B-180302, APR 18, 1974

B-180302, APR 18, 1974

WHERE IFB ISSUED FOR MILK AND MILK PRODUCTS ESTIMATED REQUIREMENTS STATED THAT AWARD WOULD BE MADE ON AN "ALL OR NONE" BASIS AND THAT FAILURE TO BID EACH ITEM WOULD RENDER BID NONRESPONSIVE, FAILURE OF BIDDER TO PRICE TWO ITEMS WAS FATAL TO CONSIDERATION OF BID FOR AWARD, SINCE NONRESPONSIVE BID MAY NOT BE CORRECTED AS ERRONEOUS BID.

TO REGIS MILK CO.:

INVITATION FOR BIDS (IFB) DSA 136-74-B-0199 WAS ISSUED OCTOBER 26, 1973, BY THE SUBSISTENCE REGIONAL HEADQUARTERS, NEW YORK, DEFENSE SUPPLY AGENCY (DSA), DEFENSE PERSONNEL SUPPORT CENTER, FOR ESTIMATED MILK AND MILK PRODUCTS REQUIREMENTS FOR THE SIX-MONTH PERIOD OF JANUARY 1, 1974, THROUGH JUNE 30, 1974, FOR FORT LEE, VIRGINIA AND THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA.

THE IFB STATED AT PAGE 6 THAT "AWARD WILL BE MADE ON AN 'ALL OR NONE' BASIS," AND FURTHER PROVIDED AT PAGE 20 THE FOLLOWING:

"EVALUATION OF BIDS:

"AWARD WILL BE MADE ON AN 'ALL OR NONE' BASIS.

"NOTWITHSTANDING ANYTHING THAT MAY BE FOUND TO THE CONTRARY ELSEWHERE HEREIN *** THE GOVERNMENT REQUIRES THAT BIDDERS MUST BID ON EACH AND EVERY ITEM OF THIS INVITATION FOR BID TO BE CONSIDERED RESPONSIVE. AWARD WILL BE MADE ON AN 'ALL OR NONE' BASIS TO THAT BIDDER OFFERING THE LOWEST AGGREGATE COST TO THE GOVERNMENT."

REGIS MILK COMPANY (REGIS) WAS THE APPARENT LOW BIDDER AT BID OPENING, BUT UPON SUBSEQUENT EXAMINATION OF THE BID BY THE CONTRACTING ACTIVITY IT WAS DISCOVERED THAT REGIS HAD FAILED TO INCLUDE IN ITS BID UNIT PRICES FOR ITEMS 5 AND 6 OF THE IFB. ACCORDINGLY, BECAUSE OF THE IFB PROVISIONS QUOTED ABOVE REGIS' BID WAS CONSIDERED NONRESPONSIVE TO THE IFB REQUIREMENTS AND WAS REJECTED. AWARD WAS MADE TO THE NEXT LOW RESPONSIVE BIDDER, CURLES NECK DAIRY.

IN PROTEST OF THE REJECTION OF ITS BID AS NONRESPONSIVE, REGIS CONTENDS THAT ITS OMISSION OF PRICES FOR ITEMS 5 AND 6 WAS INADVERTENT AND SHOULD BE CONSIDERED AS A MISTAKE IN BID, WHICH MAY BE CORRECTED, RATHER THAN TREATED AS A NONRESPONSIVE BID WHICH FAILED TO COMPLY WITH THE FUNDAMENTAL REQUIREMENTS OF THE IFB, REQUIRING ITS REJECTION. IN SUPPORT OF THIS POSITION, REGIS ATTEMPTED TO DEMONSTRATE THAT THE OMITTED PRICES FOR ITEMS 5 AND 6 COULD OTHERWISE BE DETERMINED FROM THE BID AS SUBMITTED.

