B-165217, NOV. 13, 1968

B-165217, NOV. 13, 1968

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTERS DATED OCTOBER 8 AND 22, 1968, FROM THE ACTING SECRETARY, FURNISHING OUR OFFICE WITH REPORTS ON THE PROTEST OF SWANTON LIME WORKS, INC., UNDER INVITATION FOR BIDS NO. VT.-1-69, ISSUED BY THE AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE, VERMONT STATE OFFICE.

THE SUBJECT INVITATION CONTEMPLATES THE ESTABLISHMENT OF SOURCES OF SUPPLY FOR LIMING MATERIALS "IN SUCH QUANTITIES AS MAY BE REQUIRED IN THE STATE OF VERMONT DURING THE PERIOD FROM THE DATE OF AWARD THROUGH THE END OF THE 1969 AGRICULTURAL CONSERVATION PROGRAM.' BIDS WERE SOLICITED ON A COUNTY-BY-COUNTY BASIS AND PRICES WERE REQUESTED FOR BOTH BAGGED LIME AND BULK LIME.

PARAGRAPH 2 OF THE INVITATION SUPPLEMENTAL CONDITIONS ENTITLED "CONDITIONAL BIDS," PROVIDES THAT BIDS "WHICH CONTAIN CONDITIONS THAT ALTER ANY PROVISION OF THE INVITATION WILL NOT BE CONSIDERED.' PARAGRAPH I OF THE INVITATION ADDITIONAL SPECIFICATIONS AND CONDITIONS PROVIDES HAT:

"THE MINIMUM QUANTITY A SUCCESSFUL BIDDER WILL BE REQUIRED TO DELIVER TO ANY INDIVIDUAL FARMYARD SHALL BE TWO TONS OF BAGGED MATERIAL OR FIVE TONS OF BULK MATERIAL, UNLESS OTHER ARRANGEMENTS ARE WORKED OUT BETWEEN THE CONTRACTOR AND THE STATE COMMITTEE.' PARAGRAPH Q OF THE ADDITIONAL SPECIFICATIONS AND CONDITIONS ALSO SPECIFIES A FIVE-TON BULK MINIMUM QUANTITY.

THE BID PRICES, SUBMITTED BY BENJAMIN AND DEWING LIME SERVICE, A COMPANY SUPPLYING LIMESTONE IMPORTED FROM CANADA, WHEN EVALUATED IN ACCORDANCE WITH THE APPROPRIATE BUY AMERICAN ACT DIFFERENTIAL, WERE DETERMINED TO BE LOW WITH RESPECT TO BULK SPREAD LIME FOR ORLEANS AND FRANKLIN COUNTIES. HOWEVER, BENJAMIN AND DEWING CONDITIONED ITS BID BY STRIKING OUT THE WORD "FIVE" AND SUBSTITUTING THE WORD "SEVEN" IN PARAGRAPHS I AND Q, THEREBY IMPOSING A SEVEN-TON MINIMUM QUANTITY AS OPPOSED TO THE FIVE-TON MINIMUM QUANTITY REQUIRED BY THE INVITATION WITH RESPECT TO BULK SPREAD LIME. THIS BID QUALIFICATION IS PROTESTED BY SWANTON LIME WORKS ON THE BASIS THAT THE VARIATION IN THE REQUIRED MINIMUM QUANTITIES CONSTITUTES A MATERIAL DEVIATION FROM THE INVITATION REQUIREMENTS RENDERING THE BENJAMIN AND DEWING BID NONRESPONSIVE. AS A RESULT OF THE SWANTON PROTEST, AWARDS OF CONTRACTS FOR ALL VERMONT COUNTIES WILL NOT BE MADE UNTIL THE PROTEST IS RESOLVED BY OUR OFFICE.

