B-158889, JUN. 13, 1966

B-158889, JUN. 13, 1966

TO INSTRUMENT SYSTEMS CORPORATION:

REFERENCE IS MADE TO YOUR PROTEST BY TELEGRAM AND LETTER OF APRIL 5, 1966, AGAINST AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. DSA-9-66-1854, ISSUED JANUARY 24, 1966, BY THE DEFENSE ELECTRONICS SUPPLY AGENCY (DSA), DAYTON, OHIO.

THE IFB SOLICITED BIDS TO FURNISH 6,079 HEADSETS TO BE MANUFACTURED IN ACCORDANCE WITH CERTAIN MILITARY SPECIFICATIONS AND DRAWINGS AND TO BE DELIVERED TO THE DESC AT DAYTON. BIDS WERE PERMITTED ON EITHER OF TWO BASES--- BID "A" FIRST ARTICLE APPROVAL REQUIRED OR BID "B" FIRST ARTICLE APPROVAL NOT REQUIRED, AND PROVISION WAS MADE FOR AWARD OF A LABOR SURPLUS AREA SET-ASIDE QUANTITY OF 6,080 UNITS.

ON PAGE 5 OF THE IFB, BIDDERS WERE CAUTIONED THAT ONLY THE CLAUSES CHECKED IN THE BID SCHEDULE WERE APPLICABLE; THAT CLAUSES A, M AND P MUST BE COMPLETED BY BIDDERS; AND THAT BIDS SUBMITTED OTHER THAN AS SPECIFIED IN THE SCHEDULE WOULD BE REJECTED. YOUR PROTEST CONCERNS ONLY CLAUSE A.

UNDER CLAUSE A, ENTITLED "F.O.B. POINT, INSPECTION AND ACCEPTANCE," WHICH INCLUDED INFORMATION BLANKS TO BE FILLED IN BY THE BIDDER AND PROVISIONS RELATING TO BOTH F.O.B. ORIGIN AND F.O.B. DESTINATION SHIPMENTS, SUBCLAUSE A (1) RELATING TO F.O.B. ORIGIN SHIPMENTS WAS LINED OUT, BUT SUBCLAUSE A (2) GOVERNING F.O.B. DESTINATION SHIPMENTS WAS LEFT INTACT AND CHECK MARKS INDICATED THAT THE CONTRACTOR WAS TO BEAR THE EXPENSE OF SHIPMENT OF THE PROCUREMENT ITEMS TO DESTINATION; THAT INSPECTION BY THE GOVERNMENT WAS TO BE AT THE CONTRACTOR'S PLANT, THE LOCATION TO BE STATED BY THE CONTRACTOR; AND THAT ACCEPTANCE WAS TO BE AT DESTINATION.

BIDS WERE OPENED ON FEBRUARY 18, AND YOUR BID, QUOTING A UNIT PRICE OF $27.92 UNDER BID "A," WAS LOW. EXAMINATION OF YOUR BID REVEALED THAT NONE OF THE REQUESTED INFORMATION RELATING TO F.O.B. DESTINATION SHIPMENTS HAD BEEN FURNISHED UNDER CLAUSE A (2), BUT NEXT TO THE CLAUSE A TITLE, I.E., "F.O.B. POINT, INSPECTION AND ACCEPTANCE," THERE HAD BEEN INSERTED "HUNTINGTON, NEW YORK.' IN A LETTER DATED MARCH 2, TO DESC, YOU MADE THE FOLLOWING STATEMENTS CONCERNING YOUR ID:

"ISC/TELEPHONICS HAS BECOME AWARE OF A MINOR INFORMALITY IN THE EXECUTION OF OUR RESPONSE TO SUBJECT IFB. IN INSERTING OUR PLANT ADDRESS AS THE PROPOSED POINT FOR INSPECTION AND ACCEPTANCE, IT WAS LOCATED INADVERTENTLY IN THE SPACES PROVIDED UNDER F.O.B. ORIGIN INSTEAD OF UNDER F.O.B. DESTINATION AS DICTATED BY THE FORMAT OF THE IFB. IT WAS THIS CONTRACTOR'S INTENTION TO COMPLY WITH ALL THE TERMS AND CONDITIONS OF THE IFB; INCLUDING SHIPMENT TO DESTINATIONS PRESCRIBED, AT OUR COST. REQUEST THAT THE INFORMALITY BE OVERLOOKED BY THE CONTRACTING OFFICER IN DETERMINING ELIGIBILITY FOR AWARD UNDER SUBJECT IFB.

