B-213456, MAR 20, 1984

B-213456: Mar 20, 1984

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DIGEST: BID SUBMITTED WITH MATERIAL PROVISIONS DELETED WAS PROPERLY REJECTED AS NONRESPONSIVE AND MAY NOT BE CORRECTED AFTER BID OPENING TO BE MADE RESPONSIVE AT THE BIDDER'S OPTION SINCE AN UNFAIR ADVANTAGE WOULD BE GAINED. THE LOW BID OF JEWEL WAS DETERMINED TO BE NONRESPONSIVE. SINCE PAGES 4 AND 23 WERE CROSSED OUT IN BLUE PENCIL. JEWEL STATES THAT PAGES 4 AND 23 WERE CROSSED OUT IN NONPHOTO. THE CROSSING OUT WAS NOT SUBSEQUENTLY ERASED. JEWEL ALLEGES THAT "THERE WAS NO INTENT TO CHANGE TERMS.". THAT REJECTION OF ITS BID WAS NOT REQUIRED BY FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-2.404-2(A) (1964 ED. JEWEL CONTENDS THAT PAGES 4 AND 23 WERE NOT "ESSENTIAL" REQUIREMENTS. " WHICH ARE EXPRESSLY MENTIONED IN FPR SEC. 1 2.404.2(A) AS ESSENTIAL REQUIREMENTS.

B-213456, MAR 20, 1984

DIGEST: BID SUBMITTED WITH MATERIAL PROVISIONS DELETED WAS PROPERLY REJECTED AS NONRESPONSIVE AND MAY NOT BE CORRECTED AFTER BID OPENING TO BE MADE RESPONSIVE AT THE BIDDER'S OPTION SINCE AN UNFAIR ADVANTAGE WOULD BE GAINED.

JEWEL ASSOCIATES:

JEWEL ASSOCIATES (JEWEL) PROTESTS THE REJECTION OF ITS BID AS NONRESPONSIVE FOR TYPING AND PROOFING OF CAMERA READY COPY FROM JULY 1, 1983, THROUGH JUNE 30, 1984, UNDER INVITATION FOR BIDS (IFB) NO. WYC-AD R- 4676-3-2-83, ISSUED BY THE OFFICE OF PERSONAL PROPERTY, NATIONAL CAPITAL REGION, GENERAL SERVICES ADMINISTRATION (GSA).

WE DENY THE PROTEST.

THE LOW BID OF JEWEL WAS DETERMINED TO BE NONRESPONSIVE, SINCE PAGES 4 AND 23 WERE CROSSED OUT IN BLUE PENCIL. PAGE 4 CONTAINED THE INCORPORATION BY REFERENCE OF MANDATORY CONTRACT CLAUSES. PAGE 23 CONTAINED THE SPECIFICATIONS.

JEWEL STATES THAT PAGES 4 AND 23 WERE CROSSED OUT IN NONPHOTO, REPRODUCIBLE BLUE PENCIL SO THAT THEY WOULD NOT BE PHOTOCOPIED BY THE SECRETARY, BUT, AS A RESULT OF ERROR, THE CROSSING OUT WAS NOT SUBSEQUENTLY ERASED. JEWEL ALLEGES THAT "THERE WAS NO INTENT TO CHANGE TERMS."

JEWEL CONTENDS, FIRST, THAT REJECTION OF ITS BID WAS NOT REQUIRED BY FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-2.404-2(A) (1964 ED. AMEND. 121). FPR SEC. 1-2.404.2(A) PROVIDES:

"ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS, SUCH AS SPECIFICATIONS, DELIVERY SCHEDULE, OR PERMISSIBLE ALTERNATES THERETO, SHALL BE REJECTED AS NONRESPONSIVE."

JEWEL CONTENDS THAT PAGES 4 AND 23 WERE NOT "ESSENTIAL" REQUIREMENTS. HOWEVER, PAGE 23 CONTAINS THE "SPECIFICATIONS," WHICH ARE EXPRESSLY MENTIONED IN FPR SEC. 1 2.404.2(A) AS ESSENTIAL REQUIREMENTS.

JEWEL NEXT CONTENDS THAT THE CROSSING OUT WAS "CLEARLY" A MISTAKE CORRECTABLE UNDER FPR SEC. 1-2.406-1 (1964 ED. CIRC. 1) OR A CLERICAL MISTAKE CORRECTABLE UNDER FPR SEC. 1-2.406-2 (1964 ED. CIRC. 1). HOWEVER, IT IS WELL SETTLED THAT A BID MADE NONRESPONSIVE BY A MISTAKE MAY NOT BE CORRECTED TO MAKE IT RESPONSIVE. SEE BUCKEYE PACIFIC CORPORATION, B-212183, AUGUST 30, 1983, 83-2 CPD 282.

JEWEL ALSO CONTENDS THAT, AS REQUIRED BY THE IFB, AN ORIGINAL AND ONE PHOTOCOPY ON WHICH THE NONPHOTO, REPRODUCIBLE BLUE PENCIL STRIKEOUT OF PAGES 4 AND 23 DID NOT APPEAR WERE FURNISHED. JEWEL CONTENDS THAT THIS WOULD SUBSTANTIATE THAT THE PAGES WERE STRUCK OUT IN ERROR. HOWEVER, AS GSA INDICATES, THE INCONSISTENCY BETWEEN THE ORIGINAL BID AND THE COPY, AT BEST, MADE THE BID AMBIGUOUS, SINCE IT COULD BE READ AS EITHER DELETING MATERIAL PROVISIONS OF THE SOLICITATION OR NOT DELETING THE PROVISIONS WITH NO MEANS OF KNOWING FROM THE BID WHICH WAS INTENDED.

JEWEL CONTENDS THAT THE CONTRACTING OFFICER COULD AND SHOULD HAVE CLARIFIED THE DISCREPANCY BY REQUESTING CLARIFICATION FROM JEWEL. GSA CORRECTLY ADVISED JEWEL THAT THIS COULD NOT BE DONE. TO PERMIT JEWEL TO CLARIFY OR EXPLAIN ITS AMBIGUOUS BID AFTER BID OPENING WOULD CONFER AN UNFAIR COMPETITIVE ADVANTAGE ON JEWEL BY PERMITTING IT TO AFFECT THE RESPONSIVENESS OF ITS BID AFTER BID OPENING AND JEWEL WOULD GAIN THE CHOICE OF ACCEPTING OR REJECTING THE CONTRACT AFTER BIDS HAVE BEEN EXPOSED BY CHOOSING TO MAKE ITS BID RESPONSIVE OR NOT. SEE JOHN C. DORSEY, INC., B-212789, SEPTEMBER 20, 1983, 83-2 CPD 350.