B-146329, AUG. 28, 1961

B-146329, AUG. 28, 1961

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED JULY 5, 1961 (FNF9), WITH ENCLOSURES, FROM MR. GEORGE W. GRIMSELY, CHIEF, HOUSEHOLD FURNISHINGS SECTION, NATIONAL BUYING DIVISION, CONTRACTING OFFICER, RELATING TO A MISTAKE IN BID ALLEGED BY STADLER-NEUWIRTH, INC., 11 EAST 26TH STREET, NEW YORK 10, NEW YORK, AFTER THE AWARD OF CONTRACT NO. GS-00S-34949 TO THE MUTUAL SUNSET LAMP MANUFACTURING COMPANY. ALSO, THERE HAS BEEN RECEIVED FROM MR. GRIMSLEY A FURTHER LETTER DATED JULY 20, 1961, WITH ENCLOSURES, COMMENTING UPON CERTAIN STATEMENTS CONTAINED IN A LETTER DATED JULY 13, 1961, FROM STADLER-NEUWIRTH, INC., TO OUR OFFICE.

THE RECORD SHOWS THAT INVITATION FOR BIDS FOR FSC GROUP 62 WAS ISSUED ON MARCH 10, 1961, AND IT WAS REPORTED IN THE LETTER OF JULY 5, 1961, THAT AT THE BID OPENING ON APRIL 11, 1961, IT WAS NOTED THAT IN THE CASE OF TWO INDIVIDUAL GROUPS, BIDS WERE RECEIVED WHICH WERE TECHNICALLY NONRESPONSIVE IN THAT IN BOTH CASES THE BIDDER FAILED TO QUOTE A PRICE FOR A PARTICULAR FINISH. IT WAS REPORTED FURTHER THAT FOR EVALUATION PURPOSES THE INVITATION REQUIRED THAT EACH BIDDER BID ON EACH TYPE OF FABRIC OR FINISH, AND THAT NONINCLUSION OF A PARTICULAR FABRIC OR FINISH WOULD RENDER THE BID NONRESPONSIVE. IT WAS THEN STATED THAT UPON NOTING THE FAILURE OF THE TWO BIDDERS TO BID ON THE PARTICULAR FINISHES, IT WAS NOT FELT THAT REQUESTING VERIFICATION WOULD BE PROPER, SINCE THE ONLY AFFIRMATIVE EFFECT THEREOF WOULD AMOUNT TO POINTING OUT A MISTAKE IN BID AND, IN EFFECT, REQUESTING THAT A NON-RESPONSIVE BID BE MADE RESPONSIVE.

ONE OF THE CASES INVOLVED NONCONSIDERATION OF THE BID OF STADLER NEUWIRTH, INC., ON GROUP 6. BY LETTER DATED JUNE 16, 1961, THAT FIRM ALLEGED A MISTAKE IN BID, THERE BEING SUBMITTED CERTAIN DATA IN SUPPORT OF THE PROTESTING BIDDER'S POSITION. RESPECTING THE BID BY STADLER-NEWIRTH, NC., IT WAS STATED IN THE LETTER OF JULY 5, 1961, THAT IF SUCH BID HAD BEEN COMPLETE THAT CONCERN WOULD HAVE BEEN THE LOW BIDDER, AND THAT EVEN AT THE HIGHEST PRICE OF THE VARIOUS FINISHES THAT CONCERN WOULD HAVE BEEN THE LOW BIDDER.

IN A LETTER DATED JULY 13, 1961, STADLER-NEUWIRTH, INC., ADVISED OUR OFFICE, AMONG OTHER THINGS, THAT SIMULTANEOUSLY WITH THE SUBMISSION OF ITS BID IT ADVISED YOUR AGENCY THAT IT WAS BIDDING IN STRICT ACCORDANCE WITH ALL TERMS AND CONDITIONS OF THE INVITATION AND SPECIFICATIONS AND THAT IT WAS ITS INTENTION TO FULLY COMPLY THEREWITH WITHOUT EXCEPTION. THE RECORD INDICATES ALSO THAT THE PROTESTING BIDDER FURNISHED PHOTOGRAPHS SHOWING THE LAMP SHADES WHICH IT PROPOSED TO FURNISH. FOR THE FOREGOING AND OTHER REASONS SET FORTH IN THE LETTER OF JULY 13, 1961, IT WAS SUGGESTED THAT THE CONTRACTING OFFICER SHOULD HAVE REQUESTED VERIFICATION OF THE BID PRIOR TO MAKING AN AWARD.

