B-178256, JUL 3, 1973

B-178256: Jul 3, 1973

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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF MARCH 19. ITEM NO. 0001AA WAS FOR FIRST ARTICLE SAMPLES CONSISTING OF 25 COMPLETE SETS OF INERT PARTS AND 50 LOADED ASSEMBLIES COMPLETELY PACKAGED AND SEALED. YOU HAVE SUBMITTED A "ROUGH DRAFT COPY" OF YOUR BID AND THE AFFIDAVITS OF TWO EMPLOYEES PURPORTING TO EXPLAIN THE OCCURRENCE OF THE MISTAKE. THE FAILURE TO BID ON THE FIRST ARTICLE SAMPLES AS REQUIRED BY THE IFB SCHEDULE WAS A MATERIAL DEVIATION SINCE IT DEPRIVED THE GOVERNMENT OF ITS RIGHTS TO RECEIVE FIRST ARTICLE SAMPLES. WHILE ASPR 2-406.2 AUTHORIZES THE CORRECTION OF A CLERICAL MISTAKE WHICH IS "APPARENT ON THE FACE OF THE BID. " NO SUCH CLERICAL MISTAKE IS APPARENT ON THE FACE OF YOUR BID.

B-178256, JUL 3, 1973

DENIAL OF PROTEST AGAINST AWARD OF A CONTRACT TO ANY OTHER FIRM PURSUANT TO INVITATION FOR BIDS NO. DAAA21-73-B-0100, ISSUED BY THE U.S. ARMY, PICATINNY ARSENAL.

TO DELA ENTERPRISES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 19, 1973, PROTESTING AGAINST AWARD OF A CONTRACT TO ANY OTHER FIRM PURSUANT TO INVITATION FOR BIDS (IFB) NO. DAAA21-73-B-0100, ISSUED BY THE UNITED STATES ARMY, PICATINNY ARSENAL, DOVER, NEW JERSEY.

THE IFB, FOR 313,750 WHISTLING BOOBY TRAP SIMULATORS, SPECIFIED FOUR ITEMS IN SECTION "E", HEADED "SUPPLIES/SERVICES & PRICES." ITEM NO. 0001AA WAS FOR FIRST ARTICLE SAMPLES CONSISTING OF 25 COMPLETE SETS OF INERT PARTS AND 50 LOADED ASSEMBLIES COMPLETELY PACKAGED AND SEALED.

YOU SUBMITTED A LOW BID PRICE OF $1.07 PER UNIT BUT DID NOT SUBMIT A BID PRICE FOR FIRST ARTICLE SAMPLES. THE CONTRACTING OFFICER HAS DETERMINED THAT YOUR FAILURE TO BID ON THE FIRST ARTICLE SAMPLES RENDERED YOUR BID NONRESPONSIVE AND HE PROPOSES TO MAKE AWARD TO THE NEXT LOW RESPONSIVE BIDDER AT A PRICE OF $1.087 PER UNIT.

YOU PROTEST THE REJECTION OF YOUR BID, CLAIMING THAT A CLERICAL MISTAKE HAD BEEN MADE IN THAT YOU INTENDED TO BID "NO CHARGE" FOR THE FIRST ARTICLE SAMPLES. TO SUPPORT THIS CLAIM, YOU HAVE SUBMITTED A "ROUGH DRAFT COPY" OF YOUR BID AND THE AFFIDAVITS OF TWO EMPLOYEES PURPORTING TO EXPLAIN THE OCCURRENCE OF THE MISTAKE.

IN ORDER TO BE CONSIDERED FOR AWARD A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE INVITATION AT THE TIME OF BID OPENING. 46 COMP. GEN. 434 (1966). THE FAILURE TO BID ON THE FIRST ARTICLE SAMPLES AS REQUIRED BY THE IFB SCHEDULE WAS A MATERIAL DEVIATION SINCE IT DEPRIVED THE GOVERNMENT OF ITS RIGHTS TO RECEIVE FIRST ARTICLE SAMPLES. SEE B-175110, APRIL 13, 1972, AND CASES CITED THEREIN. THEREFORE, WE BELIEVE THE CONTRACTING OFFICER ACTED PROPERLY IN REJECTING YOUR BID AS NONRESPONSIVE.

WHILE ASPR 2-406.2 AUTHORIZES THE CORRECTION OF A CLERICAL MISTAKE WHICH IS "APPARENT ON THE FACE OF THE BID," NO SUCH CLERICAL MISTAKE IS APPARENT ON THE FACE OF YOUR BID. FURTHERMORE, A BIDDER MAY NOT BE PERMITTED TO CORRECT A BID WHICH IS NONRESPONSIVE AS SUBMITTED REGARDLESS OF WHAT MAY HAVE BEEN INTENDED OR THE REASON FOR THE NONRESPONSIVENESS. 38 COMP. GEN. 819 (1959); B-174062, OCTOBER 22, 1971.

ACCORDINGLY, THE PROTEST IS DENIED.

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