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B-224940, FEB 6, 1987, 87-1 CPD 132

B-224940 Feb 06, 1987
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PROCUREMENT - SEALED BIDDING - BIDS - RESPONSIVENESS - DESIGN SPECIFICATIONS - DEVIATION DIGEST: GENERAL ACCOUNTING OFFICE DENIES PROTEST THAT BID TO SUPPLY TIE TACKS WAS IMPROPERLY FOUND NONRESPONSIVE. WHERE A HANDWRITTEN NOTATION ON THE BID WAS INCONSISTENT WITH THE REQUIRED MINIMUM THICKNESS FOR A PART OF THE TIE TACK. THAT THE BID WAS AMBIGUOUS. WHICH IS 3/64 (EQUAL TO .046 INCHES). THE PROTESTER ARGUES THAT IT IS UNREASONABLE TO QUESTION ITS COMMITMENT TO MEET THE SPECIFICATIONS. ACHIEVEMENT STATES THAT IN VIEW OF THE FACT THAT IT DID NOT SPECIFICALLY STATE THAT ITS PRICE WAS CONTINGENT UPON MAKING THE TIE TACKS THINNER THAN SPECIFIED. BIDDERS MUST UNCONDITIONALLY OFFER TO PROVIDE EXACTLY WHAT IS CALLED FOR IN A SOLICITATION.

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B-224940, FEB 6, 1987, 87-1 CPD 132

PROCUREMENT - SEALED BIDDING - BIDS - RESPONSIVENESS - DESIGN SPECIFICATIONS - DEVIATION DIGEST: GENERAL ACCOUNTING OFFICE DENIES PROTEST THAT BID TO SUPPLY TIE TACKS WAS IMPROPERLY FOUND NONRESPONSIVE, WHERE A HANDWRITTEN NOTATION ON THE BID WAS INCONSISTENT WITH THE REQUIRED MINIMUM THICKNESS FOR A PART OF THE TIE TACK.

ACHIEVEMENT PRODUCTS, INC.:

ACHIEVEMENT PRODUCTS, INC, PROTESTS THE REJECTION OF ITS LOW BID AS NONRESPONSIVE UNDER INVITATION FOR BIDS NO. DTFA01-86-B-08662, ISSUED AUGUST 26, 1986, BY THE FEDERAL AVIATION ADMINISTRATION FOR BRASS TIE TACKS. THE AGENCY REJECTED ACHIEVEMENT'S BID AS NONRESPONSIVE BECAUSE THE FIRM WROTE "3/64 INCHES PLUS" NEXT TO THE SPECIFICATION REQUIRING A MINIMUM THICKNESS FOR THE PIN PORTION OF THE TIE TACK OF .05 INCHES. THE FAA BELIEVED THAT ACHIEVEMENT HAD QUALIFIED ITS BID BY OFFERING LESS THAN THE REQUIRED MINIMUM THICKNESS OR, AT BEST, THAT THE BID WAS AMBIGUOUS.

THE PROTESTER CONTENDS THAT IT CONVERTED .05 INCHES TO THE NEAREST FRACTION OF AN INCH, WHICH IS 3/64 (EQUAL TO .046 INCHES). THE PROTESTER ARGUES THAT IT IS UNREASONABLE TO QUESTION ITS COMMITMENT TO MEET THE SPECIFICATIONS. ACHIEVEMENT STATES THAT IN VIEW OF THE FACT THAT IT DID NOT SPECIFICALLY STATE THAT ITS PRICE WAS CONTINGENT UPON MAKING THE TIE TACKS THINNER THAN SPECIFIED, THE AGENCY SHOULD EXPECT THAT THE FIRM WOULD MEET ALL OF THE SPECIFICATIONS.

TO BE RESPONSIVE, A BID AS SUBMITTED MUST COMPLY IN ALL MATERIAL RESPECTS TO THE INVITATION'S TERMS. MOUNTAIN AIR HELICOPTERS, INC., B-223099.2, AUG. 6, 1986, 86-2 CPD PARA. 162. BIDDERS MUST UNCONDITIONALLY OFFER TO PROVIDE EXACTLY WHAT IS CALLED FOR IN A SOLICITATION. REPCO, INC., B-221286, MAR. 12, 1986, 86-1 CPD PARA. 245.

WE AGREE WITH THE FAA THAT ACHIEVEMENT'S HANDWRITTEN NOTATION NEXT TO THE MINIMUM THICKNESS REQUIREMENT IN ITS BID RAISED A QUESTION OF WHETHER ACHIEVEMENT INTENDED TO COMPLY WITH THE REQUIREMENT. IN NEGOTIATED PROCUREMENTS, WHERE AGENCIES MAY CONDUCT CLARIFYING DISCUSSIONS, AMBIGUITIES RAISED BY NOTATIONS SUCH AS ACHIEVEMENT'S CAN BE RESOLVED BY QUESTIONING THE OFFEROR. WHERE, AS HERE, AN AGENCY CONDUCTS A SEALED BID PROCUREMENT, ANY BID CONTAINING A DEFICIENCY OR DEVIATION THAT GOES TO THE SUBSTANCE OF A BID BY AFFECTING THE PRICE, QUALITY, QUANTITY OR DELIVERY OF THE ITEMS OFFERED MUST BE REJECTED AS NONRESPONSIVE. SEE FEDERAL ACQUISITION REGULATION, 48 C.F.R. SEC. 14.404-2(E) (1986).

SIMILARLY, WHERE A BID THAT IS AMBIGUOUS WITH RESPECT TO A MATERIAL REQUIREMENT, I.E., IS SUBJECT TO TWO REASONABLE INTERPRETATIONS, AND UNDER ONE OF THE INTERPRETATIONS THE BID IS NONRESPONSIVE, THE BID MUST BE REJECTED AS NONRESPONSIVE. SEE DISCOUNT MACHINERY & EQUIPMENT INC.- REQUEST FOR RECONSIDERATION, B-223048.2, JULY 1, 1986, 86-2 CPD PARA. 5. ACHIEVEMENT NOTED ON ITS BID A THICKNESS LESS THAN THAT REQUIRED, AND WE FIND THAT THE CONTRACTING OFFICER REASONABLY CONSIDERED THE BID TO BE NONRESPONSIVE.

THE PROTEST IS DENIED.

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