B-162833, NOV. 9, 1967

B-162833, NOV. 9, 1967

BIDS - MISTAKES - CORRECTION DECISION TO ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION DEPARTMENT OF JUSTICE, RE MISTAKE IN BID OF GENERAL ELECTRIC COMPANY FOR FURNISHING IMMIGRATION AND NATURALIZATION SERVICE RADIO SETS. A LOW BIDDER WHO AFTER OPENING ALLEGED THAT A CLERICAL ERROR HAD BEEN MADE IN QUOTING THE MODEL NUMBER OF THE EQUIPMENT OFFERED MAY NOT BE ALLOWED TO SUBSTITUTE A DIFFERENT MODEL NUMBER ON THE BASIS OF CLERICAL ERROR SINCE SUCH A CORRECTION IS EQUIVALENT TO A SUBSTITUTION OF THE ITEM OFFERED GIVING THE BIDDER ANOTHER OPPORTUNITY TO BID WHICH MAY NOT BE PERMITTED. THEREFORE REJECTION OF THE LOW BID FOR FAILURE TO COMPLY WITH THE SPECIFICATIONS IS REQUIRED.

TO MR. FRIESEN:

REFERENCE IS MADE TO YOUR LETTER, INV-CO-4-68, DATED OCTOBER 25, 1967, REQUESTING A DECISION WHETHER A MISTAKE IN THE BID OF THE GENERAL ELECTRIC COMPANY SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. INV-CO-4-68 ISSUED ON AUGUST 1, 1967, BY THE IMMIGRATION AND NATURALIZATION SERVICE, WASHINGTON, D.C., MAY BE CORRECTED.

THE INVITATION REQUESTED BIDS FOR 148 MOBILE RADIO SETS, VHF-FM-160 170 MC., 60 WATTS FOR DELIVERY TO THREE DESTINATIONS IN THE UNITED STATES. ITEM 7 OF GENERAL CONDITIONS PROVIDES: "7. BIDDER MUST INDICATE THE MODEL OR TYPE NUMBER OR DESIGNATION OF ITEMS OFFERED. BIDDER MUST STATE IF STANDARD MODEL REQUIRES MODIFICATIONS TO MEET THESE SPECIFICATIONS. BIDDER MUST ATTACH A GENERAL DESCRIPTION OF ANY SUCH MODIFICATIONS NECESSARY.'

THE ABOVE CLAUSE WAS INSERTED IN THE INVITATION TO ENABLE THE CONTRACTING OFFICER TO DETERMINE IF THE ITEM OFFERED BY THE BIDDER MET THE SPECIFICATIONS OF THE INVITATION AND TO DETERMINE WHAT MODIFICATIONS OF THE ITEM WOULD BE REQUIRED. ON AUGUST 25, 1967, THE SIX BIDS RECEIVED WERE OPENED AND THE BID OF $658.00 PER UNIT BY GENERAL ELECTRIC WAS LOW. THE BID BY GENERAL ELECTRIC OFFERED MODEL G.E. MASTR-MT56TFS66 SPECIAL AND OPTIONS AND BY LETTER DATED AUGUST 22, 1967, SET FORTH THE MODIFICATIONS NECESSARY. ON AUGUST 28, 1967, GENERAL ELECTRIC ASSERTED A CLERICAL ERROR HAD BEEN MADE IN QUOTING THE MODEL NUMBER. THIS WAS CONFIRMED BY LETTER OF THE SAME DATE AND MODEL G.E. MASTR-MT76TFS66 WAS GIVEN AS THE CORRECT MODEL. YOUR LETTER OF OCTOBER 25, 1967, REPORTS THAT MODEL G.E. MASTR- MT56TFS66 DOES NOT CONFORM TO THE INVITATION SPECIFICATIONS INASMUCH AS THE POWER OUTPUT IS 16-38 WATTS WHICH DOES NOT MEET THE 60 WATTS MINIMUM REQUIRED BY THE INVITATION. THE CORRECTED MODEL NUMBER, G.E. MASTR- MT76TFS66 HAS A RANGE OF 64 - 128 WATTS.

THIS OFFICE HAS HELD WHERE THE INVITATION REQUIRES THE SUBMISSION OF DATA WITH THE BID THAT FAILURE TO COMPLY MUST BE REGARDED MATERIAL. 40 COMP. GEN. 132, 135. FURTHER, WE HAVE HELD THAT DEVIATIONS FROM THE SPECIFICATIONS WHICH AFFECT PRICE, QUANTITY, OR QUALITY GO TO THE SUBSTANCE OF THE BID, AND WAIVER OF SUCH DEVIATIONS IS PREJUDICIAL TO OTHER BIDDERS. SEE 30 COMP. GEN. 179, AND 17 COMP. GEN. 554. THEREFORE, COMPLIANCE WITH ITEM 7 OF THE GENERAL CONDITIONS BY GIVING MODEL NUMBER WAS MANDATORY TO ENABLE THE CONTRACTING OFFICER TO DETERMINE THE QUALITY OF THE PRODUCT OFFERED, AND TO ALLOW GENERAL ELECTRIC TO SUBSTITUTE A DIFFERENT MODEL NUMBER ON THE BASIS OF CLERICAL ERROR IS THE EQUIVALENT OF A SUBSTITUTION OF PRODUCTS. THIS IS CONTRARY TO THE PRINCIPLE THAT NO BIDDER HAS A RIGHT, AFTER OPENING, TO ANOTHER OPPORTUNITY TO BID IN DEROGATION OF THE RIGHTS OF OTHER BIDDERS. 34 COMP. GEN. 82; 35 ID. 33; 36 ID. 705. AS WE STATED IN 38 COMP. GEN. 819 (WHICH YOU CITE): "IT IS PROBABLE THAT THE MAJORITY OF UNRESPONSIVE BIDS ARE DUE TO OVERSIGHT OR ERROR, SUCH AS THE FAILURE * * * TO SUBMIT REQUIRED SAMPLES OR DATA, OR THE SUBMISSION OF THE WRONG SAMPLE, INCOMPLETE DATA, * * *. AN 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.'

ACCORDINGLY, IT MUST BE CONCLUDED THAT THE LOW BID BY GENERAL ELECTRIC COMPANY WAS NONRESPONSIVE FOR FAILURE TO COMPLY WITH THE SPECIFICATIONS AND MAY NOT BE CORRECTED SO AS TO RENDER THE BID PROPER FOR ACCEPTANCE. RETURNED HEREWITH ARE THE ENCLOSURES TO THE LETTER OF OCTOBER 25, 1967.