BNUMBER: B-278514
DATE: February 4, 1998
TITLE: Banknote Corporation of America, Inc., B-278514, February 4,
1998
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Matter of:Banknote Corporation of America, Inc.
File: B-278514
Date:February 4, 1998
Hopewell H. Darneille, III, Esq., and Brett Bacon, Esq., Verner,
Liipfert, Bernhard, McPherson and Hand, for the protester.
Kerry L. Miller, Esq., Government Printing Office, for the agency.
Andrew T. Pogany, Esq., and John M. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Where solicitation provision called for a 180-day bid acceptance
period and clearly advised bidders to disregard a standard form
provision (contained elsewhere in the solicitation) requesting a
minimum 60-calendar day bid acceptance period, bid offering a
60-calendar day bid acceptance period was properly rejected as
nonresponsive.
DECISION
Banknote Corporation of America, Inc. protests the rejection of its
bid as nonresponsive under an invitation for bids (IFB) for Program
No. D381-S, issued by the Government Printing Office (GPO) for the
printing of social security cards. GPO rejected the bid because it
did not contain the minimum bid acceptance period required by the
solicitation. We deny the protest.
The IFB was issued on July 17, 1997. Page one of the solicitation
provided as follows:
BIDDERS PLEASE NOTE: THE MINIMUM TIME PERIOD FOR ACCEPTANCE OF
BIDS ON PROGRAM D381-S BY THE GOVERNMENT IS 180 CALENDAR DAYS.
TO BE RESPONSIVE, A BIDDER MUST INSERT IN THE BID ACCEPTANCE
PORTION OF GPO FORM 910 A BID ACCEPTANCE PERIOD OF 180 DAYS OR
MORE. IT IS CAUTIONED THAT IF THE BIDDER MAKES NO ENTRY A BID
ACCEPTANCE PERIOD OF 60 CALENDAR DAYS WILL AUTOMATICALLY BE
APPLIED AND THE BID WILL BE RENDERED NONRESPONSIVE.
Form 910, a standard form furnished by GPO to the bidders with the
solicitation, stated as follows:
[T]he undersigned agrees, if this bid is accepted within _____
calendar days (60 calendar days unless a different period is
inserted by the bidder) from the date for receipt of bids, to
furnish the specified items at the price set opposite each item,
delivered at the designated point(s), in exact accordance with
specifications.
Directly below this language, in boldly blocked format, the standard
form stated as follows: "Notice: Failure to provide a 60 day bid
acceptance period may result in expiration of your bid prior to
award."
Bids were opened on August 15. Banknote was the low bidder with a bid
of $858,600; the only other bidder, American Bank Note Company, bid
$868,400. However, the protester had inserted the number "60" as its
bid acceptance period on Form 910. The agency rejected the
protester's bid as nonresponsive for failure to offer the 180-day
acceptance period called for on page one of the IFB; this protest
followed.
The protester principally argues that the IFB was fundamentally
defective, and that its bid therefore should not be rejected as
nonresponsive, because Form 910 did not cross-reference the 180-day
minimum bid acceptance requirement on page one, thereby "causing a
classic pitfall to ensnare bidders into a state of nonresponsiveness."
In support of its position that it was misled into making its bid
nonresponsive to the 180-day minimum acceptance period requirement,
the protester cites our decision in 52 Comp. Gen. 842, 845 (1973), in
which we stated as follows:
[W]here an invitation contains language specifying a bid
acceptance period and another separate provision located
elsewhere in the invitation sets forth a minimum bid acceptance
period, the two provisions should be cross-referenced in such
manner as to specifically direct bidders' attention to the fact
that insertion of a shorter period will cause the bid to be
rejected.
In that 1973 decision, we concluded that, since the two conflicting
provisions were not cross-referenced, the protester had been misled
into offering an inadequate acceptance period, and that it therefore
would be improper to reject the bid as nonresponsive on this basis.
Banknote urges that we reach the same conclusion here.
The agency properly rejected Banknote's bid. Here, unlike in the 1973
case, the solicitation on page one specifically cross-referenced the
standard bid acceptance provision of Form 910 and clearly explained
how bidders should deal with the conflicting acceptance period
provision, i.e., they should disregard the 60-calendar day provision
on Form 910 because the agency required 180 calendar days. There was
nothing confusing or unclear about this explanation or about which
provision was being referenced.
The protester essentially insists that--under our 1973 decision--the
solicitation was required to include a second cross-reference, from
Form 910 back to the page one explanation (in addition to the
cross-reference from page one to Form 910). Our decision establishes
no such requirement. While we concluded that cross-referencing is
necessary to eliminate confusion from apparently inconsistent minimum
acceptance period provisions, this purpose clearly is served by the
unequivocal explanation the agency included in the 180-day requirement
on page one. Reasonable bidders, who are expected to scrutinize
carefully the entire solicitation package, International Medical
Indus., Inc., B-208235, Oct. 29, 1982, 82-2 CPD para. 386 at 5, should not
have been misled, given the first page's explanation and
cross-reference to Form 910. In short, we find that the solicitation
was sufficiently clear to enable a bidder to know the required bid
acceptance period. See id. at 5-6.
While acknowledging that it is well established that a minimum
acceptance period requirement is material and must be met at the time
of bid opening, see Perkin-Elmer Corp., 69 Comp. Gen. 27, 29 (1989),
89-2 CPD para. 352 at 3, Banknote argues in the alternative that its
insertion of 60 days on Form 910 was inadvertent and should be waived
as a minor informality. More specifically, it asserts, given the
current economic environment of low price inflation, offering a
shorter than required acceptance period should not be viewed as
conferring any significant competitive advantage, and a low bid
offering such a shorter period thus should not be deemed
nonresponsive. This argument is without merit. While avoiding the
threat of inflation is one reason why bidders may wish to limit the
time for accepting their bids, a longer acceptance period obviously
also exposes a bidder to greater business risk generally.[1] A bidder
which is allowed to specify a shorter acceptance period would have an
unfair advantage over its competitors, since it would be able either
to refuse award after its bid acceptance period expired, should it
decide it no longer wanted the contract (whether because of
unanticipated cost increases, market fluctuations, shortages, or
better profit opportunities elsewhere), or to extend its bid
acceptance period after competing bids have been exposed. See id.
The protest is denied.
Comptroller General
of the United States
1. Moreover, while the economy as a whole may be experiencing low
inflation, particular industries may be subject to inflationary
pressures.