B-161003, APR. 19, 1967

B-161003, APR. 19, 1967

TO RANDALL MANUFACTURING COMPANY, INC.:

REFERENCE IS MADE TO THE COPY OF YOUR LETTER DATED MARCH 3, 1967, TO NAVAL AIR SYSTEMS COMMAND, FORWARDED TO THIS OFFICE, AND LATER COMMUNICATIONS PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. N00019-67-B-0027.

THE INVITATION (STANDARD FORM 33) READS IN PART AS FOLLOWS: "IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF THIS BID BE ACCEPTED WITHIN ----- CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE BIDDER) FROM THE DATE OF OPENING, TO FURNISH ANY OR ALL OF THE ITEMS UPON WHICH PRICES ARE QUOTED * * *.' PARAGRAPH THREE (3) OF THE ADDITIONAL BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS STATES: "BIDS OFFERING LESS THAN SIXTY (60) DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE SET FOR OPENING OF BIDS WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.'

YOUR BID CONTAINED THE FIGURE 31 DAYS FOR ACCEPTANCE BY THE CONTRACTING OFFICER, AND AS SUCH WAS PROPERLY CONSIDERED NONRESPONSIVE BY THE NAVAL AIR SYSTEMS COMMAND.

YOU HAVE STATED THAT THE PERIOD OF 31 DAYS FOR ACCEPTANCE WAS ARBITRARILY ARRIVED AT AND THAT IT WAS ONLY THROUGH INADVERTENCE THAT THE REQUIREMENT OF 60 DAYS WAS NOT COMPLIED WITH. FURTHER, BY LETTER OF DECEMBER 13, 1966, TO THE NAVAL AIR SYSTEMS COMMAND YOU OFFERED TO EXTEND THE PERIOD FOR ACCEPTANCE BY 15 DAYS PRIOR TO EXPIRATION OF THE ORIGINAL PERIOD. FEBRUARY 2, 1967, AFTER THE PREVIOUS PERIODS HAD EXPIRED, YOU OFFERED BY LETTER TO EXTEND INDEFINITELY THE TIME FOR ACCEPTANCE. ON THIS EVIDENCE YOU CONTEND THAT YOUR BID WAS AVAILABLE FOR ACCEPTANCE AT THE TIME OF AWARD AND THAT AWARD SHOULD HAVE BEEN MADE TO YOU FOR THE ITEMS ON WHICH YOU WERE LOW. IN SUPPORT OF THIS POSITION YOU CITE OUR DECISION 42 COMP. GEN. 604 WHICH HOLDS A BIDDER MAY WAIVE THE LIMIT ON TIME FOR ACCEPTANCE WHEN AWARD CAN NOT BE MADE WITHIN THAT PERIOD. THAT DECISION CAN BE DISTINGUISHED FROM THE PRESENT CASE IN THAT THE BIDDERS THERE WERE NOT CONSIDERED NONRESPONSIVE IN THE FIRST INSTANCE FOR FAILURE TO GRANT THE MINIMUM TIME FOR ACCEPTANCE REQUIRED IN THE INVITATION FOR BIDS. IT IS AXIOMATIC THAT A BID MAY BE CONSIDERED FOR AWARD ONLY IF IT COMPLIES IN ALL MATERIAL RESPECTS WITH THE TERMS OF THE INVITATION. 17 COMP. GEN. 554. A PROVISION IN AN INVITATION REQUIRING THAT A BID TO BE CONSIDERED FOR AWARD MUST REMAIN AVAILABLE FOR ACCEPTANCE FOR A MINIMUM PERIOD IS A MATERIAL REQUIREMENT AND FAILURE TO CONFORM THEREWITH RENDERS THE BID NONRESPONSIVE. 39 COMP. GEN. 779.

THE SUBSEQUENT EXTENSIONS OF THE ACCEPTANCE PERIOD AND THE EVIDENCE THAT THIS ERROR WAS DUE TO INADVERTENCE, NOT BAD FAITH, UNFORTUNATELY WILL NOT CURE THE DEFICIENCY. AS STATED IN ONE OF OUR PREVIOUS DECISIONS, 38 COMP. GEN. 819, AT PAGE 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, * * *. 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.'

IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT THE INCLUSION BY THE CONTRACTING OFFICER IN THE INVITATION OF THE REQUIREMENT FOR A MINIMUM ACCEPTANCE PERIOD OF 60 DAYS MADE THE TIME FOR ACCEPTANCE MATERIAL, AND THE FAILURE OF YOUR BID TO MEET THAT REQUIREMENT BY SETTING 31 DAYS FOR ACCEPTANCE RENDERED YOUR BID NONRESPONSIVE.