B-163181, MAR. 21, 1968

B-163181, MAR. 21, 1968

TO U.S. FLUORESCENT MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16, 1968, EXPRESSING YOUR INTENTION TO BE IN WASHINGTON ON FEBRUARY 21, AND INDICATING YOU WOULD CONTACT OUR OFFICE AT THAT TIME TO DISCUSS OUR DECISION OF FEBRUARY 7, 1968, IN WHICH WE DENIED YOUR PROTEST AGAINST THE REJECTION OF YOUR BID FOR ITEMS 2 AND 3 UNDER INVITATION FOR BIDS NO. DSA 400 68-B-1420. SINCE YOU DID NOT CONTACT OUR OFFICE AS YOU HAD INDICATED, WE HAVE CONSIDERED YOUR LETTER A REQUEST FOR RECONSIDERATION OF OUR DECISION.

IN OUR DECISION OF FEBRUARY 7, WE CONCLUDED THAT YOUR BID WAS PROPERLY REJECTED AS NONRESPONSIVE SINCE THE MAXIMUM LENGTH OF YOUR DOMESTIC CONTAINER, AS SPECIFIED IN THE GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS CLAUSE, WAS LESS THAN THE MINIMUM ACCEPTABLE LENGTH OF THE LIGHT FIXTURES BEING PROCURED AND, THEREFORE, INDICATED AN EXCEPTION TO THE SPECIFICATIONS. WE THEREIN CONSIDERED AND ANSWERED THE CONTENTIONS YOU MADE AND IT WILL SERVE NO USEFUL PURPOSE TO REPEAT THEM HERE.

YOU NOW ARGUE THAT THE GMSWD CLAUSE DOES NOT PROVIDE FOR REJECTION OF A BID AS NONRESPONSIVE WHERE THERE IS AN ERROR IN THE WEIGHT OR SIZE OF THE CONTAINERS AND, THEREFORE, SINCE THE DIMENSION IN QUESTION RESULTED FROM A TYPOGRAPHICAL ERROR, TO REJECT YOUR BID IS ARBITRARY. FURTHERMORE, YOU STATE THAT YOU ARE "WILLING TO ABIDE BY PAGE 23, AND ALL OF THE FACTORS CONTAINED THEREIN.' MUCH THE SAME ARGUMENT WAS MADE IN YOUR LETTER OF NOVEMBER 16, 1967, TO THE PROCURING ACTIVITY. YOU ALSO CONTEND THAT THE INVITATION IS "ILLEGAL" BECAUSE THE STATEMENT IN THE SMALL BUSINESS SET- ASIDE CLAUSE ON PAGE 19 IS IN ERROR IN STATING THAT THE CLASSIFICATION CODE IS 3642 AND THE SMALL BUSINESS EMPLOYMENT SIZE STANDARD IS 500 EMPLOYEES.

ALTHOUGH THE GMSWD CLAUSE DOES NOT PROVIDE THAT AN ERROR IN SHIPPING DATA WILL REQUIRE REJECTION OF A BID, THE CLAUSE IS A MATERIAL PART OF THE BID AND CANNOT BE DISREGARDED WHEN INCONSISTENT OR IN CONFLICT WITH ANOTHER MATERIAL PROVISION OF THE BID, SUCH AS THE SPECIFICATIONS FOR THE LIGHTING FIXTURES. WHERE A BIDDER HAS EXECUTED THE GMSWD PROVISIONS OF A BID FORM, SUCH EXECUTION MUST BE CONSTRUED AS AN EXPRESS STATEMENT OF THE BIDDER AND CONDITION OF HIS BID. EVEN THOUGH THERE MAY BE AN ERROR IN THE STATEMENT, A BIDDER MAY NOT BE PERMITTED AN OPPORTUNITY AFTER BIDS ARE OPENED TO CLARIFY OR EXPLAIN HIS INTENTION TO COMPLY WITH THE MATERIAL PROVISIONS OF THE SPECIFICATIONS. TO DO SO WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID CONTRARY TO THE RULES OF COMPETITIVE BIDDING. COMP. GEN. 819.

IT APPEARS THAT YOUR ALLEGATION CONCERNING THE ERROR IN THE SMALL BUSINESS CLAUSE IS CORRECT SINCE ASPR 1-701.4 PROVIDES FOR CLASSIFICATION CODE 3641 AND AN EMPLOYMENT SIZE STANDARD OF 1,000 EMPLOYEES. HOWEVER, YOU DO NOT ALLEGE, AND IT DOES NOT APPEAR FROM THE FILE, THAT THE AWARD WAS TO A FIRM EXCEEDING THIS SIZE STANDARD OR THAT YOU WERE PREJUDICED BY THE ERROR. IN THESE CIRCUMSTANCES, CANCELLATION OF THE AWARD WOULD NEITHER BE REQUIRED NOR JUSTIFIED.