B-163202, B-163204, MAR. 18, 1968

B-163202, B-163204, MAR. 18, 1968

TO MR. BERNARD L. SHAPIRO:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 15, 1968, AND PREVIOUS CORRESPONDENCE, PROTESTING AGAINST THE REJECTION OF THE SECOND LOW BIDS SUBMITTED BY THE ADT MANUFACTURING DIVISION OF UNITEC INDUSTRIES, INC., UNDER MARINE CORPS INVITATIONS FOR BIDS M00027-67-B-0127 AND 0129, COVERING THE PROCUREMENT OF GENERATOR SETS, RELATED TECHNICAL AND PROVISIONING DOCUMENTATION, AND TRAINING IN THE MAINTENANCE AND REPAIR OF THE GENERATORS.

THE CLAUSES IN BOTH INVITATIONS ARE SUBSTANTIALLY ALIKE. FOR CONVENIENCE IN CONSIDERING THE PROTEST, INVITATION -0127 HAS BEEN SELECTED AS ILLUSTRATIVE OF BOTH PROCUREMENTS.

PARAGRAPH (B) OF THE "GENERAL REQUIREMENTS" SECTION OF THE INVITATION REQUIRED BIDDERS TO FURNISH IN BLANK SPACES PROVIDED THE TIME WITHIN WHICH PROVISIONING DOCUMENTATION WILL BE FURNISHED AND THE TIME WHEN STOCK REPAIR PARTS ORDERS WILL HAVE TO BE PLACED AFTER THE ACCEPTANCE OF THE PROVISIONING LIST BY THE MARINE CORPS IN ORDER THAT SPARE PARTS, IF ORDERED UNDER THE CONTRACT OPTION, WILL BE DELIVERED CONCURRENT WITH THE GENERATORS. SPECIFICALLY, PARAGRAPH (B) STATED:

"/B): THE FOLLOWING SHALL BE COMPLETED BY THE BIDDER:

"/1): BIDDER REQUIRES THAT STOCK REPAIR PARTS ORDER/S) - ITEM 8, BE PLACED WITHIN ---------- CALENDAR DAYS AFTER SUBMITTAL AND ACCEPTANCE OF THE PROVISIONING LIST, IN ORDER THAT DELIVERY OF STOCK REPAIR PARTS MAY BE CONCURRENT WITH THE END ITEMS SPECIFIED UNDER PARA. (A) ABOVE. "BIDDER IS ADVISED THAT MARINE CORPS SUPPLY ACTIVITY, PHILADELPHIA, PENNSYLVANIA, REQUIRES 60 DAYS AFTER RECEIPT OF ACCEPTABLE PROVISIONING LIST TO DEVELOP AND SUBMIT THE RECOMMENDED STOCK REPAIR PARTS ORDER/S) TO THE CONTRACTING OFFICER. IN ADDITION, THE CONTRACTING OFFICER REQUIRES TIME NECESSARY TO NEGOTIATE MUTUALLY ACCEPTABLE PRICES AND TO ACCOMPLISH CONTRACTUAL AMENDMENT ACTION, PURSUANT TO THE CONTRACT CHANGES CLAUSE. "IN VIEW OF THE FACT THAT THE PROVISIONING CYCLE IS INITIATED BY SUBMITTAL OF ACCEPTABLE PROVISIONING DOCUMENTATION IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-M-17993D/MC) AND AMENDMENTS THERETO: BIDDERS ARE REQUIRED TO COMPLETE THE FOLLOWING CERTIFICATION:

"/2): BIDDER CERTIFIES THAT THE PROVISIONING DOCUMENTATION, TO INCLUDE PROVISIONING LISTS WITH SUPPORTING DRAWINGS, APERTURE CARDS, AND VENDOR ITEMS CARDS, REQUIRED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-D- 17993D/MC) AND AMENDMENTS THERETO, WILL BE SUBMITTED WITHIN ------ * DAYS AFTER DATE OF CONTRACT. *DATE SPECIFIED MUST NOT EXCEED SIXTY (60) DAYS AFTER DATE OF FIRST ARTICLE ENVIRONMENTAL TEST APPROVAL.

"/3): BIDDER REQUIRES THAT STOCK REPAIR PARTS ORDER/S) - ITEM 11, BE PLACED WITHIN ----- CALENDAR DAYS AFTER SUBMITTAL AND ACCEPTANCE OF PROVISIONING DOCUMENTATION UNDER ITEM 10, IN ORDER THAT DELIVERY OF STOCK REPAIR PARTS MAY BE CONCURRENT WITH THE END ITEMS SPECIFIED UNDER PARA. (A) ABOVE. "COMPLETION OF PARA. (B) (1/-/2) AND (3) ABOVE CONSTITUTES A CONTRACT DELIVERY REQUIREMENT AND BIDS SUBMITTED WITHOUT COMPLETION OF PARA. (B) (1/-/2) AND (3) ABOVE SHALL BE REJECTED AS NON-RESPONSIVE.'

