B-147566, DEC. 21, 1961

B-147566, DEC. 21, 1961

TO ELION INSTRUMENTS, INCORPORATED:

REFERENCE IS MADE TO LETTER OF NOVEMBER 9, 1961, FROM YOUR ATTORNEY, BERNARD L. SHAPIRO, ENCLOSING A COPY OF HIS LETTER OF NOVEMBER 6, TO THE ARMY SIGNAL SUPPLY AGENCY, PROTESTING, ON YOUR BEHALF, AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. SC-36 039-62- 53-C4-51. IT IS CONTENDED THAT YOUR BID WAS RESPONSIVE AND, SINCE IT WAS THE LOWEST OFFER RECEIVED AWARD SHOULD BE MADE TO YOU. ALSO, AS AN ALTERNATE CONTENTION, IT IS URGED THAT IF YOUR BID IS DEEMED TO BE MATERIALLY DEFECTIVE AND THEREFORE NONRESPONSIVE, PERMISSION SHOULD BE GRANTED BY THE CONTRACTING OFFICER TO ALLOW SUCH CORRECTIONS OR REVISIONS AS ARE NECESSARY TO RENDER YOUR OFFER COMPLETE AND RESPONSIVE TO THE INVITATION.

THE RECORD DISCLOSES THAT BY THE SAID INVITATION BIDS WERE SOUGHT ON THE FURNISHING OF VARIOUS QUANTITIES OF MAGNETO FIELD TELEPHONES AND RELATED EQUIPMENT IN ACCORDANCE WITH THE TERMS AND SPECIFICATIONS MADE A PART THEREOF. THE INVITATION WAS ISSUED ON AUGUST 25, 1961, AND ON SEPTEMBER 12, AMENDMENT NO. 1 WAS ISSUED REVISING THE RANGE QUANTITIES FROM THREE TO FOUR GROUPS. IN RESPONSE THERETO, YOU EXECUTED YOUR BID WHICH QUOTED UNIT PRICES ON AMENDMENT NO. 1, FOR THE VARIOUS QUANTITIES, THE FIXED QUANTITY TO BE DETERMINED SUBSEQUENTLY BY THE PROCUREMENT OFFICE, AND ON THE BASIC INVITATION YOU QUOTED PRICES FOR THE ANCILLARY ITEMS AND PACKAGING COSTS. TO THAT POINT YOUR PROPOSAL WAS RESPONSIVE, ALTHOUGH NO DELIVERY SCHEDULE WAS DESIGNATED, SINCE PROVISION C (PAGE 23) OF THE INVITATION PROVIDED THAT "IF THE BIDDER OFFERS NO OTHER DELIVERY SCHEDULE, THE DELIVERY SCHEDULE STATED IN THE "REQUIRED SCHEDULE" WILL APPLY.'

ON SEPTEMBER 28, 1961, A SECOND AMENDMENT WAS ISSUED (ERRONEOUSLY NUMBERED 1 INSTEAD OF 2) WHICH MATERIALLY ALTERED THE TERMS OF THE SOLICITATION, AS PREVIOUSLY AMENDED. IT RESTORED THE FORMER RANGE QUANTITIES, DELETED IN ITS ENTIRETY THE ORIGINAL DELIVERY PROVISIONS (PROVISION C), SUBSTITUTED THEREFOR REVISED CONDITIONS AND SET FORTH ACCELERATED DELIVERY SCHEDULES IDENTIFIED AS PREFERRED, ALTERNATE 1 AND ALTERNATE 2. IN LIEU OF THE STIPULATION IN PROVISION C TO THE EFFECT THAT IN THE ABSENCE OF A DESIGNATED SCHEDULE IN A BID THE "REQUIRED SCHEDULE" WOULD APPLY, AMENDMENT NO. 2 STATED THAT PERFORMANCE TIME WAS OF THE ESSENCE AND, THEREFORE, BIDDERS WERE INSTRUCTED TO OFFER THE EARLIEST OF THE SPECIFIED SCHEDULES WHICH COULD BE MET. ALL BIDDERS EXCEPT YOUR FIRM CORRECTLY SUPPLIED PRICES AND OFFERS BASED UPON THE ADVANCED DELIVERY SCHEDULES SET FORTH IN AMENDMENT NO. 2. THE FORM COPY THEREOF APPLICABLE TO YOUR BID, WHICH WAS RETURNED TO THE PROCUREMENT OFFICE, CONTAINED ONLY THE SIGNATURE OF AN OFFICIAL OF YOUR COMPANY AND FAILED TO FURNISH THE INFORMATION REQUIRED BY THE SAID ADDENDUM AS TO THE REVISED QUANTITIES, DELIVERY PROVISIONS AND SCHEDULES, AND PACKAGING COSTS.

