B-154626, JUL. 17, 1964

B-154626, JUL. 17, 1964

TO THE SECRETARY OF THE ARMY:

BY LETTER DATED JUNE 30, 1964, WITH ENCLOSURES, THE DEPUTY DIRECTOR, PROCUREMENT AND PRODUCTION, HEADQUARTERS, UNITED STATES ARMY MATERIEL COMMAND, REQUESTED OUR DECISION WITH RESPECT TO THE PROTEST OF MCQUISTON ASSOCIATES AGAINST THE REJECTION OF ITS LOW BID SUBMITTED UNDER INVITATION FOR BIDS NO. AMC/Z/-01-021-64-1125, ISSUED ON APRIL 6, 1964, BY REDSTONE ARSENAL, ALABAMA, FOR 52 TRANSFORMERS AND ONE PREPRODUCTION SAMPLE THEREOF.

THE BID OF MCQUISTON WAS REJECTED BY THE CONTRACTING OFFICER AS NONRESPONSIVE SINCE THE BIDDER FAILED TO RETURN WITH ITS BID 12 PAGES OF THE INVITATION. THE MISSING PAGES CONTAINED CLAUSES, AMONG OTHERS,DEALING WITH LATE BIDS AND MODIFICATIONS OR WITHDRAWALS, REPURCHASE OF FORMER GOVERNMENT SURPLUS PROPERTY, DESCRIPTION OF SUCH SURPLUS BEING OFFERED, FINANCIAL AND PRODUCTION DATA, CERTIFICATION OF NONCOLLUSION AND DELIVERY TERMS. THE CONTRACTING OFFICER HAD DETERMINED THAT THESE CLAUSES WERE MATERIAL REQUIREMENTS OF THE INVITATION AND THAT, THEREFORE, MCQUISTON'S BID WAS NONRESPONSIVE. IT IS MCQUISTON'S POSITION THAT THE FAILURE TO RETURN THE ENTIRE INVITATION WITH ITS BID CONSTITUTED A MINOR INFORMALITY OR IRREGULARITY WHICH MAY BE WAIVED ADMINISTRATIVELY UNDER ASPR 2-405. THAT PROVISION READS AS FOLLOWS:

"A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, AND NO EFFECT ON QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO, BIDDERS. THE CONTRACTING OFFICER SHALL EITHER GIVE TO THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID, OR, WAIVE ANY SUCH DEFICIENCY WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT. * * *"

INASMUCH AS THE BID OF MCQUISTON WAS SUBMITTED TIMELY, THE FAILURE TO RETURN THE LATE BIDS AND MODIFICATIONS OR WITHDRAWALS CLAUSE MAY BE WAIVED AS AN INFORMALITY UNDER ASPR 2-405.

THE PRIMARY QUESTION FOR DETERMINATION IN CASES SUCH AS THIS, IS WHETHER THE ACCEPTANCE OF THE BID AS SUBMITTED WILL RESULT IN A CONTRACT BINDING ON THE BIDDER REQUIRING PERFORMANCE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE INVITATION. SEALED BIDS UNDER THE INVITATION WERE TO BE SUBMITTED.

"* * * SUBJECT TO (1) THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, (2) THE ACCOMPANYING SCHEDULE, (3) GENERAL PROVISIONS (STANDARD FORM 32, 1964 * EDITION), WHICH ARE INCORPORATED HEREIN BY REFERENCE, AND (4) SUCH OTHER CONTRACT PROVISIONS AND SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED BY REFERENCE IN THE SCHEDULE * * *.'

THE FACE SHEET OF THE INVITATION FURTHER PROVIDED THAT:

"* * * BIDS MUST SET FORTH FULL, ACCURATE, AND COMPLETE INFORMATION AS REQUIRED BY THIS INVITATION FOR BIDS (INCLUDING ATTACHMENTS) * * *"

