B-214920, JUL 11, 1984, 84-2 CPD 41
Highlights
THE DEVIATION CANNOT BE CORRECTED UNDER THE RULES GOVERNING MISTAKES IN BIDS SINCE ERRORS IN BIDS WHICH MAY BE CORRECTED AFTER BID OPENING ARE THOSE WHICH DO NOT AFFECT THE RESPONSIVENESS OF A BID. PROTEST ALLEGING THAT BEARING ASSEMBLIES WERE "TOO COMPLEX" TO BE PROCURED THROUGH AN INVITATION FOR BIDS CONCERNS AN ALLEGED IMPROPRIETY APPARENT ON THE FACE OF THE SOLICITATION AND THUS MUST BE FILED PRIOR TO BID OPENING TO BE TIMELY AND TO BE CONSIDERED ON THE MERITS. THAT: "BIDS OFFERING DELIVERY OF A QUANTITY UNDER SUCH TERMS OR CONDITIONS THAT DELIVERY WILL NOT CLEARLY FALL WITHIN THE APPLICABLE DELIVERY PERIOD SPECIFIED ABOVE WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.". KAYDON STATES THAT THE "INDUSTRY STANDARD" IS TO QUOTE IN WEEKS RATHER THAN IN DAYS.
B-214920, JUL 11, 1984, 84-2 CPD 41
BIDS - RESPONSIVENESS - EXCEPTIONS TAKEN TO INVITATION TERMS - DELIVERY PROVISIONS DIGEST: 1. A BID WHICH ON ITS FACE OFFERS A DELIVERY SCHEDULE WHICH EXCEEDS THE REQUIRED DELIVERY SCHEDULE MUST BE REJECTED AS NONRESPONSIVE EVEN THOUGH THE BIDDER MAY ACTUALLY INTEND TO MEET ALL OF THE REQUIREMENTS IN THE SOLICITATION. BIDS - MISTAKES - CORRECTION - NONRESPONSIVE BIDS 2. WHERE A BID OFFERS A DELIVERY SCHEDULE EXCEEDING THE REQUIRED DELIVERY SCHEDULE AND THEREFORE RENDERS THE BID NONRESPONSIVE, THE DEVIATION CANNOT BE CORRECTED UNDER THE RULES GOVERNING MISTAKES IN BIDS SINCE ERRORS IN BIDS WHICH MAY BE CORRECTED AFTER BID OPENING ARE THOSE WHICH DO NOT AFFECT THE RESPONSIVENESS OF A BID. BIDS - RESPONSIVENESS - LOW PRICE OF BID NOT A FACTOR 3. A NONRESPONSIVE BID MAY NOT BE ACCEPTED EVEN THOUGH IT WOULD RESULT IN MONETARY SAVINGS TO THE GOVERNMENT SINCE ACCEPTANCE WOULD BE CONTRARY TO THE MAINTENANCE OF THE COMPETITIVE BIDDING SYSTEM. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS 4. PROTEST ALLEGING THAT BEARING ASSEMBLIES WERE "TOO COMPLEX" TO BE PROCURED THROUGH AN INVITATION FOR BIDS CONCERNS AN ALLEGED IMPROPRIETY APPARENT ON THE FACE OF THE SOLICITATION AND THUS MUST BE FILED PRIOR TO BID OPENING TO BE TIMELY AND TO BE CONSIDERED ON THE MERITS.
KAYDON CORPORATION:
KAYDON CORPORATION PROTESTS THE REJECTION OF ITS LOW BID AS NONRESPONSIVE TO INVITATION FOR BIDS (IFB) NO. N00197-84-B-3323. ISSUED BY THE DEPARTMENT OF THE NAVY FOR THE PROCUREMENT OF ROLLER BEARING ASSEMBLIES. THE NAVY REJECTED THE BID BECAUSE IT FAILED TO COMPLY WITH THE REQUIRED DELIVERY SCHEDULE SET FORTH IN THE SOLICITATION. WE DENY THE PROTEST IN PART AND DISMISS IT IN PART.
THE SOLICITATION REQUIRED DELIVERY WITHIN 250 DAYS AFTER THE DATE OF CONTRACT. IT ALSO PERMITTED BIDDERS TO PROPOSE A DIFFERENT DELIVERY SCHEDULE. THE SOLICITATION SPECIFICALLY WARNED BIDDERS, HOWEVER, THAT:
"BIDS OFFERING DELIVERY OF A QUANTITY UNDER SUCH TERMS OR CONDITIONS THAT DELIVERY WILL NOT CLEARLY FALL WITHIN THE APPLICABLE DELIVERY PERIOD SPECIFIED ABOVE WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED."
