B-154793, SEP. 21, 1964

B-154793, SEP. 21, 1964

TO DAHL, DAHL AND GREENAGEL:

REFERENCE IS MADE TO YOUR LETTER OF JULY 17, 1964, ON BEHALF OF THE GRAFTON MILK COMPANY, INC., PROTESTING REJECTION OF THE COMPANY'S BID UNDER INVITATION FOR BIDS NO. 32-605-64-46, FOR FURNISHING DAIRY PRODUCTS TO GRAND FORKS AIR FORCE BASE, GRAND FORKS, NORTH DAKOTA.

THE BID PORTION OF PAGE 1 OF THE INVITATION READS IN PART AS FOLLOWS: "IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF THIS BID BE ACCEPTED WITHIN ... CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD BE INSERTED BY THE BIDDER) FROM THE DATE OF OPENING, TO FURNISH ANY OR ALL OF THE ITEMS UPON WHICH PRICES ARE QUOTED * * *.' PART XI OF THE INVITATION TITLED "BID ACCEPTANCE PERIOD (APR. 1960)" PROVIDES THAT "BIDS OFFERING LESS THAN SIXTY (60) DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE SET FOR OPENING WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.' PART V OF THE OF THIS CONTRACT SHALL BE FROM 1 AUGUST 1964, OR FROM DATE OF AWARD IF SUBSEQUENT THERETO, THROUGH 31 JULY 1965, UNLESS SOONER TERMINATED UNDER THIS CONTRACT.'

THE BID OF GRAFTON MILK COMPANY SPECIFIED THAT IT MUST BE ACCEPTED WITHIN 24 CALENDAR DAYS FROM THE DATE OF OPENING, WHICH WAS JULY 6, 1964. WHEN THIS WAS CALLED TO THE ATTENTION OF THE GRAFTON REPRESENTATIVE AT THE BID OPENING, HE ALLEGED THAT THE INSERTION OF THE 24 DAY LIMITATION WAS A MISTAKE AND THAT THEY HAD NO INTENTION OF QUALIFYING THEIR BID, BUT WANTED TO MEET ALL OF THE REQUIREMENTS OF THE INVITATION. SINCE GRAFTON'S BID WAS LOW ON SOME ITEMS, THE CONTRACTING OFFICER SECURED AFFIDAVITS IN SUPPORT OF THE ALLEGATION OF MISTAKE AND SUBMITTED THE CASE TO THE STAFF JUDGE ADVOCATE, HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, AS A MISTAKE IN BID. THIS ACTION WAS PROTESTED BY THE NEXT LOW BIDDER ON THE INVOLVED ITEMS, MINNESOTA DAIRY COMPANY, INC., ON THE GROUND THAT THE 24 DAY ACCEPTANCE LIMITATION MADE THE BID NONRESPONSIVE AND GRAFTON INELIGIBLE FOR AWARD IN ACCORDANCE WITH THE PROVISIONS OF THE INVITATION QUOTED ABOVE. THE AIR FORCE LOGISTICS COMMAND CONCLUDED THAT THE GRAFTON BID WAS NONRESPONSIVE AND THAT THE ALLEGATION OF MISTAKE WAS NOT FOR CONSIDERATION, SINCE THE BIDDER COULD NOT BE PERMITTED TO MODIFY ITS BID IN ORDER TO MAKE IT RESPONSIVE.

IN PROTESTING THE PROPOSED REJECTION OF GRAFTON'S BID, YOU CONTEND THAT THE PARENTHETICAL PHRASE IN THE BID INVITATION PROVIDING FOR AN ACCEPTANCE PERIOD OF 60 CALENDAR DAYS "UNLESS A DIFFERENT PERIOD BE INSERTED BY THE BIDDER," STANDING ALONE, GIVES THE INFERENCE THAT A DIFFERENT NUMERAL MAY BE INSERTED, AND THAT THE NUMBER 24 WAS INSERTED BECAUSE GRAFTON HELD A SIMILAR CONTRACT WHICH WAS DUE TO EXPIRE JULY 30, 1964, OR 24 DAYS AFTER THE BID OPENING DATE, AND IT WAS FELT THAT A NEW CONTRACT WOULD HAVE TO BE EXECUTED ON OR BEFORE THE DATE OF TERMINATION OF THE EXPIRING CONTRACT.

YOU ALSO POINT OUT, AS INDICATIONS OF THE BIDDER'S GOOD FAITH, THE FACT THAT IT INVESTED OVER $23,000 IN ORDER TO MEET THE PACKAGING REQUIREMENTS OF THE CONTRACT AND THAT THE BIDDER WOULD NOT KNOWINGLY VIOLATE THE VERY SPECIFIC PROVISIONS OF PART XI OF THE INVITATION. IN CONCLUSION, YOU REFER TO THE SAVINGS WHICH WOULD ACCRUE TO THE GOVERNMENT BY ACCEPTANCE OF GRAFTON'S BID AND TO THE PROCURING AGENCY'S DUTY TO ACCEPT THE BID THAT WOULD BE MOST ADVANTAGEOUS TO THE GOVERNMENT.

