B-140599, SEP. 15, 1959

B-140599, SEP. 15, 1959

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF AUGUST 27, 1959, FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN REGARDING A BID WHICH WAS SUBMITTED BY RICE JANITOR SERVICE, INC. (HEREINAFTER REFERRED TO AS RICE), PURSUANT TO INVITATION NO. 33-056- 59-28, ISSUED BY THE ERIE ORDNANCE DEPOT, PORT CLINTON, OHIO.

BY THE AFOREMENTIONED INVITATION, AS AMENDED, BIDS WERE REQUESTED--- TO BE OPENED JUNE 19, 1959--- FOR FURNISHING SPECIFIED CUSTODIAL SERVICES IN VARIOUS BUILDINGS AT ERIE ORDNANCE DEPOT. THE INVITATION REQUIRED THAT "BIDDER MUST SUBMIT A BID ON EACH ITEM IN THIS SCHEDULE IN ORDER TO BE CONSIDERED RESPONSIVE TO THIS INVITATION FOR BID.'

OF THE FOUR BIDS RECEIVED IN RESPONSE TO THE INVITATION, THAT OF RICE, IN THE AMOUNT OF $1,983.76, WAS THE LOWEST. THE OTHER BIDS WERE $2,573.60; $4,447 AND $4,642.05. AFTER THE OPENING OF THE BIDS IT WAS DISCOVERED THAT RICE HAD FAILED TO BID ON ITEMS NOS. 15 AND 16 AND, WHEN SO ADVISED, ALLEGED THAT IT HAD MADE AN ERROR IN OMITTING THESE ITEMS. THE LOW BIDDER SUBSEQUENTLY FURNISHED A WORKSHEET IN SUPPORT OF THE ALLEGATION OF ERROR AND REQUESTED PERMISSION TO CORRECT ITS BID. THE REQUEST WAS CONSIDERED BY THE OFFICE, CHIEF OF ORDNANCE, WHERE IT WAS DETERMINED THAT CORRECTION COULD NOT BE GRANTED, THERE BEING EVIDENCE OF MISTAKE IN BID BUT NOT OF INTENDED PRICE. THE CONTRACTING OFFICER THEN INFORMED RICE THAT IT COULD ACCEPT THE BID AT THE ORIGINAL BID PRICE OR REQUEST WITHDRAWAL AND RICE REPLIED THAT IT WOULD ACCEPT THE CONTRACT AT ITS ORIGINAL BID PRICE. THE CONTRACTING OFFICER, HOWEVER, HAS NOT MADE AWARD TO RICE, THERE BEING SOME DOUBT IN HIS MIND AS TO WHETHER THE BID WAS RESPONSIVE TO THE INVITATION.

THE DECISIONS OF OUR OFFICE ARE UNIFORM IN HOLDING THAT A BIDDER MAY NOT QUALIFY ITS PROPOSAL IN SUCH A MANNER AS TO MATERIALLY VARY THE ADVERTISED TERMS OF THE INVITATION. IN OUR DECISION OF AUGUST 20, 1954, 34 COMP. GEN. 82, WE HELD THAT PUBLIC OFFICERS MAY NOT ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS; NOR MAY THEY PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER BIDS ARE OPENED. SEE, ALSO, 17 COMP. GEN. 554.

IN THE PRESENT CASE, THE INVITATION MADE IT INCUMBENT UPON BIDDERS TO BID ON EACH ITEM. THEREFORE, IT SEEMS CLEAR THAT THE FAILURE OF RICE TO BID ON ITEMS NOS. 15 AND 16 CONSTITUTES A DEFICIENCY WHICH GOES TO THE SUBSTANCE OF THE BID AND TO ACCEPT THE BID WOULD WORK AN INJUSTICE TO OTHER BIDDERS. 30 COMP. GEN. 179.

IN THE CIRCUMSTANCES, SINCE RICE'S BID IS NOT RESPONSIVE TO THE INVITATION, IT SHOULD BE DISREGARDED AND AWARD MADE TO THE NEXT LOWEST RESPONSIBLE BIDDER, PROVIDED, OF COURSE, THAT ITS BID IS STILL OPEN FOR ACCEPTANCE.