B-170728, OCT. 13, 1970

B-170728, OCT. 13, 1970

BID PROTEST -- CANCELLATION & READVERTISEMENT DENIAL OF PROTEST OF LOW BIDDER AGAINST CANCELLATION AND READVERTISEMENT OF PROCUREMENT OF MILK AND MILK PRODUCTS FOR FRANCIS B. WARREN AIR FORCE BASE ON BASIS THAT THE ONLY TWO BIDS RECEIVED WERE NON RESPONSIVE. FAILURE OF A LOW BIDDER TO QUOTE PRICES FOR SEVERAL ITEMS UNDER AN INVITATION OBLIGATING THE BIDDER TO FURNISH ANY OR ALL ITEMS FOR WHICH PRICES WERE SOUGHT WOULD MAKE IT DOUBTFUL THAT PROTESTANT COULD BE OBLIGATED TO FURNISH THE ITEMS REQUIRED AND BECAUSE SUCH FAILURE TO FURNISH PRICES IS NOT A MINOR INFORMALITY THAT CAN BE WAIVED, AND THE ONLY OTHER BID WAS NON-RESPONSIVE, THE CONTRACTING OFFICER HAD NO CHOICE BUT TO CANCEL AND READVERTISE.

TO DAIRY GOLD FOODS COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 29, 1970, PROTESTING AGAINST THE REJECTION OF YOUR BID AND THE CANCELLATION OF INVITATION FOR BIDS (IFB) NO. F48608-71-B-0034, ISSUED BY FRANCIS E. WARREN AIR FORCE BASE, WYOMING.

THE SUBJECT INVITATION, ISSUED ON JULY 23, 1970, SOLICITED BIDS FOR FURNISHING MILK AND MILK PRODUCTS UNDER 35 ITEMS ENUMERATED IN THE SOLICITATION. TWO BIDS WERE RECEIVED AND OPENED ON AUGUST 12, 1970. THE HIGH BID SUBMITTED BY JERSEY CREAMERY, INC., WAS FOUND TO BE NONRESPONSIVE SINCE THAT FIRM FAILED TO ACKNOWLEDGE A SUBSTANTIVE AMENDMENT TO THE INVITATION CONCERNING CHARGES FOR MILK DISPENSERS, THEIR SIZES AND CHANGES IN DELIVERY REQUIREMENTS. SEE 48 COMP. GEN. 555, 558 (1969). DAIRY GOLD'S BID WAS FOUND NONRESPONSIVE SINCE IT FAILED TO FURNISH PRICES FOR FIVE OF THE 35 ITEMS IN THE INVITATION. BASED ON THE DETERMINATION THAT THE ONLY TWO BIDS RECEIVED IN RESPONSE TO IFB -0034 WERE BOTH NONRESPONSIVE, THE CONTRACTING OFFICER CANCELED IFB -0034, AND THE PROCUREMENT WAS READVERTISED ON AUGUST 21, 1970, UNDER IFB NO. F48608-71-B -0127. THE OPENING OF BIDS IN THIS SECOND SOLICITATION IS BEING HELD IN ABEYANCE PENDING OUR DECISION ON YOUR PROTEST.

WHILE YOU WERE INITIALLY ADVISED BY THE PROCUREMENT OFFICE THAT IFB 0034 WAS CANCELED BECAUSE OF UNREASONABLE PRICES SUBMITTED BY BIDDERS, THE DEPARTMENT OF THE AIR FORCE HAS SINCE ADVISED THAT THE BASIS FOR THE INVITATION CANCELLATION AND READVERTISEMENT WAS THE FACT THAT NO RESPONSIVE BIDS WERE RECEIVED UNDER THE INVITATION.

IN THIS RESPECT, SECTION "D" ("EVALUATION FACTORS FOR AWARD") OF THE INVITATION STATED IN PARAGRAPH 1, IN PERTINENT PART, THAT "A SINGLE AWARD WILL BE MADE TO THE LOWEST RESPONSIBLE OFFEROR WHOSE OFFER IS RESPONSIVE TO THE TERMS OF THIS SOLICITATION." IT IS REPORTED THAT IT WAS THE INTENT OF THE PROCUREMENT OFFICE TO ASSURE THAT BIDDERS QUOTED PRICES ON ALL ITEMS ADVERTISED. IN THIS RESPECT, SECTION "C" (INSTRUCTIONS, CONDITIONS AND NOTICES TO BIDDERS"), PARAGRAPH 22, OF THE INVITATION PROVIDED THAT "NO AWARD WILL BE MADE FOR LESS THAN THE FULL QUANTITIES SOLICITED." SINCE YOU DID NOT FURNISH PRICES ON FIVE OF THE 35 ITEMS REQUIRED, YOUR BID WAS DETERMINED TO BE NONRESPONSIVE IN ACCORDANCE WITH PARAGRAPH 2- 404.2(D)(II) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHICH PROVIDES THAT BIDS WHICH FAIL TO STATE PRICE SHALL BE REJECTED.