THE QUESTIONS FOR CONSIDERATION IN THIS CASE APPEAR TO BE WHETHER THE ADMINISTRATIVE ACTION TAKEN HEREIN WAS IN ERROR IN ANY PARTICULAR AND WHETHER ON THE RECORD BEFORE US WE WOULD BE JUSTIFIED IN DIRECTING THE CANCELLATION OF THE EXISTING CONTRACT AND AN AWARD TO THE PROTESTING BIDDER ON THE BASIS OF AN ERROR ALLEGED AFTER AWARD. IT SEEMS TO BE CLEAR THAT THE BID SUBMITTED BY STAILER-NEUWIRTH, INC., WAS NONRESPONSIVE IN THAT THAT CONCERN FAILED TO BID UPON A PARTICULAR SUB-ITEM--- NOT AN ERROR IN BID IN THE USUAL MANNER, BUT AN OUTRIGHT OMISSION--- AND THE QUESTION THUS ARISES, WHAT WAS THE RESPONSIBILITY OF THE CONTRACTING OFFICER UNDER THE CIRCUMSTANCES?

IT HAS BEEN SUGGESTED INFORMALLY BY A LOCAL REPRESENTATIVE OF THE PROTESTING BIDDER THAT THE FACTUAL SITUATION IN THE INSTANT CASE IS SUFFICIENTLY SIMILAR TO THAT INVOLVED IN OUR DECISION B-137971, DATED DECEMBER 9, 1958, TO JUSTIFY APPLICATION OF THE HOLDING THEREIN.

THE FACTS IN THE TWO CASES ARE INDEED SIMILAR. THERE, AS HERE, THE INVITATION REQUIRED BIDS ON SEVERAL TYPES OF FABRIC OR FINISH, WHICH WERE REPEATED FOR A NUMBER OF ITEMS, AND STATED THAT FAILURE TO BID ON A PARTICULAR FABRIC OR FINISH WOULD RENDER THE BID NONRESPONSIVE. IN BOTH CASES THE BIDDER FOLLOWED A DEFINITE PATTERN IN HIS BIDS ON THE FABRICS AND FINISHES CALLED FOR, AND IN BOTH, APPARENTLY THROUGH INADVERTENCE, HE OVERLOOKED ONE FABRIC OR FINISH ON ONE SUB-ITEM, RESULTING IN NO BID ON THE LAST FABRIC OR FINISH FOR THAT ITEM. IN BOTH CASES, ALTHOUGH PERHAPS MORE CLEARLY IN THE EARLIER CASE, IT WAS APPARENT FROM THE BID AS MADE WHAT THE INTENDED BID WAS.

THERE IS, HOWEVER, ONE SIGNIFICANT DIFFERENCE BETWEEN THE TWO CASES. THE PRESENT CASE NO ALLEGATION OF ERROR OR REQUEST FOR CORRECTION WAS RECEIVED UNTIL AFTER AWARD HAD BEEN MADE TO ANOTHER BIDDER. IN THE EARLIER CASE THE BIDDER REQUESTED CORRECTION OF THE ERROR BY LETTER DATED THE DAY AFTER BID OPENING. IT WAS THUS NECESSARY, BEFORE ANY AWARD COULD BE MADE, TO MAKE SOME DISPOSITION OF THAT REQUEST. IN THE USUAL CASE IN WHICH WE HAVE HELD THAT THE CONTRACTING OFFICER SHOULD REQUEST VERIFICATION OF A BID, THAT PARTICULAR BID AS MADE IS THE APPARENT BEST AND ACCEPTABLE BID. IT IS BECAUSE OF THE CONSEQUENCES RESULTING FROM ACCEPTANCE OF SUCH A BID IF IT IS IN THE FACT ERRONEOUS THAT WE HAVE HELD VERIFICATION SHOULD BE MADE. NO SUCH CONSEQUENCE ENSUE, OF COURSE, WHERE ACCEPTANCE OF THE SUSPECTED ERRONEOUS BID IS NOT CONTEMPLATED, AS IN THE CASE OF A NONRESPONSIVE BID.

THE GENERAL RULE FOLLOWED BY US IN THE CASE OF BIDS WHICH ARE NONRESPONSIVE IS CLEARLY STATED IN OUR DECISION B-134931, JANUARY 30, 1958, AS FOLLOWS:

"THE QUESTION AS TO WHETHER A BID IS RESPONSIVE TO THE INVITATION IS FOR DETERMINATION UPON THE BASIS OF THE BID AS SUBMITTED AND IT IS NOT BELIEVED THAT IT WOULD BE PROPER TO CONSIDER THE REASONS FOR THE NONRESPONSIVENESS, WHETHER DUE TO MISTAKE OR OTHERWISE.'

THE DECISION OF DECEMBER 9, 1958, IS AN EXCEPTION TO THAT GENERAL RULE, AND FOR THE REASONS STATED ABOVE IS DISTINGUISHABLE FROM THE PRESENT CASE. ON THE FACTS OF THE CASE BEFORE US WE FIND NO BASIS FOR QUESTIONING THE LEGALITY OF THE AWARD MADE.