B-147877, FEB. 28, 1962

B-147877, FEB. 28, 1962

TO MR. WILLIAM J. MAYS, VICE PRESIDENT, CORDLEY AND HAYES:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF FEBRUARY 13, 1962, REQUESTING RECONSIDERATION OF DECISION B-147877 OF JANUARY 31, 1962, RENDERED TO THE SECRETARY OF THE NAVY.

IN OUR DECISION OF JANUARY 31, A COPY OF WHICH WAS FURNISHED AT A MEETING WITH REPRESENTATIVES OF THIS OFFICE ON FEBRUARY 16, 1962, IT WAS HELD THAT THE BID OF CORDLEY AND HAYES UNDER IFB-104-1110-62, COVERING THE PROCUREMENT OF 275 WATER COOLERS BY FORMAL ADVERTISING PROCEDURE AND OF AN ADDITIONAL 275 BY NEGOTIATION WITH CONCERNS IN LABOR SURPLUS AREAS, SHOULD BE REJECTED IN THAT THE LETTER THAT ACCOMPANIED THE BID CONTAINED PRINTED CONDITIONS PERTAINING TO PRICE AND LIABILITY THAT WERE MATERIALLY DIFFERENT FROM THE REQUIREMENTS OF THE INVITATION FOR BIDS.

IN THE REQUEST FOR RECONSIDERATION, FIRST IT IS CONTENDED THAT THE PRINTED CONDITIONS WERE NOT INTENDED TO BE A PART OF THE BID AND THAT THE SAME LETTERHEAD IN WHICH THE CONDITIONS WERE CONTAINED HAS BEEN USED FOR 10 YEARS WITHOUT QUESTION BY ANY OF THE NUMEROUS GOVERNMENT AGENCIES WITH WHICH CORDLEY AND HAYES HAS DEALT. IN 36 COMP. GEN. 535, A CASE ANALOGOUS TO THE IMMEDIATE ONE, SIMILAR CONTENTIONS WERE CONSIDERED. IN THAT CONNECTION, IT WAS STATED THAT "AN IMPROPER AWARD IN ONE OR MORE CASES WOULD NOT JUSTIFY A REPETITION OF THE SAME ERROR.'

THE NEXT CONTENTION IN THE REQUEST FOR RECONSIDERATION IS THAT WHEN THE CONDITIONS WERE OBSERVED YOUR FIRM SHOULD HAVE BEEN PERMITTED TO MAKE CLEAR THAT IT DID NOT INTEND TO QUALIFY ITS BID. AS WAS INDICATED IN THE DECISION OF JANUARY 31, 1962, THE QUALIFICATIONS THAT WERE STATED IN THE LETTER THAT ACCOMPANIED THE BID WERE MATERIAL DEVIATIONS. THEREFORE, REGARDLESS OF ANY EXPLANATION THAT POSSIBLY COULD HAVE BEEN OFFERED FOR THE INCLUSION OF THE CONDITIONS, SUCH EXPLANATIONS COULD NOT HAVE BEEN TAKEN INTO CONSIDERATION, SINCE THERE IS NO AUTHORITY FOR WAIVING AS AN INFORMALITY OR MINOR IRREGULARITY MATERIAL CONDITIONS IMPOSED BY A BIDDER.

FINALLY, IT IS CONTENDED THAT THE CORDLEY AND HAYES RECORD OF COOPERATION, QUALITY, RELIABILITY AND SERVICE OVER THE YEARS SHOULD BE TAKEN INTO CONSIDERATION IN PASSING UPON THE MATTER. HOWEVER, THESE ELEMENTS THAT YOU SUGGEST BE CONSIDERED ARE FACTORS THAT PERTAIN TO RESPONSIBILITY WHICH IS NOT IN ISSUE IN THIS CASE. THE PRINCIPAL QUESTION IS WHETHER THE BID THAT WAS SUBMITTED, AS ACCOMPANIED BY THE LETTER CONTAINING THE CONDITIONS, WAS A RESPONSIVE BID. FOR THE REASONS STATED HEREIN AND IN OUR DECISION OF JANUARY 31, 1962, THE BID THAT WAS SUBMITTED BY YOUR FIRM IS NOT CONSIDERED AS HAVING COMPLIED IN SUBSTANCE WITH THE INVITATION FOR BIDS. THEREFORE, IT MUST BE CONCLUDED THAT THE BID IS NOT RESPONSIVE TO THE INVITATION.

ACCORDINGLY, IN THE CIRCUMSTANCES, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DECISION OF JANUARY 31, 1962.