B-167191, AUG. 18, 1969

B-167191, AUG. 18, 1969

BID PROTEST - DEVIATIONS - DELIVERY PROVISIONS DECISION DENYING PROTEST OF STA-LUBE, INC., TO HANLON CHEMICAL CO. AND MED-FAC LABORATORIES, INC. FOR WATERLESS HAND CLEANER FOR GENERAL SERVICES ADMINISTRATION AS NONRESPONSIVE BECAUSE BIDDER PROPOSED TO MAKE SHIPMENT MORE THAN 30 DAYS AFTER RECEIPT OF ORDER. SINCE STA-LUBE'S BID ON ITS FACE TOOK SPECIFIC EXCEPTION TO REQUIREMENTS RESPECTING DELIVERY SCHEDULE AND SECTIONS 1-2.301, 1-2.404 2, FEDERAL PROCUREMENT REGULATIONS PROHIBIT ANY DELETION OF SUCH OBJECTIONABLE CONDITIONS DETERMINATION THAT BID WAS NONRESPONSIVE MUST BE UPHELD. AS TO THE ALLEGED SAVING THAT COULD BE REALIZED BY AWARD TO STA LUBE, IT IS MORE IN THE PUBLIC INTEREST TO MAINTAIN THE COMPETITIVE BIDDING SYSTEM THAN ANY PECUNIARY ADVANTAGE BY A VIOLATION OF THE COMPETITIVE BIDDING RULES. ACCORDINGLY, FACT THAT BID WAS LOW ON SOME ITEMS DOES NOT JUSTIFY ITS ACCEPTANCE IN CONTRAVENTION OF PROCUREMENT STATUTE, 41 U.S.C. 253 (B) AND SECTION 1-2.407, FEDERAL PROCUREMENT REGULATIONS.

TO MR. DOUGLAS J. RYKHUS:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JUNE 7, 20, AND 25, 1969, PROTESTING IN BEHALF OF STA-LUBE, INC., THE REJECTION OF ITS BID AS NONRESPONSIVE UNDER GENERAL SERVICES ADMINISTRATION (GSA) INVITATION FOR BIDS NO. FPNGG-Z-70496-A-3-27-69.

THE SOLICITATION WAS ISSUED MARCH 6, 1969, FOR A REQUIREMENTS CONTRACT FOR FSC 8520, WATERLESS HAND CLEANER, FOR THE PERIOD JUNE 1, 1969, OR DATE OF AWARD, WHICHEVER WAS LATER, THROUGH MAY 31, 1970. BIDS WERE OPENED ON APRIL 3, 1969, AND STA-LUBE WAS THE APPARENT LOW BIDDER FOR GROUPS 3, 5, 6, 8, 9, 12, 14, 15, 16, 17, 18, 22, 23, AND 24.

PARAGRAPH 11 OF THE INVITATION PROVIDED, IN PART, AS FOLLOWS: "TIME OF SHIPMENT: SHIPMENT IS REQUIRED WITHIN 30 DAYS AFTER THE DATE OF RECEIPT OF ORDER. BIDS OFFERING EARLIER SHIPMENT WILL BE EVALUATED EQUALLY AS TO TIME OF SHIPMENT. BIDS OFFERING TIME OF SHIPMENT LATER THAN SPECIFIED ABOVE WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED. BIDDER SHOULD INSERT IN THE SPACE PROVIDED BELOW A DEFINITE NUMBER OF DAYS WITHIN WHICH SHIPMENT WILL BE MADE. * * *" STA-LUBE INSERTED IN THE SPACE PROVIDED FOR THE NUMBER OF DAYS FOLLOWING RECEIPT OF ORDER WHICH THE BIDDER PROPOSED FOR SHIPMENT, THE FIGURE "44.'

BECAUSE IT PROPOSED TO MAKE SHIPMENT MORE THAN 30 DAYS AFTER RECEIPT OF ORDER, STA-LUBE'S BID WAS DETERMINED TO BE NONRESPONSIVE AND IT WAS SO ADVISED BY LETTER DATED JUNE 4, 1969, IN WHICH IT WAS ALSO ADVISED THAT ITS BID WAS LOW AS TO PRICE ON THE FOLLOWING GROUPS WHICH WERE AWARDED TO HANLON CHEMICAL COMPANY, KANSAS CITY, KANSAS, AT THE AGGREGATE PRICE INDICATED:

GROUP NO. PRICE

5 $ 9,377.28

6 35,262.81

22 24,826.23

23 14,069.88

24 15,111.36 IT WAS FURTHER ADVISED THAT GROUP 14 WAS AWARDED TO MED-FAC LABORATORIES, INC., MELVINDALE, MICHIGAN, AT THE AGGREGATE TOTAL OF $11,218; THAT IT WAS ALSO LOW ON GROUPS 3, 8, 9, 12, AND 15 AND THE ONLY BIDDER ON GROUPS 16 18; AND THAT THE REQUIREMENTS COVERED BY THESE GROUPS WILL BE PROCURED BY NEGOTIATION IN THE NEAR FUTURE.

