B-238998.5, Sep 18, 1990, 90-2 CPD 225

B-238998.5, Sep 18, 1990, 90-2 CPD 225

PROCUREMENT - Sealed Bidding - Invitations for bids - Amendments - Acknowledgment - Responsiveness PROCUREMENT - Sealed Bidding - Bids - Responsiveness - Ambiguous prices DIGEST: 1. Bid that acknowledges amendment to a solicitation, but fails to indicate unit and extended prices for the option quantity added by amendment, is nonresponsive since the bid does not represent a clear commitment to furnish the item at a specified price. PROCUREMENT - Sealed Bidding - Bids - Clerical errors - Error correction - Propriety 2. The authority to permit correction of mistakes in bids is limited to bids that are responsive to the solicitation and may not be used to make a nonresponsive bid responsive.

Attorneys

Cooper Sportswear Manufacturing Company, Inc.:

Cooper Sportswear Manufacturing Company, Inc. protests the rejection of its bid under invitation for bids (IFB) No. DLA100-90-B-0104, issued by the Defense Logistics Agency (DLA) for coat liners. Cooper Sportswear's bid was rejected as nonresponsive because, while it acknowledged an amendment requesting an additional mandatory option quantity, it failed to list its unit and extended prices on the amended bid schedule calling for the increased quantity.

We deny the protest and the claim for protest costs.

DLA issued the IFB on January 31, 1990, with bid opening scheduled for March 2. The IFB included separate schedules calling for unit and extended prices on 50,001 coat liners as the basic quantity and 20,000 as the option quantity. The bidding schedule for the basic quantity contained a note stating that the "option quantity consisting of 20,000 each is contained on the next page."

Prior to bid opening, DLA issued two amendments to the solicitation. Amendment No. 1 stated in one section that the option quantity was increased from the original 20,000 coat liners to 50,001. Included with the amendment, however, was a copy of the original bid schedule for the basic quantity, which, as noted above, stated that the option quantity was 20,000; amendment No. 1 did not include a new bid schedule for the option quantity. To clarify the ambiguity in amendment No. 1, DLA issued amendment No. 2, which deleted amendment No. 1 in its entirety; corrected the language in the basic quantity bid schedule to reflect the increased option quantity requirement of 50,001; added a new bid schedule for the 50,001 option quantity; advised bidders that bidding on the option quantity was mandatory; and extended the bid opening date to March 13.

On March 2, Cooper Sportswear acknowledged amendment No. 1 and submitted bid prices on the original IFB schedule for the basic and option quantities. On the bid schedule for the original 20,000 option quantity, Cooper Sportswear handwrote "50,001" under the preprinted "20,000" quantity and listed $18.95 as its unit price and $947,518.95 as its total price. On the original basic quantity bid schedule, Cooper Sportswear listed $18.08 as its unit price and $904,018.08 as the total price for the 50,001 coat liners.

On March 8, Cooper Sportswear submitted a signed copy of amendment No. 2, including a completed copy of the revised basic bid schedule. Even though the revised bid schedule did not change the 50,001 basic quantity requirement, Cooper Sportswear increased its bid price from the $18.08 unit price and $904,018.08 total price that it listed on the original basic quantity bid schedule to $18.95 as its unit price and $947,518 as its total price for the basic quantity, prices identical to those it bid for the option quantity of 50,001 on the original bid schedule. Although Cooper Sportswear also returned the revised option quantity bid schedule contained in amendment No. 2, the firm did not insert unit or extended bid prices for the option quantity. As a result, the contracting officer found Cooper Sportswear's bid nonresponsive.

Cooper Sportswear contends that it is entitled to the award as the low responsive bidder despite its failure to list its option price on the revised option quantity bid schedule contained in amendment No. 2 because the firm acknowledged the amendment and listed its basic and option prices on the original option quantity bid schedule. Cooper Sportswear argues that, in doing so, it accepted all the terms and conditions of the solicitation and thus it was willing to enter into a binding contract with terms and conditions that do not vary from those in the IFB. Finally, Cooper Sportswear claims that its post-bid opening confirmation of its bid prices indicates its willingness to comply with the terms and conditions of the solicitation.

To be responsive, a bid must reflect, at bid opening, an unequivocal offer to provide the exact item or service called for in the amended IFB so that acceptance of the bid will bind the contractor to perform in accordance with the IFB's material terms and conditions. Rocky Ridge Contractors, Inc., B-224862, Dec. 19, 1986, 86-2 CPD Para. 691. Since the requirement for a firm, fixed price is a material term of an IFB, generally the omission of unit and extended bid prices on a bid schedule may not be characterized as a minor informality or irregularity in the bid, which is correctable after bid opening. See Lioncrest Ltd., Inc., B-221026, Feb. 6, 1986, 86-1 CPD Para. 139.

Here, the only option price submitted was on the original bid schedule, which Cooper Sportswear signed before it acknowledged amendment No. 2. subsequently submitting a blank copy of the option quantity bid schedule attached to amendment No. 2, Cooper Sportswear created an ambiguity in its bid so that at best it was unclear whether the firm had obligated itself to furnish the required option quantity. Accordingly, DLA correctly rejected Cooper Sportswear's bid as nonresponsive. See Larry's Inc., B-230822, June 22, 1988, 88-1 CPD Para. 599.

Cooper Sportswear suggests, in the alternative, that the option quantity price omission on the bid schedule attached to amendment No. 2 was a mistake which it should be permitted to correct under Federal Acquisition Regulation (FAR) Sec. 14.406-3, which provides the procedures for correcting other than clerical mistakes in bids. As both the FAR section and our decisions recognize, however, the authority to permit corrections of mistakes in bids is limited to bids that are responsive to the solicitation and may not be used to make a nonresponsive bid responsive. See Apex Micrographics, Inc., B-235811, Aug. 31, 1989, 89-2 CPD Para. 205.

The protest is denied and Cooper Sportswear's claim for reimbursement of the costs of filing and pursuing the protest is also denied. See W.R. Hall, Inc., B-237161, Jan. 4, 1990, 90-1 CPD Para. 16.