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S. GOVERNMENT PRINTING OFFICE: REFERENCE IS MADE TO LETTER OF JUNE 30. THE REQUEST FOR RECONSIDERATION IS BASED ON FIVE GROUNDS. IT IS STATED THAT SINCE THE COVER SHEET OF THE INVITATION PROVIDED "THE PUBLIC PRINTER RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS AND TO WAIVE DEFECTS OR INFORMALITIES. " AND THAT AN AWARD WAS MADE TO CRAFTSMAN DESPITE ITS FAILURE TO INSERT THE FIGURE 500. THE QUESTION IS NOT WHETHER THE BID SHOULD HAVE BEEN REJECTED BECAUSE OF THE OMISSION. ONLY WHETHER THE PUBLIC PRINTER'S AUTHORITY WAS EXCEEDED IN WAIVING THE DEFECT. IT IS STATED THAT THE JUNE 13 DECISION FAILS TO CONSIDER THAT THE INVITATION REQUIRED THE LOW BIDDER TO UNDERTAKE TO ACCEPT ORDERS FOR AT LEAST 500.

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B-161504, JUL 13, 1967

PRECIS-UNAVAILABLE DECISION TO GPO REAFFIRMING DECISION OF JUNE 13, 1967, THAT CONTRACT AWARDED TO BIDDER WHO FAILED TO INSERT FIGURE IN MINIMUM GURANATEE CLAUSE THEREBY MAKING HIS BID NONRESPONSIVE MUST BE CANCELLED.

JAMES L. HARRISON, U. S. GOVERNMENT PRINTING OFFICE:

REFERENCE IS MADE TO LETTER OF JUNE 30, 1967, FROM THE ACTING PUBLIC PRINTER, FORWARDING A LETTER FROM THE ATTORNEYS FOR CRAFTSMAN PRESS, INC., REQUESTING RECONSIDERATION OF OUR DECISION B-161504 OF JUNE 13, 1967, WHEREIN WE HELD THAT THE CONTRACT AWARDED TO CRAFTSMAN ON THE BASIS OF ITS NONRESPONSIVE BID SHOULD BE CANCELED. THE REQUEST FOR RECONSIDERATION IS BASED ON FIVE GROUNDS.

FIRST, IT IS STATED THAT SINCE THE COVER SHEET OF THE INVITATION PROVIDED "THE PUBLIC PRINTER RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS AND TO WAIVE DEFECTS OR INFORMALITIES," AND THAT AN AWARD WAS MADE TO CRAFTSMAN DESPITE ITS FAILURE TO INSERT THE FIGURE 500,000 IN THE GUARANTEE CLAUSE OF ITS BID, THE QUESTION IS NOT WHETHER THE BID SHOULD HAVE BEEN REJECTED BECAUSE OF THE OMISSION, BUT ONLY WHETHER THE PUBLIC PRINTER'S AUTHORITY WAS EXCEEDED IN WAIVING THE DEFECT. SECOND, IT IS STATED THAT THE JUNE 13 DECISION FAILS TO CONSIDER THAT THE INVITATION REQUIRED THE LOW BIDDER TO UNDERTAKE TO ACCEPT ORDERS FOR AT LEAST 500,000 PAGES FOR ANY PERIOD OF 5 WORKING DAYS AND THAT 41 COMP. GEN. 106 AND 41 ID. 555 SUPPORT THE VIEW THAT WHERE NO FIGURE HAS BEEN INSERTED IN A BLANK PROVIDED IN AN INVITATION, THE BIDDER IS DEEMED TO HAVE UNDERTAKEN TO PERFORM THE MINIMUM REQUIREMENT SET FORTH IN THE INVITATION FOR BIDS. THIRD, IT IS STATED THAT 45 COMP. GEN. 611, CITED IN THE JUNE 13 DECISION, IS NOT IN POINT SINCE THAT DECISION INVOLVED AN INSTANCE WHERE THE BIDDER INSERTED A FIGURE LESS THAN THE AMOUNT REQUIRED BY THE INVITATION. FOURTH, IT IS CONTENDED THAT THE MINIMUM PAGE GUARANTEE CLAUSE RELATES ONLY TO THE BIDDER'S CAPABILITY TO PRODUCE AND THEREFORE IS A MATTER OF RESPONSIBILITY RATHER THAN RESPONSIVENESS. FIFTH, IT IS STATED THAT ONLY THE LOW BIDDER WAS REQUIRED TO GUARANTEE A MINIMUM PRODUCTION OF 500,000 PAGES, AND THAT SINCE THE INVITATION CONTEMPLATED AWARDS TO THE OTHER BIDDERS FOR ANY OVERFLOW WORK THAT THE LOW CONTRACTOR HAS NOT GUARANTEED TO TAKE AND DOES NOT WISH TO ACCEPT, CRAFTSMAN, AT LEAST, SHOULD BE ALLOWED FIRST PRIORITY FOR THE EXCESS PRODUCTION.