ADT INSERTED IN THE BLANKS "30," "60" AND "30," RESPECTIVELY. THE MARINE CORPS REJECTED THE BID AS NONRESPONSIVE TO THE PROVISIONING CYCLE REQUIREMENTS OF THE INVITATION.

YOU CONTEND THAT THE CONTRACTING OFFICER ERRED IN REJECTING THE BID SINCE PARAGRAPH (B) (1) COULD BE CONSTRUED AS INVITING BIDDERS TO PROPOSE THE TIME FOR RECEIVING A STOCK REPAIR PARTS ORDER AFTER SUBMITTAL AND ACCEPTANCE OF THE PROVISIONING LIST BY THE CONTRACTING OFFICER INSTEAD OF BY THE MARINE CORPS SUPPLY ACTIVITY. IT IS ALSO ALLEGED THAT THE INSERTION IN (B) (2) OF 60 DAYS WAS AN OBVIOUS ERROR WHICH OCCURRED WHEN THE 60 FROM THE SENTENCE APPEARING AFTER THE ASTERISK WAS INADVERTENTLY COPIES FOR INSERTION IN (B) (2).

THE INSERTION OF 60 DAYS IN THE BLANK IN PARAGRAPH (B) (2) MADE THE BID CLEARLY NONRESPONSIVE. A BIDDER WOULD HAVE TO PROVIDE MORE THAN 60 DAYS TO MEET THE CONTRACT REQUIREMENTS LEADING UP TO THE FURNISHING OF THE PROVISIONING LIST. IN 38 COMP. GEN. 819, THERE WAS CONSIDERED THE QUESTION WHETHER A BID WHICH IS NOT RESPONSIVE TO AN INVITATION MAY BE CORRECTED ON THE BASIS OF AN ALLEGATION THAT THE REASON FOR THE BID BEING NONRESPONSIVE WAS AN OVERSIGHT OR A MISTAKE. IN THAT DECISION IT WAS STATED AT PAGE 821:

"IT IS PROBABLE THAT THE MAJORITY OF UNRESPONSIVE BIDS ARE DUE TO OVERSIGHT OR ERROR, SUCH AS THE FAILURE TO QUOTE A PRICE, TO SIGN THE BID, TO FURNISH A BID BOND, TO SUBMIT REQUIRED SAMPLES OR DATA, OR THE SUBMISSION OF THE WRONG SAMPLE, INCOMPLETE DATA, OR STATEMENTS THE ACTUAL MEANING OF WHICH WAS NOT INTENDED, ETC. AN UNRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PART OF THE BID ON THE BASIS OF AN ERROR ALLEGED AFTER THE OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. * * *" MOREOVER, IN 17 COMP. GEN. 554, 558-559, IT WAS STATED:

"THERE ARE FUNDAMENTAL RULES GOVERNING THE AWARD OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY VIOLATION OF THE RULES. * * *" IN THE CIRCUMSTANCES, THE ADT BID WAS PROPERLY REJECTED AS NONRESPONSIVE TO THE INVITATION. IN VIEW THEREOF, IT IS ACADEMIC TO CONSIDER WHETHER THE BID WAS OTHERWISE RESPONSIVE.

YOU HAVE CONTENDED FURTHER THAT THE AWARD WAS MADE IN VIOLATION OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) RELATIVE TO AWARD IN THE FACE OF FORMAL PROTESTS. HOWEVER, THERE IS OF RECORD A DETERMINATION MADE BY THE CONTRACTING OFFICER ON JANUARY 5, 1968, PURSUANT TO ASPR 2-407.9, AFTER RECEIPT OF A WRITTEN PROTEST FROM THE LOW BIDDER, TO THE EFFECT THAT AWARD SHOULD BE MADE BECAUSE DELIVERY IS URGENTLY REQUIRED AND THAT IT WOULD BE INIMICAL TO THE INTERESTS OF THE GOVERNMENT TO FURTHER DELAY DELIVERY. MOREOVER, FAILURE TO COMPLY WITH THE CITED REGULATION WITH PARTICULAR REFERENCE TO ADT'S PROTEST DOES NOT INVALIDATE AN OTHERWISE PROPER AWARD. B-150014, NOVEMBER 20, 1962.