B-163309, JAN. 31, 1968

B-163309, JAN. 31, 1968

BIDS - DEVIATIONS - MINOR DECISION TO JANOSKO FOOD EQUIPMENT CORP. DENYING PROTEST AGAINST PROPOSED AWARD BY DEFENSE SUPPLY AGENCY TO LEVELATOR CORP. ON BASIS INADVERTENT REPRESENTATION AS TO SMALL BUSINESS. A LOW BIDDER WHO IS SMALL BUSINESS FIRM AND A MANUFACTURER BUT WHO CHECKED BLOCK IN BID INDICATING THAT SUPPLIES WERE NOT TO BE MANUFACTURED BY SMALL BUSINESS MAY HAVE SUCH DEVIATION REGARDED AS A MINOR INFORMALITY THAT MAY BE WAIVED UNDER ASPR 2-405 BY CONTRACTING OFFICER.

TO JANOSKO FOOD EQUIPMENT CORPORATION:

REFERENCE IS MADE TO YOUR CORRESPONDENCE DATED NOVEMBER 20 AND 22, 1967, TO THE DEFENSE SUPPLY AGENCY, RICHMOND, VIRGINIA, PROTESTING AGAINST AWARD OF A CONTRACT TO EITHER OF THE TWO LOW BIDDERS UNDER INVITATION FOR BIDS NO. DSA-400-68-B-2384, WHICH WAS FORWARDED TO OUR OFFICE FOR CONSIDERATION AS YOU REQUESTED.

THE SUBJECT INVITATION, A SMALL BUSINESS TOTAL SET-ASIDE, WAS ISSUED ON OCTOBER 27, 1967, AND SOLICITED BIDS ON A QUANTITY OF FOOD DOLLIES. TEN BIDS WERE RECEIVED AND OPENED ON NOVEMBER 20, 1967. YOUR BID WAS THE THIRD LOWEST RECEIVED, WITH ACME FOOD SERVICE EQUIPMENT CORPORATION AND LEVELATOR CORPORATION FIRST AND SECOND LOWEST, RESPECTIVELY.

BY LETTER DATED NOVEMBER 20, 1967, TO THE PROCURING ACTIVITY YOU ALLEGED THAT BOTH THE ACME AND LEVELATOR BIDS WERE NONRESPONSIVE AND REQUESTED THAT YOU BE AWARDED THE CONTRACT. THE ACME BID WAS DETERMINED NONRESPONSIVE AND REJECTED BY THE CONTRACTING OFFICER. WITH RESPECT TO THE LEVELATOR BID, YOU CONTEND THAT IT IS NONRESPONSIVE BECAUSE LEVELATOR HAS REPRESENTED THAT THE DOLLIES WILL NOT BE MANUFACTURED OR PRODUCED BY A SMALL BUSINESS CONCERN. YOU REFER TO LEVELATOR'S COMPLETION OF PARAGRAPH 1, OF THE REPRESENTATIONS, CERTIFICATIONS, AND ACKNOWLEDGMENTS, OF STANDARD FORM 33. THIS PARAGRAPH, AS COMPLETED BY LEVELATOR, READS AS OLLOWS:

"1. SMALL BUSINESS (SEE PAR. 14 ON SF 33A)

HE (X) IS, ( ( IS NOT, A SMALL BUSINESS CONCERN. IF OFFEROR IS A SMALL BUSINESS CONCERN AND IS NOT THE MANUFACTURER OF THE SUPPLIES OFFERED, HE ALSO REPRESENTS THAT ALL SUPPLIES TO BE FURNISHED HEREUNDER ( ( WILL, (X) WILL NOT, BE MANUFACTURED OR PRODUCED BY A SMALL BUSINESS CONCERN IN THE UNITED STATES, ITS POSSESSIONS, OR PUERTO RICO.' LEVELATOR ALSO REPRESENTED IN PARAGRAPH 2 THAT IT IS A MANUFACTURER OF THE SUPPLIES OFFERED. YOU ARGUE THAT SINCE LEVELATOR HAS REPRESENTED THAT IT IS SMALL BUSINESS AND A MANUFACTURER OF THE SUPPLIES OFFERED, IT WAS NOT REQUIRED TO MAKE AN EXPRESS REPRESENTATION RELATIVE TO THE SUPPLIES BEING FURNISHED BY A SMALL BUSINESS CONCERN, BUT THAT "SINCE LEVELATOR HAS REPRESENTED THAT THE SUPPLIES WILL NOT BE MANUFACTURED BY A SMALL BUSINESS CONCERN, IT HAS DESTROYED THE PRESUMPTION WHICH IT MIGHT OTHERWISE HAVE ENJOYED IF NO REPRESENTATION HAD BEEN MADE.' FURTHERMORE, IT IS YOUR POSITION THAT LEVELATOR'S LISTING OF ITS ADDRESS AS THE PLANT FACILITY ON DGSC FORM 350 HAS NO BEARING ON THE RESPONSIVENESS OF ITS BID AND, AT THE MOST, CREATES AN AMBIGUITY WHICH RENDERS THE BID NONRESPONSIVE.

