B-175701, MAY 5, 1972

B-175701, MAY 5, 1972

BID PROTEST - NONRESPONSIVENESS - QUALIFIED PROPOSAL CONCERNING THE PROTEST OF GARDNER CRYOGENICS CORPORATION AGAINST AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER AN IFB FOR A TWO-STEP FORMALLY ADVERTISED PROCUREMENT OF VALUE AND DEWAR PACKAGES FOR LIQUID HYDROGEN REFRIGERATION SYSTEMS. GARDNER'S BID WAS PROPERLY REJECTED AS NONRESPONSIVE BECAUSE IT CHANGED THE DELIVERY REQUIREMENT FOR PRELIMINARY DRAWINGS AND SUBSTITUTED ITS OWN WARRANTY FOR THAT REQUIRED BY THE SOLICITATION. IT IS APPARENT THAT THE DELIVERY REQUIREMENT WAS A BINDING PROVISION OF THE IFB AND GAO HAS CONSISTENTLY HELD THAT DEVIATIONS FROM SUCH REQUIREMENTS RENDER BIDS NONRESPONSIVE. B-162096, MAY 21, 1968.

TO MR. BOYD L. GREEN:

WE REFER TO YOUR LETTER OF APRIL 11, 1972, REQUESTING A PREAWARD DECISION ON YOUR REJECTION OF THE BID OF GARDNER CRYOGENICS CORPORATION (GARDNER) UNDER INVITATION FOR BIDS NBS 2-72, ISSUED FEBRUARY 4, 1972, TO THOSE BIDDERS WHO HAD SUBMITTED ACCEPTABLE TECHNICAL PROPOSALS UNDER REQUEST FOR PROPOSALS (RFP) NO. NBS 2-72, ISSUED JULY 26, 1971. THIS IS A TWO-STEP FORMALLY ADVERTISED PROCUREMENT FOR MANUFACTURE OF VALVE PACKAGES AND DEWAR PACKAGES FOR LIQUID HYDROGEN REFRIGERATION SYSTEMS. THE EQUIPMENT IS BEING PURCHASED AT THE REQUEST OF THE ATOMIC ENERGY COMMISSION FOR A CONTRACTOR IN ONE OF ITS PROGRAMS.

THE FIRST-STEP PROPOSAL REQUEST WAS ISSUED TO THIRTY-ONE PROSPECTIVE SUPPLIERS. ALTHOUGH NONE OF THE ORIGINAL TECHNICAL PROPOSALS WAS RESPONSIVE TO THE REQUIREMENTS, YOU DETERMINED THAT FIVE FIRMS WERE QUALIFIED SUPPLIERS WHOSE PROPOSALS COULD BE MADE ACCEPTABLE. THE PROPOSALS WERE SUBSEQUENTLY AMENDED AND THE FIVE FIRMS RECEIVED THE IFB REQUESTING FIRM, FIXED-PRICE BIDS.

THE LOW BID WAS RECEIVED FROM GARDNER. HOWEVER, IN A COVER LETTER ATTACHED TO ITS BID, GARDNER MODIFIED ITS BID BY CHANGING THE DELIVERY REQUIREMENT FOR PRELIMINARY DRAWINGS AND BY SUBSTITUTING ITS OWN WARRANTY FOR THAT REQUIRED BY THE SOLICITATION. THE CONTRACTING OFFICER CONSIDERED THE MODIFICATIONS MATERIAL QUALIFICATIONS AFFECTING PRICE AND DELIVERY PROVISIONS WHICH, IF ACCEPTED, WOULD RESULT IN A CONTRACT DIFFERENT FROM THAT OFFERED TO OTHER BIDDERS. THEREFORE, THE BID WAS REJECTED AS NONRESPONSIVE UNDER FEDERAL PROCUREMENT REGULATIONS 1-2.301(A), 1-2.404- 2(A), AND 1-2.404-2(B)(5).

THE REQUIREMENT FOR DELIVERY OF THE PRELIMINARY DRAWINGS WAS SET OUT ON PAGE 20 (SECTION B.5) OF THE RFP AS FOLLOWS:

"PRELIMINARY DRAWINGS: DETAILED AND ASSEMBLY DRAWINGS OF THE COMPLETE SYSTEM, AND A DESCRIPTION OF THE VARIOUS VALVES, CONTROLLERS, HEATERS, AND INSTRUMENTATION TO BE USED IN THE SYSTEM SHALL BE SUBMITTED TO NBS WITHIN 30 DAYS AFTER CONTRACT AWARD *** "

FURTHER, THE FOLLOWING NOTICE WAS INCLUDED IN THE TERMS AND CONDITIONS OF THE IFB ON PAGE 6 (SECTION B.4):

"BIDDERS ARE CAUTIONED TO REVIEW THE ATTACHMENTS. AWARDS WILL NOT BE MADE TO BIDDERS WHO TAKE MATERIAL EXCEPTIONS TO ANY OF OUR PROVISIONS OR WHO INCORPORATE BY REFERENCE OR ATTACHMENT CONDITIONS WHICH ARE IN CONFLICT WITH OUR PROVISIONS SO AS TO RESULT IN CONFLICT, DOUBT OR AMBIGUITY."

