BNUMBER:  B-275823
DATE:  April 3, 1997
TITLE:  Kim's General Maintenance, Inc.

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Matter of:Kim's General Maintenance, Inc.

File:     B-275823

Date:April 3, 1997

James F. Nagle, Esq., Oles Morrison & Rinker, LLP, for the protester.
Mark A. Rowland, Esq., McKenna & Cuneo, L.L.P, for Patriot 
Maintenance, Inc., an intervenor.
Dennis D. Carpenter, Jr., Esq., Department of the Air Force, for the 
agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Bid that omits standard form 1447, "Solicitation/Contract," which 
contains the bid acceptance period provision, is nonresponsive where 
the bid does not otherwise unambiguously indicate agreement to the 
minimum required bid acceptance period.

DECISION

Kim's General Maintenance, Inc. protests the rejection of its bid 
under invitation for bids (IFB) No. F65503-96-B0012, issued by the 
Department of the Air Force for maintenance of Military Family Housing 
at Eielson Air Force Base, Alaska.  The agency rejected Kim's low bid 
as nonresponsive because Kim's failed to execute and return with its 
bid standard form (SF) 1447, "Solicitation/Award" (the cover sheet of 
the IFB), which contains material provisions, or to otherwise 
incorporate these  provisions in its bid.  Kim's asserts that its 
agreement to all material requirements may be inferred by other 
references in its bid.

We deny the protest.

In its initial protest submission, the protester contended that it 
executed the 
SF-1447 and included it in its bid package, which it submitted to the 
Air Force by the November 12, 1996, amended bid opening date.  The 
protester included statements from its general manager and another 
employee certifying that a copy of the SF-1447 was included in the bid 
package.  Another of Kim's employees submitted a certified statement 
that he attended the bid opening and that the Air Force personnel did 
not note any irregularities with respect to Kim's bid.

In response, the agency submitted affidavits from three Air Force 
officials and from a bidder's representative, all of whom were present 
at the bid opening.  The agency officials state that the absence of 
the SF-1447 from the protester's bid package was immediately noted, 
and that they checked and rechecked the bid package and confirmed that 
the SF-1447 was missing.  These officials and the other bidder's 
representative also state that it was announced at the bid opening 
that Kim's 
SF-1447 appeared to be missing.  

During the subsequent verification of the bids, the agency determined 
that Kim's had submitted the lowest bid but that Kim's bid package did 
not contain any SF-1447.  Consequently, on December 17, 1996, Kim's 
was notified that its bid was rejected as nonresponsive because the 
bidder did not expressly bind itself to comply with the material terms 
and conditions of the solicitation contained in the SF-1447.

In response to the agency's report, the protester no longer maintains 
that it included the SF-1447 in its bid package, and instead contends 
that the material provisions set forth in the SF-1447 are incorporated 
by reference in other sections of its bid.  

Where a bidder fails to return with its bid all of the documents which 
were part of the IFB, the bid must be submitted in such a form that 
acceptance would create a valid and binding contract requiring the 
bidder to perform in accordance with all the material terms and 
conditions of the IFB.  Weber Constr., B-233848, Mar. 27, 
1989, 89-1 CPD  para.  309; Jones Floor Covering, Inc., B-213565, Mar. 16, 
l984, 84-1 CPD  para.  319; Union City Plumbing, B-208500, June 7, 1983, 
83-1 CPD  para.  614.  The minimum acceptance period called for in a 
solicitation is one of the material requirements to which a bidder 
must agree in order for its bid to be responsive.  See Elevator 
Control Serv., Elcon Enters., Inc., B-239360, June 6, 1990, 90-1 CPD  para.  
534.  If a bidder incorporates by reference the material provisions of 
the missing pages of the solicitation in the documents that it does 
submit, this may be sufficient to bind the bidder to those material 
provisions and make its bid responsive.  See International Signal & 
Control Corp.; Stewart Warner Corp., 55 Comp. Gen. 894 (1976), 76-1 
CPD  para.  180.