THE FAILURE TO RETURN THE CLAUSES ENTITLED "REPURCHASE OF FORMER GOVERNMENT SURPLUS PROPERTY" DID NOT CONSTITUTE A MATERIAL DEVIATION WHICH WOULD BE FATAL TO CONSIDERATION OF MCQUISTON'S BID. THAT CLAUSE HAS APPLICATION ONLY WHERE A BIDDER OFFERS TO FURNISH SURPLUS GOVERNMENT PROPERTY IN RESPONSE TO THE INVITATION. SINCE MCQUISTON DID NOT OFFER FORMER SURPLUS PROPERTY IN ITS BID, SUCH FAILURE TO INCLUDE THE CLAUSE IN THE BID WAS AN IRREGULARITY WHICH PROPERLY MAY BE WAIVED. SEE 38 COMP. GEN. 89. THIS WOULD SEEM TO BE TRUE IN VIEW OF THE PROVISION THEREIN THAT, EXCEPT AS DISCLOSED BY THE CONTRACTOR (BIDDER) IN THE SPACE THEREIN PROVIDED, NO SURPLUS PROPERTY WOULD BE FURNISHED "UNDER THIS CONTRACT" UNLESS APPROVED BY THE CONTRACTING OFFICER. CF. B-145583, DATED SEPTEMBER 27, 1960, WHEREIN THIS CLAUSE WAS CONSIDERED TO BE A SUBSTANTIAL REQUIREMENT OF AN INVITATION WHERE A BIDDER "OFFERED" GOVERNMENT SURPLUS.

THE FINANCIAL AND PRODUCTION CLAUSE WHICH WAS ALSO MISSING FROM THE BID RESERVED TO THE GOVERNMENT THE RIGHT TO REQUIRE THE SUBMISSION OF DATA BY THE BIDDER RESPECTING ITS PRODUCTION VOLUME, PRODUCTION RATE, FINANCES, AND INDEBTEDNESS TO THE GOVERNMENT. THE FAILURE TO RETURN THIS CLAUSE WITH THE BID DID NOT GO TO THE SUBSTANCE OF THE BID AND PROPERLY COULD HAVE BEEN WAIVED SINCE THE INFORMATION CONTEMPLATED BY SUCH CLAUSE WAS SOLELY FOR THE BENEFIT OF THE GOVERNMENT IN DETERMINING THE RESPONSIBILITY OF BIDDERS. THAT BEING THE CASE, THIS INFORMATION MAY BE ELICITED AFTER BID OPENING WITHOUT PREJUDICE TO COMPETING BIDDERS. 39 COMP. GEN. 62; 42 ID. 532.

RESPECTING THE "CERTIFICATION OF NONCOLLUSION" CLAUSE, WE NOTE THAT UNDER THE CLAUSE THE FACT OF BID SUBMISSION ITSELF CONSTITUTES A CERTIFICATION THAT THE BID PRICE WAS INDEPENDENTLY ARRIVED AT WITHOUT COLLUSION, THAT THE BID PRICE HAS NOT BEEN DISCLOSED PRIOR TO OPENING, AND THAT NO ATTEMPT HAS BEEN MADE TO INDUCE ANOTHER TO SUBMIT OR NOT TO SUBMIT A BID. HOWEVER, PURSUANT TO ASPR 1-115, THE CLAUSE FURTHER PROVIDED THAT A BID "WILL NOT BE CONSIDERED FOR AWARD" IF ANY OF THE STIPULATIONS CONCERNING NONCOLLUSION HAD BEEN DELETED OR MODIFIED. WE AGREE THAT THE OMISSION OF THIS CLAUSE FROM THE BID CONSTITUTED, AT LEAST, A DELETION OF THE ENTIRE CLAUSE. BUT WE DO NOT AGREE THAT THE CLAUSE AFFECTED THE RESPONSIVENESS OF THE BID. INSTEAD, WE FEEL THAT THE CLAUSE WENT TO THE RESPONSIBILITY OF THE BIDDER. WE HAVE CONSISTENTLY HELD THAT LOW BIDS ARE NOT TO BE REJECTED MERELY BECAUSE OF THE OMISSION BY THE BIDDER OF SOMETHING WHICH, ALTHOUGH REQUIRED BY THE INVITATION, DOES NOT IN ANY WAY AFFECT THE PRICE, QUALITY OR QUANTITY OF THE ITEM TO BE FURNISHED. SINCE IT APPEARS THAT THE BID OF MCQUISTON CONSTITUTED A CERTIFICATION OF NONCOLLUSION, THE FACT THAT THE CLAUSE ITSELF WAS OMITTED DID NOT AFFECT THE SUBSTANCE OF THE BID NOR PREJUDICE THE RIGHTS OF OTHER BIDDERS. ALTHOUGH THIS CLAUSE PROVIDED THAT DELETIONS OF ANY STIPULATION RESPECTING NONCOLLUSION WILL RESULT IN BID REJECTION, WE DO NOT FEEL THAT AUTOMATIC REJECTION OF MCQUISTON'S BID IS THEREBY REQUIRED SINCE THIS CLAUSE IS CONCERNED WITH THE RESPONSIBILITY OF BIDDERS RATHER THAN WITH THE RESPONSIVENESS OF BIDS. 39 COMP. GEN. 247; ID. 95; ID. 881; B-139381 DATED JUNE 5, 1959; B-142901 DATED JUNE 1, 1960. THAT BEING THE CASE, ANY INFORMATION THAT MAY BE REQUIRED WITH RESPECT TO NONCOLLUSION MAY BE FURNISHED AFTER BID OPENING.

