B-144437, JANUARY 27, 1961, 40 COMP. GEN. 432

B-144437: Jan 27, 1961

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SINCE THE DEVIATIONS IN THE ACCOMPANYING DOCUMENTS AFFECT THE QUALITY AND PRICE OF THE ITEM OFFERED THEY ARE CONSIDERED MATERIAL AND MAKE THE BID NONRESPONSIVE TO THE INVITATION. WHICH TYPEWRITTEN DOCUMENTS ARE RECOGNIZED AS A PART OF THE BID AND REQUIRED TO BE GIVEN PRECEDENCE OVER THE PRINTED CONDITIONS IN THE BID FORM. MISTAKES IN BIDS WHICH ARE NOT APPARENT ON THE FACE OF THE BID AND OBVIOUS CLERICAL ERRORS DO NOT COME WITHIN THE PURVIEW OF SUCH BID CORRECTION PROCEDURES AS SECTIONS 2-406.1 ET SEQ. WHICH ARE APPLICABLE IN CASES WHERE THE MISTAKE IS APPARENT ON THE FACE OF THE BID. WHERE AN OBVIOUS ERROR IS SPECIFIED BY THE BIDDER AND WHERE CORRECTION WILL NOT DISPLACE AN OTHERWISE LOW BID.

B-144437, JANUARY 27, 1961, 40 COMP. GEN. 432

CONTRACTS - BIDS - ERRORS IN NONRESPONSIVE BIDS - VOLUNTARY SUBMISSION OF DESCRIPTIVE LITERATURE UNDER AN INVITATION REQUIRING THAT BIDS SET FORTH FULL AND COMPLETE INFORMATION, THE VOLUNTARY SUBMISSION OF A TYPEWRITTEN DOCUMENT IDENTIFIED BY THE BIDDER AS A PROPOSAL AND A BROCHURE, BOTH OF WHICH STIPULATED THE FURNISHING OF AN ITEM OF A DIFFERENT DIMENSION THAN THE ITEM REQUIRED BY THE INVITATION, ALTHOUGH THE SIGNED BID FORM ACCOMPANYING THE DOCUMENTS DID NOT CONTAIN ANY EXCEPTION TO THE SPECIFICATIONS, MUST BE REGARDED AS A PART OF THE BID IN VIEW OF THE FACT THAT THE DOCUMENTS CONTAINED INFORMATION NORMALLY INSERTED IN THE BID FORM, AND SINCE THE DEVIATIONS IN THE ACCOMPANYING DOCUMENTS AFFECT THE QUALITY AND PRICE OF THE ITEM OFFERED THEY ARE CONSIDERED MATERIAL AND MAKE THE BID NONRESPONSIVE TO THE INVITATION. A SIGNED OFFER OF COMPLIANCE WITH AN INVITATION CONTAINED IN A BID FORM ACCOMPANIED BY VOLUNTARILY SUBMITTED TYPEWRITTEN DOCUMENTS AND A BROCHURE WHICH STIPULATE THE FURNISHINGS OF AN ITEM DIFFERING IN SIZE FROM THE ITEM REQUIRED BY THE SPECIFICATIONS DOES NOT OVERCOME THE DEVIATIONS IN THE BID DOCUMENTS, WHICH TYPEWRITTEN DOCUMENTS ARE RECOGNIZED AS A PART OF THE BID AND REQUIRED TO BE GIVEN PRECEDENCE OVER THE PRINTED CONDITIONS IN THE BID FORM. MISTAKES IN BIDS WHICH ARE NOT APPARENT ON THE FACE OF THE BID AND OBVIOUS CLERICAL ERRORS DO NOT COME WITHIN THE PURVIEW OF SUCH BID CORRECTION PROCEDURES AS SECTIONS 2-406.1 ET SEQ., OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH ARE APPLICABLE IN CASES WHERE THE MISTAKE IS APPARENT ON THE FACE OF THE BID, WHERE AN OBVIOUS ERROR IS SPECIFIED BY THE BIDDER AND WHERE CORRECTION WILL NOT DISPLACE AN OTHERWISE LOW BID. TO PERMIT A BIDDER TO MAKE A BID RESPONSIVE TO THE INVITATION BY ALTERATION IS TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW OFFER AND ANY IMPLICATION IN STATEMENTS IN 37 COMP. GEN. 27 THAT NONRESPONSIVE BIDS MAY BE CORRECTED MUST BE CONSIDERED AS OVERRULED BY 38 COMP. GEN. 819 AND 39 ID. 774, WHICH SET FORTH THE PRINCIPLE THAT ALLEGATIONS OR ERROR ARE PROPERLY FOR CONSIDERATION FOR CORRECTION ONLY IN THOSE CASES WHERE THE BIDS ARE RESPONSIVE TO THE INVITATION AND OTHERWISE PROPER FOR ACCEPTANCE.