NONE OF THE PROSPECTIVE BIDDERS COMMENTED ON THE DRAWING PROVISION UNTIL BIDS WERE OPENED ON MARCH 6, 1972. THE REQUIREMENT WAS INCLUDED IN THE IFB ON PAGE 4 BY REFERENCE TO SECTION B.5 OF THE RFP AND BY EXPLICIT STATEMENT ON PAGE 8. GARDNER MODIFIED THE REQUIREMENT BY WRITING "60" OVER THE "30" ON PAGE 8 OF THE IFB AND BY THE FOLLOWING STATEMENT IN A LETTER OF MARCH 2, 1972, ATTACHED TO THE BID:

"IN VIEW OF THE COMPLEXITY OF THE SUBCONTRACT, WE WILL NEED 60 DAYS AFTER RECEIPT OF AN ORDER TO SUBMIT DRAWINGS REQUIRED ON PAGE 20 OF RFP NBS-2-72 PART 5.1."

IT IS A FUNDAMENTAL RULE OF GOVERNMENT PROCUREMENT THAT ALL BIDDERS MUST COMPETE FOR ADVERTISED CONTRACTS ON A COMMON BASIS. BIDDERS HAVE A RIGHT TO ASSUME THAT THE ESSENTIAL REQUIREMENTS OF AN INVITATION GOING TO THE PRICE, QUALITY, QUANTITY OR DELIVERY PROVISIONS OF A CONTRACT ARE THE SAME FOR ALL BIDDERS. 46 COMP. GEN. 275, 277 (1966) AND 30 ID. 79 (1950). FURTHER, OUR OFFICE HAS CONSISTENTLY UPHELD DETERMINATIONS THAT DEVIATIONS FROM THE DELIVERY PROVISIONS OF IFB'S RENDER BIDS NONRESPONSIVE. 161921, SEPTEMBER 15, 1967; B-162096, MAY 21, 1968; AND B-163018, DECEMBER 19, 1967.

IN ITS LETTER OF MARCH 28, 1972, PROTESTING TO NBS AGAINST REJECTION OF ITS BID, GARDNER CONTENDS THAT THE MODIFICATIONS DO NOT AFFECT THE BID IN ANY MATERIAL WAY. IN THAT REGARD, IT CONTENDS THAT THE SOLICITATION FAILED TO INDICATE THAT DELIVERY OF PRELIMINARY DRAWINGS WITHIN 30 DAYS WAS A MATERIAL PROVISION OF THE CONTRACT. GARDNER ALSO CONTENDS THAT IT COULD DISREGARD THE DELIVERY REQUIREMENT FOR PRELIMINARY DRAWINGS STATED IN SECTION B.5 OF THE RFP ON THE BASIS OF SECTION A.6 OF THE RFP PROVIDING AS FOLLOWS:

"IN ADDITION TO SUCH OTHER TERMS AND CONDITIONS AS THE GOVERNMENT MAY DEEM TO BE APPROPRIATE, OR WHICH ARE REQUIRED BY LAW OR REGULATION, THE FOLLOW-ON SOLICITATION WILL CONTAIN SEVERAL PROVISIONS WHICH WILL BE OF INTEREST TO PROSPECTIVE SUPPLIERS. THEREFORE, OFFERORS ARE ADVISED THAT:

6.1 EXCEPT AS OTHERWISE PROVIDED HEREIN, THE CONTENTS OF SECTIONS B.5 AND B.6 MAY BE DISREGARDED IN THE PREPARATION OF PROPOSALS BUT THE INFORMATION CONTAINED THEREIN SHOULD BE RETAINED AS THE CONTENTS THEREOF WILL BE MADE A PART OF THE SOLICITATION FOR BIDS, EITHER BY INCLUSION OR REFERENCE."

IT IS APPARENT FROM THE QUOTATION ABOVE THAT THE REQUIREMENT COULD BE DISREGARDED ONLY FOR THE RFP AND THAT IT WAS CLEARLY MEANT TO BE A BINDING PROVISION OF THE IFB. GARDNER ALSO CONTENDS THAT, UNLIKE SECTION B.10.4 OF THE IFB IN WHICH THE BIDDER IS EXPLICITLY INFORMED THAT THE REQUIREMENT FOR FINAL DELIVERY IS A MATERIAL PROVISION OF THE CONTRACT, SECTION B.10.1 DOES NOT STATE SPECIFICALLY THAT THE REQUIREMENT FOR DELIVERY OF THE PRELIMINARY DRAWINGS IS MATERIAL. HOWEVER, IT IS HARDLY NECESSARY THAT EVERY MATERIAL REQUIREMENT OF AN IFB BE EXPRESSLY DESCRIBED AS SUCH.

IN THE CIRCUMSTANCES, THE CHANGE IN THE PRELIMINARY DRAWING PROVISION WAS A MATERIAL DEVIATION THAT RENDERED THE GARDNER BID NONRESPONSIVE AND IT WAS PROPERLY REJECTED. IT IS THEREFORE UNNECESSARY TO CONSIDER THE EFFECT OF THE SUBSTITUTION BY THE BIDDER OF THE WARRANTY PROVISION.