B-139096, JUNE 12, 1959, 38 COMP. GEN. 830

B-139096, JUNE 12, 1959, 38 COMP. GEN. 830

CONTRACTS - SPECIFICATIONS - DEVIATIONS - INFORMAL V. SUBSTANTIVE ALTHOUGH A LOW BID FOR FURNISHING DAIRY PRODUCTS DEVIATED FROM THE INVITATION REQUIREMENTS IN THAT THE BIDDER OFFERED TO SUPPLY A RESALE ITEM IN THE PREFERRED HALF-PINT CONTAINERS RATHER THAN IN PINT CONTAINERS AND, INSTEAD OF PASTEURIZED CREAM, OFFERED A SUPERIOR PASTEURIZED HOMOGENIZED CREAM, SUCH DEVIATIONS DO NOT APPEAR TO BE SUBSTANTIVE DEVIATIONS WHICH COULD NOT BE WAIVED OR CHANGED BY THE CONTRACTING OFFICER WHICH WOULD GIVE THE LOW BIDDER AN ADVANTAGE OVER OTHER BIDDERS; HOWEVER, IN VIEW OF THE AWARD TO THE LOWEST BIDDER WHO FULLY AND TECHNICALLY COMPLIED WITH THE INVITATION, NO OBJECTION WILL BE MADE BUT, IN FUTURE AWARDS, THE INTERESTS OF THE GOVERNMENT SHOULD BE CONSIDERED CONSISTENT WITH THE REQUIREMENTS THAT BIDDERS COMPETE ON AN EQUAL BASIS. ALTHOUGH A BIDDER DOES NOT HAVE A RIGHT TO PURPOSELY CHANGE A SPECIFICATION AND THEN INSIST THAT THE CHANGE BE CONSIDERED A MINOR DEVIATION, A BIDDER IS NOT PRECLUDED FROM OFFERING A PRODUCT WHICH, IN ADDITION TO COMPLYING WITH THE SPECIFICATIONS, IS ALSO SUPERIOR IN SOME RESPECTS. ALTHOUGH A BIDDER IS NOT REQUIRED TO NOTIFY THE CONTRACTING OFFICER PRIOR TO BID OPENING THAT HE INTENDS TO OFFER A SUPERIOR ITEM OR A DIFFERENT PACKAGED ITEM, BY FAILING TO NOTIFY THE CONTRACTING OFFICER OF THE CHANGES, HE RUNS THE CHANCE THAT THE SUBSTITUTIONS MAY NOT MEET THE ACTUAL NEEDS OF THE GOVERNMENT AND THAT THE BID WILL HAVE TO BE REJECTED EVEN THOUGH THE REQUIREMENTS ARE EXCEEDED AND THE PRICE IS THE LOWEST.

TO THE SECRETARY OF THE AIR FORCE, JUNE 12, 1959:

REFERENCE IS MADE TO LETTER DATED MAY 13, 1959, FROM YOUR DEPUTY FOR PROCUREMENT AND PRODUCTION, FURNISHING A REPORT RELATIVE TO THE PROTEST OF THE SEALTEST WESTERN MARYLAND DIVISION OF THE NATIONAL DAIRY PRODUCTS CORPORATION, BALTIMORE, MARYLAND, AGAINST THE AWARD MADE UNDER INVITATION FOR BIDS NO. 107-603-59-58, ISSUED BY THE DOVER AIR FORCE BASE, DELAWARE.

THE INVITATION REQUESTED BIDS FOR FURNISHING 13 ITEMS OF DAIRY PRODUCTS UP TO CERTAIN ESTIMATED QUANTITIES IN ACCORDANCE WITH THE DELIVERY ORDERS TO BE ISSUED UNDER THE RESULTING CONTRACT TO MEET THE DAILY REQUIREMENTS OF THE BASE DURING THE PERIOD APRIL 1, 1959, THROUGH SEPTEMBER 30, 1959. THE INVITATION PROVIDED FOR ONE AWARD TO BE MADE TO THE LOWEST AGGREGATE BIDDER FOR ITEMS 1 THROUGH 12. ITEMS 4 AND 5 CALLED FOR PASTEURIZED CREAM TO BE FURNISHED IN 1 QUART AND ONE-HALF PINT CONTAINERS, RESPECTIVELY. ITEM 6 CALLED FOR WHIPPING CREAM TO BE FURNISHED IN PINT CONTAINERS. SEVERAL OF THE ITEMS INCLUDING ITEMS 4, 5 AND 6 WERE RESALE ITEMS.

