B-219306, AUG 21, 1985, OFFICE OF GENERAL COUNSEL

B-219306: Aug 21, 1985

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AS NONRESPONSIVE BECAUSE THE BID'S MINIMUM ACCEPTANCE PERIOD WAS 21 DAYS INSTEAD OF 30 DAYS. THAT FUNDAMENTAL RULE IS ROOTED IN THE NOTION THAT TO HOLD OTHERWISE WOULD GIVE A BIDDER AN UNFAIR UNADVANTAGE. THIS IS ESPECIALLY SO WITH RESPECT TO A BIDDER WHO OFFERS A SHORTER BID ACCEPTANCE PERIOD THAN THAT REQUIRED. SUCH A BIDDER OBVIOUSLY FACES LESS RISK BECAUSE ITS BID WILL NOT BE SUBJECT TO ACCEPTANCE BY THE GOVERNMENT FOR THE SAME LENGTH OF TIME AS THE BIDS OF OTHER BIDDERS. WE CONSISTENTLY HAVE TAKEN THE POSITION THAT PROTECTING THE INTEGRITY OF THE SEALED BIDDING PROCESS OUTWEIGHS ANY MONETARY SAVINGS THE GOVERNMENT MIGHT ATTAIN BY WAIVING A MATERIAL DEFICIENCY IN ANY PARTICULAR BID. WE HOPE THE ABOVE EXPLANATION IS HELPFUL TO YOU AND THAT YOU WILL APPRECIATE WHY THE ACC BID HAD TO BE REJECTED.

B-219306, AUG 21, 1985, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE EARL HUTTO: HOUSE OF REPRESENTATIVES

THIS RESPONDS TO YOUR LETTER OF JUNE 25, 1985, CONCERNING THE AWARD UNDER THE DEPARTMENT OF THE ARMY'S SOLICITATION NO. DABTO2-85-B-0051, FOR THE INSTALLATION OF SMOKE DETECTORS AT FORT MCCLELLAN, ALABAMA.

THE CONTRACTING OFFICER REJECTED THE BID OF YOUR CONSTITUENT, ADVANCED CONTROL CONCEPTS (ACC), AS NONRESPONSIVE BECAUSE THE BID'S MINIMUM ACCEPTANCE PERIOD WAS 21 DAYS INSTEAD OF 30 DAYS, THE MINIMUM ACCEPTANCE PERIOD REQUIRED BY THE SOLICITATION.

YOU ACKNOWLEDGE THAT THE BID REJECTION APPEARS TO BE LEGALLY PROPER. HOWEVER, YOU ASK THAT WE REVIEW THE MATTER WITH A VIEW TOWARD ADVISING THE ARMY TO ISSUE MORE FLEXIBLE REGULATIONS TO PREVENT UNNECESSARY GOVERNMENT SPENDING SIMPLY BECAUSE OF A TYPOGRAPHICAL ERROR.

THIS SITUATION DID NOT INVOLVE A MERE TYPOGRAPHICAL ERROR. THE INSERTION IN THE BID OF A 21 DAY ACCEPTANCE PERIOD MADE THE BID NONRESPONSIVE. NONRESPONSIVE BID CANNOT BE CHANGED OR EXPLAINED AWAY AFTER BID OPENING. THAT FUNDAMENTAL RULE IS ROOTED IN THE NOTION THAT TO HOLD OTHERWISE WOULD GIVE A BIDDER AN UNFAIR UNADVANTAGE. THIS IS ESPECIALLY SO WITH RESPECT TO A BIDDER WHO OFFERS A SHORTER BID ACCEPTANCE PERIOD THAN THAT REQUIRED. SUCH A BIDDER OBVIOUSLY FACES LESS RISK BECAUSE ITS BID WILL NOT BE SUBJECT TO ACCEPTANCE BY THE GOVERNMENT FOR THE SAME LENGTH OF TIME AS THE BIDS OF OTHER BIDDERS.

ALTHOUGH REJECTION OF A BID IN THESE CIRCUMSTANCES MAY RESULT IN HIGHER COST TO THE GOVERNMENT, WE CONSISTENTLY HAVE TAKEN THE POSITION THAT PROTECTING THE INTEGRITY OF THE SEALED BIDDING PROCESS OUTWEIGHS ANY MONETARY SAVINGS THE GOVERNMENT MIGHT ATTAIN BY WAIVING A MATERIAL DEFICIENCY IN ANY PARTICULAR BID. UNDER THE CIRCUMSTANCES, WE CANNOT AGREE THAT THE REGULATIONS SHOULD BE CHANGED IN THE WAY YOU SUGGEST.

WE HOPE THE ABOVE EXPLANATION IS HELPFUL TO YOU AND THAT YOU WILL APPRECIATE WHY THE ACC BID HAD TO BE REJECTED.