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B-170680, OCT. 6, 1970

B-170680 Oct 06, 1970
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WHERE UNDER INVITATION REQUIRING BIDDER TO FURNISH ITEMS UPON WHICH PRICES ARE SPECIFIED LOW BIDDER NEGLECTED TO STATE A PRICE FOR ONE ITEM. SINCE OMISSION IS A MATERIAL DEVIATION THAT MAY NOT BE CORRECTED. WOODFIN: REFERENCE IS MADE TO LETTER 00J:JCC:JAW N00024-70-B-7575 SER 574-00J OF AUGUST 24. IS RESPONSIVE TO INVITATION FOR BIDS N00024-70-B-7575. WE DO NOT FIND IT NECESSARY TO DISCUSS ALL THE OMISSIONS INVOLVED AND WE WILL CONFINE OUR CONSIDERATION OF THE PYRODYNE BID TO THE ONE OMISSION WHICH IS TREATED BELOW. INVITATION SECTION "A" STATED: "AWARD WILL BE MADE ONLY TO ONE OFFEROR FOR ALL UNITS OF ITEMS 1 AND 2 AND FOR ITEMS 3 AND 3AA SUBJECT TO EXERCISE OF OPTION FOR FULL DESIGN DISCLOSURE DATA PACKAGE.

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B-170680, OCT. 6, 1970

BIDS - OMISSIONS DECISION TO DIRECTOR OF CONTRACTS, NAVAL SHIP SYSTEMS COMMAND, ADVISING THAT THE PYRODYNE DIVISION, WILLIAM WAHL CORP., WHOSE BID DID NOT COMPLY IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE INVITATION FOR WIRE ROPE CUTTERS AND ITS ACCESSORIES AT TIME OF BID OPENING, SHOULD BE REJECTED AS NONRESPONSIVE. WHERE UNDER INVITATION REQUIRING BIDDER TO FURNISH ITEMS UPON WHICH PRICES ARE SPECIFIED LOW BIDDER NEGLECTED TO STATE A PRICE FOR ONE ITEM, THE BIDDER MAY NOT BE PERMITTED TO CORRECT HIS BID TO SHOW PRICE OF $1.00 FOR ITEM, SINCE OMISSION IS A MATERIAL DEVIATION THAT MAY NOT BE CORRECTED.

TO MR. WOODFIN:

REFERENCE IS MADE TO LETTER 00J:JCC:JAW N00024-70-B-7575 SER 574-00J OF AUGUST 24, 1970, REQUESTING A DECISION WHETHER THE BID OF THE PYRODYNE DIVISION, WILLIAM WAHL CORPORATION, IS RESPONSIVE TO INVITATION FOR BIDS N00024-70-B-7575.

THE PYRODYNE BID CONTAINS A NUMBER OF OMISSIONS. YOU SUGGEST THAT THE OMISSIONS BE CONSIDERED AS MINOR DEVIATIONS. WE DO NOT FIND IT NECESSARY TO DISCUSS ALL THE OMISSIONS INVOLVED AND WE WILL CONFINE OUR CONSIDERATION OF THE PYRODYNE BID TO THE ONE OMISSION WHICH IS TREATED BELOW.

THE INVITATION FOR BIDS COVERED WIRE ROPE CUTTERS (ITEM 1), ONBOARD REPAIR PARTS AND TOOLS (ITEM 2) AND A FULL DESIGN DISCLOSURE DATA PACKAGE ON THE WIRE ROPE CUTTERS (ITEM 3). PYRODYNE FURNISHED PRICES FOR ITEMS 1 AND 2, BUT OMITTED A PRICE FOR ITEM 3. AT THE BOTTOM OF THE PRICING COLUMN, OPPOSITE "TOTAL ... (EXCLUSIVE OF ITEMS 3 AND 3AA)," PYRODYNE INSERTED "$1.00."

INVITATION SECTION "A" STATED:

"AWARD WILL BE MADE ONLY TO ONE OFFEROR FOR ALL UNITS OF ITEMS 1 AND 2

AND FOR ITEMS 3 AND 3AA SUBJECT TO EXERCISE OF OPTION FOR FULL DESIGN

DISCLOSURE DATA PACKAGE. OFFERS, THEREFORE, MUST BE ON THE BASIS OF

FURNISHING (I) ALL UNITS OF ITEMS 1 AND 2 AND (II) SUBJECT TO EXERCISE OF

OPTION FOR FULL DESIGN DISCLOSURE DATA PACKAGE, ITEM; 3 AND 3AA.

