B-213910, DEC 28, 1983

B-213910, DEC 28, 1983

DIGEST: AGENCY PROPERLY REJECTED A BID AS NONRESPONSIVE WHERE THE BIDDER FAILED TO COMPLETE THE REQUIRED CERTIFICATION THAT COMPONENTS OF THE OFFERED ITEMS WOULD BE OBTAINED FROM ONLY APPROVED SOURCES AS SET FORTH IN THE IFB.

FRASER-VOLPE CORPORATION:

FRASER-VOLPE CORPORATION (FVC) PROTESTS THE AWARD OF A CONTRACT TO ALUF INDUSTRIES UNDER INVITATION FOR BIDS (IFB) NO. DAAA09-83-B-4786 ISSUED BY THE DEPARTMENT OF THE ARMY FOR M118 ELBOW TELESCOPES. THE AGENCY REJECTED FVC'S BID AS NONRESPONSIVE BECAUSE THE FIRM HAD FAILED TO CERTIFY THAT COMPONENTS OF THE TELESCOPES OFFERED WOULD BE OBTAINED FROM ONLY APPROVED SOURCES AS SET FORTH IN THE IFB. FVC COMPLAINS THAT ITS FAILURE TO COMPLETE THE REQUIRED CERTIFICATION WAS MERELY A CLERICAL ERROR WHICH DID NOT AFFECT ITS INTENT TO BE BOUND BY THE TERMS OF THE SOLICITATION. ADDITION, FVC ASSERTS THAT ITS LOW BID SHOULD BE ACCEPTED IN THE BEST ECONOMIC INTEREST OF THE GOVERNMENT. WE SUMMARILY DENY THE PROTEST.

SECTION K-9 OF THE IFB REQUIRED ALL BIDDERS TO REPRESENT, AND CERTIFY BY CHECKING THE APPROPRIATE BOX, THAT:

"THE ITEMS/COMPONENTS BEING OFFERED WILL BE OBTAINED FROM ONLY THE APPROVED SOURCES IDENTIFIED ON THE SOURCE CONTROL DRAWINGS."

THIS REQUIREMENT WAS IMMEDIATELY FOLLOWED BY A CAUTIONARY NOTE TO THE EFFECT THAT FAILURE TO COMPLETE THE CERTIFICATION WOULD RENDER A BID NONRESPONSIVE. IN ADDITION, PAGE 3 OF THE IFB, IN ITS ENTIRETY, CONTAINED THE FOLLOWING NOTICE:

"YOUR ATTENTION IS DIRECTED TO THE CERTIFICATION IN SECTION K ENTITLED: SOURCE CONTROL ITEMS OR COMPONENTS. THIS CERTIFICATION MUST BE COMPLETED OR THE BID WILL BE REJECTED."

A RESPONSIVE BID IS ONE THAT ON ITS FACE IS AN OFFER TO PERFORM, WITHOUT EXCEPTION, THE EXACT THING CALLED FOR IN THE INVITATION; THE GOVERNMENT'S ACCEPTANCE OF THE OFFER THEREFORE EFFECTIVELY BINDS THE BIDDER TO PERFORM ACCORDING TO THE INVITATION'S REQUIREMENTS. EDW. KOCHARIAN & COMPANY, INC., 58 COMP.GEN. 214 (1979), 79-1 CPD 20.

WE HAVE HELD THAT WHERE AN IFB IDENTIFIES PREVIOUSLY APPROVED SOURCE CONTROLLED COMPONENTS AND REQUIRES THE BIDDER TO CERTIFY THAT IT WILL FURNISH ONLY THOSE COMPONENTS, THE BIDDER'S FAILURE TO DO SO REQUIRES REJECTION OF ITS BID AS NONRESPONSIVE. MVI PRECISION MACHINING, LTD., B-210730, SEPTEMBER 27, 1983, 83-2 CPD 382. OUR HOLDING IS FOUNDED ON THE RATIONALE THAT, ABSENT SUCH CERTIFICATION, A BIDDER COULD OFFER ALTERNATIVE COMPONENTS FOR THE AGENCY'S APPROVAL RATHER THAN THOSE PREVIOUSLY APPROVED AND IDENTIFIED IN THE IFB'S DRAWINGS, THEREBY VARYING ITS OBLIGATION FROM THAT INTENDED BY THE AGENCY. ID. BECAUSE THE SAME CIRCUMSTANCES ARE PRESENT HERE, THE ARMY ACTED PROPERLY IN REJECTING FVC'S BID AS NONRESPONSIVE. ALTHOUGH IT IS UNFORTUNATE THAT AN APPARENT CLERICAL OVERSIGHT LED TO THIS REJECTION, THE BURDEN IS ON EACH BIDDER TO INSURE THAT ITS BID CONFORMS TO IFB REQUIREMENTS. ZERO MANUFACTURING CO., B-210823, JUNE 28, 1983, 83-2 CPD 35.

AS TO FVC'S ASSERTION THAT ACCEPTANCE OF ITS LOW BID WOULD BE IN THE GOVERNMENT'S BEST ECONOMIC INTEREST, THE POSSIBILITY THAT THE GOVERNMENT MIGHT REALIZE A MONETARY SAVINGS BY WAIVING A MATERIAL BIDDING DEFICIENCY DOES NOT OUTWEIGH THE IMPORTANCE OF MAINTAINING THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM BY REJECTING NONRESPONSIVE BIDS. SEE MARINO CONSTRUCTION COMPANY, INC., 61 COMP.GEN. 269 (1982), 82-1 CPD 167.

THE PROTEST IS SUMMARILY DENIED.