B-210647.2, DEC 27, 1983

B-210647.2, DEC 27, 1983

DIGEST: 1. TELEGRAPHIC BID WHICH, CONTRARY TO SOLICITATION REQUIREMENT, MAKES NO MENTION OF BIDDER'S AGREEMENT TO BE BOUND BY ALL TERMS AND CONDITIONS OF SOLICITATION IS NONRESPONSIVE. 2. WHERE THE PROTESTER HAS FAILED TO SHOW THAT AN EXECUTED COPY OF SOLICITATION WAS RECEIVED BY THE PROCURING AGENCY BY THE BID OPENING DATE OR THAT AN EXCEPTION FOR THE RECEIPT OF LATE BIDS APPLIES, THE PROCURING AGENCY PROPERLY REJECTED THE EXECUTED COPY AS LATE. 3. CLAIM FOR LOSS OF PROFITS, LEGAL EXPENSES, AND COSTS INCURRED IN OBTAINING AND RETAINING ADDITIONAL EQUIPMENT IN PREPARATION FOR THE AWARD IS DENIED SINCE NO LEGAL BASIS EXISTS WHICH AUTHORIZES SUCH A RECOVERY. 4. CLAIM FOR BID PREPARATION COSTS IS DENIED WHERE THERE IS NO SHOWING THAT THE GOVERNMENT ACTED ARBITRARILY OR CAPRICIOUSLY IN REJECTING THE BID.

MIMCO, INC.:

MIMCO, INC. (MIMCO), PROTESTS THE REJECTION OF ITS TELEGRAPHIC BID AS NONRESPONSIVE UNDER INVITATION FOR BIDS (IFB) NO. DLA700-83-B-0434 ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), A FIELD ACTIVITY OF THE DEFENSE LOGISTICS AGENCY, FOR 1,607 FIREHOSE NOZZLES.

WE DENY THE PROTEST AND THE CLAIM FOR BID PREPARATION COSTS AND OTHER COSTS.

MIMCO WIRED A BID TO DCSC ON JANUARY 11, 1983, A DAY BEFORE THE BID OPENING DATE. MIMCO'S TELEGRAPHIC BID STATED "OFFER WILL BE CONFIRMED BY TWO EXECUTED COPIES OF THE SOLICITATION." HOWEVER, DCSC REPORTS THAT IT RECEIVED MIMCO'S MAILED EXECUTED COPY OF THE IFB AFTER THE BID OPENING DATE AND, THEREFORE, REFUSED TO CONSIDER THE EXECUTED COPY IN DETERMINING MIMCO'S RESPONSIVENESS. THE CONTRACTING OFFICER SUBSEQUENTLY REJECTED MIMCO'S TELEGRAPHIC BID AS NONRESPONSIVE BECAUSE IT FAILED TO COMPLY WITH DEFENSE ACQUISITION CIRCULAR (DAC) NO. 76-26, DECEMBER 15, 1980), AS INCORPORATED IN THE IFB BY PROVISION LO2. DAR SEC. 7-2003.29 STATES THAT A TELEGRAPHIC BID SHOULD INCLUDE A STATEMENT INDICATING THAT THE BIDDER "AGREES TO ALL THE TERMS, CONDITIONS AND PROVISIONS OF THE INVITATION." MIMCO'S TELEGRAPHIC BID CONTAINED NO SUCH STATEMENT.

MIMCO CONTENDS THAT DCSC ACTED ARBITRARILY AND CAPRICIOUSLY IN REJECTING ITS BID AS NONRESPONSIVE.

WE HAVE HELD THAT WHERE A SOLICITATION REQUIRES THAT A TELEGRAPHIC BID SHOULD INDICATE THAT A BIDDER IS BIDDING "SUBJECT TO ALL THE TERMS, CONDITIONS, AND PROVISIONS" OF THE SOLICITATION AND THE BIDDER FAILS TO DO SO, THE BID IS NONRESPONSIVE. CANADIAN COMMERCIAL CORPORATION, B-185816, JUNE 21, 1976, 76-1 CPD 396. ACCORDINGLY, SINCE MIMCO DID NOT COMPLY WITH DAR SEC. 7-2003.29 AS INCORPORATED IN THE IFB, DCSC PROPERLY DETERMINED THAT MIMCO'S BID WAS NONRESPONSIVE IN THAT RESPECT.

CONSEQUENTLY, THE ONLY MANNER IN WHICH THE MIMCO BID COULD BE ACCEPTED WOULD BE IF IT WERE POSSIBLE TO PERMIT THE EXECUTED COPY OF MIMCO'S BID TO CURE THE DEFECT IN THE TELEGRAPHIC BID. MIMCO CLAIMS THAT IT MAILED THE EXECUTED COPY OF THE IFB PRIOR TO THE TELEGRAPHIC BID AND THAT DCSC DID OR SHOULD HAVE RECEIVED THE EXECUTED COPY BY THE BID OPENING DATE. UNDER DAR SEC. 7-2002.2 (DAC NO. 76-18, MARCH 12, 1979), A LATE BID MAY BE ACCEPTED IF EITHER IT IS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN 5 DAYS PRIOR TO THE BID OPENING DATE OR IT WAS SENT BY MAIL AND THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. SINCE MIMCO PRESENTS NO EVIDENCE THAT EITHER EXCEPTION APPLIES HERE, WE CONCLUDE THAT DCSC PROPERLY REJECTED MIMCO'S EXECUTED COPY OF THE IFB AS LATE.

WE DENY THE PROTEST.

MIMCO ALSO CLAIMS ITS LOSS OF PROFIT, LEGAL EXPENSES, COSTS INCURRED IN OBTAINING AND RETAINING ADDITIONAL EQUIPMENT IN PREPARATION FOR THE AWARD, AND ITS BID PREPARATION COSTS. WE HAVE HELD THAT THERE IS NO LEGAL BASIS FOR ALLOWING A PROTESTER TO RECOVER ANTICIPATED PROFITS OR LEGAL FEES INCURRED IN PURSUING A BID PROTEST. M.L. MCKAY & ASSOCIATES, INC., B-208827, JUNE 1, 1983, 83-1 CPD 587. WE KNOW OF NO BASIS ON WHICH MIMCO MAY RECOVER ITS COSTS INCURRED IN OBTAINING AND RETAINING ADDITIONAL EQUIPMENT IN PREPARATION FOR THE AWARD. BID PREPARATION COSTS CAN ONLY BE RECOVERED IF THE GOVERNMENT HAS ACTED ARBITRARILY OR CAPRICIOUSLY IN REJECTING A BID. HOLMES & NARVER SERVICES, INC., B-208652, JUNE 6, 1983, 83-1 CPD 605. IN VIEW OF OUR CONCLUSIONS ABOVE, THE CLAIM IS DENIED.