TO THE BEAR MANUFACTURING COMPANY, JANUARY 27, 1961:

REFERENCE IS MADE TO LETTERS OF NOVEMBER 11 AND 22, 1960, FROM ROBERT SHERIFFS MOSS, ATTORNEY, PROTESTING ON YOUR BEHALF AGAINST THE ACTION TAKEN BY PROCUREMENT OFFICIALS AT THE UNITED STATES ARMY ENGINEER CENTER, FORT BELVOIR, VIRGINIA, IN REJECTING YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. ENG-44-008-61-14. IT IS YOUR CONTENTION, IN PREVIOUS CORRESPONDENCE TO THE ADMINISTRATIVE AGENCY, AS WELL AS THAT OF YOUR ATTORNEY, THAT YOU INTENDED TO COMPLY FULLY WITH ALL THE TERMS OF THE INVITATION BUT THAT IN YOUR TYPEWRITTEN PROPOSAL DATED AUGUST 18, 1960, SIGNED BY THE SAME OFFICIAL OF YOUR COMPANY WHO EXECUTED THE ACCOMPANYING BID FORMS, YOU INADVERTENTLY DESCRIBED THE UNIT WHICH YOU CONTEMPLATED FURNISHING AS HAVING A WORK PIECE DIAMETER OF 60 INCHES. BROCHURE ALSO SUBMITTED WITH YOUR BID FORM IDENTIFIED THE UNIT AS MODEL 375-R-HD, HAVING A SWING DIAMETER CAPACITY OF 60 INCHES, HOWEVER YOU STATE THAT THROUGH INADVERTENCE THE LITERATURE WAS NOT CHANGED TO REFLECT A DIAMETRAL RANGE OF 1 INCH TO 68 INCHES.

UNDER THE INVITATION DATED AUGUST 9, 1960, PROPOSALS WERE SOUGHT TO FURNISH THREE INDUSTRIAL TYPE BALANCERS HAVING, AMONG OTHER SPECIFIED CAPACITIES, A DIAMETRAL RANGE OF 1 TO 68 INCHES. OF THE TWO BIDS RECEIVED YOUR OFFER OF $21,336 WAS THE LOWER BY APPROXIMATELY $350. AFTER OPENING AND EVALUATION OF THE PROPOSALS IT WAS ADMINISTRATIVELY DETERMINED THAT YOUR BID WAS NOT RESPONSIVE TO THE INVITATION SINCE THE UNIT OFFERED HAD A DIAMETRAL RANGE OF ONLY 60 INCHES. THEREAFTER, BY TELEGRAM DATED SEPTEMBER 19, 1960, AND BY LETTER OF SEPTEMBER 26, 1960, YOU ALLEGED ERROR, AND REQUESTED THE CONTRACTING OFFICER TO PERMIT THE CORRECTION OF YOUR OFFER TO REFLECT A DIAMETRAL RANGE UP TO 72 INCHES. THE NATURE OF THE ERROR AND THE MANNER IN WHICH IT WAS COMMITTED ARE SET FORTH IN AFFIDAVITS EXECUTED BY THE EMPLOYEES RESPONSIBLE THEREFORE, COPIES OF WHICH HAVE BEEN FURNISHED IN SUPPORT OF YOUR REQUEST.

