B-174801, MAR 20, 1972

B-174801, MAR 20, 1972

BID PROTEST - NONRESPONSIVENESS - UNSOLICITED DATA - FAILURE TO ACKNOWLEDGE AMENDMENT CONCERNING THE PROTEST OF J. LEE GREGORY, INC., AGAINST AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER AN IFB ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, COLUMBIA, S.C., FOR A PROCUREMENT OF ALUMINUM WINDOWS. A BIDDER'S INTENT MUST BE DETERMINED FROM A REASONABLE INTERPRETATION OF THE ENTIRE CONTENTS OF ITS PROPOSAL AND SINCE THE UNSOLICITED TEST REPORT SUBMITTED BY THE LOW BIDDER, DEVAC, INC., REFLECTED A MATERIAL DEVIATION FROM THE BID SPECIFICATIONS, ITS INTENT WAS AMBIGUOUS AND THE PROPOSAL WAS PROPERLY REJECTED AS NONRESPONSIVE. B-167584, OCTOBER 3, 1969. WITH REGARD TO PROTESTANT'S BID, ITS FAILURE TO ACKNOWLEDGE THE AMENDMENT TO THE INVITATION WAS A MATERIAL DEVIATION NOT SUBJECT TO WAIVER. 164437, JUNE 26, 1968. ACCORDINGLY, ITS BID MUST ALSO BE CONSIDERED NONRESPONSIVE.

TO MR. DONALD E. JOHNSON:

WE REFER TO LETTER 134G OF DECEMBER 16, 1971, FROM THE DIRECTOR, SUPPLY SERVICE, DEPARTMENT OF MEDICINE AND SURGERY, REPORTING ON THE PROTEST BY J. LEE GREGORY, INC., AGAINST AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS, PROJECT NO. 544-7-72, ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, COLUMBIA, SOUTH CAROLINA.

THE INVITATION PROVIDED FOR THE SUPPLY AND INSTALLATION OF DH-A2-HP TYPE ALUMINUM WINDOWS MEETING CERTAIN REQUIREMENTS OF ARCHITECTURAL ALUMINUM MANUFACTURERS ASSOCIATION (AAMA) SPECIFICATION 302.5 (JANUARY 1966 EDITION). THE LOW BIDDER, DEVAC, INC., SUBMITTED WITH ITS BID AN UNSOLICITED TEST REPORT FROM AN AAMA-APPROVED TESTING LABORATORY. THE TEST REPORT, BASED UPON AAMA SPECIFICATION 302.6 (JANUARY 1968 EDITION), STATED THAT THE OPERATING FORCE OF THE UPPER SASH EXCEEDED THE SPECIFIED FORCE. ALTHOUGH THE 1968 SPECIFICATION REFERS TO THE DH A2-HP SERIES OF WINDOWS, WHEREAS THE 1966 SPECIFICATION REFERS TO THE DH-A2-H SERIES, BOTH PROVIDE FOR A 45-POUND MAXIMUM OPERATING FORCE FOR THE UPPER SASH. BECAUSE THE OPERATING FORCE IN THE REPORT EXCEEDED THE SPECIFIED FORCE, THE CONTRACTING OFFICER DETERMINED THE DEVAC BID NONRESPONSIVE.

IT IS OUR CONCLUSION THAT THE CONTRACTING OFFICER WAS CORRECT IN DETERMINING THE DEVAC BID TO BE NONRESPONSIVE. THE INTENT OF ANY BID MUST BE DETERMINED FROM A REASONABLE CONSTRUCTION OF ITS ENTIRE CONTENTS INCLUDING ANY UNSOLICITED LITERATURE. BECAUSE THE BID FORM SUBMITTED BY DEVAC INDICATED THAT BIDDER'S INTENTION TO COMPLY WITH THE SPECIFICATIONS, BUT THE TEST REPORT ACCOMPANYING SUCH BID FORM DID NOT COMPLY WITH THOSE SPECIFICATIONS, WE MUST REGARD THE INTENT OF THE BIDDER AMBIGUOUS AS TO WHAT IT ACTUALLY INTENDED TO FURNISH. WHERE MORE THAN ONE POSSIBLE INTERPRETATION MAY REASONABLY BE REACHED FROM THE TERMS OF A BID AND ITS ACCOMPANYING MATERIALS, A BIDDER MAY NOT BE PERMITTED TO EXPLAIN THE ACTUAL MEANING OR BID INTENDED, SINCE THIS WOULD AFFORD THE BIDDER THE OPPORTUNITY TO ALTER THE RESPONSIVENESS OF THE BID BY REFERENCE TO EXTRANEOUS MATERIAL OR BY EXPLANATION. THE INTENT OF THE OFFEROR MUST BE DETERMINED FROM THE BID AND ANYTHING SHORT OF A CLEAR INTENTION IN THE BID TO CONFORM TO THE ADVERTISED SPECIFICATIONS REQUIRES REJECTION. B-167584, OCTOBER 3, 1969.

IT HAS COME TO OUR ATTENTION THAT THE NEXT LOW BIDDER, J. LEE GREGORY, INC., FAILED TO ACKNOWLEDGE IN ITS BID OR TO RETURN SIGNED WITH ITS BID AMENDMENT NO. 1 TO THE INVITATION INCORPORATING THEREIN THE MINIMUM WAGE RATES APPLICABLE TO THE PROCUREMENT. FAILURE TO ACKNOWLEDGE THE AMENDMENT WAS A MATERIAL DEVIATION WHICH IS NOT SUBJECT TO WAIVER. CONSEQUENTLY, AS ACCEPTANCE OF THE GREGORY BID AS IT EXISTED AT BID OPENING WOULD NOT RESULT IN A CONTRACT CONTAINING A STATEMENT OF THE APPLICABLE MINIMUM WAGE RATES, THE BID MUST ALSO BE CONSIDERED NONRESPONSIVE. B-164437, JUNE 26, 1968.

THE ADMINISTRATIVE FILE IS RETURNED HEREWITH AS REQUESTED.