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B-167585, JUN. 18, 1970

B-167585 Jun 18, 1970
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BID NONRESPONSIVE BID WHICH TOOK EXCEPTION TO WEBBING REQUIREMENT OF INVITATION WAS PROPERLY DETERMINED NONRESPONSIVE SINCE DEVIATION FROM ADVERTISED SPECIFICATIONS RELATIVE TO MATERIAL REQUIREMENT GOES TO SUBSTANCE OF BID BY AFFECTING PRICE AND QUALITY OF ARTICLE REQUIRED AND MAY NOT BE WAIVED AS MERE INFORMALITY. TO BE RESPONSIVE BID MUST BE CONSIDERED ON BASIS SUBMITTED AND COMPLY WITH ALL MATERIAL TERMS AND CONDITIONS OF INVITATION AND NO BASIS EXISTS TO CHANGE CONCLUSION THAT BID WAS NOT RESPONSIVE REGARDLESS OF BIDDERS INTENTION. ALLEGATION OF ERROR NOT BEING PROPER FOR CONSIDERATION WHERE BID IS NONRESPONSIVE. INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 12. DAAJ01-69-B-0352(1J) WAS NONRESPONSIVE AND.

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B-167585, JUN. 18, 1970

BIDS--QUALIFIED--BID NONRESPONSIVE BID WHICH TOOK EXCEPTION TO WEBBING REQUIREMENT OF INVITATION WAS PROPERLY DETERMINED NONRESPONSIVE SINCE DEVIATION FROM ADVERTISED SPECIFICATIONS RELATIVE TO MATERIAL REQUIREMENT GOES TO SUBSTANCE OF BID BY AFFECTING PRICE AND QUALITY OF ARTICLE REQUIRED AND MAY NOT BE WAIVED AS MERE INFORMALITY. TO BE RESPONSIVE BID MUST BE CONSIDERED ON BASIS SUBMITTED AND COMPLY WITH ALL MATERIAL TERMS AND CONDITIONS OF INVITATION AND NO BASIS EXISTS TO CHANGE CONCLUSION THAT BID WAS NOT RESPONSIVE REGARDLESS OF BIDDERS INTENTION, ALLEGATION OF ERROR NOT BEING PROPER FOR CONSIDERATION WHERE BID IS NONRESPONSIVE. SEE COMP. GEN. DECS. CITED.

TO M. STEINTHAL AND COMPANY, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 12, 1970, ADDRESSED TO THE CONTRACTING OFFICER, UNITED STATES ARMY AVIATION SYSTEMS COMMAND, ST. LOUIS, MISSOURI, AND LETTER OF MAY 28, 1970, REQUESTING RECONSIDERATION OF OUR DECISION DATED APRIL 29, 1970, B-167585.

THE CITED DECISION HELD THAT YOUR BID SUBMITTED UNDER INVITATION FOR BIDS (IFB) NO. DAAJ01-69-B-0352(1J) WAS NONRESPONSIVE AND, THEREFORE, INELIGIBLE FOR AN AWARD OF A CONTRACT. IN SAID DECISION IT WAS STATED, IN PART, AS FOLLOWS:

" *** THE CRUX OF THE MATTER IS THE INTENT OF THE OFFEROR AND ANYTHING SHORT OF A CLEAR INTENTION TO CONFORM ON THE FACE OF THE BID REQUIRES REJECTION. ANY CLARIFICATION OR EXPLANATION OF THE BIDDER'S INTENTION BY EXTRANEOUS INFORMATION AFTER BID OPENING WOULD VIOLATE THE RULE THAT RESPONSIVENESS MUST BE ASCERTAINED FROM THE BID ITSELF. SEE B-166284, APRIL 14, 1969, AND THE CASES CITED THEREIN. IN 47 COMP. GEN. 496, 499 (1968), WE STATED THE PRINCIPLE THAT, 'NO EXCEPTION DELIBERATELY TAKEN *** CAN BE CONSTRUED AS TRIVIAL OR MINIMAL.'

"IN ADDITION, OUR OFFICE HAS HELD THAT WHERE DEVIATIONS OR EXCEPTIONS FROM THE REQUIREMENTS OF THE INVITATION ARE MATERIAL, AS HERE, THE BID MUST BE CONSIDERED NONRESPONSIVE. WE ARE OF THE VIEW THAT STEINTHAL'S DELIBERATE LISTING OF 'NYLON WEBBING' ON PAGES 32 AND 38 OF ITS BID CONSTITUTED A MATERIAL DEVIATION FROM THE INVITATION TERMS IN THAT IT WENT TO THE SUBSTANCE OF ITS BID AFFECTING THE QUALITY AND THE COST OF THE ARTICLE TO BE FURNISHED, AND, THEREFORE, THE ACCEPTANCE OF ITS BID WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS NOT HAVING SUCH ADVANTAGE. SEE 30 COMP. GEN. 179 (1950).

"EVEN IF THE INSERTION OF THE PHRASE 'NYLON WEBBING' WAS THE RESULT OF AN INADVERTENT ERROR BY STEINTHAL, A NONRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A BIDDER TO MAKE ITS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PART OF THE BID ON THE BASIS OF ALLEGED ERROR AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. AN ALLEGATION OF ERROR IS PROPER FOR CONSIDERATION ONLY IN CASES WHERE A BID IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE PROPER FOR ACCEPTANCE. 38 COMP. GEN. 819 (1959); 45 ID. 800 (1966)."

YOUR REQUEST FOR RECONSIDERATION IS PREMISED PRIMARILY ON THE BASIS THAT THE CRUX OF THE DECISION WAS THE THOUGHT THAT YOU "DELIBERATELY" TOOK AN EXCEPTION TO THE TYPE OF WEBBING REQUIRED BY THE SPECIFICATIONS. IT IS STATED THAT THIS IS NOT CORRECT AND THAT IT WAS NOT YOUR INTENT TO USE OTHER THAN SPECIFICATION MATERIALS.

UNDER THE COMPETITIVE BID SYSTEM, BIDS MUST BE CONSIDERED ON THE BASIS SUBMITTED. A BID TO BE CONSIDERED RESPONSIVE MUST COMPLY WITH ALL MATERIAL TERMS AND CONDITIONS OF THE INVITATION. 10 U.S.C. 2305(C). WHILE THE DECISION OF APRIL 29, 1970, DID REFER TO THE INTENT OF YOUR OFFER AND STATE THAT YOUR LISTING OF "NYLON WEBBING" WAS DELIBERATE, WE BELIEVE A FAIR READING OF THAT ENTIRE PART OF THE DECISION QUOTED ABOVE SUPPORTS THE CONCLUSION THAT WHAT WAS MEANT WAS THAT THE INTENT OF AN OFFEROR MUST BE ESTABLISHED FROM WHAT WAS STATED IN HIS BID AT THE TIME OF THE BID OPENING, AND THAT THE QUESTION WHETHER THE BIDDER ACTUALLY INTENDED OR DELIBERATELY (MEANING, DETERMINED UPON AS A RESULT OF CAREFUL THOUGHT) TOOK AN EXCEPTION IS NOT FOR CONSIDERATION. IN THE DECISION REPORT AT 38 COMP. GEN. 819, CITED IN THE DECISION OF APRIL 29, 1970, IT WAS RECOGNIZED THAT 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.

WE HAVE CAREFULLY REVIEWED THE DECISION OF APRIL 29, 1970, AND FIND NO BASIS TO CHANGE THE CONCLUSION REACHED THEREIN THAT YOUR BID WAS NOT RESPONSIVE TO THE INVITATION, REGARDLESS OF YOUR INTENTION.

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