BEFORE SUBMITTING A BID A BIDDER SHOULD BE FAMILIAR WITH ALL OF THE PROVISIONS OF THE INVITATION. IN THE ABSENCE OF A LIMITATION ELSEWHERE IN THE INVITATION, A BIDDER CLEARLY COULD HAVE INSERTED AN ACCEPTANCE PERIOD ON PAGE 1 OF THE BID FORM WHICH WAS EITHER SHORTER OR LONGER THAN 60 DAYS. HOWEVER, IN VIEW OF THE SPECIFIC PROVISIONS OF PART XI ANY DIFFERENT PERIOD WOULD HAVE TO BE LONGER THAN 60 DAYS IN ORDER FOR THE BID TO BE RESPONSIVE. IN THIS CONNECTION, WE ARE ADVISED THAT THE PROCEDURES TO BE FOLLOWED IN OBTAINING APPROVAL OF A PROPOSED AWARD WERE SUCH THAT A 60 DAY PERIOD FOR ACCEPTANCE WAS CONSIDERED NECESSARY.

WITH REFERENCE TO THE INSERTION OF A 24 DAY ACCEPTANCE PERIOD BECAUSE IT WAS FELT THAT AN AWARD WOULD HAVE TO BE MADE AT OR BEFORE THE EXPIRATION OF GRAFTON'S EXISTING CONTRACT, ATTENTION IS AGAIN INVITED TO PART V OF THE INVITATION WHICH SPECIFICALLY STATES THAT THE PERIOD OF THE CONTRACT SHALL BE FROM AUGUST 1, 1964, OR FROM DATE OF AWARD IF SUBSEQUENT THERETO, WHICH PUTS BIDDERS ON NOTICE THAT THE CONTRACT MAY NOT BE AWARDED UNTIL AFTER AUGUST 1.

THE INVESTMENT OF A SIZABLE SUM IN NEW EQUIPMENT IN ORDER TO MEET THE PACKAGING REQUIREMENTS OF THE CONTRACT IS INDEED AN INDICATION OF GOOD FAITH AND WE AGREE THAT ONE BIDDING IN GOOD FAITH WOULD NOT KNOWINGLY FAIL TO COMPLY WITH A MATERIAL PROVISION OF THE INVITATION AND THUS MAKE THE BID NONRESPONSIVE. UNFORTUNATELY, GOOD FAITH AND EVIDENCE OF ERROR WILL NOT CURE THE DEFICIENCY. AS STATED IN ONE OF OUR PREVIOUS DECISIONS, 38 COMP. GEN. 819, AT PAGE 821:

"IT IS PROBABLE THAT THE MAJORITY OF UNRESPONSIVE BIDS ARE DUE TO OVERSIGHT OR ERROR, SUCH AS THE FAILURE TO QUOTE A PRICE, TO SIGN THE BID, TO FURNISH A BID BOND, TO SUBMIT REQUIRED SAMPLES OR DATA, OR THE SUBMISSION OF THE WRONG SAMPLE, INCOMPLETE DATA, OR STATEMENTS THE ACTUAL MEANING OF WHICH WAS NOT INTENDED, ETC. AS UNRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PART OF THE BID ON THE BASIS OF AN ERROR ALLEGED AFTER THE OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. IT IS OUR OPINION 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.'

THE CONTRACTING OFFICER'S DUTY TO ACCEPT THE BID THAT WOULD BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, IS CONTINGENT UPON SAID BID COMPLYING IN ALL MATERIAL RESPECTS WITH THE TERMS OF THE INVITATION. WHILE MINOR VARIATIONS AND INFORMALITIES MAY BE WAIVED, WE HAVE CONSISTENTLY HELD THAT WHERE AN INVITATION STATES A MINIMUM ACCEPTANCE PERIOD THAT REASONABLY REFLECTS THE TIME WHICH THE CONTRACTING AGENCY BELIEVES WILL BE NEEDED FOR ACCEPTANCE, IT IS A MATERIAL REQUIREMENT WHICH GOES TO THE SUBSTANCE OF THE BID, AND FAILURE TO CONFORM THEREWITH RENDERS THE BID NONRESPONSIVE. SEE 39 COMP. GEN. 779 AND CASES CITED THEREIN.

FOR THE REASONS STATED, WE CONCLUDE THAT THE BID OF THE GRAFTON MILK COMPANY, INC., WAS PROPERLY FOR REJECTION, AND THAT ITS PROTEST MUST THEREFORE BE DENIED.