B-232670, Dec 14, 1988, 88-2 CPD 591

B-232670, Dec 14, 1988, 88-2 CPD 591

PROCUREMENT - Sealed Bidding - Bids - Responsiveness - Descriptive literature - Adequacy PROCUREMENT - Sealed Bidding - Bids - Responsiveness - Compliance certification DIGEST: Bidder's failure to certify that bid is not based on applying paint by spray method does not render bid nonresponsive where contract requires the application of liquid roof sealant but does not require any painting.

Universal Applicators, Inc.:

Universal Applicators, Inc. protests the Air Force's award of a contract to Chris Axtell Roofing, Inc. under invitation for bids (IFB) No. F34650- 88-B-0039 for roofing repairs at Tinker Air Force Base, Oklahoma. Universal alleges that Axtell failed to provide a written certification concerning the method of application of the roof coating and that its bid should therefore have been rejected as nonresponsive. We deny the protest.

The solicitation requested bids for the repair of barrel roofs, guttering and flashing to result in a watertight seal on a particular building on the Air Force base. The technical specifications called for "built-up roofing" and the application of a liquid elastomeric acrylic to form a weather-protective coating. The General Requirements Section of the IFB included a section dealing with environmental protection. /1/ This section provided, among other things, that "spray painting" would only be permitted if specifically approved by the Base Environmental Management Section. Contractors seeking approval were to submit comprehensive plans indicating the procedures they would follow for isolating the contract area from other areas of the building. Contractors were required under this section to provide with their bids written certification that spraying was not used as the basis for their bid calculation. If a spraying plan was accepted, then any resultant cost savings would be deducted from the contract price.

The Air Force received nine timely bids. Axtell's bid was low and Universal's bid was fifth low. Award was made to Axtell. However, Universal, as the only bidder to include the certification about spray painting, protested to the Air Force that its own bid was the only responsive one, and that award to any other bidder was improper. The agency denied Universal's protest, and this protest followed.

The Air Force argues that the requirement for this certification was only applicable to contracts requiring painting. According to the agency, the certification's purpose was only to prevent bidders under painting contracts from basing their bid prices on spray painting and then filing claims for additional sums if the government refused to allow spray painting. Since the contract at issue here does not include painting, the agency states that there was no need for bidders to submit this certificate. Furthermore, the agency contends that even if the certificate were deemed to be required under the IFB, the failure to certify should be considered a minor informality that could either be waived or corrected.

Universal insists that the contract does include painting, arguing that the application of an acrylic coating to protect the roof fits the definition of applying paint. Therefore, Universal concludes that Axtell submitted a nonresponsive bid.

To be responsive, a bid must reflect an unequivocal offer to provide the exact product or service called for in the solicitation so that its acceptance will bind the contractor to perform in accordance with the material terms and conditions of the IFB. Atlas Trading and Supply Co., Inc., B-227164, Aug. 10, 1987, 87-2 CPD Para. 146. A deficiency or deviation that goes to the substance of a bid by affecting price, quality, quantity or delivery of the article offered is a material deviation that requires the bid to be rejected as nonresponsive. A deficiency that is a matter of form, or that constitutes some immaterial deviation from the exact requirements of a specification is a minor informality that may be waived or cured. What constitutes a minor deviation is dependent on the particular circumstances of each case. Mountain Air Helicopters, Inc., B-223099.2, Aug. 6, 1986, 86-2 CPD Para. 162.

In our view, the submission of the certification was not a material term or condition of the IFB in this case. We do not believe that "paint" and "elastomeric acrylic sealant" are synonymous. Although the IFB did instruct bidders to provide the certification with their bids, we agree with the agency that this instruction was only applicable to contracts that actually required painting in the common and ordinary meaning of that term. /2/ We note, in this connection, that the IFB's General Requirements Section included numerous other "boilerplate" provisions referring to matters that were similarly inapplicable here, such as the protection of existing utilities during excavation, the use of welding equipment, erosion control within the construction area, and the application of pesticides. Accordingly, we think that a reasonable bidder, applying common meaning to the terms, should have known that the painting certification was not applicable to this procurement. Therefore, since we find that the painting certification was not applicable or required, Axtell's failure to provide it did not render its bid nonresponsive.

The protest is denied.

/1/ The Air Force states that it uses the identical "boilerplate" General Requirements Section in every construction contract and that many provisions are not applicable to a particular procurement.

/2/ The fact that the normal method of application of the roof coating includes spraying as well as brush and roller and broom does not alter our view.