B-162003, AUG. 30, 1967

B-162003, AUG. 30, 1967

BIDS - DESCRIPTIVE DATA - DESCRIPTIVE LITERATURE DECISION TO TRADERS DISTRIBUTING COMPANY, INC., RE PROTEST AGAINST REJECTION OF LOW BID FOR BOILER BY NAVAJO ARMY DEPOT. LOW BIDDER WHO SUBMITTED DESCRIPTIVE LITERATURE ON EQUIPMENT THAT DID NOT MEET SPECIFICATIONS AND AFTER OPENING ATTEMPTED TO CLARIFY LITERATURE MAY NOT HAVE BID REGARDED AS RESPONSIVE OR BID CORRECTED SINCE CORRECTION AUTHORITY UNDER ASPR 2-404.2 (A) MAY ONLY BE USED WHEN BID AS SUBMITTED IS RESPONSIVE. THE FACT THAT ACCEPTANCE OF A NONRESPONSIVE BID COULD RESULT IN A SAVINGS TO THE GOVERNMENT DOES NOT WARRANT AN EXCEPTION TO THE RULE.

TO TRADERS DISTRIBUTING COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1967, WITH ENCLOSURES, PROTESTING AGAINST THE REJECTION OF YOUR LOW BID SUBMITTED UNDER INVITATION FOR BIDS NO. DAAC03-67-B-0016, ISSUED ON APRIL 25, 1967, BY THE NAVAJO ARMY DEPOT, FLAGSTAFF, ARIZONA.

THE INVITATION REQUESTED BIDS ON A BOILER IN ACCORDANCE WITH SPECIFICATIONS ATTACHED THERETO AND MIL-B-17452B AS AMENDED. THE SPECIFICATIONS CALLED FOR A BOILER WITH A CAPACITY OF 12,950 LBS/HR (12,600,000 BTU) AT AN OPERATING ELEVATION OF 7,000 FEET. SUCH OUTPUT IS REPORTED TO BE A CRITICAL FACTOR IN THAT A BOILER OF LESS CAPACITY COULD NOT MEET THE ARMY'S REQUIREMENT AT THE ELEVATION OF THE NAVAJO DEPOT. AMENDMENT NO. 1 WAS ISSUED TO ALL PROSPECTIVE BIDDERS ON MAY 18, 1967, WHICH REQUIRED SUBMISSION OF DESCRIPTIVE LITERATURE CONSISTING OF THE MANUFACTURER'S SPECIFICATIONS AND INFORMATION SUFFICIENT TO DEMONSTRATE COMPLIANCE WITH THE BOILER SPECIFICATIONS.

NINE BIDS WERE RECEIVED AND OPENED ON MAY 26, 1967, AND IT APPEARED THAT YOUR COMPANY SUBMITTED THE LOWEST F.O.B. DESTINATION BID. THE BIDS, TOGETHER WITH THE ENGINEER'S TECHNICAL EVALUATIONS THEREON, WERE SUBMITTED TO A BOARD OF AWARDS FOR REVIEW AND RECOMMENDATION. THE BOARD DETERMINED THAT YOUR BID WAS NONRESPONSIVE TO THE INVITATION SPECIFICATIONS BECAUSE THE BOILER MANUFACTURER'S SPECIFICATION SHEETS ACCOMPANYING YOUR BID, AS REQUIRED BY THE DESCRIPTIVE LITERATURE REQUIREMENTS OF AMENDMENT NO. 1, INDICATED THAT THE BOILER YOU PROPOSED TO FURNISH COULD NOT PRODUCE THE REQUIRED 12,950 POUNDS OF STEAM PER HOUR AT AN OPERATING ELEVATION OF 7,000 FEET. YOUR DESCRIPTIVE LITERATURE SHOWED THAT YOU WERE BIDDING ON A STANDARD 400 HORSE-POWER BOILER WITH 13,800 POUNDS OF STEAM PER HOUR AT SEA LEVEL. CONSIDERING THAT OUTPUT IS REDUCED BY APPROXIMATELY 4 PERCENT FOR EACH 1,000 FEET OF ALTITUDE, THE EFFICIENCY OF YOUR PROPOSED BOILER WOULD BE REDUCED BY 2,914 POUNDS OF STEAM PER HOUR OR CONSIDERABLY LESS THAN THE 12,950 POUNDS REQUIRED BY THE SPECIFICATIONS. ALL THE OTHER BIDS WERE SUBMITTED ON A BASIS OF A 500 HORSEPOWER BOILER.

AWARD TO THE LOWEST RESPONSIVE BIDDER, POWER AND CONTROL EQUIPMENT INCORPORATED, WAS MADE ON JUNE 27, 1967, AND WE FIND NO LEGAL BASIS TO DISTURB THAT AWARD.

