B-167242, SEP. 4, 1969

B-167242, SEP. 4, 1969

BID PROTEST - DEVIATIONS - REQUIREMENTS TYPE CONTRACTS DECISION TO UTICA CUTLERY CO., LOW BIDDER, DENYING PROTEST AGAINST AWARD TO ANOTHER BIDDER OF REQUIREMENTS CONTRACT FOR FURNISHING KNIVES FOR GENERAL SERVICES ADMINISTRATION. LOW BIDDER WHO DID NOT OFFER MONTHLY SUPPLY POTENTIAL FOR CERTAIN ITEMS AT THE GOVERNMENT'S ESTIMATED PEAK MONTHLY REQUIREMENT MAY NOT HAVE SUCH DIFFERENCES REGARDED AS OBVIOUS ERROR FOR CORRECTION BEFORE AWARD SINCE MONTHLY SUPPLY POTENTIAL WAS CONSIDERABLY BELOW ESTIMATED PEAK AND COPY OF BID FURNISHED INDICATED QUANTITIES FURNISHED HAD BEEN DECREASED THUS DECREASING LIKELIHOOD OF ERROR. THEREFORE REJECTION OF BID AS NONRESPONSIVE WAS PROPER.

TO UTICA CUTLERY COMPANY:

REFERENCE IS MADE TO YOUR COMPLAINT AGAINST AN AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS (IFB) NO. FPNTP-A4-70439-A, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), WHICH WAS FORWARDED TO OUR OFFICE UNDER DATE OF JUNE 14, 1969, BY CONGRESSMAN ALEXANDER PIRNIE.

THE REFERENCED INVITATION, ISSUED ON JANUARY 30, 1969, WAS FOR A REQUIREMENTS CONTRACT, WITH GUARANTEED MINIMUM, FOR VARIOUS KINDS OF KNIVES FOR THE PERIOD JUNE 1, 1969, OR DATE OF AWARD, WHICHEVER WAS LATER, THROUGH MAY 31, 1970. PARAGRAPH 6, PAGE 10, OF THE INVITATION CONTAINED A MONTHLY SUPPLY POTENTIAL CLAUSE WHICH PROVIDED, IN PERTINENT PART, THAT: "* * * IN ORDER TO PRECLUDE THE PLACEMENT OF ORDERS WITH ANY CONTRACTOR IN EXCESS OF HIS PRODUCTION CAPACITY, OFFERORS ARE REQUESTED TO INDICATE IN THE SPACES PROVIDED, THE TOTAL QUANTITY PER MONTH WHICH THEY ARE WILLING TO FURNISH OF ANY ITEM OR GROUP OF ITEMS INVOLVING THE USE OF THE SAME PRODUCTION FACILITIES. * * *"

THE METHOD OF AWARD CLAUSE (PARAGRAPH 7, PAGE 11A) PROVIDED, AMONG OTHER THINGS, THAT: "AWARDS WILL BE MADE IN ACCORDANCE WITH (B) BELOW ON THE BASIS OF THE GOVERNMENT'S ESTIMATED PEAK MONTHLY REQUIREMENTS TO THE LOW RESPONSIVE OFFERORS UP TO THEIR STATED MONTHLY SUPPLY POTENTIALS. * * * IN ORDER TO QUALIFY FOR AN AWARD AN OFFEROR MUST OFFER A MONTHLY SUPPLY POTENTIAL TO COVER THE GOVERNMENT'S ESTIMATED PEAK MONTHLY REQUIREMENT ON AT LEAST ONE GROUP OR INDIVIDUAL ITEM. GROUPS OR INDIVIDUAL ITEMS WILL NOT BE SUBDIVIDED FOR AWARD PURPOSES.' (THE REFERENCE "/B) BELOW" IS TO A STATEMENT THAT AWARDS WOULD BE MADE ON ITEM 4 INDIVIDUALLY, ON VARIOUS OTHER ITEMS IN SPECIFIED GROUPS, AND ON ITEMS 23 THROUGH 41 ITEM-BY- ITEM.)