IN THE JUNE 13 DECISION, IT WAS HELD THAT THE OMISSION AFFECTED NOT ONLY THE QUANTITY OF THE WORK TO BE PERFORMED, BUT POSSIBLY THE PRICE OF THE BID AS WELL. IN 30 COMP. GEN. 179, IT WAS HELD THAT DEVIATIONS AFFECTING PRICE, QUANTITY OR QUALITY OF A PROCUREMENT AFFECT THE SUBSTANCE OF THE BID AND MAY NOT BE WAIVED AS BID INFORMALITIES. IN THAT DECISION IT WAS STATED, "WHILE THE GOVERNMENT RESERVED THE RIGHT IN THE INVITATION FOR BIDS TO WAIVE ANY INFORMALITY IN BIDS RECEIVED, THE INFORMALITIES WHICH MAY BE WAIVED ARE THOSE OF FORM AND NOT OF SUBSTANCE, OR OF SOME IMMATERIAL AND INCONSEQUENTIAL DEFECT IN OR VARIATION OF A BID FROM THE EXACT REQUIREMENTS OF THE ADVERTISED INVITATION AND SPECIFICATIONS." HERE, THE TERMS OF THE INVITATION, QUOTED IN OUR JUNE 13 DECISION, CLEARLY MADE THE GUARANTEE PROVISION A MATERIAL REQUIREMENT OF RESPONSIVENESS. THUS, WITH RESPECT TO THE FIRST GROUND FOR OBJECTION, WE BELIEVE THAT THE WAIVER PERMITTING CRAFTSMAN TO CORRECT ITS OMISSION AFTER BID OPENING FOR THE PURPOSE OF AWARD WAS IN CONTRAVENTION OF THE ESTABLISHED PROCEDURES GOVERNING FORMAL COMPETITIVE PROCUREMENT. SEE PRESTEX INC. V. UNITED STATES, 320 F. 2D 367.

WITH RESPECT TO THE SECOND POINT, WHILE THE INVITATION STATED THAT NO BID WILL BE ACCEPTED FOR PRODUCTION OF LESS THAN 500,000 PAGES FOR ANY ONE PERIOD OF 5 WORKING DAYS, THERE WAS NOTHING IN THE INVITATION WHICH INDICATED THAT SILENCE OF THE BIDDER AS TO THIS REQUIREMENT CONSTITUTED ACQUIESCENCE. AS A MATTER OF FACT, THE INVITATION INDICATED THAT THE BIDDER WAS TO SUPPLY THE FIGURE TO WHICH HE AGREED AND THAT AN OMISSION WOULD BE REASON FOR REJECTION OF THE BID. AS TO THE APPLICATION OF 41 COMP. GEN. 106 AND 555, THESE CASES HAVE ALREADY BEEN DISTINGUISHED IN THE JUNE 13 DECISION.

ALTHOUGH 45 COMP. GEN. 611 CONSIDERED A CASE WHEREIN THE BIDDER OFFERED LESS THAN WHAT WAS CALLED FOR IN THE INVITATION, WHEREAS, IN THE IMMEDIATE CASE THE BIDDER FAILED TO INSERT ANY FIGURE, WE BELIEVE THAT THE OMISSION HERE WAS JUST AS MUCH A DEVIATION AS IN THE CITED CASE, SINCE BOTH AFFECTED THE RESPONSIVENESS OF THE BID IN A MATERIAL RESPECT IN THAT NO AGREEMENT WAS INDICATED BY THE BIDDER TO MEET THE GOVERNMENT'S PRODUCTION REQUIREMENTS IN EITHER CASE.