THE FOUR BIDS RECEIVED WERE PUBLICLY OPENED ON MARCH 10, 1959, AS SCHEDULED. THE SEALTEST COMPANY WAS THE LOWEST AGGREGATE BIDDER ON ITEMS 1 THROUGH 12. HOWEVER, THE SEALTEST COMPANY OFFERED TO FURNISH ITEM 6, WHIPPING CREAM, IN HALF-PINT CONTAINERS RATHER THAN PINT CONTAINERS AS SPECIFIED IN THE INVITATION. IN VIEW OF THIS DEVIATION FROM THE SPECIFIC REQUIREMENTS OF THE INVITATION THE CONTRACTING OFFICER DETERMINED THAT THE BID OF THE SEALTEST COMPANY WAS NONRESPONSIVE AND THEREFORE HAD TO BE REJECTED. THE AWARD WAS MADE TO THE SECOND LOW AGGREGATE BIDDER ON ITEMS 1 THROUGH 12.

THE SEALTEST COMPANY PROTESTS THE REJECTION OF ITS BID AND THE RESULTING AWARD TO ANOTHER BIDDER. IN SUPPORT OF ITS PROTEST THE COMPANY STATES THAT ITEM 6 IS A RESALE ITEM IN THE BASE COMMISSARY STORE AND THE PUBLIC PREFERENCE IS FOR PURCHASING WHIPPING CREAM IN HALF-PINT CONTAINERS RATHER THAN PINT CONTAINERS; THAT ITS BID PRICE FOR TWO HALF PINTS WAS $0.02 CHEAPER THAN THE BID PRICE FOR ONE PINT OFFERED BY THE SUCCESSFUL BIDDER; THAT THIS ITEM REPRESENTED ONLY 3 PERCENT OF THE TOTAL VALUE OF THE CONTRACT; AND THAT ITS AGGREGATE BID ON ITEMS 1 THROUGH 12 WAS MORE THAN $3,000 LOWER THAN THAT QUOTED BY THE SUCCESSFUL BIDDER.

IT IS STATED IN THE REPORT OF MAY 13, 1958, IN PART AS FOLLOWS:

* * * WE BELIEVE THAT THE CONTRACTING OFFICER COULD HAVE DECIDED TO WAIVE THE REQUIREMENT THAT THIS ITEM BE FURNISHED IN PINT CONTAINERS AND ACCEPTED A BID FOR FURNISHING IT IN HALF-PINT CONTAINERS ON THE BASIS THAT THE DEVIATION WAS OF A MINOR CHARACTER. WE BELIEVE THAT A CONTRACT FOR THE ENTIRE 12 ITEMS COULD HAVE BEEN AWARDED PROPERLY TO THE SEALTEST COMPANY AS THE LOWEST AGGREGATE BIDDER, HAD THE CONTRACTING OFFICER CHOSEN TO CONSIDER THE DEVIATION A MINOR INFORMALITY.

HOWEVER, WE FEEL THAT THE CONTRACTING OFFICER ACTED IN GOOD FAITH WHEN HE DECIDED TO REJECT THE BID OF THE SEALTEST COMPANY AS NOT RESPONSIVE. CERTAINLY, WE CANNOT QUESTION HIS POSITION THAT THE BIDDER SHOULD HAVE CALLED THE MATTER TO HIS ATTENTION PRIOR TO SUBMITTING ITS BID AND GIVEN THE CONTRACTING OFFICER AN OPPORTUNITY TO INVESTIGATE THE MATTER AND ISSUE AN AMENDMENT TO THE INVITATION, IF SUCH ACTION WAS FOUND JUSTIFIED. THEN ALL BIDDERS WOULD BE BIDDING ON THE SAME BASIS. WE AGREE THAT A BIDDER SHOULD NOT BE ALLOWED TO PURPOSELY CHANGE THE REQUIREMENTS OF AN INVITATION TO SUIT HIS CONVENIENCE AND THEN INSIST THAT THE CHANGE BE CONSIDERED A MINOR DEVIATION AND THAT HIS BID BE CONSIDERED FOR AWARD, REGARDLESS OF THE BONA FIDE DETERMINATION OF THE CONTRACTING OFFICER TO THE CONTRARY. IN THIS CONNECTION, PLEASE NOTE THAT THIS BIDDER ALSO MADE A CHANGE IN THE DESCRIPTION OF ITEMS NOS. 4 AND 5. THIS CHANGE, HOWEVER, WAS NOT DISCOVERED AT THE TIME AND WAS NOT AN ADDITIONAL REASON FOR REJECTING ITS BID.

