B-143434, SEP. 19, 1960

B-143434, SEP. 19, 1960

TO PEK LABS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 5, 1960, PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. DA-ENG 11- 184-60-AF-614 ISSUED BY THE U.S. ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO.

THE INVITATION WAS ISSUED MAY 2, 1960, REQUESTING BIDS--- TO BE OPENED MAY 27, 1960--- FOR FURNISHING 135 REPRODUCING MACHINE LAMPS, PARAGRAPH 11 OF SPECIAL TERMS AND CONDITIONS PROVIDED:

"GUARANTY: THE CONTRACTOR GUARANTEES THAT AT THE TIME OF DELIVERY THEREOF THE ARTICLES PROVIDED FOR UNDER THIS CONTRACT WILL BE FREE FROM ANY DEFECTS IN MATERIAL, DESIGN OR WORKMANSHIP AND WILL CONFORM TO THE REQUIREMENTS OF THIS CONTRACT. NOTICE OF ANY SUCH DEFECT OR NONCONFORMANCE SHALL BE GIVEN BY THE GOVERNMENT TO THE CONTRACTOR WITHIN ONE YEAR OF THE DELIVERY OF THE DEFECTIVE OR NONCONFORMING ARTICLE. REQUIRED BY THE GOVERNMENT WITHIN A REASONABLE TIME AFTER SUCH NOTICE, THE CONTRACTOR SHALL WITH ALL POSSIBLE SPEED CORRECT OR REPLACE THE DEFECTIVE OR NONCONFORMING ARTICLE, PART OR PARTS THEREOF. WHEN SUCH CORRECTION OR REPLACEMENT REQUIRES TRANSPORTATION OF THE ARTICLE, PART OR PARTS THEREOF, SHIPPING COSTS NOT EXCEEDING USUAL CHARGES, FROM THE DELIVERY POINT TO THE CONTRACTOR'S PLANT AND RETURN, SHALL BE BORNE BY THE CONTRACTOR; THE GOVERNMENT SHALL BEAR ALL OTHER SHIPPING COSTS. THIS GUARANTY SHALL THEN CONTINUE AS TO CORRECTED OR REPLACING ARTICLES OR, IF ONLY PARTS OF SUCH ARTICLES ARE CORRECTED OR REPLACED, TO SUCH CORRECTED OR REPLACING PARTS, UNTIL ONE YEAR AFTER DATE OF REDELIVERY. IF THE GOVERNMENT DOES NOT REQUIRE CORRECTION OR REPLACEMENT OF A DEFECTIVE OR NONCONFORMING ARTICLE, THE CONTRACTOR, IF REQUIRED BY THE CONTRACTING OFFICER WITHIN A REASONABLE TIME AFTER THE NOTICE OF DEFECT OR NONCONFORMANCE, SHALL REPAY SUCH PORTION OF THE CONTRACT PRICE OF THE ARTICLE AS IS EQUITABLE IN THE CIRCUMSTANCES. THE CONTRACTOR SHALL REMEDY SUCH DEFECTS WITHIN 30 DAYS OF NOTIFICATION THEREOF, OR SHALL PROVIDE FUNDS TO THE CONSIGNEE IN AN AMOUNT SUFFICIENT TO DEFRAY COST OF MATERIALS AND REPAIR. THIS WARRANTY IS IN ADDITION TO AND IN NO WAY LIMITS OR SUPERSEDES THE RIGHTS OF THE GOVERNMENT AND OBLIGATIONS OF THE CONTRACTOR UNDER GENERAL PROVISION 5 OF THIS CONTRACT ENTITLED "INSPECTION.'"

IN RESPONSE TO THE INVITATION, YOU SUBMITTED ALTERNATE BIDS AT UNIT PRICES OF $47.95 AND $64.50 FOR PEK MODEL 2,000 (ITEM 1) AND PEK MODEL 2,000 "VYCOR" BRAND GLASS (ITEM 2), RESPECTIVELY. WITH YOUR BID YOU ATTACHED A STATEMENT IN PERTINENT PART AS FOLLOWS:

"ITEM 1. IS GUARANTEED FOR THIRTY (30) CALENDAR DAYS FROM THE DATE IT IS INSTALLED IN THE MACHINE, PROVIDED IT IS INSTALLED WITHIN THE YEAR CALLED OUT IN THE CONTRACT. ITEM 1A (IF ACCEPTED IN LIEU OF ITEM 1.) GUARANTEED ONE HUNDRED TWENTY (120) DAYS FROM DATE OF TALLATION.'

THE ONLY OTHER BID RECEIVED WAS THAT OF OZALID, QUOTING A UNIT PRICE OF $65.