WHETHER CRAFTSMAN HAD THE CAPABILITY TO PRODUCE THE GOVERNMENT'S MINIMUM REQUIREMENTS STATED IN THE GUARANTEE CLAUSE WAS A QUESTION OF RESPONSIBILITY. HOWEVER, WHETHER CRAFTSMAN HAD IN ITS BID AGREED TO MEET THE GOVERNMENT'S REQUIREMENTS WAS A MATTER OF RESPONSIVENESS FOR DETERMINATION AT THE TIME OF BID OPENING AND NOT THEREAFTER. SINCE CRAFTSMAN FAILED TO INDICATE IN THE BID AN AGREEMENT TO MEET THE MINIMUM QUANTITY REQUIREMENTS OF THE SPECIFICATION, THE DEVIATION AFFECTED THE RESPONSIVENESS OF THE BID. THE RESPONSIBILITY OF CRAFTSMAN HAS NOT BEEN QUESTIONED - ONLY THE RESPONSIVENESS OF ITS BID.

THE INVITATION PROVIDED THAT MULTIPLE AWARDS WOULD BE MADE IN ORDER BEGINNING WITH THE LOW BIDDER, SECOND LOW BIDDER, AND SO FORTH. WHILE ONLY THE LOW BIDDER WAS REQUIRED TO GUARANTEE PRODUCTION OF 500,000 PAGES, AT THE TIME OF BIDDING AND UNTIL ALL BIDS WERE OPENED NO BIDDER KNEW WHETHER IT WAS THE LOW BIDDER. SINCE THE INVITATION PROVIDED THAT EACH BIDDER MUST INDICATE IN THE SPACE PROVIDED THE TOTAL NUMBER OF PAGES IT WOULD GUARANTEE TO PRODUCE, ALL BIDDERS TO BE CONSIDERED RESPONSIVE HAD TO FURNISH THE INFORMATION IN THEIR BIDS. NO SEPARATE BIDDING WAS CALLED FOR ON THE EXCESS PRODUCTION. BIDDERS COMPETED EQUALLY FOR THE BASIC PRODUCTION ADVERTISED AND THE LOW RESPONSIVE BIDDER FOR THAT QUANTITY WAS ENTITLED TO THE AWARD FOR SUCH QUANTITY AND TO ORDERS FOR ANY EXCESS QUANTITIES IT COULD PRODUCE. THE REMAINING BIDDERS BECAME ELIGIBLE FOR THE EXCESS QUANTITIES REJECTED BY THE LOW CONTRACTOR IN THE ORDER OF THEIR BID PRICES COMMENCING WITH THE NEXT LOWEST RESPONSIVE BID. WHILE BIDDERS OTHER THAN THE LOW BIDDER DID NOT GUARANTEE THE SAME PRODUCTION AS THE LOW BIDDER GUARANTEED, ALL BIDDERS TO BECOME ELIGIBLE FOR AWARD WERE REQUIRED TO BID IN ACCORDANCE WITH THE GUARANTEE CLAUSE. THEREFORE, THEIR BID PRICES NECESSARILY HAD TO TAKE INTO CONSIDERATION THE POSSIBILITY OF HAVING TO MEET THE OBLIGATION OF THE GUARANTEE IN THE EVENT THEY WERE LOW. CRAFTSMAN, BY NOT COMPLETING THE GUARANTEE PROVISION, DID NOT ASSUME THE SAME OBLIGATION AS OTHER BIDDERS AND THUS, WHILE ITS PRICE WAS LOWER THAN THAT OF THE OTHER BIDDERS, ITS PRICE REASONABLY COULD HAVE BEEN ATTRIBUTED TO THE OMISSION. A COMPARISON OF CRAFTSMAN'S PRICE WITH THE PRICES BID BY OTHER BIDDERS WHO HAD GUARANTEED THE MINIMUM PRODUCTION CONSTITUTED AN EVALUATION ON A DISSIMILAR BASIS. IT MAY BE THAT IF OTHER BIDDERS DID NOT HAVE TO BID TO THE GUARANTEE REQUIREMENT, THEIR BIDS MIGHT HAVE BEEN LOWER THAN CRAFTSMAN. AS INDICATED ABOVE, THE INVITATION REQUIRED EACH BIDDER TO BID AS IF IT WOULD BE REQUIRED TO MEET THE GUARANTEE, AND CRAFTSMAN HAVING FAILED TO MEET THAT REQUIREMENT MUST, IN THE CIRCUMSTANCES OF THIS CASE, BE CONSIDERED INELIGIBLE FOR THE AWARD OF THE EXCESS PRODUCTION QUANTITIES NOTWITHSTANDING THAT THE MINIMUM GUARANTEE WAS NOT APPLICABLE TO SUCH EXCESS.

ACCORDINGLY, THE DECISION OF JUNE 13, 1967, IS AFFIRMED.

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