IN SUPPORT OF YOUR CONTENTION THAT PERMISSION TO CORRECT THE ERROR SHOULD BE AUTHORIZED, YOUR ATTORNEY REFERS TO CERTAIN ADMINISTRATIVE REGULATIONS AND TO PRIOR DECISIONS OF OUR OFFICE RELATING TO THE TREATMENT WHICH SHOULD BE ACCORDED MISTAKE IN BID ALLEGATIONS UNDER COMPETITIVE BIDDING PROCEDURES. THE REFERRED TO AUTHORITIES, SECTIONS 2-406.1, ET SEQ., OF THE ARMED SERVICES PROCUREMENT REGULATION, RELATE TO CASES WHERE THE MISTAKE IS APPARENT ON THE FACE OF THE BID; WHERE AN OBVIOUS CLERICAL ERROR IS VERIFIED BY THE BIDDER; AND WHERE CORRECTION OF THOSE OR SIMILAR ERRORS WILL NOT DISPLACE AN OTHERWISE LOW BID. IT IS OUR OPINION THAT THE SECTIONS CITED ARE NOT FOR APPLICATION IN THIS CASE, SINCE THE ERROR COMMITTED HERE IS NEITHER APPARENT ON THE FACE OF THE BID FORM AND ACCOMPANYING PAPERS, NOR IS IT AN OBVIOUS CLERICAL ERROR.

A FURTHER AUTHORITY CITED IN SECTION 1-2.202-5 (F) OF THE FEDERAL PROCUREMENT REGULATIONS, RELATING TO UNSOLICITED DESCRIPTIVE LITERATURE FURNISHED WITH A PROPOSAL WHICH CONTAINS MATERIAL DEVIATIONS FROM THE ADVERTISED TERMS AND SPECIFICATIONS. THAT SECTION PROVIDES THAT WHEN THE SUBMISSION OF SUCH MATTER IS NOT REQUIRED BY THE INVITATION, QUALIFICATIONS CONTAINED THEREIN WILL BE DISREGARDED UNLESS IT IS CLEAR FROM ALL OF THE BID PAPERS THAT IT WAS THE BIDDER'S INTENTION SO TO QUALIFY THE BID. IN YOUR ATTORNEY'S LETTER OF NOVEMBER 22, 1960, MUCH EMPHASIS IS PLACED UPON THE CONTENTION THAT YOUR BID WAS RESPONSIVE SINCE THE EXCEPTION TO THE 68-INCH DIAMETRAL RANGE REQUIREMENT WAS CONTAINED IN THE BROCHURE AND DOCUMENT ENTITLED "PROPOSAL," WHILE NO EXCEPTION WAS TAKEN ON THE BID FORM. IT IS TRUE THAT THE SIGNED BID FORM CONTAINED NO EXCEPTION TO THE SPECIFICATIONS, HOWEVER, THE INVITATION REQUIRED THAT "BIDS MUST SET FORTH FULL AND COMPLETE INFORMATION.' IN RESPONSE THE INFORMATION WHICH NORMALLY WOULD HAVE BEEN INSERTED ON THE BID DOCUMENT IDENTIFIED BY YOU AS YOUR "PROPOSAL," AND IN THE BROCHURE, BOTH OF WHICH STIPULATED A DIMENSION OF 60 INCHES. CLEARLY THOSE DOCUMENTS MUST BE CONSIDERED A PART OF YOUR BID (36 COMP. GEN. 535), AND MUST BE CONSIDERED MATERIAL AS AFFECTING QUALITY AND PRICE. THE DEVIATION THEREFORE MAY NOT BE WAIVED AS AN INFORMALITY. SEE 30 COMP. GEN. 179, INVOLVING A CASE WHERE DEVIATIONS WERE SET FORTH IN AN ACCOMPANY LETTER, AND IT WAS CONCLUDED THAT SUCH BID SHOULD NOT HAVE BEEN ACCEPTED.