YOU SET FORTH SEVERAL CONTENTIONS AS THE BASIS FOR STA-LUBE'S PROTEST CLAIMING THAT THE TIME OF DELIVERY IS NOT AN ESSENTIAL REQUIREMENT SINCE DELIVERIES WILL BE MADE AGAINST THE ORDERS PLACED UNDER THE CONTRACT RATHER THAN THE REQUIREMENTS CONTRACT ITSELF; THAT THE DELIVERY TIME SET FORTH IN ITS BID WAS AN OBVIOUS ERROR AND SUBJECT TO CORRECTION; THAT SINCE AN AWARD TO THE NEXT LOW BIDDER WOULD RESULT IN ADDITIONAL COSTS OF $12,000, SUCH AN AWARD IS NOT IN THE BEST INTERESTS OF THE GOVERNMENT; AND THAT THE NEXT LOW BIDDER CANNOT ENFORCE AN AWARD TO IT UNDER THE CIRCUMSTANCES.

ANSWERING YOUR CONTENTIONS IN THE ABOVE ORDER, IT IS NOTED THAT PARAGRAPH 11 OF THE SOLICITATION REQUIRED DELIVERY WITHIN 30 DAYS AFTER RECEIPT OF ORDERS. STA-LUBE'S BID STIPULATED 44 DAYS AND IT IS CLEARLY SET FORTH IN THE INVITATION THAT BIDS OFFERING A TIME OF SHIPMENT LATER THAN SPECIFIED WILL BE CONSIDERED NONRESPONSIVE AND REJECTED. THIS SPECIFICATION MUST BE CONSIDERED AS EVIDENCE OF THE MATERIALITY OF THE TIME OF DELIVERY REQUIREMENT. THE ABSENCE OF A DELIVERY SCHEDULE FOR FUTURE PURCHASE ORDERS FOR EACH ITEM UNDER THE REQUIREMENTS CONTRACT COULD NOT AFFECT THE MATERIALITY OF THE PRESCRIBED DELIVERY REQUIREMENT UNDER THE SOLICITATION. IN THIS REGARD, THE FEDERAL PROCUREMENT REGULATIONS (FPR) STATE AS FOLLOWS: "SEC. 1-2.301 RESPONSIVENESS OF BIDS.

"/A) TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED.

* * * * ** * "SEC. 1 2.404-2 REJECTION OF INDIVIDUAL BIDS.

"/A) ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS, SUCH AS SPECIFICATIONS, DELIVERY SCHEDULE, OR PERMISSIBLE ALTERNATES THERETO, SHALL BE REJECTED AS NONRESPONSIVE.

"/B) ORDINARILY, A BID SHALL BE REJECTED WHERE THE BIDDER IMPOSES CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT SO AS TO GIVE HIM AN ADVANTAGE OVER OTHER BIDDERS. FOR EXAMPLE, BIDS SHALL BE REJECTED IN WHICH THE BIDDER:

"/5) LIMITS RIGHTS OF GOVERNMENT UNDER ANY CONTRACT CLAUSE. HOWEVER, A LOW BIDDER MAY BE REQUESTED TO DELETE OBJECTIONABLE CONDITIONS FROM HIS BID IF THESE CONDITIONS DO NOT GO TO THE SUBSTANCE, AS DISTINGUISHED FROM THE FORM OF THE BID. A CONDITION GOES TO THE SUBSTANCE OF A BID WHERE IT AFFECTS PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE ITEMS OFFERED.'

