B-182604, JAN 10, 1975

B-182604, JAN 10, 1975

1. WHERE BIDDER INSERTED CLAUSE IN BID PROVIDING FOR CHANGE IN PRICE OF ITEMS TO BE FURNISHED IF CERTAIN CIRCUMSTANCES OCCUR, BIDDER HAS NOT OFFERED FIRM FIXED PRICE AND BID MUST BE REJECTED AS NONRESPONSIVE. 2. BIDDER'S INSERTION OF UNSOLICITED MODEL NUMBER IN BID CREATES AMBIGUITY AS TO WHETHER BIDDER INTENDS TO BE BOUND BY SPECIFICATION AND, CONSEQUENTLY, AWARD TO THAT BIDDER WOULD BE PROPER ONLY IF PUBLISHED COMMERCIAL LITERATURE PUBLICLY AVAILABLE PRIOR TO BID OPENING ESTABLISHES COMPLIANCE WITH THE SPECIFICATION. 3. PROVISION THAT BIDDER NOTE IN BID ALL DEVIATIONS AND EXCEPTIONS FROM SPECIFICATION FOR ITEMS OFFERED IS OBJECTIONABLE SINCE BIDDERS MAY BE LED TO BELIEVE THAT AWARD MAY BE CONSIDERED ON NONCONFORMING ITEMS. USE OF PROVISION SHOULD BE DISCONTINUED IN FUTURE PROCUREMENTS OR WHERE PARTICULAR DEVIATION MIGHT BE CONSIDERED MINOR, PROVISION SHOULD BE WORDED TO SO INDICATE.

LIFT POWER INC.:

INVITATION FOR BIDS NO. DACW17-75-B-0014 WAS ISSUED FOR THE PROCUREMENT OF TWO DIESEL-POWERED FORKLIFTS BY THE CORPS OF ENGINEERS, JACKSONVILLE DISTRICT, ON AUGUST 23, 1974. FIVE FIRMS SUBMITTED BIDS ON THE PROCUREMENT. LIFT POWER INC. SUBMITTED THE LOW AND THIRD LOW BIDS. BECAUSE LIFT POWER SUBMITTED WITH ITS BID SOME OF ITS OWN STANDARD QUOTATION FORMS CONTAINING TERMS AND CONDITIONS WHICH WOULD HAVE LIMITED THE CONTRACTING ACTIVITY'S RIGHTS UNDER ANY RESULTING CONTRACT AND BECAUSE IT WAS DETERMINED FROM TECHNICAL INFORMATION INCLUDED WITH THE BID THAT THE OFFERED ENGINE DID NOT MEET THE SPECIFICATION REQUIREMENTS IN ALL RESPECTS, BOTH LIFT POWER BIDS WERE DETERMINED TO BE NONRESPONSIVE. SINCE THE BID OF THE SECOND LOW BIDDER WAS ALSO DETERMINED TO BE NONRESPONSIVE, AWARD TO THE SANTA FE EQUIPMENT COMPANY (SANTA FE), THE FOURTH LOW BIDDER, IS PROPOSED. LIFT POWER PROTESTS THE REJECTION OF ITS BIDS AND THE PROPOSED AWARD TO SANTA FE.

WE AGREE THAT THE LIFT POWER BIDS WERE PROPERLY DETERMINED TO BE NONRESPONSIVE. THE QUOTATION FORMS WHICH LIFT POWER SUBMITTED WITH ITS BIDS STATED THAT "THIS PROPOSAL IS SUBMITTED SUBJECT TO THE CONDITIONS SHOWN ON BACK HEREOF." AMONG THESE CONDITIONS WAS ONE MAKING THE QUOTED PRICES SUBJECT TO POSSIBLE FUTURE CHANGE BY THE SELLER AT ANY TIME PRIOR TO DELIVERY IN ORDER TO COVER COST INCREASES IN MATERIALS. AS THE BIDDER DID NOT, IN VIEW OF THIS CONDITION, OFFER A DEFINITE, FIXED PRICE AS REQUIRED BY THE INVITATION, THE LIFT POWER BIDS WERE CLEARLY NONRESPONSIVE. MATTER OF JOY MANUFACTURING COMPANY, B-181136, SEPTEMBER 25, 1974, 54 COMP. GEN. .

AS REGARDS THE PROPOSED AWARD TO SANTA FE, IT IS THE CONTENTION OF LIFT POWER THAT THE SANTA FE BID DID NOT CONTAIN ADEQUATE DESCRIPTIVE LITERATURE AND THAT THE ITEMS SANTA FE WILL DELIVER WILL NOT MEET THE SPECIFICATION.