The SF-1447, omitted from Kim's bid, contains, among other things, a 
provision which sets forth the bidder's agreement that it will hold 
its bid open for a bid acceptance period of 120 days unless the bidder 
inserts a different period.  This 120-day bid acceptance period is not 
specifically contained in other documents submitted by Kim's with its 
bid.    

The protester argues that it is incorporated by reference elsewhere in 
its bid.   The protester maintains that by returning section K of the 
IFB it referenced the minimum acceptance period in its bid 
sufficiently to constitute an agreement to be bound as required.  We 
disagree.  The 120-day bid acceptance period is found only 

in block 11 of the SF-1447; section K does not set forth the required 
minimum acceptance period of 120 days.  Section K-20, titled "Minimum 
Bid Acceptance Period", at paragraph (c) reads as follows:  "[t]he 
Government requires a minimum acceptance period of (as set forth on 
Standard Form 1447, Block 11) calendar days."  Paragraph (d) of the 
section goes on to state that where a bidder elects to provide a 
longer bid acceptance period, it may do so by inserting that period on 
block 11 of the SF-1447.  Paragraph (e) cautions that a bid allowing 
less than the government's minimum acceptance period will be rejected.    

In order to be found responsive, an incomplete bid must unambiguously 
incorporate by reference all the material terms and conditions of the 
invitation.  International Harvester Co., B-192996, 79-1 CPD  para.  259; 
Armada, Inc., B-189409, 78-1 CPD  para.  157.  Here, the incorporated 
document does not clearly set forth the necessary material term 
because Block 11 of the SF-1447 permits and invites bidders to offer 
alternate acceptance periods.  While the missing SF-1447 contains the 
120-day bid acceptance period, it also contains a blank space for the 
bidder to enter a different period.   Since the SF-1447 was not 
included with the protester's bid, there is simply no way the agency 
can verify whether Kim's took exception to the 120-day minimum 
acceptance period.  In short, the putative incorporation fails to 
unambiguously incorporate agreement to the missing and material 
required bid acceptance period.  Because Kim's bid gives the protester 
the choice to declare or deny compliance with the bid acceptance 
period, accepting the bid would provide Kim's with an improper 
opportunity to decide after bid opening whether or not to make its bid 
responsive.  Larry's Inc., B-230822, June 22, 1988, 88-1 CPD  para.  599.

The protester maintains that its position here is similar to that of 
the bidder in Isometrics, Inc., B-241333, Oct. 30, 1990, 90-2 CPD 352.  
In Isometrics, the bidder failed to include section K, which contained 
a "Minimum Bid Acceptance Period" clause setting the acceptance period 
at 60 days.  However, the bidder did include the SF-33 cover sheet, 
which also specified a 60-day bid acceptance period, as a result of 
which the bid was properly deemed to be responsive.  Here, the section 
K clause included in the bid did not contain or incorporate the 
120-day minimum bid acceptance period found on the missing SF-1447.[1] 

Kim's also attempts to distinguish this case from others, such as 
Weber Constr., supra, where bidders who failed to submit a SF-1442 
were rejected as nonresponsive, on the basis that the SF-1442 is a 
more detailed form and has more material provisions than the SF-1447.  
These cases cannot be distinguished for that reason; notwithstanding 
any differences in the forms, the material terms at issue are 
substantively the same and the consequence for not complying with them 
is the same.

In short, without the missing SF-1447, the bid simply did not 
demonstrate its agreement to be bound by the 120-day minimum bid 
acceptance period.  Accordingly, Kim's bid was properly rejected as 
nonresponsive.

The protest is denied.

Comptroller General 
of the United States    

1. Kim's also cites our decision in M.R. Dillard Constr., B-271518.2, 
June 28, 1996, 96-2 CPD  para.  154, in which we held that acknowledging an 
amended version of the SF-1442 containing the same material provisions 
as the omitted SF-1442 was sufficient to make responsive a bid which 
did not include the back page of the original SF-1442 which included 
the bid acceptance period provision.  However, in Dillard the bidder's 
acknowledgment of the amended SF-1442 bound it to offer the required 
bid acceptance period, while in the present case there is no such 
acknowledgment and nothing else which binds the bidder to the required 
minimum bid acceptance period.