B-167585, APRIL 29, 1970, 49 COMP. GEN. 749

B-167585, APRIL 29, 1970, 49 COMP. GEN. 749

CONTRACTS -- SPECIFICATIONS -- DEVIATIONS -- PRIORITY STATUS FOR NEGOTIATING SET-ASIDES THE INFORMATION REQUIRED BY PARAGRAPHS 1-706 AND 1-804 OF THE ARMED SERVICES PROCUREMENT REGULATION TO ESTABLISH BIDDER PRIORITY FOR NEGOTIATION OF THE SMALL BUSINESS SET-ASIDE PORTIONS OF AN INVITATION SERVES NOT ONLY TO ESTABLISH BIDDER RESPONSIBILITY TO PERFORM AS A CERTIFIED ELIGIBLE CONCERN, BUT ALSO IS INVOLVED IN BID RESPONSIVENESS. THEREFORE, A BIDDER WHO MISTAKENLY FURNISHED THE NAME OF A NONCERTIFIED ELIGIBLE SUPPLIER, WHICH HE WAS NOT PERMITTED TO CORRECT AFTER BID OPENING, AND WAS DECLARED DISQUALIFIED FROM GROUP 1 PRIORITY FOR SET-ASIDE PURPOSES, PROPERLY ALLEGED THE BIDDER WHO DELIBERATELY LISTED ITS CERTIFIED ELIGIBLE SUPPLIER AS FURNISHING "NYLON WEBBING" IN LIEU OF THE "POLYESTER WEBBING" SOLICITED WAS NONRESPONSIVE, EVEN THOUGH THE MATERIAL DEVIATION DOES NOT APPEAR AS A SUBSTITUTE ELSEWHERE IN THE BID AND, THEREFORE, INELIGIBLE TO NEGOTIATE FOR THE SET-ASIDES.

TO THE SECRETARY OF THE ARMY, APRIL 29, 1970:

WE REFER TO A LETTER DATED FEBRUARY 18, 1970, FROM THE ASSISTANT GENERAL COUNSEL, HEADQUARTERS, UNITED STATES ARMY MATERIEL COMMAND, AND PRIOR CORRESPONDENCE, REPORTING ON THE PROTEST OF LITE INDUSTRIES, INC., AGAINST THE AWARD TO ANY OTHER BIDDER OF THE SET-ASIDE PORTIONS OF INVITATION FOR BIDS (IFB) NO. DAAJ01-69-B-0352(1J), ISSUED BY THE UNITED STATES ARMY AVIATION SYSTEMS COMMAND, ST. LOUIS, MISSOURI.

THE INVITATION, ISSUED ON JUNE 2, 1969, SOLICITED BIDS FOR 75,828 EACH FSN 1670-937-0271 CARGO, TIEDOWN ASSEMBLY. BECAUSE OF THE LARGE QUANTITY REQUIRED, THE INVITATION WAS ISSUED ON THE FOLLOWING BASIS:

25,275 EACH--NON-SET-ASIDE

25,278 EACH--PARTIAL SMALL BUSINESS SET-ASIDE

25,275 EACH--LABOR SURPLUS AREA SET-ASIDE

BIDS WERE OPENED ON JUNE 17, 1969, AND OF THE EIGHTY-NINE SOURCES SOLICITED, 17 SUBMITTED RESPONSES. AWARD OF CONTRACT NO. DAAJ01-70-C 0022(1J) FOR THE NON-SET-ASIDE PORTION OF THE INVITATION WAS MADE ON JULY 16, 1969, TO LITE INDUSTRIES, INC., WHO WAS DETERMINED TO BE THE LOW RESPONSIVE, RESPONSIBLE BIDDER.

WE ARE ADVISED THAT EVALUATION OF THE PARTIAL SMALL BUSINESS SET ASIDE AND THE LABOR SURPLUS AREA SET-ASIDE WAS MADE IN ACCORDANCE WITH INFORMATION REQUIRED TO BE SUBMITTED WITH BIDS PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-706 AND 1-804. BIDDERS WITHIN THE 120- PERCENT BID PRICE RANGE WERE DETERMINED TO BE IN THE FOLLOWING PRIORITY GROUPS:

PARTIAL SMALL LABOR SURPLUS

BUSINESS SET AREA SET

ASIDE GROUP ASIDE GROUP 1. LITE INDUSTRIES, INC.

