B-150611, FEB. 25, 1963

B-150611, FEB. 25, 1963

TO MOTOROLA SEMICONDUCTOR PRODUCTS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 10, 1963, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. DSA 9-63-36, ISSUED BY THE DEFENSE ELECTRONICS SUPPLY CENTER, DAYTON, OHIO.

THE INVITATION REQUESTED BIDS ON 91 ITEMS OF SEMICONDUCTOR DEVICES AND TRANSISTORS. THE INVITATION PROVIDED FOR THE AWARD OF A "REQUIREMENTS" TYPE CONTRACT AND REQUIRED PRICES TO BE SUBMITTED FOR VARIOUS QUANTITY INCREMENTS UNDER EACH ITEM. ON THE COVER PAGE OF THE INVITATION (STANDARD FORM 30), IMMEDIATELY ABOVE THE PROVISION ON THE FORM FOR SHOWING THE TIME ALLOWED FOR THE ACCEPTANCE OF THE BID, WAS CLEARLY TYPEWRITTEN THE PROVISION "NOTE: BIDS SPECIFYING LESS THAN 60 DAYS ACCEPTANCE TIME WILL BE REJECTED.'

THE 46 BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE OPENED ON OCTOBER 18, 1962, AS SCHEDULED AND YOU WERE THE LOWEST BIDDER ON FIVE OF THE ITEMS. HOWEVER, YOUR BID ALLOWED A PERIOD OF ONLY 30 DAYS FOR ACCEPTANCE BY THE GOVERNMENT, NOTWITHSTANDING THE FACT THAT THE INVITATION SPECIFICALLY STATED THAT BIDS PROVIDING LESS THAN 60 DAYS FOR ACCEPTANCE WOULD BE REJECTED. BY LETTER DATED NOVEMBER 26, 1962, OVER 30 DAYS FROM THE OPENING OF THE BIDS, YOU SOUGHT TO MODIFY THE BID BY CHANGING THE PERIOD OF ACCEPTANCE FROM 30 TO 60 DAYS. THE CONTRACTING OFFICER DECLINED TO ACCEPT THE MODIFICATION AND REJECTED YOUR BID AS BEING NONRESPONSIVE TO THE TERMS OF THE INVITATION.

YOU PROTEST THE ACTION TAKEN BY THE CONTRACTING OFFICER ON THE BASIS THAT THE 30 DAYS' ACCEPTANCE TIME WAS INSERTED IN THE BID THROUGH ERROR AND THAT THE MODIFICATION SUBMITTED AFTER THE OPENING, CHANGING THE ACCEPTANCE TIME FROM 30 TO 60 DAYS, SHOULD HAVE BEEN CONSIDERED PURSUANT TO ASPR 2- 405 AS A CORRECTION OF A MINOR INFORMALITY OR IRREGULARITY. IT IS ALSO CONTENDED THAT THE BID MODIFICATION SHOULD HAVE BEEN ALLOWED UNDER THE SECOND SENTENCE OF THE CLAUSE ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" ON PAGE 1 OF THE SCHEDULE OF THE INVITATION, WHICH PROVIDES THAT A MODIFICATION WHICH IS RECEIVED FROM AN OTHERWISE SUCCESSFUL BIDDER AND WHICH MAKES THE TERMS OF THE BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED. IT IS ADMITTED THAT THE CONSIDERATION OF THE BID MODIFICATION WOULD HAVE BEEN PREJUDICIAL TO OTHER BIDDERS "HAD THERE BEEN FIXED QUANTITIES OR FIXED DELIVERIES REQUIRED IN THE BID," BUT IT IS URGED THAT THE TIME ALLOWED FOR ACCEPTANCE OF THE BID SHOULD NOT BE CONSIDERED A MATERIAL REQUIREMENT, SINCE THERE ARE NO FIXED QUANTITY OR FIXED DELIVERY REQUIREMENTS, AS THIS INVITATION CONTEMPLATES THE AWARD OF A "REQUIREMENTS" TYPE CONTRACT UNDER WHICH ORDERS WOULD BE ISSUED AT A LATER DATE.

IT IS WELL ESTABLISHED THAT A PROVISION IN AN INVITATION REQUIRING THAT A BID TO BE CONSIDERED FOR AWARD MUST REMAIN AVAILABLE FOR ACCEPTANCE FOR A DESIGNATED PERIOD IS A MATERIAL REQUIREMENT, AND FAILURE TO CONFORM THEREWITH RENDERS A BID NONRESPONSIVE. 39 COMP. GEN. 779. THE FACT THAT THE INVITATION HERE INVOLVED CONTEMPLATED THE AWARD OF A "REQUIREMENTS" TYPE CONTRACT DOES NOT JUSTIFY THE CONCLUSION THAT THE REQUIREMENT FOR THE BIDS TO REMAIN AVAILABLE FOR ACCEPTANCE FOR A DESIGNATED PERIOD IS NOT A MATERIAL REQUIREMENT. THE "REQUIREMENTS" TYPE CONTRACT IMPOSES CERTAIN DEFINITE AND BINDING OBLIGATIONS UPON THE GOVERNMENT AND THE CONTRACTOR, NOTWITHSTANDING THE FACT THAT FIXED QUANTITIES TO BE DELIVERED ARE NOT DETERMINED AT THE TIME OF AWARD. IT APPEARS THAT MOST OF THE FACTORS WHICH WOULD CAUSE A BIDDER TO LIMIT THE ACCEPTANCE TIME ON REGULAR FIXED QUANTITY TYPE BIDS WOULD ALSO APPLY TO A BID CONTEMPLATING THE AWARD OF A "REQUIREMENTS" TYPE CONTRACT.

WITH RESPECT TO THE CONTENTION THAT THE 30 DAYS' ACCEPTANCE TIME WAS INSERTED IN THE BID THROUGH ERROR, IT HAS BEEN HELD 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, AND THAT TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PROVISION AFTER THE BID OPENING WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW OFFER. 38 COMP. GEN. 819; 40 ID. 432. SINCE YOUR BID WAS NOT RESPONSIVE TO THE CONDITIONS OF THE INVITATION AND COULD NOT BE CONSIDERED FOR AWARD, THE BID COULD NOT BE CONSIDERED AS A BID FROM ,AN OTHERWISE SUCCESSFUL BIDDER" SO AS TO PERMIT A VOLUNTARY CHANGE THEREIN WHICH WOULD BE FAVORABLE TO THE GOVERNMENT PURSUANT TO THE SECOND SENTENCE OF THE CLAUSE ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS.'

IN VIEW OF THE FOREGOING IT MUST BE CONCLUDED THAT YOUR BID WAS PROPERLY REJECTED AS BEING NONRESPONSIVE AND, THEREFORE, YOUR PROTEST IS DENIED.