B-240249, Nov 2, 1990, 90-2 CPD ***

B-240249: Nov 2, 1990

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PROCUREMENT - Sealed Bidding - Bids - Responsiveness - Terms - Deviation DIGEST: Where bidder's intention not to supply all the components of electrical distribution panelboards required by the solicitation is clear from a cover letter submitted with the bid. The bid was properly rejected as nonresponsive. Even though agency's project engineer may have told the protester that such a bid would be acceptable since the protester may not rely on such oral advice inconsistent with the solicitation specifications. Cuernilargo contends that FPI improperly rejected its bid as nonresponsive because the agency's project engineer advised it prior to bid opening that it could submit a bid on the panelboards only and told the protester that the bid package did not have to include prices for both the panelboards and the electrical components.

B-240249, Nov 2, 1990, 90-2 CPD ***

PROCUREMENT - Sealed Bidding - Bids - Responsiveness - Terms - Deviation DIGEST: Where bidder's intention not to supply all the components of electrical distribution panelboards required by the solicitation is clear from a cover letter submitted with the bid, as well as the bidder's not pricing certain items on the bid schedule, the bid was properly rejected as nonresponsive, even though agency's project engineer may have told the protester that such a bid would be acceptable since the protester may not rely on such oral advice inconsistent with the solicitation specifications.

Attorneys

Cuernilargo Electric Supply:

Curenilargo Electric Supply protests the rejection of its bid and subsequent award of a contract to Bruce Industries, Inc. under invitation for bids (IFB) No. 42-PI-028-O-CB, issued by UNICOR, Federal Prison Industries, Inc. (FPI), Department of Justice, for the acquisition of power distribution panelboards and electrical components. Cuernilargo contends that FPI improperly rejected its bid as nonresponsive because the agency's project engineer advised it prior to bid opening that it could submit a bid on the panelboards only and told the protester that the bid package did not have to include prices for both the panelboards and the electrical components.

We deny the protest.

The IFB, issued on February 23, 1990, was for the acquisition of 28 portable power distribution panelboards and 30 technical manuals. The solicitation advised bidders that the panel-boards, among other requirements, had to be "in accordance with MIL-P-29183A dtd dated 03-13-86 and MIL-P-29183/4A dtd 05-24-85." These specifications list physical (for example, weight and dimensions) and electrical (for example, transformer type and circuit characteristics) requirements for the panelboards. Cuernilargo requested copies of the military standards and acknowledges receiving the copies on March 5. The solicitation was amended once to change the solicitation number and a second time to extend the bid opening date to April 6, and to add 10 additional line item requirements of power panel components, including, for example, circuit breakers and transformers, and correct the required delivery schedule.

On March 9, prior to bid opening, a Cuernilargo representative contacted the contracting officer by telephone with technical questions about the solicitation; the contracting officer gave the representative the name and telephone number of the project engineer and directed the representative to the engineer "to discuss the job." The protester states that he called the project engineer the same day. During the telephone conversation, the protester states that the engineer told Cuernilargo that "he really needed a source for the enclosures panelboards only" and that Cuernilargo "could submit a price for the enclosure and a price for the electrical components." The engineer sent Cuernilargo drawings and a breakout of the electrical components needed for each panelboard.

At bid opening, Cuernilargo was the apparent low bidder with a price of $122,752, but its bid was determined to be nonresponsive because Cuernilargo did not include in its bid price all the required elements of the panelboards. Although the protester filled in a unit price and total amount on the bid sheet, it referenced an "attached proposal" (actually a cover letter) where the protester states that "the scope of supply for this item includes the structural and mechanical equipment only and does not include any of the electrical devices." The protester also wrote that it "was not able to come up with the electrical prices in time for this solicitation due date." Additionally, the protester inserted the words "No Quote" for each of the 10 additional line items added to the solicitation by amendment 2.

On April 25 the protester called the contracting officer to ask about the status of the procurement. The contracting officer told the protester that he should have submitted a complete package price, including a price for both the enclosures and the electrical components. The protester says that its representative told the contracting officer that had it "not been asked to quote on the enclosures only," it would have submitted a bid per the military specifications. According to the protester, the contracting officer gave it until April 27 to send in its pricing for the electrical components; Cuernilargo sent the electrical prices by facsimile the next morning. The contracting officer disputes this account, suggesting he never asked for the prices for the electrical components and stating that Cuernilargo was advised that, because bids had already been opened, these electrical prices would not be accepted. Award was made to Bruce Industries as the low, responsive, responsible bidder and this protest followed.

Cuernilargo contends that the contract should have been awarded to it since it "submitted everything as ... requested to" and the enclosures quoted "were exactly to specifications." The protester says that it submitted prices for the enclosures only because it was asked to do so, and that, in any event, it sent prices for the electrical components within the time given by the contracting officer.

Cuernilargo says that it never asked the contracting officer about submitting a bid for only the enclosures because the contracting officer had directed the protester to the project engineer "who in turn told me exactly what he needed." Cuernilargo points out that in the agency report there is no statement from the project engineer denying that he advised Cuernilargo it could bid on enclosures only. The protester admits that in all other bidding situations in which it has been involved, it was directed to put questions in writing to be answered in writing by an amendment issued to all prospective bidders. Here, it says it was specifically directed to contact the project engineer concerning technical questions. The protester argues that since the engineering group thus was made part of the contracting cycle the agency should be held accountable for the information the project engineer gives to bidders.

To be responsive, a bid must represent an unequivocal offer to provide the exact thing called for in the IFB, such that acceptance of the bid will bind the contractor in accordance with the solicitation's material terms and conditions. Where a bidder provides information with its bid that reduces, limits, or modifies a solicitation requirement, the bid must be rejected as nonresponsive. Hagglunds Prinoth, B-238244, Apr. 12, 1990, 90-1 CPD Para. 385. Here, Cuernilargo's bid did not represent an unequivocal offer to provide the power distribution panelboards that the IFB required. Cuernilargo's cover letter and its failure to price the 10 line items added by amendment 2 clearly indicate its intent to modify the solicitation requirements and not bid on the electrical components requirement of the solicitation. We therefore conclude that it was reasonable for the agency to find that the Cuernilargo bid was nonresponsive and it was properly rejected. Cuernilargo's prices for the electrical components, submitted after bids were opened, cannot be considered-- regardless of whether they were requested by the contracting officer-- because a nonresponsive bid cannot be made responsive after bid opening. See American Asbestos Abatement, Inc., B-237613, Nov. 29, 1989, 89-2 CPD Para. 504.

Cuernilargo's contention that it should be awarded the contract because it submitted its bid as requested and that the agency should be held accountable for the information the project engineer gave the protester are without merit. Cuernilargo's alleged reliance on oral advice in deciding not to submit a bid on the electrical components of the panel- boards was misplaced. The solicitation incorporated by reference Federal Acquisition Regulation (FAR) Sec. 52.214-6 (FAC 84 56), which requires bidders to request any explanation or interpretation of the solicitation in writing and cautions that oral explanations given before award of a contract will not be binding. In the face of such advice, a bidder relies on oral explanations-- especially those that are inconsistent with the solicitation's express terms-- at its own risk. Air Inc., B-236334, Nov. 13, 1989, 89-2 CPD Para. 455; Pluribus Prods., Inc., B-230298.7, Sept. 20, 1989, 89-2 CPD Para. 248. Here, Cuernilargo inappropriately relied upon alleged conversations with the project engineer as a basis for not submitting a bid on the electrical components of the panel-boards because the IFB expressly advised that the panelboards had to be in accordance with the military specifications, which included electrical components.

Accordingly, the protest is denied.