THE INVITATION PROVIDES THAT:

"SECTION I - INSPECTION AND ACCEPTANCE

FINAL INSPECTION AND ACCEPTANCE WILL BE MADE BY AN AUTHORIZED REPRESENTATIVE OF THE CONTRACTING OFFICER AFTER DELIVERY AT DESTINATION. MATERIAL NOT CONFORMING TO THE SPECIFICATIONS WILL BE REJECTED."

IMMEDIATELY FOLLOWING THIS PROVISION IS THE FOLLOWING REQUIREMENT:

"SECTION J - SPECIAL PROVISIONS

1. INFORMATION TO BE SUBMITTED WITH BID. EACH BIDDER SHALL FURNISH A STATEMENT SHOWING ANY POINTS IN WHICH THE PROPOSED EQUIPMENT DOES NOT MEET THE REQUIREMENTS OF THESE SPECIFICATIONS, AS WELL AS ANY EXCEPTION HE MAY TAKE TO THESE SPECIFICATIONS. IF SUCH STATEMENT IS NOT FURNISHED, IT WILL BE CONSIDERED THAT THE EQUIPMENT OFFERED WILL FULLY MEET THE SPECIFICATIONS. THIS IS NOT TO BE CONSTRUED AS A REQUEST FOR, NOR AUTHORITY TO SUBMIT, ALTERNATE BIDS."

WE NOTE HERE THAT NO PROVISION OF THE INVITATION REQUIRED THE SUBMISSION OF DESCRIPTIVE LITERATURE. AND, THE BID OF SANTA FE DID NOT CONTAIN ANY EXCEPTIONS OR DEVIATIONS TO THE SPECIFICATION. HOWEVER, SANTA FE DID INSERT ON THE PRICING PAGE OF ITS BID THE MODEL ("CHAMP CB 80F") WHICH IT WAS PROPOSING TO FURNISH. THE FURNISHING OF THE MODEL NUMBER WAS NEITHER REQUIRED NOR REQUESTED BY THE INVITATION.

BECAUSE OF THE UNSOLICITED INSERTION OF THIS MODEL NUMBER, WE BELIEVE THAT SANTA FE CREATED A POTENTIAL AMBIGUITY IN ITS BID. WHILE THE INSERTION MAY MERELY INDICATE A MODEL CONFORMING IN ALL RESPECTS TO THE SPECIFICATION, IT MIGHT ALSO, IN VIEW OF THE PROVISION REQUESTING A NOTATION OF ALL DEVIATIONS AND EXCEPTIONS, HAVE BEEN MEANT TO INDICATE A MODEL NOT MEETING ALL REQUIREMENTS OF THE SPECIFICATION. THE QUESTION OF THE RESPONSIVENESS OF A BID CONCERNS WHETHER A BIDDER HAS UNEQUIVOCALLY OFFERED TO PROVIDE THE REQUESTED ITEMS IN TOTAL CONFORMANCE WITH THE TERMS AND SPECIFICATION REQUIREMENTS OF THE INVITATION. THIS DETERMINATION MUST BE MADE FROM THE BID DOCUMENTS AS OF THE TIME OF BID OPENING OR, AS IS APPROPRIATE IN THIS SET OF CIRCUMSTANCES, FROM REFERENCE TO PUBLISHED COMMERCIAL LITERATURE WHICH WAS PUBLICLY AVAILABLE PRIOR TO BID OPENING. SEE B-178377, JULY 25, 1973; 50 COMP. GEN. 8 (1970).

IN VIEW OF THIS, IT IS OUR OPINION THAT A PROPER AWARD TO SANTA FE MAY NOT BE MADE UNLESS THE CONTRACTING ACTIVITY IS ABLE TO DETERMINE FROM SUCH PUBLISHED COMMERCIAL LITERATURE THAT THE ITEM SANTA FE WOULD FURNISH UNDER A RESULTANT CONTRACT WOULD COMPLY WITH THE INVITATION SPECIFICATION.

WE NOTE THE ABOVE-CITED PROVISION REQUESTING EACH BIDDER TO STATE IN ITS BID ANY EXCEPTIONS TO THE SPECIFICATION REQUIREMENTS. THE USE OF SUCH A PROVISION MAY LEAD BIDDERS TO BELIEVE, CONTRARY TO BASIC PROCUREMENT LAW AND TO THE PRECEDING PARAGRAPH OF THE INVITATION QUOTED ABOVE, THAT AWARD MAY BE CONSIDERED ON NON-CONFORMING ITEMS. CONSEQUENTLY, IN FUTURE PROCUREMENTS USE OF THE PROVISION SHOULD BE DISCONTINUED, OR WHERE A PARTICULAR DEVIATION FROM THE SPECIFICATION MIGHT BE CONSIDERED MINOR, THE PROVISION SHOULD BE REWORDED TO SO INDICATE. B-173519, SEPTEMBER 27, 1971; 52 COMP. GEN. 815, 817 (1973).