B-171253, MAY 12, 1971

B-171253, MAY 12, 1971

BID PROTEST - BID RESPONSIVENESS ADVISING THAT WHILE GAO CAN TAKE NO ACTION WITH RESPECT TO HIGHWAY EQUIPMENT COMPANY'S PROTEST AGAINST AWARD OF A GSA CONTRACT, IT SHOULD BE NOTED THAT PROTESTANT DELIBERATELY DEVIATED FROM THE REQUIREMENTS OF THE IFB AND THE BID WAS PROPERLY FOUND TO BE NONRESPONSIVE. ANY ORAL COMMUNICATION BY THE CONTRACTING OFFICER THAT A PARTICULAR DEVIATION WAS MINOR AND HENCE WAIVABLE, IN THE ABSENCE OF A CONFIRMING WRITTEN AMENDMENT ISSUED BEFORE BID OPENING IS NOT BINDING.

TO MR. G. E. ALLEN:

WE HAVE YOUR LETTER OF MARCH 22, 1971, COMMENTING ON THE REPORT FURNISHED BY THE GENERAL SERVICES ADMINISTRATION (GSA) ON YOUR PROTEST AGAINST THE AWARD MADE UNDER INVITATION FOR BIDS NO. 3FP-BF-R-B27412-10 22-70.

SINCE YOU CORRECTLY OBSERVED THAT NO ACTION BY OUR OFFICE IS NOW POSSIBLE, WE WILL CONFINE OUR DISCUSSION TO A POINT OF PROTEST NOT SPECIFICALLY COVERED IN THE GSA REPORT. IT IS CONCEDED THAT YOUR FIRM DELIBERATELY DEVIATED FROM THE REQUIREMENT THAT THE CONVEYOR INCLUDED IN THE SPREADER (THE PROCUREMENT ITEM) BE OF THE AUGER TYPE BY PROPOSING A CHAIN-TYPE CONVEYOR. BECAUSE OF THIS, YOUR FIRM'S BID WAS FOUND TO BE NONRESPONSIVE EVEN THOUGH YOU SAY THAT THE CONTRACTING OFFICER ORALLY AGREED TO CONSIDER THIS DEVIATION MINOR AND HENCE WAIVABLE. HOWEVER, PARAGRAPH 3 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS SPECIFICALLY STATES THAT ORAL COMMUNICATIONS ARE NOT BINDING IN THE ABSENCE OF A CONFIRMING WRITTEN AMENDMENT ISSUED BEFORE BID OPENING. UNDER THESE PROVISIONS, AND SINCE NO DEVIATION RESPECTING THE CONVEYOR WAS PROVIDED FOR IN THE INVITATION, WE MUST CONCLUDE THAT THE BID WAS PROPERLY REJECTED AS NONRESPONSIVE.

WHILE WE ARE UNABLE TO AGREE WITH YOUR POSITION ON THIS PROCUREMENT, WE APPRECIATE RECEIVING THE BENEFITS OF YOUR VIEWS AND COMMENTS.