"THE CONTRACTING OFFICER'S ATTENTION IS ALSO DIRECTED TO THE FACT THAT THE AVERAGE COST OF TRANSPORTATION FROM THE CONTRACTOR'S PLANT TO DESTINATIONS OUTLINED IN THE IFB IS .088 PER UNIT. YOUR ATTENTION IS ALSO DIRECTED TO THE FACT THAT THE LOWEST BID, OTHER THAN ISC/TELEPHONICS WAS .18 PER UNIT ABOVE OUR BID. ADDING TRANSPORTATION COST TO OUR BID WOULD RESULT IN A TOTAL UNIT PRICE LOWER THAN THAT OF THE NEXT LOW BIDDER.'

ON THE BASIS THAT YOUR BID AS SUBMITTED DESIGNATED HUNTINGTON AS THE F.O.B. POINT AND ALSO AS THE POINT FOR INSPECTION AND ACCEPTANCE, CONTRARY TO THE IFB TERMS PROVIDING THAT THE DESTINATION (DAYTON) WAS THE F.O.B. POINT AS WELL AS THE POINT AT WHICH ACCEPTANCE BY THE GOVERNMENT WAS TO BE EFFECTED, THE DESC DETERMINED THAT YOUR BID WAS NOT RESPONSIVE AND, THEREFORE, CORRECTION OF YOUR MISTAKE COULD NOT BE PERMITTED UNDER THE MISTAKE IN BID PROCEDURES BY ACCEPTANCE OF YOUR EXPLANATION AFTER BID OPENING. ACCORDINGLY, YOU WERE INFORMED BY LETTER OF MARCH 31 THAT YOUR BID WAS REJECTED AS NONRESPONSIVE. SUBSEQUENTLY, AWARD WAS MADE TO ASTROCOM ELECTRONICS, INC. (ASTROCOM), THE SECOND LOW BIDDER, WHO QUOTED A UNIT PRICE OF $28.10 UNDER BID "B," AND IT IS OUR UNDERSTANDING THAT SUCH ACTION HAD BEEN TAKEN PRIOR TO THE RECEIPT BY THE DESC OF NOTICE OF THE PROTEST FILED BY YOU WITH OUR OFFICE.

YOU STATE THAT YOU FIRST LEARNED OF THE PROCUREMENT ON FEBRUARY 17, AND THAT SINCE TIME DID NOT PERMIT MAILING OF A BID SET TO YOU AND ITS RETURN TO THE DESC FOR THE BID OPENING ON THE NEXT DAY, YOUR DAYTON REPRESENTATIVE EXECUTED YOUR BID. YOU ALLEGE THAT THE BID FORM SO EXECUTED WAS NOT PROPERLY MARKED TO DELETE THE NONAPPLICABLE F.O.B. PROVISIONS OR TO INDICATE THE INFORMATION TO BE FURNISHED UNDER CLAUSE A (2) ON F.O.B. DESTINATION SHIPMENTS, AND, THEREFORE, YOUR REPRESENTATIVE INSERTED YOUR ADDRESS IN THE F.O.B. ORIGIN AREA OF THE BID FORM. ON SUCH BASIS, AND ON THE BASIS THAT EVEN WITH ADDITION OF TRANSPORTATION COSTS FROM YOUR PLANT TO THE DESTINATION YOUR BID WOULD BE LOWER THAN ASTROCOM'S BID, YOU REQUEST THAT AWARD BE MADE TO YOU.

THE RECORD SHOWS THAT YOU WERE NOT SOLICITED FOR THE PROCUREMENT IN QUESTION FOR THE REASONS THAT YOU WERE NOT CITED AS A SOURCE ON THE PURCHASE REQUEST AND YOUR NAME DOES NOT APPEAR ON THE DESC MECHANIZED LIST FOR 5,965 ITEMS. THE RECORD FURTHER SHOWS THAT ON THE BID FORM WHICH YOUR REPRESENTATIVE EXECUTED, NOT ONLY WERE THE PROVISIONS AND INFORMATION BLANKS IN SUBCLAUSE A (1), RELATING TO F.O.B. ORIGIN SHIPMENTS, LINED OUT, THUS INDICATING THAT THEY WERE NOT APPLICABLE, BUT SUBCLAUSE A (2), RELATING TO F.O.B. DESTINATION SHIPMENTS, WAS MARKED AS FOLLOWS:

TABLE

"/2) X ITEM/S) 1 . F.O.B. DESTINATION. SUPPLIES SHALL BE

--- ----- SHIPPED DIRECT BY THE CONTRACTOR TO THE SPECIFIED DESTINATION ON COMMERCIAL BILL OF LADING OR THE EXPENSE OF THE CONTRACTOR.

(A)ITEM/S) . FINAL INSPECTION AND ACCEPTANCE

--- ----- SHALL BE AT DESTINATION.

X (B) (I) ITEM/S) 1 . INSPECTION AT CONTRACTOR'S

--- ----- PLANT LOCATED AT --------------------- ------------------------ ---- ACCEPTANCE SHALL BE AT DESTINATION.