BIDS WERE OPENED ON FEBRUARY 25, 1969, AND UTICA WAS THE LOW BIDDER ON ITEMS 4 AND 29. THE BIDDER'S "MONTHLY SUPPLY POTENTIAL" IN PARAGRAPH 6 WAS FILLED IN BY UTICA AS FOLLOWS:

GOVERNMENT'S ESTIMATED UTICA'S MONTHLY

PEAK MONTHLY REQUIREMENT SUPPLY POTENTIAL

ITEM NO. 4 5,000 5,000

ITEM NO. 27 50,0005,000

ITEM NO. 28 87,500 25,000

ITEM NO. 29 40,500 40,000

SINCE YOUR STATED MONTHLY SUPPLY POTENTIAL ON ITEM 4 MET THE ESTIMATED PEAK MONTHLY REQUIREMENT, YOU WERE AWARDED A CONTRACT FOR THAT ITEM. HOWEVER, SINCE THE ESTIMATED PEAK MONTHLY REQUIREMENT FOR THE OTHER ITEMS, INCLUDING ITEM 29, EXCEEDED THE MONTHLY SUPPLY POTENTIAL OFFERED BY YOU FOR THOSE ITEMS, YOUR BIDS THEREON WERE DETERMINED TO BE NONRESPONSIVE. CONSEQUENTLY, ITEM 29 WAS AWARDED TO THE SECOND LOW RESPONSIVE RESPONSIBLE BIDDER ON JUNE 6, 1969, PRIOR TO RECEIPT OF THE INSTANT PROTEST.

THE BASIS OF YOUR PORTEST IS ESSENTIALLY THAT THE STATED MONTHLY SUPPLY POTENTIAL FOR ITEM 29 WAS AN OBVIOUS CLERICAL MISTAKE WHICH COULD BE CORRECTED BEFORE AWARD OF THE CONTRACT.

AFTER REVIEWING ALL OF THE PERTINENT DOCUMENTS WE ARE UNABLE TO FIND ANY BASIS FOR CONCLUDING THAT THE FAILURE OF YOUR FIRM TO INDICATE A MONTHLY SUPPLY POTENTIAL EQUAL TO THE ESTIMATED PEAK MONTHLY REQUIREMENTS OF ITEM 29 WAS AN APPARENT CLERICAL MISTAKE WITHIN THE MEANING OF SECTION 1-2.406- 2 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), ESPECIALLY SINCE, AS SHOWN BY THE ABOVE TABULATION, YOUR STATED MONTHLY SUPPLY POTENTIAL FOR ITEMS 27 AND 28 WERE SUBSTANTIALLY BELOW THE ESTIMATED PEAK MONTHLY REQUIREMENTS. ALSO, WE CANNOT HELP BUT NOTE THAT IN THE COPY OF YOUR BID FURNISHED OUR OFFICE, IT APPEARS THAT THE MONTHLY SUPPLY POTENTIALS HAD ORIGINALLY BEEN FILLED IN WITH DIFFERENT FIGURES, WHICH HAD BEEN CROSSED OUT AND THE FIGURES STATED ABOVE INSERTED. THIS WOULD SEEM TO INDICATE THAT THE QUANTITIES TO BE STATED HAD BEEN GIVEN PARTICULAR ATTENTION, THUS DECREASING THE LIKELIHOOD THAT ANY OF THEM WERE ERRONEOUS.

ON THE FACE OF THE BID WE SEE NO BASIS FOR CHARGING THE CONTRACTING OFFICER WITH NOTICE OF AN APPARENT ERROR, NOR DO WE FIND ANY SATISFACTORY EVIDENCE IN THE RECORD TO SUPPORT YOUR CLAIM OF A CLERICAL ERROR.

WE HAVE HELD THAT A SIMILAR REQUIREMENT FOR STATEMENT OF A BIDDER'S MONTHLY SUPPLY POTENTIAL AFFECTS THE BIDDER'S ELIGIBILITY FOR AWARD AND MUST BE CONSIDERED A MATTER OF RESPONSIVENESS OF THE BID. 45 COMP. GEN. 611; B-165254, NOVEMBER 7, 1968. IN ADDITION, THE RULE IS WELL SETTLED THAT THE RESPONSIVENESS OF A BID MUST BE DETERMINED FROM THE BID AS SUBMITTED AND TO ALLOW A BIDDER AN OPPORTUNITY TO CLARIFY OR CHANGE THE BID WOULD BE TANTAMOUNT TO ALLOWING A SECOND BID. 46 COMP. GEN. 856. DESPITE THE POSSIBILITY OF AN IMMEDIATE ADVANTAGE GIVEN BY A LOWER PRICE IN A PARTICULAR PROCUREMENT, IT IS AXIOMATIC THAT THE INTEREST OF THE GOVERNMENT IN PRESERVING AND MAINTAINING THE COMPETITIVE BIDDING SYSTEM REQUIRES THAT BIDDERS NOT BE GIVEN A SECOND CHANCE TO BID BY ASSERTING ERROR IN A MATTER GOING TO THE RESPONSIVENESS OF THEIR BIDS. 38 COMP. GEN. 819; 37 ID. 210; 40 ID. 432; 45 ID. 800.