXTEND.

IN ITS PROTEST TO OUR OFFICE, UNION METAL ARGUES THAT ITS BID SHOULD BE CONSIDERED RESPONSIVE. APPARENTLY VIEWING THE ACCEPTANCE PERIOD ISSUE AS THE ONLY SIGNIFICANT ONE, UNION METAL CONTENDS THAT THE 60-DAY ACCEPTANCE TERM IS NOT MATERIAL AND THEREFORE MAY BE WAIVED. THIS IS NOT THE CASE. THE BID ACCEPTANCE PERIOD STATED IN AN INVITATION IS A MATERIAL REQUIREMENT SINCE IT CLEARLY AFFECTS THE BIDDER'S PRICE. A BIDDER OFFERING A SHORTER ACCEPTANCE PERIOD IS NOT EXPOSED TO RISKS AND FLUCTUATIONS OF THE MARKETPLACE FOR AS LONG AS ITS COMPETITORS, AND THUS HAS AN UNFAIR ADVANTAGE. ESKO & YOUNG, INC., B-204053, JANUARY 4, 1982, 82-1 CPD 5.

UNION METAL FURTHER CONTENDS THAT THE ACCEPTANCE PERIOD STATED IN THE COVER SHEET WAS A CLEAR MISTAKE THAT IS OVERRIDDEN BY A UNION METAL OFFICIAL'S SIGNING OF BID DOCUMENTS. IT IS WELL ESTABLISHED, HOWEVER, THAT A COVER LETTER WILL BE CONSIDERED PART OF A BID FOR PURPOSES OF DETERMINING RESPONSIVENESS. ALDERSON REPORTING COMPANY, INC.; ACE FEDERAL REPORTERS, INC., B-205552.2, FEBRUARY 12, 1982, 82-1 CPD 128. SEE ALSO NATIONAL OIL & SUPPLY COMPANY, INC., B-198321, JUNE 20, 1980, 80-1 CPD 437. BY ATTACHING THE COVER SHEET, UNION METAL INCORPORATED IN ITS BID THE STANDARD COMMERCIAL TERMS CONTAINED IN IT. SINCE THE ACCEPTANCE PERIOD TERM DEVIATED FROM A MATERIAL PROVISION OF THE SOLICITATION, THE BID WAS PROPERLY REJECTED AS NONRESPONSIVE. SEE FLUKE TRENDAR CORPORATION, B-196071, MARCH 13, 1980, 80-1 CPD 196.

AT BEST, THE PRESENCE OF TWO CONFLICTING ACCEPTANCE PERIODS, THE 30 DAY ONE IN THE COVER SHEET AND THE 60-DAY ONE SPECIFIED BY THE GOVERNMENT, RENDERS THE BID AMBIGUOUS. WHERE A BID IS SUBJECT TO TWO REASONABLE INTERPRETATIONS, UNDER ONE OF WHICH IT IS NONRESPONSIVE, THE BID MUST BE REJECTED. PEPSI COLA BOTTLING COMPANY OF SALINA, INC. - RECONSIDERATION, B-203680.2, MARCH 4, 1982, 82-1 CPD 193.

ALTHOUGH UNION METAL OFFERED - AFTER OPENING A 120-DAY ACCEPTANCE PERIOD, WE HAVE HELD THAT A BIDDER WHO ORIGINALLY OFFERED A SHORTER ACCEPTANCE PERIOD THAN THAT SPECIFIED MAY NOT EXTEND THAT PERIOD, SINCE SUCH ACTION WOULD BE PREJUDICIAL TO OTHER BIDDERS WHO OFFERED THE REQUESTED ACCEPTANCE PERIOD. RAMAL INDUSTRIES, INC., 60 COMP.GEN. 666 (1981), 81-2 CPD 177; INTROL CORPORATION, B-206012, FEBRUARY 24, 1982, 82-1 CPD 164.

FINALLY, UNION METAL SPEAKS OF POSSIBLE ADVANTAGE TO THE GOVERNMENT. HAVE HELD THAT THE POSSIBILITY THAT THE GOVERNMENT MIGHT REALIZE MONETARY SAVINGS IF A MATERIAL DEFICIENCY IS ALLOWED TO BE CORRECTED OR WAIVED IS OUTWEIGHED BY THE IMPORTANCE OF MAINTAINING THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. MARINO CONSTRUCTION COMPANY, INC., B-204970, FEBRUARY 25, 1982, 82-1 CPD 167.

SINCE IT IS CLEAR FROM THE PROTESTER'S SUBMISSION THAT ITS BID PROPERLY WAS REJECTED AS NONRESPONSIVE BECAUSE OF THE 30-DAY ACCEPTANCE PERIOD, WE SUMMARILY DENY THE PROTEST ON THAT BASIS AND NEED NOT DISCUSS THE OTHER APPARENT BASES FOR THE REJECTION.