THE DESCRIPTIVE LITERATURE REQUIREMENT OF THE INVITATION PROVIDED THAT THE FAILURE OF DESCRIPTIVE LITERATURE TO SHOW THAT THE PRODUCT OFFERED CONFORMS TO THE SPECIFICATIONS "WILL REQUIRE REJECTION OF THE BID.' BASED ON A TECHNICAL EVALUATION OF THE LITERATURE SUBMITTED WITH YOUR BID, IT WAS DETERMINED THAT THE BOILER OFFERED BY YOU DEVIATED FROM A MATERIAL AND SUBSTANTIAL SPECIFICATION REQUIREMENT; THAT IS, OPERATING CAPACITY AT A 7,000 FOOT ELEVATION. WHILE YOU ATTEMPTED TO CLARIFY YOUR LITERATURE AFTER BID OPENING TO CONFORM TO THE SPECIFICATION REQUIREMENT, SUCH CLARIFICATION COULD NOT ALTER THE NONRESPONSIVENESS OF YOUR BID. NEITHER MAY THE FACT THAT YOUR LITERATURE WAS SUBMITTED IN ERROR BE REGARDED AS PERMITTING THE CORRECTION OF YOUR NONRESPONSIVE BID SINCE SUCH A BID MAY NOT BE CORRECTED AFTER BID OPENING TO MAKE IT ELIGIBLE FOR AWARD. COMP. GEN. 819. IN 41 COMP. GEN. 366, 367, WE HELD:

"A BID IS AN OFFER WHICH UPON PROPER ACCEPTANCE RIPENS INTO A CONTRACT BINDING UPON THE PARTIES. TO BE VALID AN OFFER MUST BE SUFFICIENTLY CERTAIN TO ENABLE A COURT TO UNDERSTAND WHAT THE PROMISOR UNDERTAKES AND WHAT HE AGREES TO ACCEPT IN RETURN IF THE OFFER IS ACCEPTED. 1 WILLISTON ON CONTRACTS, 3D EDITION, SEC. 24. SEE ALSO THE RESTATEMENT OF CONTRACTS, SEC. 32. THE PURPOSE OF REQUIRING DATA TO BE SUBMITTED WITH A BID IN A CASE SUCH AS THIS IS TO PERMIT A DETERMINATION BY THE PROCURING AGENCY OF PRECISELY WHAT THE BIDDER PROPOSES, AND WILL BE BOUND, TO FURNISH IF AWARDED THE CONTRACT. 39 COMP. GEN. 595, 598. IN EFFECT, THE DESCRIPTIVE DATA REQUIREMENT IS IN PART A DEVICE TO INSURE THE RECEIPT OF AN OFFER SUFFICIENTLY DEFINITE IN SUBJECT MATTER AS TO RESULT IN A BINDING CONTRACT UPON ACCEPTANCE. FROM THE FOREGOING WE BELIEVE IT IS FAIR TO STATE THAT A BID WHICH DOES NOT CONFORM TO A PROPERLY UTILIZED DESCRIPTIVE DATA REQUIREMENT IS DEFECTIVE NOT ONLY BECAUSE IT FAILS TO COMPLY WITH A MATERIAL PROVISION OF THE INVITATION BUT, GENERALLY, BECAUSE AS AN OFFER IT IS TOO INDEFINITE TO MEET THE STATED TEST. SEE 38 COMP. GEN. 345.'

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.2 (A) REQUIRES REJECTION OF ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS. ASPR 2-405, RELATING TO MINOR INFORMALITIES OR IRREGULARITIES IN BIDS, READS, IN PART, 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. * * *"

ASPR 2-406 PRESCRIBES THE CONDITIONS UNDER WHICH CERTAIN MISTAKES IN BID MAY BE CORRECTED AFTER BID OPENING BUT BEFORE AWARD UPON COMPLIANCE WITH STATED EVIDENTIARY REQUIREMENTS. HOWEVER, AS INDICATED ABOVE, SUCH PROCEDURE MAY BE USED ONLY WHEN THE BID AS SUBMITTED IS RESPONSIVE TO THE INVITATION FOR BIDS, FOR 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. 38 COMP. GEN. 819, 821; 40 ID. 132, 134. ALSO, SEE, 10 U.S.C. 2305 (C) REQUIRING THAT AWARDS BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION. THE FACT THAT ACCEPTANCE OF A NONRESPONSIVE BID IN A GIVEN CASE COULD RESULT IN A SAVING TO THE GOVERNMENT DOES NOT WARRANT AN EXCEPTION TO SUCH RULE, SINCE IT IS INFINITELY MORE IN THE PUBLIC INTEREST TO ABIDE BY THE RULES OF COMPETITIVE BIDDING THAN TO GAIN A PECUNIARY ADVANTAGE BY VIOLATION THEREOF. 17 COMP. GEN. 554, 558, 559.