IN AN AFTER THE FACT CONSIDERATION OF THIS PROCUREMENT ACTION, WE DO NOT AGREE WITH THE JUDGMENT USED BY THE CONTRACTING OFFICER IN THIS INSTANCE. HOWEVER, SINCE THE AWARD WAS MADE IN GOOD FAITH TO THE BIDDER APPARENTLY SUBMITTING THE LOWEST FULLY RESPONSIVE BID, THIS DEPARTMENT DOES NOT CONSIDER IT APPROPRIATE, UNDER THE ATTENDING CIRCUMSTANCES, TO DISTURB THE AWARD AT THIS LATE DATE. * * *

THE CHANGE MADE BY THE SEALTEST COMPANY IN THE DESCRIPTION OF ITEMS 4 AND 5 WAS THAT PASTEURIZED HOMOGENIZED CREAM WAS OFFERED IN LIEU OF PASTEURIZED CREAM AS SPECIFIED. ALTHOUGH WE ARE NOT EXPERTS IN THE FIELD IT IS UNDERSTOOD THAT HOMOGENIZATION IS AN EXTRA PROCESS AND THAT PASTEURIZED HOMOGENIZED CREAM IS GENERALLY PREFERRED TO PASTEURIZED CREAM. IF SUCH BE THE CASE, AND UNLESS PASTEURIZED HOMOGENIZED CREAM WAS DEFINITELY NOT DESIRED, THIS CHANGE WOULD NOT APPEAR TO BE A MATERIAL CHANGE WARRANTING THE REJECTION OF THE BID FOR THAT REASON. THE CREAM OFFERED WAS PASTEURIZED AS REQUIRED AND IN ADDITION THERETO IT WAS HOMOGENIZED. THUS, PRIMA FACIE AT LEAST IT APPEARS THAT THE CREAM OFFERED DID MEET SPECIFICATION REQUIREMENTS.

WE ALSO DO NOT AGREE WITH THE REASON GIVEN AS THE BASIS FOR THE AWARD MADE IN CONNECTION WITH THIS PROCUREMENT. UNLESS THERE WAS SOME PARTICULAR REASON WHY WHIPPING CREAM WAS DESIRED IN PINT CONTAINERS THE CHANGE OFFERED BY SEALTEST TO FURNISH THE WHIPPING CREAM IN HALF-PINT CONTAINERS WAS MORE COSTLY AND PROBABLY MORE DESIRABLE AND, THEREFORE, WOULD BE SUCH A CHANGE AS COULD PROPERLY BE WAIVED AS A MINOR INFORMALITY. THE DEVIATION WAS NOT SUCH A CHANGE AS WOULD GIVE SEALTEST AN ADVANTAGE OVER THE OTHER BIDDERS.

IT HAS ALWAYS BEEN RECOGNIZED THAT THE DRAWING OF SPECIFICATIONS REQUIREMENTS IS STRICTLY A MATTER FOR THE GOVERNMENT AND THAT A BIDDER DOES NOT HAVE THE RIGHT TO PURPOSELY CHANGE A REQUIREMENT TO SUIT HIS OWN CONVENIENCE AND THEN INSIST THAT THE CHANGE BE CONSIDERED A MINOR DEVIATION AND THAT HIS BID BE CONSIDERED FOR AWARD, REGARDLESS OF THE BONA FIDE DETERMINATION OF A CONTRACTING OFFICER TO THE CONTRARY. HOWEVER, THIS DOES NOT MEAN THAT A BIDDER MAY NOT OFFER A PRODUCT WHICH IN ADDITION TO FULLY COMPLYING WITH THE SPECIFICATION REQUIREMENTS IS ALSO SUPERIOR THERETO IN CERTAIN RESPECTS AND MEETS THE NEEDS OF THE GOVERNMENT. NOR IS IT BELIEVED THAT A BIDDER IS ABSOLUTELY REQUIRED TO NOTIFY THE CONTRACTING OFFICER PRIOR TO BID OPENING THAT HE INTENDS TO MAKE SUCH AN OFFER. COURSE, BY FAILING TO SO NOTIFY THE CONTRACTING OFFICER THE BIDDER DOES RUN THE CHANCE THAT THE ALTERNATE MAY NOT MEET THE ACTUAL NEEDS OF THE GOVERNMENT AND WILL HAVE TO BE REJECTED EVEN THOUGH IT MAY EXCEED THE SPECIFICATION REQUIREMENTS AND IS LOWER IN PRICE.

IN THE INSTANT CASE, SINCE IT APPEARS THAT THE AWARD WAS MADE IN GOOD FAITH TO THE BIDDER WHO SUBMITTED THE LOWEST BID FULLY AND TECHNICALLY COMPLYING WITH THE STATED REQUIREMENTS OF THE INVITATION, THE AWARD WILL NOT BE QUESTIONED. HOWEVER, IN FUTURE AWARDS THE INTEREST OF THE GOVERNMENT SHOULD BE FULLY CONSIDERED, CONSISTENT WITH THE PROVISIONS OF THE REQUIREMENTS OF THE ADVERTISING STATUTES THAT BIDDERS ARE TO COMPETE ON AN EQUAL BASIS.