THE REPORT SUBMITTED BY THE ACTING SECRETARY TAKES THE POSITION THAT SINCE PARAGRAPH I PROVIDES FOR "OTHER ARRANGEMENTS" BETWEEN THE CONTRACTOR AND THE STATE COMMITTEE CONCERNING MINIMUM QUANTITIES, THE SUBSTITUTIONS OF A SEVEN-TON MINIMUM QUANTITY BY BENJAMIN AND DEWING WERE NOT SUBSTANTIVE CHANGES BUT WERE MERELY EFFORTS TO WORK OUT SUCH OTHER ARRANGEMENTS. THE REPORT ALSO STATES THAT THE SEVEN-TON MINIMUM QUANTITY PROPOSED BY BENJAMIN AND DEWING WAS NOT ACCEPTABLE TO THE STATE COMMITTEE AND THAT, AFTER BEING INFORMED OF THIS FACT, BENJAMIN AND DEWING AGREED TO ABIDE BY THE FIVE-TON INVITATION REQUIREMENT. THE REPORT OF OCTOBER 22, 1968, ADVISES THAT THE BIDS SUBMITTED BY BENJAMIN AND DEWING FOR THE FISCAL YEARS 1967 AND 1968 PROGRAMS WERE SIMILARLY CONDITIONED ON HIGHER MINIMUM QUANTITIES THAN REQUIRED BY THE INVITATIONS, AND THAT SUCH BIDDER WAS INSTRUCTED 2 YEARS AGO BY THE CONTRACTING OFFICER TO INSERT IN ITS BID WHATEVER MINIMUM QUANTITY IT WOULD ACCEPT.

IT IS A FUNDAMENTAL RULE THAT IN ORDER FOR A BID TO BE CONSIDERED AS RESPONSIVE TO AN INVITATION, IT MUST CONFORM TO ALL MATERIAL INVITATION TERMS AND CONDITIONS TO ASSURE THAT ALL BIDDERS BID ON AN EQUAL BASIS. COMP. GEN. 554. IT IS ALSO WELL SETTLED THAT BID DEVIATIONS AFFECTING PRICE, QUANTITY, QUALITY, OR DELIVERY GO TO THE SUBSTANCE OF THE BID AND CANNOT BE WAIVED AS MINOR INFORMALITIES. CF. 46 COMP. GEN. 856, 858; SEE 30 ID. 179; 17 ID. 554, 558. FURTHER, EXCEPTIONS DELIBERATELY TAKEN TO SPECIFICATIONS CANNOT BE CONSIDERED AS TRIVIAL OR MINIMAL. SEE B-155827, FEBRUARY 25, 1965. THEREFORE, WE MUST CONCLUDE THAT THE ATTEMPT BY BENJAMIN AND DEWING TO ALTER THE TERMS OF THE INVITATION BY CHANGING THE REQUIREMENTS FOR MINIMUM QUANTITIES OF BULK LIME WAS A MATERIAL DEVIATION WHICH RENDERED ITS BID NONRESPONSIVE. ALSO, SINCE A NONRESPONSIVE BID CANNOT BE CHANGED AFTER OPENING TO MAKE IT RESPONSIVE, BENJAMIN AND DEWING'S AGREEMENT, AFTER OPENING, TO ABIDE BY THE FIVE-TON INVITATION REQUIREMENT IS NOT FOR CONSIDERATION. SEE 38 COMP. GEN. 819; 46 ID. 1, 3- 4.

WE CANNOT AGREE WITH THE ADMINISTRATIVE POSITION THAT THE INVITATION STATEMENT CONCERNING ,OTHER ARRANGEMENTS" BETWEEN THE CONTRACTOR AND THE STATE COMMITTEE WITH REGARD TO MINIMUM QUANTITIES LEGITIMIZES THE ATTEMPT OF BENJAMIN AND DEWING TO VARY THE REQUIRED MINIMUM QUANTITIES. THAT STATEMENT BY ITS OWN TERMS APPLIES TO THE "CONTRACTOR" RATHER THAN TO THE ,BIDDER" AND THEREFORE HAS REFERENCE TO CHANGES WHICH MIGHT BE MUTUALLY EFFECTED AFTER AWARD OF THE CONTRACT. ALSO, THE FACT THAT THE CONTRACTING OFFICER HAD PREVIOUSLY INSTRUCTED THE BIDDER TO VARY THE MINIMUM QUANTITIES REQUIREMENT MAY NOT BE CONSIDERED AS A BASIS FOR WAIVING THE MATERIAL DEVIATIONS NOW PRESENT ON THE FACE OF THE BID.

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, WE MUST CONCLUDE THAT THE BENJAMIN AND DEWING BIDS FOR ORLEANS AND FRANKLIN COUNTIES MUST BE REJECTED AS NONRESPONSIVE, AND THAT THE AWARD OF CONTRACTS FOR THOSE COUNTIES SHOULD BE MADE TO THE NEXT LOWEST RESPONSIVE BIDDER, IF OTHERWISE PROPER.