THE CONTRACTING OFFICER'S POSITION ON THIS MATTER IS AS FOLLOWS:

"LEVELATOR CORPORATION REPRESENTED ITSELF TO BE A SMALL BUSINESS CONCERN AND A MANUFACTURER OF THE SUPPLIES OFFERED. IT FURTHER STATED THAT THE WORK WOULD BE PERFORMED AT ITS BROOKLYN, NEW YORK PLANT. THIS WAS ALL THE FIRM WAS REQUIRED TO DO IN ORDER TO BE ELIGIBLE FOR AWARD. THE BIDDER, HOWEVER, BELIEVING THAT ONE OF THE BOXES HAD TO BE COMPLETED, INSERTED AN -X- IN ONE OF TWO BOXES WHERE IT WAS NOT REQUIRED TO MAKE AN ENTRY. THIS -X- WAS INADVERTENTLY PLACED IN THE WRONG BOX. LEVELATOR REPRESENTED ITSELF TO BE A SMALL BUSINESS CONCERN; CHECKED THE BLOCK INDICATING THAT IT IS A MANUFACTURER OF THE SUPPLIES OFFERED; HAS IN THE PAST REPEATEDLY BID TO MANUFACTURE SIMILAR ITEMS AND IS IN FACT A SMALL BUSINESS CONCERN. IN THESE CIRCUMSTANCES THE ERRONEOUSLY PLACED X IS CONSIDERED TO BE A MINOR INFORMALITY UNDER ASPR 2-405.'

THE AUTHORITY OF THE PROCUREMENT AGENCY TO MAKE AN AWARD IN SITUATIONS SUCH AS HERE INVOLVED IS GOVERNED BY STATUTE AND REGULATIONS PROMULGATED PURSUANT THERETO. ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-301 (A) PROVIDES:

"/A) TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED.' ASPR 2-405 PROVIDES:

"* * * 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. * * *"

SINCE LEVELATOR'S BID CLEARLY INDICATES IT IS A SMALL BUSINESS CONCERN, S A MANUFACTURER OF THE SUPPLIES OFFERED, AND BOTH ITEMS WILL BE MANUFACTURED IN ITS PLANT FACILITIES, THE SECOND SENTENCE OF PARAGRAPH 1 IS NOT MATERIAL SINCE IT APPLIES ONLY WHERE THE "OFFEROR IS A SMALL BUSINESS CONCERN AND IS NOT THE MANUFACTURER OF THE SUPPLIES OFFERED ...' THEREFORE, EVEN THOUGH IT WAS COMPLETED IN A MANNER INCONSISTENT WITH MATERIAL PROVISIONS OF THE BID, WE BELIEVE IT MAY PROPERLY BE CONSIDERED A "... MINOR INFORMALITY OR IRREGULARITY ... WHICH IS MERELY A MATTER OF ... SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS ...' AND MAY BE WAIVED BY THE CONTRACTING OFFICER. ASPR 2-405, SUPRA.

IN VIEW THEREOF, WE BELIEVE LEVELATOR'S BID COMPLIES WITH THE INVITATION FOR BIDS IN ALL MATERIAL RESPECTS AND IS PROPERLY FOR AWARD AS PROPOSED BY DSA. ASPR 2-301 (A), SUPRA. ..END :