YOUR ATTORNEY URGES THAT A DECISION OF OUR OFFICE REPORTED AT 10 COMP. GEN. 160 SHOULD BE CONSIDERED AS AUTHORITY FOR THE AWARD OF A CONTRACT TO YOUR FIRM. THAT CASE STANDS FOR THE PROPOSITION THAT AN OVERALL OFFER TO COMPLY WITH THE ADVERTISED REQUIREMENTS OF AN INVITATION CURES ANY DETAILED SPECIFICATIONS IN A BID WHICH ARE AT VARIANCE WITH THE TERMS OF THE SOLICITATION. BUT CF. 36 COMP. GEN. 415. OUR ATTENTION IS DIRECTED TO THE LANGUAGE APPEARING ON PAGE ONE OF THE BID INVITATION (1STANDARD FORM 33, OCTOBER 1957 EDITION), WHICH STATES:

IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES * * * TO FURNISH ANY AND ALL OF THE ITEMS UPON WHICH PRICES ARE QUOTED * * * AND IT IS ARGUED THAT THIS CONSTITUTES AN UNEQUIVOCAL OVERALL AGREEMENT TO BE BOUND BY THE SPECIFICATIONS REGARDLESS OF ANY OTHER REPRESENTATIONS MADE WITH THE OFFER. WE CANNOT AGREE WITH THIS CONTENTION. FREQUENTLY BIDDERS SUBMIT EXTRANEOUS DOCUMENTS, OR INSERT CONDITIONS IN THE BID FORM, WHEN THEY ARE OFFERING A COMMERCIAL PRODUCT. AS PREVIOUSLY STATED, SUCH STATEMENTS OR DOCUMENTS MUST BE RECOGNIZED AS A PART OF THE BID. CONSIDERATION MUST ALSO BE GIVEN TO THE FACT THAT TYPEWRITTEN PROVISIONS INSERTED BY A BIDDER MUST BE GIVEN PRECEDENCE OVER PRINTED CONDITIONS IN THE GOVERNMENT BID FORM. IN SUCH CASES, IF THE EXCEPTIONS OR DEVIATIONS FROM THE REQUIREMENTS OF THE INVITATION ARE MATERIAL, THE BID MUST BE CONSIDERED NONRESPONSIVE AS A COUNTEROFFER.

UNRESPONSIVE BIDS ARE GENERALLY THE RESULT OF INEXACTNESS IN THE PREPARATION OR SUBMISSION OF THE BID DOCUMENTS. TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY ALTERATION WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW OFFER. WE FEEL THAT AN ALLEGATION OF ERROR IS PROPER FOR CONSIDERATION ONLY IN CASES WHERE THE BID IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE PROPER FOR ACCEPTANCE. SEE 38 COMP. GEN. 819; 39 ID. 774. ANY CONTRARY IMPLICATION WHICH MIGHT ARISE BY VIRTUE OF CERTAIN STATEMENTS CONTAINED IN THE PRIOR DECISION OF JULY 16, 1957, 37 COMP. GEN. 27, ALSO CITED BY YOUR ATTORNEY, MUST BE CONSIDERED TO HAVE BE OVERRULED BY THE SUBSEQUENT DECISIONS CITED ABOVE.

WE CONCUR WITH THE FINDINGS OF THE DEPUTY CHIEF OF ENGINEERS THAT YOUR BID MAY NOT BE CONSIDERED, AND THE MATTERS SET FORTH IN YOUR ATTORNEY'S LETTERS AFFORD NO LEGAL BASIS FOR DISTURBING THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY.