B-144844, MAY 11, 1961

B-144844, MAY 11, 1961

TO STUDEBAKER-PACKARD CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF JANUARY 18, 1961, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. FN-3G-32327-A-11-28-60 ISSUED BY THE NATIONAL BUYING DIVISION, FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION.

THE INVITATION REQUESTED BIDS TO BE OPENED ON NOVEMBER 28, 1960, FOR FURNISHING 2,015 MAIL DELIVERY TRUCKS FOR THE POST OFFICE DEPARTMENT IN ACCORDANCE WITH POST OFFICE DEPARTMENT SPECIFICATION 89-60 DATED SEPTEMBER 23, 1960. PAGE 9 OF THE SPECIFICATION, PARAGRAPH D-25 IRES," REQUIRED THAT THE LOAD CARRYING CAPACITY OF EACH TIRE SHALL BE SUITABLE FOR THE GROSS VEHICLE WEIGHT FURNISHED BASED ON THE TIRE AND RIM ASSOCIATION, INC., REQUIREMENTS AND CONFORMING TO THE APPLICABLE REQUIREMENTS OF FEDERAL SPECIFICATION ZZ-T-381. THE SPECIFICATION REQUIRED THAT THE MINIMUM GROSS WEIGHT OF THE VEHICLE SHOULD NOT BE LESS THAN 3,800 POUNDS G.V.W.

IN RESPONSE TO THE INVITATION STUDEBAKER-PACKARD CORPORATION SUBMITTED A BID OFFERING TO FURNISH A VEHICLE HAVING A GROSS VEHICLE WEIGHT OF 4,200 POUNDS AND EQUIPPED WITH 6.40 BY 15 4-PLY TIRES SUBSEQUENT TO THE OPENING OF THE BIDS STUDEBAKER-PACKARD CORPORATION ADVISED BY TELEGRAM OF DECEMBER 14, 1960, THAT THE QUESTIONNAIRE ATTACHED TO ITS BID ERRONEOUSLY SHOWED 6.40 BY 15 4-PLY TIRES AND THAT THE BID WAS BASED ON SUPPLYING 6.70 BY 15 6-PLY TIRES. ALSO BY LETTER OF THE SAME DATE STUDEBAKER-PACKARD SUBMITTED THREE COPIES OF THE QUESTIONNAIRE CORRECTED TO SHOW THAT 6.70 BY 15 6-PLY TIRES WOULD BE FURNISHED AND REQUESTED THAT THE REVISED QUESTIONNAIRE BE FILED WITH ITS BID. THE SIZE TIRE OFFERED AT THE TIME OF THE OPENING OF THE BIDS WAS NOT ADEQUATE,WHEREAS THE SIZE TIRE REFERRED TO IN THE TELEGRAM AND THE REVISED QUESTIONNAIRE WOULD HAVE MET THE REQUIREMENTS OF THE SPECIFICATION. THE CONTRACTING OFFICER DETERMINED THAT THE BID AS SUBMITTED WAS NOT RESPONSIVE AND THAT THE BID COULD NOT BE CORRECTED AFTER THE OPENING OF THE BIDS TO MAKE IT RESPONSIVE. THEREFORE THE BID WAS REJECTED.

FORTY-ONE U.S.C. 253 (B) REQUIRES THAT ALL BIDS SHALL BE PUBLICLY OPENED AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT AND THAT AWARD SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION FOR BIDS. THE SIZE OF THE TIRES TO BE FURNISHED OBVIOUSLY IS NOT A MINOR DEFICIENCY IN THE BID WHICH MAY BE WAIVED AS AN INFORMALITY. 30 COMP. GEN. 179, 35 ID. 98. WITH RESPECT TO THE QUESTION AS TO WHETHER THE BID PROPERLY COULD HAVE BEEN CORRECTED AFTER THE OPENING OF THE BIDS, IT WAS STATED IN 38 COMP. GEN. 819, 821:

"IT IS PROBABLE THAT THE MAJORITY OF UNRESPONSIVE BIDS ARE DUE TO OVERSIGHT OR ERROR, SUCH AS THE FAILURE TO QUOTE A PRICE, TO SIGN THE BID, TO FURNISH A BID BOND, TO SUBMIT REQUIRED SAMPLES OR DATA, OR THE SUBMISSION OF THE WRONG SAMPLE, INCOMPLETE DATA, OR STATEMENTS THE ACTUAL MEANING OF WHICH WAS NOT INTENDED, ETC. AN UNRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PART OF THE BID ON THE BASIS OF AN ERROR ALLEGED AFTER THE OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. IT IS OUR OPINION THAT AN ALLEGATION OF ERROR IS PROPER FOR CONSIDERATION ONLY IN CASES WHERE THE BID IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE PROPER FOR ACCEPTANCE.'

ACCORDINGLY, WE FIND NO BASIS FOR QUESTIONING THE DETERMINATION MADE BY THE CONTRACTING OFFICER THAT THE BID OF STUDEBAKER-PACKARD CORPORATION WAS NOT A RESPONSIVE BID AND THEREFORE NOT ELIGIBLE FOR AWARD.