ALTHOUGH KAYDON SUBMITTED THE LOW BID, IT PROPOSED TO DELIVER THE BEARING ASSEMBLIES WITHIN "252 DAYS" AFTER THE DATE OF CONTRACT. ACCORDINGLY, THE NAVY REJECTED KAYDON'S BID AS NONRESPONSIVE TO THE REQUIRED DELIVERY SCHEDULE. KAYDON THEREUPON FILED THIS PROTEST WITH OUR OFFICE.
KAYDON ADMITS ENTERING A DELIVERY SCHEDULE OF 252 DAYS IN ITS BID BUT DENIES THAT IT INTENDED TO TAKE EXCEPTION TO THE DELIVERY REQUIREMENT; IT MAINTAINS THAT IT FULLY INTENDS TO COMPLY WITH ALL THE REQUIREMENTS OF THE SOLICITATION. KAYDON STATES THAT THE "INDUSTRY STANDARD" IS TO QUOTE IN WEEKS RATHER THAN IN DAYS, AND THAT 250 DAYS EQUATES TO 36 WEEKS. KAYDON INDICATES THAT IT SIMPLY MISTAKENLY TRANSLATED THE 36 WEEKS BACK INTO 252 DAYS (36 X 7 252).
KAYDON PROTESTS THE NAVY'S FAILURE TO CORRECT ITS "OBVIOUS MISTAKE" AND NOTES THAT THIS WILL RESULT IN AWARD AT A HIGHER COST TO THE GOVERNMENT. IN ADDITION, KAYDON ARGUES THAT IT WAS "UNFORTUNATE THAT ITEMS OF THIS COMPLEXITY" WERE SOLICITED BY MEANS OF AN IFB.
WHERE AN IFB REQUIRES DELIVERY WITHIN A STATED PERIOD, TIME MUST BE REGARDED AS OF THE ESSENCE AND A BID WHICH FAILS TO OFFER DELIVERY WITHIN THE REQUIRED TIME SCHEDULE MUST BE REJECTED AS NONRESPONSIVE. INSTRUMENTATION MARKETING CORPORATION, B-211099, MARCH 29, 1983, 83-1 CPD PARA. 324. A BIDDER'S ACTUAL INTENTION OF MEETING AN INVITATION'S MATERIAL REQUIREMENTS, SUCH AS THE DELIVERY SCHEDULE, CANNOT RENDER ACCEPTABLE A BID WHICH ON ITS FACE MODIFIES THE BIDDER'S OBLIGATION THAT WOULD RESULT FROM CONTRACT AWARD. FERGUSON ELECTRIC & PLUMBING, INC. AND DELTA ELECTRIC CONSTRUCTION COMPANY, B-213001, NOV. 28, 1983, 83-2 CPD PARA. 620. SUCH A BID MAY NOT BE CORRECTED UNDER RULES GOVERNING MISTAKES IN BID SINCE ERRORS IN BIDS WHICH MAY BE CORRECTED ARE THOSE WHICH DO NOT AFFECT THE RESPONSIVENESS OF A BID. RAILWAY SPECIALTIES CORPORATION, B-212535, OCT. 31, 1983, 83-2 CPD PARA. 519. FURTHER, EVEN WHERE A NONRESPONSIVE BID REPRESENTS A MONETARY SAVINGS TO THE GOVERNMENT, IT MAY NOT BE ACCEPTED SINCE ACCEPTANCE WOULD BE CONTRARY TO THE MAINTENANCE OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. RAILWAY SPECIALTIES CORPORATION, B-212535, SUPRA, 83-2 CPD PARA. 519 AT 5. WE THEREFORE DENY KAYDON'S PROTEST OF THE REJECTION OF ITS BID.
AS FOR KAYDON'S ALLEGATION THAT THE BEARING ASSEMBLIES WERE "TOO COMPLEX" TO BE PROCURED THROUGH AN IFB, THE PROTEST IN THIS REGARD IS UNTIMELY AND WILL NOT BE CONSIDERED BECAUSE IT WAS NOT FILED UNTIL AFTER BID OPENING. OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.2(B)(1) (1984), REQUIRE PROTESTS BASED UPON ALLEGED IMPROPRIETIES APPARENT ON THE FACE OF THE SOLICITATION PRIOR TO BID OPENING, SUCH AS THAT ALLEGED HERE, TO BE FILED PRIOR TO BID OPENING. SPECTRA-PHYSICS, B-213364, JAN. 3, 1984, 84-1 CPD PARA. 49.
THE PROTEST IS DENIED IN PART AND DISMISSED IN PART.