4 7 2. JAMCO MANUFACTURING CO. 4

7 3. M. STEINTHAL & CO., INC. 1 1 4. AERIAL MACHINE & TOOL CORP. 4 7 5. IRVIN INDUSTRIES, INC. (LARGE)

NONE NONE 6. A & Z ENGINEERING CO. 4 7. KENTUCKY APPALACHIAN IND. 4 7

LITE INDUSTRIES RELIES ON TWO BASES IN SUPPORT OF ITS PROTEST. THE FIRST BASIS FOR ITS PROTEST IS THE CONTENTION THAT IT MADE AN ERROR INVOLVING THE PRESENTATION IN ITS BID OF INFORMATION NECESSARY TO SUPPORT ITS ENTITLEMENT TO FIRST PRIORITY AS A CERTIFIED ELIGIBLE SMALL BUSINESS CONCERN. LITE CONTENDS THAT THE MISTAKE IN QUESTION CONSISTED OF INCLUDING IN ITS BID THE NAME OF A SUPPLIER OF DACRON WEBBING, THE SOUTHERN WEAVING COMPANY, GREENVILLE, SOUTH CAROLINA, RATHER THAN THE MURDOCK WEBBING CO., CENTRAL FALLS, RHODE ISLAND, WHICH IS A CERTIFIED ELIGIBLE CONCERN. THE INFORMATION FURNISHED BY LITE WITH ITS BID, ALLEGEDLY BY MISTAKE, DISQUALIFIED THE COMPANY FROM GROUP 1 PRIORITY FOR SET-ASIDE PURPOSES. IT IS THE POSITION OF THE PROCUREMENT ACTIVITY THAT LITE'S FAILURE TO LIST A GROUP 1 SUBCONTRACTOR IN ITS BID AS WELL AS ITS FAILURE TO TIMELY FURNISH CERTIFICATES OF ITS ELIGIBILITY AND OF ITS SUBCONTRACTOR AS CERTIFIED ELIGIBLE CONCERNS MADE IT INELIGIBLE FOR FIRST PRIORITY CONSIDERATION AS A CERTIFIED-ELIGIBLE CONCERN. LITE CONTENDS THAT IT SHOULD BE PERMITTED TO CORRECT ITS BID IN ORDER TO QUALIFY ITSELF AND ITS SUBCONTRACTOR AS CERTIFIED-ELIGIBLE FIRMS ENTITLED TO FIRST PRIORITY ON THE SET-ASIDE PORTIONS OF THE INVITATION.

THE INVITATION SETS FORTH THE INFORMATION TO BE FURNISHED WITH THE BID TO DETERMINE THE ORDER OF PRIORITY FOR FIRST NEGOTIATION OF THE SET ASIDE PORTIONS. THE CONTRACTING OFFICER CONTENDS THAT, AFTER BID OPENING, LITE MAY NOT SUBMIT EVIDENCE OF ITS ELIGIBILITY AND THAT OF ITS SUBCONTRACTOR TO ESTABLISH ITS PRIORITY TO FIRST NEGOTIATION OPPORTUNITY FOR AWARD OF THE SET-ASIDE PORTIONS.

THE SECOND BASIS OF LITE'S PROTEST IS ITS CONTENTION THAT THE STEINTHAL BID SHOULD BE CONSIDERED NONRESPONSIVE FOR PURPOSES OF AWARD OF THE SET- ASIDE PORTIONS OF THE INVITATION BECAUSE IT TOOK EXCEPTION TO THE SPECIFICATION REQUIREMENT FOR POLYESTER WEBBING MATERIAL TO BE USED IN THE MANUFACTURE OF THE END-ITEMS. LITE STATES THAT IF ITS POSITION CONCERNING THE STEINTHAL BID IS SUSTAINED, THE EFFECT WOULD BE TO RENDER ACADEMIC ITS PROTEST REGARDING THE MISTAKE IN BID SINCE LITE WOULD BE ENTITLED TO PRIORITY FOR NEGOTIATION OF THE SET-ASIDE PORTION OF THE INVITATION. THEREFORE, LITE REQUESTS THAT A DETERMINATION BE MADE WITH RESPECT TO THE VALIDITY OF THE STEINTHAL BID CONCERNING THE SET-ASIDE PORTIONS PRIOR TO CONSIDERING LITE'S MISTAKE IN BID.

PAGES 32 AND 38 OF THE INVITATION REQUIRED BIDDERS TO FURNISH CERTAIN INFORMATION WITH THEIR BID TO DETERMINE WHETHER THE BIDDER IS ENTITLED TO PRIORITY FOR NEGOTIATION OF THE SET-ASIDES. THIS INFORMATION IS RELATED TO THE QUANTITY, MATERIAL, SOURCE AND LOCATION, MANUFACTURER OR DISTRIBUTOR AND COST. ALTHOUGH STEINTHAL IS A SMALL BUSINESS CONCERN, IT IS NOT A CERTIFIED ELIGIBLE CONCERN. HOWEVER, UNDER THE SET-ASIDE PROVISIONS OF THE INVITATION IT WOULD BE ENTITLED TO PREFERENCE FOR AWARD OF THE SET-ASIDE PORTIONS IF IT DEMONSTRATED IN ITS BID THAT A SUBSTANTIAL PART OF THE CONTRACT WOULD BE PERFORMED BY CERTIFIED ELIGIBLE CONCERNS. STEINTHAL SHOWED IN ITS BID THAT NARRICOT INDUSTRIES, INC., A CERTIFIED ELIGIBLE CONCERN, WOULD FURNISH "NYLON WEB" AND THAT AAI MANUFACTURING COMPANY, A CERTIFIED ELIGIBLE CONCERN, WOULD FURNISH "HARDWARE." UNDERSTAND THAT THESE TWO ITEMS REPRESENT A SUBSTANTIAL PART OF THE COST OF THE CONTRACT IF AWARDED TO STEINTHAL.