(II) ITEM/S) 1 . INSPECTION AT CONTRACTOR'S

----- PLANT LOCATED AT ------------- ------------------------------------ AND/OR SUBCONTRACTOR'S PLANT LOCATED AT --------------------------- ACCEPTANCE SHALL BE AT DESTINATION.

NOTE: IF (B) ABOVE IS CHECKED, BIDDER MUST COMPLETE (B) (I) OR (B) (II).

F.O.B. DESTINATION (JULY 1962). SUPPLIES SHALL BE DELIVERED TO THE CONSIGNEE INSTALLATION AT THE EXPENSE OF CONTRACTOR. THE GOVERNMENT WILL NOT BE LIABLE FOR ANY TRANSPORTATION, DELIVERY, STORAGE, DEMURRAGE, ACCESSORIAL, OR OTHER CHARGES INVOLVED PRIOR TO ACTUAL DELIVERY OF THE SUPPLIES TO THE DESTINATION.'

UNDER THE APPLICABLE PROCUREMENT STATUTE, 10 U.S.C. 2305, AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.2 (A), BIDS ARE REQUIRED TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE ADVERTISED INVITATION. PARAGRAPH 8 (A), BIDDING INSTRUCTIONS TERMS AND CONDITIONS (SUPPLY CONTRACT), STANDARD FORM 33-A, INCORPORATED IN THE IFB, WHICH PROVIDES THAT THE CONTRACT WILL BE AWARDED TO THE RESPONSIBLE BIDDER, WHOSE BID CONFORMING TO THE INVITATION, WILL BE MUST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, IS CONSISTENT WITH THE STATUTE AND THE REGULATION. FURTHER, WHILE ASPR 2-405 PERMITS WAIVER OF MINOR INFORMALITIES OR IRREGULARITIES IN BID, SUCH DEVIATIONS ARE LIMITED TO THOSE OF FORM OR SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION, HAVING NO EFFECT ON QUALITY, QUANTITY OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO, BIDDERS. MOREOVER, THE FACT THAT A DEVIATION IN A BID WAS OCCASIONED BY A MISTAKE ON THE PART OF THE BIDDER DOES NOT AFFORD A BASIS TO PERMIT CORRECTION OF THE MISTAKE AFTER BID OPENING, CORRECTION OF A MISTAKE UNDER THE RULES RELATING TO MISTAKES IN BID BEING AUTHORIZED ONLY WHEN THE BID IS RESPONSIVE IN THE FORM IN WHICH IT IS SUBMITTED. 38 COMP. GEN. 819; 40 ID. 132, 134.

WITH RESPECT TO THE FACT THAT THE GOVERNMENT, BY ACCEPTANCE OF A NONRESPONSIVE BID IN A SPECIFIC CASE, COULD REALIZE A SUBSTANTIAL SAVING, WE HAVE HELD THAT IT IS INFINITELY MORE IN THE PUBLIC INTEREST TO ABIDE BY THE RULES OF COMPETITIVE BIDDING THAN TO GAIN A PECUNIARY ADVANTAGE BY VIOLATION THEREOF. 17 COMP. GEN. 554, 558.

THE IFB REQUIREMENT THAT THE CONTRACTOR BEAR THE COST OF TRANSPORTATION OF THE PROCUREMENT ITEMS FROM HIS PLANT TO THE DESTINATION DESIGNATED IN THE IFB AFFECTED THE BID PRICES; THEREFORE, FAILURE OF A BID TO AGREE TO SUCH REQUIREMENT MUST BE REGARDED AS A MAJOR DEVIATION. ACCORDINGLY, SINCE YOUR BID AS ORIGINALLY SUBMITTED DID NOT OBLIGATE YOU TO PAY ANY TRANSPORTATION COSTS BEYOND YOUR PLANT AT HUNTINGTON, NEW YORK, IT WAS NONRESPONSIVE ON ITS FACE. THEREFORE, NOTWITHSTANDING THAT THE NONRESPONSIVENESS WAS DUE TO A MISTAKE ON YOUR PART, OR THAT YOUR BID AS CORRECTED WOULD BE LOWER THAN ANY OTHER BID, THE MISTAKE MAY NOT NOW BE CORRECTED TO RENDER YOUR BID RESPONSIVE SINCE SUCH ACTION WOULD BE IN VIOLATION OF THE RULES OF COMPETITIVE BIDDING AS WELL AS THE TERMS OF THE IFB, THE PROCUREMENT STATUTE AND THE REGULATIONS. SEE B-146170, SEPTEMBER 15, 1961.

IN THE CIRCUMSTANCES, WE CONCUR WITH THE REJECTION OF YOUR BID BY THE DESC. ACCORDINGLY, YOUR PROTEST IS DENIED.