THERE WAS EVIDENCE THAT REGIS INTENDED TO BID ON ITEMS 5 AND 6, IN THAT THE TOTAL PRICE OF ALL ITEMS BID UPON, $445,747.49, WAS $114,788.40 IN EXCESS OF THE AGGREGATE OF THE ITEMS INCLUDED IN THE BID, AND REGIS ASSERTS THAT THIS EXCESS AMOUNT REPRESENTS THE UNIT PRICES FOR ITEMS 5 AND 6 WHICH WERE INADVERTENTLY OMITTED FROM THE BID. THE PROTESTER SUBMITTED WORKSHEETS TO DSA AS AN AID TO EXPLAINING WHAT PORTIONS OF THE EXCESS AMOUNT RESPECTIVELY REPRESENTED ITEMS 5 AND 6. HOWEVER, THE CONTRACTING OFFICER DECIDED THAT THE MATERIALS SUBMITTED AS WORKSHEETS - A COPY OF THE IFB WHICH REGIS APPARENTLY HAD USED AS A CONVENIENT MEANS OF RECORDING THE PRICES THEY HAD COMPUTED FOR THE INSTANT PROCUREMENT - SHOWED NONE OF THE ACTUAL CALCULATIONS UTILIZED TO ARRIVE AT THE PRICES QUOTED IN THE BID. THEREFORE, THE WORKSHEETS SUBMITTED DID NOT ESTABLISH THE PRICES INTENDED FOR EACH OF THE TWO ITEMS.

THE PROTESTER FURTHER ATTEMPTED TO ESTABLISH WHAT PRICES IT HAD INTENDED TO BID ON ITEMS 5 AND 6 BY SHOWING THAT IT HAD SUBMITTED PRICES FOR ITEMS 5.1 AND 6.1 IN THE IFB FOR ASSOCIATED EQUIPMENT USED TO DISPENSE ITEMS 5 AND 6. WHILE THIS EVIDENCE IS PROBATIVE OF THE BIDDER'S INTENT TO BID ON ITEMS 5 AND 6, IT FURNISHES NO BASIS FOR DETERMINING THE RESPECTIVE AMOUNTS INTENDED TO BE BID FOR ITEMS 5 AND 6.

A FUNDAMENTAL RULE OF THE COMPETITIVE BID SYSTEM IS THAT IN ORDER TO BE CONSIDERED FOR AN AWARD A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE IFB AT OPENING. 46 COMP. GEN. 434, 435 (1966); B-162793, JANUARY 18, 1968. THE BIDDER CANNOT ADD TO OR MODIFY THE BID AFTER OPENING TO MAKE THE BID COMPLY WITH THE IFB, AND IT DOES NOT MATTER WHETHER AN ERROR IS DUE TO INADVERTENCE, MISTAKE, OR OTHERWISE. B 161950, NOVEMBER 2, 1961.

A BID IS GENERALLY REGARDED AS NONRESPONSIVE ON ITS FACE FOR FAILURE TO INCLUDE A PRICE ON EVERY ITEM AS REQUIRED BY THE IFB, AND MAY NOT BE CORRECTED. B-176254, SEPTEMBER 1, 1972; B-173243, JULY 12, 1971; B 165769, JANUARY 21, 1969; B-162793, SUPRA; B-161929, AUGUST 28, 1967. THE RATIONALE FOR THESE DECISIONS IS THAT WHEN A BIDDER FAILS TO SUBMIT A PRICE FOR AN ITEM, HE GENERALLY CANNOT BE OBLIGATED TO PERFORM THAT SERVICE AS PART OF OTHER SERVICES FOR WHICH PRICES WERE SUBMITTED. 170680, OCTOBER 6, 1970; B-129351, OCTOBER 9, 1956.

TO PROMULGATE A RULE WHICH WOULD ALLOW BIDDERS TO CORRECT A PRICE OMISSION AFTER AN ALLEGATION OF MISTAKE IN BID WOULD GENERALLY GRANT THE BIDDER AN OPTION TO EXPLAIN AFTER OPENING WHETHER HIS INTENT WAS TO PERFORM OR NOT TO PERFORM THE WORK FOR WHICH THE PRICES WERE ORIGINALLY OMITTED. B-176254, SUPRA. TO EXTEND THIS OPTION WOULD BE TANTAMOUNT TO GRANTING THE OPPORTUNITY TO SUBMIT A NEW BID. B-166778, JULY 9, 1969; B- 161628, JULY 20, 1967; B-150160, NOVEMBER 13, 1972. WE HAVE, THEREFORE, HELD THAT AN ALLEGATION OF ERROR IS PROPER FOR CONSIDERATION ONLY WHERE THE BID IS RESPONSIVE AND OTHERWISE PROPER FOR ACCEPTANCE. 40 COMP. GEN. 432, 435 (1961); 38 ID. 819, 821 (1959); B-160663, JANUARY 26, 1967; B- 148701, SUPRA.