THE OBLIGATION TO FURNISH THE ITEMS SET OUT IN THE INVITATION SCHEDULE WAS CONTINGENT UPON THE INSERTION OF PRICES IN THE APPROPRIATE PLACES ON THE SCHEDULE AS EVIDENCED BY THE TERMS OF THE OFFER CLAUSE ON THE FACESHEET OF STANDARD FORM 33, SOLICITATION, OFFER, AND AWARD. THE OFFER CLAUSE PROVIDED:

"IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF THIS OFFER IS ACCEPTED WITHIN 60 CALENDAR DAYS *** FROM THE DATE OF RECEIPT OF OFFERS SPECIFIED ABOVE, TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED, AT THE PRICE SET OPPOSITE EACH ITEM, DELIVERED AT THE DESIGNATED POINTS, WITHIN THE TIME SPECIFIED IN THE SCHEDULE."

IN VIEW OF THESE PROVISIONS, YOUR FAILURE TO QUOTE PRICES FOR FIVE ITEMS RAISED SERIOUS DOUBT THAT YOU WOULD BE OBLIGATED TO FURNISH THE PRODUCTS REQUIRED. UNDER THESE CIRCUMSTANCES, IT CANNOT BE SAID THAT YOUR FAILURE TO INSERT PRICES MAY BE WAIVED AS A MINOR INFORMALITY OR BID IRREGULARITY WITHIN THE PURVIEW OF ASPR 2-405. THAT REGULATION PROVIDES IN PERTINENT PART AS FOLLOWS:

" *** A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO, BIDDERS. THE CONTRACTING OFFICER SHALL EITHER GIVE TO THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID, OR, WAIVE ANY SUCH DEFICIENCY WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT. *** "

SINCE THE FAILURE TO INSERT PRICES FOR FIVE ITEMS CONSTITUTED A MATERIAL DEVIATION, IT COULD NOT BE WAIVED OR CURED. SEE 41 COMP. GEN. 412 (1961). HENCE, YOUR BID COULD NOT BE CORRECTED AS TO THESE ITEMS SO AS TO MAKE IT ELIGIBLE FOR AWARD. SEE 46 COMP. GEN. 434, 435 (1966).

WE ARE AWARE THAT THE CANCELLATION OF AN INVITATION AFTER BIDS ARE OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITORS' PRICES IS A SERIOUS MATTER AND SHOULD NOT BE DONE EXCEPT FOR COGENT REASONS. IN THIS REGARD, ASPR 2- 404.1(A) STATES THAT "THE PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM DICTATES THAT AFTER BIDS HAVE BEEN OPENED, AWARD MUST BE MADE TO THAT RESPONSIBLE BIDDER WHO SUBMITTED THE LOWEST RESPONSIVE BID, UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION." IN THE PRESENT CASE, HOWEVER, NO RESPONSIVE BIDS FULFILLING THE GOVERNMENT'S REQUIREMENTS WERE RECEIVED IN RESPONSE TO IFB -0034 AND THE CONTRACTING OFFICER HAD NO CHOICE BUT TO READVERTISE THE REQUIREMENTS IN A NEW INVITATION, IFB -0127, WHEREIN AWARD IS CONTEMPLATED TO BE MADE TO ONE OR MORE BIDDERS WITH A MULTIPLE AWARD FACTOR TO BE CONSIDERED.

IN 43 COMP. GEN. 813, 817 (1964), WE HELD:

"IN VIEW OF THE NONRESPONSIVENESS OF BOTH BIDS, AN AWARD COULD NOT PROPERLY BE MADE TO EITHER BIDDER UNDER THE INVITATION, SINCE THE ADVERTISING STATUTES REQUIRE AWARD TO BE MADE TO THE RESPONSIBLE BIDDER CONFORMING TO THE INVITATION FOR BIDS. THEREFORE, SINCE NEITHER BID COULD PROPERLY BE ACCEPTED IN THE CIRCUMSTANCES, OUR OFFICE WILL NOT OBJECT TO THE PROPOSED READVERTISEMENT OF THE PROCUREMENT."

IN VIEW OF THE FOREGOING, YOUR PROTEST IS DENIED.