CONSIDERING YOUR BID IN THE LIGHT MOST FAVORABLE TO THE POSITION OF YOUR ATTORNEY, A VALID ACCEPTANCE COULD BE MADE ONLY ON THE BASIS OF THE REQUIRED DELIVERY SCHEDULE STIPULATED IN THE ORIGINAL INVITATION, OR THE ALTERNATE 2 SCHEDULE SET FORTH IN AMENDMENT NO. 2, BOTH OF WHICH ARE UNACCEPTABLE SINCE THE LOWEST CORRECT BID OFFERED PERFORMANCE IN ACCORDANCE WITH THE NEW PREFERRED SCHEDULE. SEE AMENDMENT NO. 2 (PAGE 2) PROVIDING THAT ALTERNATES WILL BE CONSIDERED ONLY IN THE ABSENCE OF OFFERS TO MEET THE PREFERRED SCHEDULE. WE CANNOT AGREE THAT YOUR SIGNING OF THE AMENDMENT CONSTITUTES AN UNEQUIVOCAL OVERALL AGREEMENT TO BE BOUND BY THE DELIVERY REQUIREMENTS OF THE PREFERRED SCHEDULE, AS YOUR ATTORNEY SEEMS TO CONTEND, SINCE THE SAVINGS CLAUSE IN THE ORIGINAL INVITATION WHICH WOULD OTHERWISE PERMIT ACCEPTANCE ON THIS BASIS HAD BEEN DELETED, AS PREVIOUSLY STATED. WE CONCUR WITH THE CONTRACTING OFFICER THAT YOUR BID WAS NOT RESPONSIVE.

IN SUPPORT OF THE SECOND CONTENTION OF YOUR ATTORNEY THAT PERMISSION TO CORRECT THE DEFICIENCIES OF YOUR BID SHOULD BE AUTHORIZED, REFERENCE IS MADE TO CERTAIN ADMINISTRATIVE REGULATIONS PERTAINING 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 AND IT IS OBVIOUS WHAT THE BIDDER INTENDED. IT IS OUR OPINION THAT THE SECTIONS CITED ARE NOT FOR APPLICATION IN THIS CASE SINCE THE OMITTED QUOTATIONS, OF COURSE, DO NOT DISCLOSE ANY READILY APPARENT ERROR OR INTENTION. TO PERMIT A BIDDER, IN SUCH CASES AS THE INSTANT MATTER, TO MAKE HIS BID RESPONSIVE BY COMPLETING AN OTHERWISE DEFICIENT BID WOULD BE TANTAMOUNT TO ALLOWING THE SUBMISSION OF A NEW OFFER. WHILE THE OMISSIONS MAY HAVE BEEN INADVERTENT, THE OVERSIGHT RESULTED IN SUCH AN INDEFINITE BID AS TO MAKE IT WHOLLY SPECULATIVE FROM THE BID ITSELF AS TO WHAT WAS INTENDED, AND IN THE ABSENCE OF A CLEAR SHOWING WHAT THE OFFER WOULD HAVE BEEN EXCEPT FOR THE MISTAKE, WHICH IS THE CONTROLLING CONSIDERATION, CORRECTION THEREOF WOULD NOT BE JUSTIFIED. SEE CITY OF CHICAGO V. MOHR, 74 N.E. 1056.

WITH RESPECT TO THE SUGGESTION OF YOUR ATTORNEY THAT THE PROCUREMENT BE READVERTISED, THE RECORD DISCLOSES THAT THE TERMS AND CONDITIONS OF THE INVITATION, AS AMENDED, WERE CLEAR AND UNAMBIGUOUS, AND WERE THOROUGHLY UNDERSTOOD BY THE REMAINING BIDDERS. TO CANCEL THE INVITATION OBVIOUSLY WOULD BE PREJUDICIAL TO THE OTHER BIDDERS AND DETRIMENTAL TO FORMAL ADVERTISING PROCEDURES, AND THEREFORE MUST BE REJECTED.

IN VIEW OF THE FOREGOING, THE REFUSAL OF THE PROCUREMENT OFFICIALS TO CONSIDER YOUR PROPOSAL IN THE EVALUATION OF BIDS UNDER THE SUBJECT INVITATION APPEARS TO BE PROPER, AND ACCORDINGLY THE PROTEST OF YOUR ATTORNEY MUST BE AND IS DENIED.