"OFFEROR SHALL QUOTE A PRICE FOR ITEM 3. IN THE EVENT THAT AN OFFEROR,

WHO INTENDS TO USE TECHNICAL DATA DEVELOPED AT PRIVATE EXPENSE IN THE

MANUFACTURE OF THE WIRE ROPE CUTTER, DOES NOT QUOTE A PRICE FOR ITEM 3,

THE BID SHALL BE DETERMINED TO BE NON-RESPONSIVE. IF SUCH AN OFFEROR

PROPOSES TO FURNISH THESE ITEMS AT NO COST THEN THE OFFEROR SHALL FILL IN

THE 'AMOUNT' BLANK FOR ITEM 3 (SCHEDULE PAGE 3) AS FOLLOWS: 'NO CHARGE

OR N/C' OR 'O'."

PARAGRAPH 10 OF ATTACHMENT "A" TO THE INVITATION STATED:

"EVALUATION OF FULL DESIGN DISCLOSURE DATA PACKAGE ITEM -

"BIDS WILL BE EVALUATED FOR PURPOSES OF AWARD ON THE BASIS OF THE QUANTITY TO BE AWARDED EXCLUSIVE OF THE OPTION ITEMS 3 AND 3AA." PARAGRAPH 8 OF THE ATTACHMENT PROVIDED:

"GOVERNMENT'S INTENTIONS TO ACQUIRE UNLIMITED RIGHTS TO ANY AND ALL

TECHNICAL DATA DEVELOPED AT PRIVATE EXPENSE -

"THE GOVERNMENT INTENDS TO ACQUIRE THE UNLIMITED RIGHTS TO ALL TECHNICAL DATA PERTAINING TO ITEMS, COMPONENTS OR PROCESSES DEVELOPED AT PRIVATE EXPENSE. THIS SPECIFIC ACQUISITION OF RIGHTS IN TECHNICAL DATA IS SET FORTH AS AN OPTION, ITEMS 3 AND 3AA.

"IN REGARD TO OPTION ITEMS 3 AND 3AA THE OFFEROR SHALL INDICATE IN THE APPROPRIATE BOX:

"A. THE OFFERORS BID PRICE IS BASED UPON THE USE OF TECHNICAL DATA DEVELOPED AT PRIVATE EXPENSE

YES -- NO --

"B. IF THE 'YES' BLOCK IS APPROPRIATELY MARKED, THEN THE OFFEROR'S BID PRICE FOR ITEM 3 IS FOR FURNISHING TO THE GOVERNMENT THE UNLIMITED RIGHTS TO TECHNICAL DATA DEVELOPED AT PRIVATE EXPENSE

YES -- NO --" PYRODYNE INSERTED "X" IN THE "YES" BOXES IN PARAGRAPHS 8A. AND 8B.

SUBSEQUENT TO THE OPENING OF BIDS, PYRODYNE STATED THAT $1.00 WAS INTENDED TO BE THE PRICE FOR ITEM 3 AND WAS INAIVERTENTLY STATED AS A TOTAL PRICE. THE BID PRICES FOR ITEMS 1 AND 2 WERE $87,933.30 AND $5,762.32, RESPECTIVELY. YOU STATE THAT IT IS OBVIOUS THAT $1.00 WAS NOT INTENDED AS THE TOTAL PRICE OF THOSE ITEMS, AND THAT IT IS OBVIOUS ON THE FACE OF THE BID THAT THE $1.00 WAS INTENDED FOR ITEM 3. YOU POINT OUT THAT PYRODYNE INDICATED THAT IT INTENDED TO FURNISH THE DATA REQUIRED BY ITEM 3 BY ITS AFFIRMATION IN PARAGRAPH 8 OF THE INVITATION ATTACHMENT, QUOTED ABOVE. IN VIEW THEREOF, YOU PROPOSE CORRECTING THE BID FOR ITEM 3 TO READ $1.00 UNDER THE MISTAKE IN BID PROCEDURES.