HOWEVER, THE CLAUSES DEALING WITH THE MANDATORY USE OF MILITARY STANDARD TRANSPORTATION AND MOVEMENT PROCEDURES, DELIVERY TERMS, AND DELIVERY TO CARRIERS ARE ESSENTIAL REQUIREMENTS GOING TO THE SUBSTANCE OF THE BID.

WE HAVE CONSIDERED THE LEGAL EFFECT OF INVITATION PAGE OMISSIONS FROM A BID SUBMITTED THEREUNDER IN THE LIGHT OF SIMILAR LANGUAGE APPEARING ON THE FACE SHEET OF THE INVITATION. IN 42 COMP. GEN. 502 WE HELD, QUOTING THE SYLLABUS:

"UNDER AN INVITATION SUBJECT BOTH TO THE SCHEDULE AND SPECIAL PROVISIONS ATTACHED THERETO AND TO THE ADDITIONAL TERMS AND CONDITIONS, AND THE GENERAL PROVISIONS INCORPORATED BY REFERENCE, A BID SUBMITTED WITH SEVERAL PAGES OF THE INVITATION MISSING, WHICH CONTAINED SUBSTANTIVE PROVISIONS CONCERNING THE SPECIFICATIONS AND CONTRACTOR OBLIGATIONS, IS A NONRESPONSIVE BID PROPERLY FOR REJECTION, THE BIDDER BEING FREE TO ELECT TO BE BOUND ONLY BY THE SPECIAL PROVISIONS ATTACHED TO THE BID, NOTWITHSTANDING INTENT TO BE BOUND, THE DETERMINING FACTOR BEING WHETHER THAT INTENTION IS APPARENT FROM THE BID SUBMITTED, AND THE MISSING PAGES GOING TO THE SUBSTANCE OF THE BID, THE EXECUTION OF AN AMENDMENT PROVIDING THAT THE "TERMS AND CONDITIONS OF THE ORIGINAL ADVERTISEMENT REMAIN UNCHANGED" WOULD NOT OVERCOME THE FAILURE TO ATTACH THE REQUIRED PROVISIONS OF THE INVITATION TO THE BID.'

HENCE, THE FAILURE TO SUBMIT WITH THE BID THOSE PAGES OF THE INVITATION WHICH INCLUDED THE ABOVE-MENTIONED CLAUSES CONSTITUTED FATAL DEVIATIONS WHICH RENDERED THE BID NONRESPONSIVE. SEE ASPR 2-301 (A) AND 2-404.2; 42 COMP. GEN. 502; CF. 41 COMP. GEN. 106, 108. IN VIEW THEREOF, IT WOULD BE IMPROPER TO PERMIT MCQUISTON TO COMPLETE ITS BID BY SUPPLYING THE MISSING PAGES. 41 COMP. GEN. 412, 416.

IN THE ABSENCE OF REPORTED FACTS AND PERTINENT PAPERS, WE HAVE NO COMMENTS TO OFFER ON THE REJECTION OF MCQUISTON'S BID SUBMITTED UNDER INVITATION NO. AMC/Z/-01-021-64-1111 AS TO WHICH AN AWARD ALREADY HAS BEEN MADE.

ACCORDINGLY, WE ARE OF THE OPINION THAT THE LOW BID OF MCQUISTON WAS PROPERLY REJECTED AS NONRESPONSIVE BY THE CONTRACTING OFFICER.