LITE, IN A LETTER DATED OCTOBER 31, 1969, TO THE CONTRACTING OFFICER, CONTENDS THAT STEINTHAL HAS, IN EFFECT, TAKEN AN EXCEPTION TO THE SPECIFICATION REQUIREMENT OF THE BID BY SETTING FORTH ON PAGES 32 AND 38 ITS INTENT TO USE NYLON WEBBING IN LIEU OF THE SPECIFIED POLYESTER WEBBING. LITE STATES THAT IF EITHER SET-ASIDE AWARD IS MADE TO STEINTHAL, IT COULD CLAIM THE PRIVILEGE OF USING NONSPECIFICATION NYLON WEBBING AS SPECIFIED IN ITS BID.

STEINTHAL, IN A LETTER DATED DECEMBER 2, 1969, TO THE CONTRACTING OFFICER, SETS FORTH ITS POSITION IN RESPONSE TO THE LITE LETTER OF OCTOBER 31, 1969. STEINTHAL CONTENDS THAT IT DID NOT TAKE AN EXCEPTION TO THE SPECIFICATIONS AND THAT NO OPTION IS AVAILABLE TO IT TO FURNISH ANYTHING OTHER THAN POLYESTER WEBBING CALLED FOR BY THE SPECIFICATIONS. THE CONTRACTING OFFICER'S POSITION IS THAT INFORMATION FURNISHED BY A BIDDER TO ESTABLISH ITS FIRST PRIORITY ELIGIBILITY UNDER GROUP I OF THE SET-ASIDE PORTIONS SERVES ONLY TO ESTABLISH ITS RESPONSIBILITY TO PERFORM AS A CERTIFIED-ELIGIBLE CONCERN, AND DOES NOT INVOLVE RESPONSIVENESS. THE CONTRACTING OFFICER DOES NOT CONSIDER THAT STEINTHAL QUALIFIED ITS BID SO AS TO RENDER IT NONRESPONSIVE BY REASON OF HAVING LISTED NYLON MATERIAL UNDER THE INFORMATION REQUIRED TO ESTABLISH ITS ELIGIBILITY UNDER THE SET- ASIDES, SINCE STEINTHAL DID NOT OFFER ELSEWHERE IN ITS BID TO SUBSTITUTE MATERIAL FOR THAT CALLED FOR BY THE SPECIFICATIONS. THE CONTRACTING OFFICER FURTHER STATES THAT EVEN IF THAT PORTION OF THE QUALIFYING INFORMATION WERE ELIMINATED, THE HARDWARE STEINTHAL PROPOSES TO OBTAIN FROM THE OTHER CERTIFIED ELIGIBLE CONCERN WOULD MEET THE 25-PERCENT REQUIREMENT PRESCRIBED BY THE SET ASIDE CLAUSES OF THE INVITATION.

A REVIEW OF THE ENTIRE RECORD LEADS US TO THE CONCLUSION THAT STEINTHAL SUBMITTED A NONRESPONSIVE BID. PAGES 32 AND 38 OF STEINTHAL'S BID CLEARLY SHOW THAT IT INTENDED TO PURCHASE NONSPECIFICATION NYLON WEBBING FROM NARRICOTT INDUSTRIES. WE DO NOT AGREE WITH THE CONTRACTING OFFICER'S POSITION THAT INFORMATION FURNISHED BY A BIDDER TO ESTABLISH ELIGIBILITY UNDER THE SET-ASIDE PORTION SERVES ONLY TO ESTABLISH THE BIDDER'S RESPONSIBILITY TO PERFORM AS A CERTIFIED ELIGIBLE CONCERN AND DOES NOT INVOLVE RESPONSIVENESS. SINCE THE INFORMATION IN QUESTION WAS SUBMITTED WITH STEINTHAL'S BID, IT MUST BE CONSIDERED AS A PART OF ITS OFFER UNDER THE INVITATION AS ISSUED. THE LISTING OF "NYLON WEBBING" WAS A SPECIFIC DEVIATION FROM THE SPECIFICATIONS WHICH CALLED FOR POLYESTER WEBBING. THE FACT THAT STEINTHAL DID NOT ELSEWHERE IN ITS BID OFFER TO SUBSTITUTE NYLON WEBBING FOR THAT CALLED FOR IN THE SPECIFICATION DOES NOT CURE THE SPECIFIC DEVIATION. 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).

THEREFORE, WE CONCLUDE THAT STEINTHAL SUBMITTED A NONRESPONSIVE BID AND, HENCE, IS INELIGIBLE TO ..END :