TWO OTHER BIDDERS SUBMITTED BIDS IN RESPONSE TO THE INVITATION. ONE BIDDER OFFERED TO FURNISH ITEM 3 AT NO COST AND THE OTHER BID THE AMOUNT OF $45,239. IN VIEW OF THE LATTER OFFER, WE BELIEVE THAT THE DATA ITEM COULD HAVE SOME SIGNIFICANT MONETARY VALUE.

ALTHOUGH THE INVITATION REFERS TO THE DATA ITEM AS AN OPTION ITEM THAT MAY BE EXERCISED BY THE GOVERNMENT AND PROVIDES FOR THE EVALUATION OF BID PRICES EXCLUSIVE OF ITEM 3, INVITATION SECTION "A" SPECIFICALLY PROVIDES THAT BIDDERS ARE TO BID A PRICE FOR ITEM 3 AND THAT FAILURE TO DO SO WILL RENDER THE BID NONRESPONSIVE. PYRODYNE'S AFFIRMATION IN PARAGRAPH 8 OF ATTACHMENT "A" TO THE INVITATION INDICATES THAT IT WILL FURNISH ITEM 3 DATA AT THE BID PRICE FOR ITEM 3, BUT PYRODYNE FAILED TO STATE ANY PRICE FOR THAT ITEM CONTRARY TO THE INSTRUCTIONS IN INVITATION SECTION "A." WHERE, AS HERE, AN INVITATION PROVIDED THAT THE BIDDER AGREED TO FURNISH ITEMS UPON WHICH PRICES ARE OFFERED AT THE PRICES SET OPPOSITE THE ITEMS BUT A BIDDER NEGLECTED TO STATE A PRICE FOR AN ITEM, WE HELD THAT THE OBLIGATION TO FURNISH THE SERVICES REQUIRED WAS CONTINGENT UPON THE INSERTION OF A PRICE THEREFOR AND THAT THE FAILURE TO BID ON THE ITEM RENDERED THE BID NONRESPONSIVE. B 163756, APRIL 15, 1968. THUS, PYRODYNE IS PATENTLY NONRESPONSIVE TO ITEM 3. WHILE IT IS STATED THAT THE $1.00 PRICE IN THE BID IS CLEARLY INTENDED FOR ITEM 3, THERE IS NOTHING ON THE FACE OF THE BID RELATING IT TO ITEM 3 AND IT IS NOT APPARENT FROM ANYTHING IN THE BID THAT IT WAS SO INTENDED. IN OUR OPINION, THE $1.00 PRICE COULD BE SAID TO BE AN ERRONEOUS TOTAL OF THE ITEMS BID BY PYRODYNE.

IN 46 COMP. GEN. 434 (1966), IT WAS HELD THAT THE FAILURE OF A BIDDER TO QUOTE A PRICE ON AN OPTION ITEM UNDER AN INVITATION WARNING BIDDERS TO BID ON THE OPTION MAY NOT BE CATEGORIZED AS A MISTAKE UNDER PARAGRAPH 2-406.3 OF THE ARMED SERVICES PROCUREMENT REGULATION AND, EVEN IF INADVERTENT, THE OMISSION IS A MATERIAL DEVIATION DEPRIVING THE GOVERNMENT OF A SUBSTANTIAL AND VALUABLE RIGHT RENDERING THE BID NONRESPONSIVE. IN THAT DECISION, AT PAGE 435, IT WAS STATED:

"IT IS A FUNDAMENTAL PRINCIPLE OF THE COMPETITIVE BID SYSTEM THAT IN ORDER TO BE CONSIDERED FOR AWARD A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS AT THE TIME OF THE BID OPENING. A BIDDER MAY NOT BE PERMITTED TO ADD TO OR MODIFY ITS BID AFTER THE OPENING TO MAKE THE BID COMPLY WITH THE REQUIREMENTS OF THE INVITATION, AND IT DOES NOT MATTER WHETHER THE FAILURE TO COMPLY WAS DUE TO INADVERTENCE, MISTAKE OR OTHERWISE. 38 COMP. GEN. 819; 40 ID. 132, 134. *** "

IN THE CIRCUMSTANCES, THE PYRODYNE BID SHOULD BE REJECTED.

THE ENCLOSURES THAT ACCOMPANIED YOUR LETTER ARE RETURNED AS REQUESTED.

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