SINCE THE STA-LUBE BID ON ITS FACE TOOK SPECIFIC EXCEPTION TO THE ADVERTISED REQUIREMENTS WITH RESPECT TO THE DELIVERY SCHEDULE, THE ABOVE REGULATIONS PROHIBIT ANY DELETION OF SUCH OBJECTIONABLE CONDITIONS. SEE 30 COMP. GEN. 179. OUR OFFICE HAS CONSISTENTLY HELD THAT AN OFFER OF SOMETHING OTHER THAN THAT REQUIRED BY THE SOLICITATION IS A NONRESPONSIVE OFFER AND MUST BE REJECTED. 43 COMP. GEN. 209; 40 COMP. GEN. 458; 38 COMP. GEN. 610. IN ADDITION, WE HAVE HELD THAT WHERE THE BID INCLUDES A PERFORMANCE SCHEDULE WHICH DOES NOT MEET THE REQUIREMENTS OF THE INVITATION, THE BID IS NONRESPONSIVE. B-164401, JULY 22, 1968; B-162096, OCTOBER 9, 1967; 33 COMP. GEN. 441; 30 COMP. GEN. 179.

IN REGARD TO YOUR ALLEGATION OF ERROR IN STATING A DELIVERY DATE OTHER THAN INTENDED, WE HELD IN 38 COMP. GEN. 819, 821, AS FOLLOWS:

"THE QUESTION THEN ARISES AS TO WHETHER A BID WHICH IS NOT RESPONSIVE TO THE INVITATION MAY BE CORRECTED ON THE BASIS OF AN ALLEGATION THAT THE REASON FOR THE BID BEING NONRESPONSIVE WAS AN OVERSIGHT OR A MISTAKE. OUR DECISION OF JANUARY 30, 1958, B-134931, WHICH INVOLVED A SITUATION WHERE A BIDDER HAD INADVERTENTLY SUBMITTED THE WRONG SAMPLE WITH ITS BID AND ATTEMPTED TO SUBMIT A NEW SAMPLE AFTER THE BID OPENING, IT WAS STATED:

"-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 REASON FOR THE UNRESPONSIVENESS, WHETHER DUE TO MISTAKE OR OTHERWISE.-

"IT IS PROBABLE THAT THE MAJORITY OF UNRESPONSIVE BIDS ARE DUE TO OVERSIGHT OR ERROR, SUCH AS THE FAILURE TO QUOTE A PRICE, TO SIGN THE BID, TO FURNISH A BID BOND, TO SUBMIT REQUIRED SAMPLES OR DATA, OR THE SUBMISSION OF THE WRONG SAMPLE, INCOMPLETE DATA, OR STATEMENTS THE ACTUAL MEANING OF WHICH WAS NOT INTENDED, ETC. 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 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.'

WE BELIEVE THAT THE FOREGOING IS DISPOSITIVE OF YOUR ALLEGATION OF ERROR.

AS TO THE SAVING WHICH YOU CLAIM COULD BE REALIZED BY AWARD TO STA LUBE, WE HAVE HELD THAT THE STRICT MAINTENANCE OF THE COMPETITIVE BIDDING SYSTEM, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN ANY PECUNIARY ADVANTAGE WHICH MIGHT BE OBTAINED IN A PARTICULAR CASE BY A VIOLATION OF THE RULES OF COMPETITIVE BIDDING. 17 COMP. GEN. 554, 558. ACCORDINGLY, THE FACT THAT THE BID WAS LOW ON SOME ITEMS DOES NOT JUSTIFY ITS ACCEPTANCE IN CONTRAVENTION OF THE PROCUREMENT STATUTE (41 U.S.C. 253 (B) ( AND REGULATIONS (FPR SEC. 1 2.407). B-156667, JULY 15, 1965.

THEREFORE, THE PROTEST MUST BE DENIED.

THE QUESTIONS APPENDED TO YOUR LETTER OF JUNE 20, 1969, HAVE BEEN REVIEWED BY THE PROCUREMENT ACTIVITY, AND IT HAS BEEN DETERMINED THAT DEVELOPMENT OF THE INFORMATION REQUESTED WOULD BE TIME CONSUMING AND COSTLY. ACCORDINGLY, AND SINCE IT DOES NOT APPEAR THAT THE INFORMATION REQUESTED WOULD HAVE ANY RELEVANCE TO THE MERITS OF THE PROTEST, WE ARE NOT UNDERTAKING TO COMMENT ON YOUR QUESTIONS. IF YOU BELIEVE THAT SUCH INFORMATION IS NONETHELESS MATERIAL, WE SUGGEST THAT YOUR REQUEST IN THIS REGARD BE COMMUNICATED TO THE GENERAL SERVICES ADMINISTRATION.