THE CONTRACTING OFFICER DETERMINED THAT BOTH OF THE PRODUCTS OFFERED BY YOU MET THE REQUIREMENTS OF THE INVITATION BUT THAT THE WARRANTY PROVISIONS INCLUDED IN YOUR BID WERE INCONSISTENT WITH THE ABOVE-QUOTED WARRANTY PROVISIONS OF THE INVITATION AND THAT, THEREFORE, YOUR BID WAS NONRESPONSIVE. ACCORDINGLY, YOUR BID WAS REJECTED AND AWARD MADE TO OZALID, WHICH HAD NOT INSERTED ANY WARRANTY PROVISIONS IN ITS BID AND HAD STATED THAT IT WOULD ACCEPT AN AWARD ON THE BASIS OF THE WARRANTY PROVISIONS INCLUDED IN THE INVITATION. HOWEVER, AFTER RECEIVING A PROTEST FROM YOU AND IN VIEW OF AN APPARENT DISAGREEMENT BETWEEN YOU AND THE ADMINISTRATIVE OFFICE AS TO WHETHER THE WARRANTY PROVISIONS WERE APPLICABLE TO THE LIFE EXPECTANCY OF THE LAMPS OR TO THEIR FREEDOM FROM DEFECTS, OZALID, ON REQUEST, RETURNED THE AWARD. IT IS REPORTED THAT ALL BIDS HAVE BEEN REJECTED AND THAT THE ISSUANCE OF A NEW INVITATION IS CONTEMPLATED.

IN 37 COMP. GEN. 110 IT WAS HELD (QUOTING SYLLABUS):

"A LOW BID ACCOMPANIED BY THE BIDDER'S "STANDARD CONDITIONS OF SALES" PROVISIONS, WHICH ARE CONTRARY TO THE STANDARD GOVERNMENT CONTRACT FORM, AND QUALIFIED BY A WRITTEN STATEMENT THAT THE BIDDER ESTIMATES SHIPMENT OF THE MATERIAL CAN BE MADE IN ACCORDANCE WITH THE DESIRED TIME OF DELIVERY SHOULD BE REJECTED AS NONRESPONSIVE REGARDLESS OF THE BIDDER'S INTENT TO COMPLY WITH THE ADVERTISED SPECIFICATIONS AND CONDITIONS.'

IN THAT DECISION IT WAS STATED:

"AS SET OUT IN THE DECISION, 36 COMP. GEN. 535, COPY ATTACHED, IT IS A CARDINAL RULE THAT A CONTRACT AWARDED TO A SUCCESSFUL BIDDER MUST BE THE CONTRACT OFFERED TO ALL BIDDERS. WHERE ONE BIDDER RESERVES RIGHTS AND IMMUNITIES FROM RESPONSIBILITY NOT EXTENDED TO ALL BIDDERS BY THE ADVERTISED CONDITIONS AND SPECIFICATIONS, IT SEEMS MANIFEST THAT A CONTRACT AWARDED UPON THE BASIS OF THE CONDITIONAL BID WOULD NOT BE THE CONTRACT OFFERED TO ALL PROSPECTIVE BIDDERS. INFORMALITIES WHICH PROPERLY MAY BE WAIVED ARE THOSE THAT DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, BUT MATERIAL CONDITIONS IMPOSED BY A BIDDER MAY NOT BE WAIVED AS AN INFORMALITY OR MINOR IRREGULARITY. SEE 20 COMP. GEN. 4. 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 A VIOLATION OF THE RULES. CF. UNITED STATES V. BROOKRIDGE, 111 F.2D 461, 464, AND THE OPINION OF THE SUPREME COURT OF ILLINOIS IN CITY OF CHICAGO V. MOHR, 74 N.E. 1056.'

SEE, ALSO, 34 COMP. GEN. 82 AND 39 ID. 259.

IT SEEMS CLEAR THAT THE QUOTED LANGUAGE AND DECISIONS ABOVE REFERRED TO ARE APPLICABLE TO THE INSTANT MATTER AND THAT YOUR BID WAS PROPERLY REGARDED AS NONRESPONSIVE. HAVING REGARD FOR THE ABOVE-QUOTED STATEMENT ATTACHED TO AND MADE A PART OF YOUR BID, AWARD TO YOU WOULD NOT HAVE RESULTED IN A CONTRACT INCLUDING THE WARRANTY PROVISIONS SPECIFIED IN THE INVITATION. SUCH RESTRICTIONS AS THOSE ADDED TO YOUR BID MATERIALLY AFFECT THE SUBSTANCE OF A BID AND, UNDER THE DECISIONS ABOVE REFERRED TO, CANNOT BE WAIVED AS INFORMALITIES OR WITHDRAWN AFTER THE BIDS ARE OPENED.

IN VIEW OF THE FOREGOING, THERE IS FOUND NO PROPER BASIS FOR OBJECTION BY OUR OFFICE TO THE ACTION OF THE ADMINISTRATIVE OFFICE IN REJECTING YOUR BID.