HOWEVER, OUR OFFICE HAS RECOGNIZED A VERY LIMITED EXCEPTION TO THESE RULES. IN 52 COMP. GEN. 604 (1973), WE STATED AT PAGE 607:

"*** BASICALLY, EVEN THOUGH A BIDDER FAILS TO SUBMIT A PRICE FOR AN ITEM IN A BID, THAT OMISSION CAN BE CORRECTED IF THE BID, AS SUBMITTED, INDICATES NOT ONLY THE PROBABILITY OF ERROR BUT ALSO THE EXACT NATURE OF THE ERROR AND THE AMOUNT INTENDED. B-151332, JUNE 27, 1963. THE RATIONALE FOR THIS EXCEPTION IS THAT WHERE THE CONSISTENCY OF THE PRICING PATTERN IN THE BIDDING DOCUMENTS ESTABLISHES BOTH THE EXISTENCE OF THE ERROR AND THE BID ACTUALLY INTENDED, TO HOLD THAT THE BID IS NONRESPONSIVE WOULD BE TO CONVERT WHAT APPEARS TO BE AN OBVIOUS CLERICAL ERROR OF OMISSION TO A MATTER OF NONRESPONSIVENESS. B-157429, AUGUST 19, 1965."

THESE DECISIONS ARE BASED ON THE PROPOSITION THAT THE BIDDER INDICATES HIS INTENT TO BID A CERTAIN PRICE FOR AN ITEM OTHERWISE NOT BID UPON BY BIDDING THE SAME AMOUNT FOR THE SAME MATERIAL IN OTHER PARTS OF HIS BID. THE PATTERN OF UNIFORM PRICING AS ESTABLISHED IN THE BIDDING DOCUMENTS IS THE ESSENCE OF THE EXCEPTION WHICH ALLOWS THE DETERMINATION AND THE INSERTION OF THE INTENDED PRICE. B-146329, AUGUST 28, 1961.

APPLYING THESE PRINCIPLES TO THE INSTANT IFB, THE COMMODITIES CALLED FOR IN ITEMS 5 AND 6, WHILE DAIRY PRODUCTS, WERE NOT SIMILAR TO THE DIFFERENT TYPES AND SIZES OF DAIRY PRODUCTS CALLED FOR ELSEWHERE IN THE IFB, AND THEREFORE, THE PRICES FOR ITEMS 5 AND 6 COULD BE DISSIMILAR TO THE PRICES ELSEWHERE INCLUDED IN THE IFB. AS A RESULT, THE UNIFORM PRICING RULE IS NOT APPLICABLE HERE, SINCE THE PRICES INCLUDED ELSEWHERE IN THE BID PROVIDE NO BASIS TO ESTABLISH THE PRICES WHICH WERE INADVERTENTLY OMITTED FROM THE BID FOR ITEMS 5 AND 6. THE GENERAL RULE THEN IS FOR APPLICATION THAT A BID IS NONRESPONSIVE ON ITS FACE IF IT FAILS TO INCLUDE A PRICE ON EVERY ITEM AS REQUIRED BY THE IFB AND MAY NOT, THEREFORE, BE CORRECTED.

SINCE THE INSTANT IFB STATED THAT AWARD WOULD BE MADE ON AN "ALL OR NONE" BASIS AND THAT EACH BIDDER MUST BID ON EACH AND EVERY ITEM TO BE CONSIDERED RESPONSIVE, THE FAILURE OF REGIS TO INCLUDE PRICES FOR ITEMS 5 AND 6 PERMITS NO OTHER RESULT THAN THE CONCLUSION THAT THE REGIS BID WAS NONRESPONSIVE.

ACCORDINGLY, THE PROTEST IS DENIED.