BNUMBER:  B-262187
DATE:  December 4, 1995
TITLE:  GNB Technologies, Industrial Battery Company

**********************************************************************

Matter of:GNB Technologies, Industrial Battery Company

File:     B-262187

Date:     December 4, 1995

L. Stephen Quatannens, Esq., Gardner, Carton & Douglas, for the 
protester.
James B. Coker, for Yuasa-Exide, Inc., an interested party.
A. F. Thibodeau, Esq., and Cynthia S. Guill, Esq., Department of the 
Navy, for the agency.
Katherine I. Riback, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protester's bid was properly rejected as nonresponsive where, on 
its face, it took exception to a material requirement.

2.  Allegation that contracting agency should have rejected low bid as 
nonresponsive is denied where bid takes no exception to the 
solicitation's material requirements. 

DECISION

GNB Technologies, Industrial Battery Company protests the rejection of 
its bid and the award of a contract to Yuasa-Exide, Inc. under 
invitation for bids (IFB) 
No. N47408-94-B-2033, issued by the Department of the Navy for lead 
calcium and antimony hybrid batteries.  

We deny the protest.

The IFB, issued on March 29, 1995, contemplated the award of a 
fixed-priced requirements contract for a variety of batteries, battery 
systems, and related services, such as battery disposal, to support 
the Navy's uninterrupted power support (UPS) systems.  These systems 
provide a constant level of electrical power and are installed in 
critical communication and intelligence centers where maintenance of 
the highest level of reliability and continuity of operation are 
critical.[1]  

To demonstrate that they were capable of successful performance, 
bidders were instructed to submit with their bids a "comprehensive 
response to the requirements of the Invitation to Bid to enable the 
Government to evaluate offeror's understanding of and capability to 
perform the Navy's requirements as set forth in . . . this 
solicitation."  The solicitation did not contain a descriptive 
literature requirement.     

The IFB specifications provided, in pertinent part, that battery types 
D through J shall consist of single cell units and that battery types 
K through S shall have a maintenance-free valve regulated design, with 
a pressure valve limit of less than 
4 pounds per square inch (psi).[2]  

Five bids were received by the May 25 bid opening date.  The protester 
submitted the apparent low bid at $65,120,595; and Yuasa-Exide 
submitted the second-low bid at $76,083,679.  The agency determined 
that the protester's bid was nonresponsive and, on July 20, made award 
to Yuasa-Exide, Inc., as the low, responsive bidder.  This protest 
followed.

The Navy viewed the protester's bid as nonresponsive because while the 
IFB required that battery types K through S have a pressure valve 
limit of less than  
4 psi, in its bid GNB offered N through S batteries with a pressure 
relief vent valve which operates in the range of 3 to 7 psi.  

To be responsive, a bid, as submitted, must represent an unequivocal 
offer to perform, without exception, in accordance with requirements 
set forth in the IFB so that the bidder will be bound to perform in 
accordance with all the material terms and conditions.  Contech 
Constr. Co., B-241185, Oct. 1, 1990, 90-2 CPD  264.  A deficiency or 
deviation which goes to the substance of the bid by affecting price, 
quality, quantity, or delivery of the article offered is a material 
deviation that requires the bid to be rejected as nonresponsive.  
Seaboard Elecs. Co., B-237352,  
Jan. 26, 1990, 90-1 CPD  115.  

The agency explains that the pressure valve limit requirement is 
material because it is safety related and significantly affects 
battery quality; the vents in maintenance-free batteries are prone to 
failure and excess pressure may rupture a container.  The requirement 
for a pressure valve limit of less than 4 psi was intended to provide 
a margin of safety to prevent rupture of any battery container, 
irrespective of any nuances of a particular bidder's container design.  
By proposing N through S batteries that use a pressure relief vent 
valve which operates in the range of 3 to 7 psi, GNB's bid took 
exception to an IFB specification requirement.   Since the pressure 
valve limit requirement was material, the contracting officer properly 
determined that GNB's bid was nonresponsive because it did not 
constitute an unequivocal offer to perform in accordance with all 
material IFB requirements.[3]

GNB contends that its particular battery design makes the pressure 
valve limit unnecessary.  This argument is untimely.  In essence, GNB 
is contesting the unqualified specification requirement that K through 
S batteries have a pressure valve limit of less than 4 psi.  Under our 
Bid Protest Regulations, such protests based on alleged improprieties 
in a solicitation, which are apparent prior to the bid opening time, 
must be filed prior to that time.  4 C.F.R.  21.2(a) (1995).  

GNB argues that if its bid is considered nonresponsive, the agency 
should have rejected Yuasa-Exide's bid as nonresponsive as well, 
because it also fails to meet the pressure valve limit of less than 4 
psi.  

In general, a nonresponsive bidder, such as GNB, is not an interested 
party eligible to protest an award to another firm where there are 
other apparently responsive bidders that would be in line for award if 
the protest were sustained.  
4 C.F.R.  21.0(a), 21.1(a); K & M Elec. Corp., B-247450, Apr. 23, 
1992, 92-1 CPD  387.  However, this rule does not apply where a 
bidder protests that it was denied equal treatment because the agency 
rejected its nonconforming bid while accepting a competitor's 
similarly nonconforming bid.  Maintenance and Repair, B-251223, Mar. 
19, 1993, 93-1 CPD  247; Raymond Corp., B-224577, Jan. 8, 1987, 87-1 
CPD  36; Dillingham Ship Repair, B-218653, Aug. 14, 1985, 85-2 CPD 
167.  In other words, we view a protester as an interested party when 
the basis for protest is that the protester and one or more 
competitors were treated disparately.  Id.  Therefore, GNB is an 
interested party to argue that Yuasa-Exide's bid was defective just as 
its own bid was defective.  Tel-Med Info. Sys., 66 Comp. Gen. 504 
(1987), 87-1 CPD  561.  

By signing its bid Yuasa-Exide bound itself to comply with the 
pressure valve limit requirement and nothing on the face of its bid 
limited, reduced, or modified its obligation to perform in accordance 
with this requirement.  In this regard, unlike GNB's bid, 
Yuasa-Exide's bid did not include any information bearing upon whether 
its proposed K through S batteries meet the pressure valve limit of 
less than 4 psi.  A bid which, on its face, takes no exception to the 
IFB's requirements is responsive, since it is an unqualified promise 
to do the exact thing called for in the solicitation.  Hicklin GM 
Power Co., B-222538, Aug. 5, 1986, 86-2 CPD  153.  Since 
Yuasa-Exide's bid did not qualify the pressure valve limit 
requirement, the bid was responsive to this requirement. 

The protest is denied.  

Comptroller General 
of the United States

1. Normally, commercial power is fed through the UPS system; however, 
in the event of a power failure, each UPS system has a battery backup 
to keep the system from crashing.  If there is a power failure and the 
battery backup is underpowered or malfunctioning, the entire system 
will shut down.  

2. The term "valve regulated" is applied to these types of batteries 
because each cell is filled with a self-resealing pressure relief vent 
valve which is supposed to open if the internal pressure of the cell 
exceeds the vent valve's limit. 

3. GNB's bid was also determined to be nonresponsive because of a 
number of other factors, such as the fact that the bid materials show 
that its offered battery types D through J do not meet the IFB 
requirement that these batteries be single cell units.  While GNB's 
proposed D, E, F, and G battery types meet the specified voltage 
requirements and the power delivery capabilities, the materials 
submitted clearly indicate that they consist of two individual cells 
packaged in a single container.  However, because we find that GNB's 
bid was nonresponsive to the IFB's pressure valve limit requirement, 
we need not address GNB's protest of these other matters.