B-163181, APR. 12, 1968

B-163181, APR. 12, 1968

TO U.S. FLUORESCENT MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1968, WITH ENCLOSURE, REPLYING TO OUR LETTER OF MARCH 21, 1968, IN WHICH WE SUSTAINED OUR EARLIER DECISION DENYING YOUR PROTEST AGAINST REJECTION OF YOUR BID BY THE DEFENSE SUPPLY AGENCY UNDER INVITATION FOR BIDS NO. DSA 400-68 B-1420.

BASICALLY, YOU EXPRESS DISAGREEMENT WITH OUR POSITION IN TWO AREAS. FIRST, YOU DISAGREE WITH OUR STATEMENT THAT BECAUSE THE GMSWD CLAUSE IS A MATERIAL PROVISION OF THE BID AND INDICATES AN EXCEPTION TO THE SPECIFICATIONS FOR THE LIGHT FIXTURE YOUR BID IS NONRESPONSIVE. YOU CONTEND THAT ALTHOUGH THE GMSWD CLAUSE HAS A "SPECIFIC AND JUSTIFIABLE CAUSE FOR EXISTENCE," THE DIMENSIONS OF THE SHIPPING CONTAINER ARE MATERIAL ONLY FOR THE PURPOSE OF SHOWING COMPLIANCE WITH THE CONTAINER SPECIFICATIONS AND SHOULD NOT BE CONSIDERED FOR ANY OTHER PURPOSE. SECOND, YOU DISAGREE WITH OUR STATEMENT CONCERNING THE RIGHT OF A BIDDER TO CLARIFY OR EXPLAIN HIS BID AFTER OPENING AND STATE THAT YOU BELIEVE WE "WILL AGREE THAT IT IS OBVIOUS THERE ARE TIMES WHEN CLARIFICATION OF A MINOR POINT IS NECESSARY.' FINALLY, YOU AGAIN CALL OUR ATTENTION TO A MISTAKE IN THE EMPLOYMENT SIZE STANDARD USED IN THE SMALL BUSINESS CLAUSE.

IN ADDITION TO INDICATING COMPLIANCE WITH THE CONTAINER SPECIFICATIONS, WHICH IN ITSELF IS MATERIAL, THE GMSWD CLAUSE IS MATERIAL IN DETERMINING TRANSPORTATION COSTS TO BE ADDED TO THE F.O.B. ORIGIN PRICE IN EVALUATING BIDS AND IN FIXING RESPONSIBILITY FOR ANY EXCESS TRANSPORTATION COSTS. THEREFORE, WE DO NOT BELIEVE IT WOULD BE PROPER TO IGNORE OR DISREGARD AN INCONSISTENCY THEREIN WITH ANOTHER MATERIAL REQUIREMENT OF THE INVITATION.

WITH REGARD TO YOUR SECOND POINT, THERE ARE SITUATIONS WHERE A DEVIATION FROM THE EXACT REQUIREMENT OF AN INVITATION MAY BE EITHER WAIVED OR CORRECTED. ARMED SERVICES PROCUREMENT REGULATION 2-405. HOWEVER, WAIVER OR CORRECTION OF A DEFICIENCY IS PERMITTED WITH RESPECT TO MINOR INFORMALITIES OR IRREGULARITIES WHICH ARE DEFINED AS THOSE HAVING NO EFFECT ON PRICE, QUALITY, OR QUANTITY OF THE SUPPLIES BEING PROCURED. SINCE THE DEVIATION INDICATED IN THE GMSWD CLAUSE RELATES TO THE SIZE OF THE LIGHT FIXTURES WE DO NOT BELIEVE IT MAY PROPERLY BE CONSIDERED MINOR. THEREFORE, THE RULES REGARDING MISTAKES IN BIDS AND AMBIGUOUS BIDS, DISCUSSED IN OUR PREVIOUS LETTERS, ARE FOR APPLICATION.

WE CANNOT GUARANTEE THAT THE MISTAKE IN THE SMALL BUSINESS EMPLOYMENT SIZE STANDARD HAD NO EFFECT ON THE COMPETITION GENERATED. ITS APPARENT EFFECT WOULD BE TO INCREASE RATHER THAN REDUCE THE NUMBER OF BIDS. IN ANY CASE, IT IS CLEAR THAT THE MISTAKE DID NOT PREJUDICE YOU OR RESULT IN AN AWARD TO OTHER THAN A SMALL BUSINESS CONCERN. THEREFORE, AS WE PREVIOUSLY STATED, CANCELLATION OF THE AWARD WOULD NOT BE JUSTIFIED.

ACCORDINGLY, OUR PREVIOUS POSITION AS EXPRESSED IN OUR EARLIER LETTERS IS AFFIRMED.