TITLE:  Tel-Instrument Electronics Corporationï¿½, B-291309; B-291309.2, November 20, 2002
BNUMBER:  B-291309; B-291309.2
DATE:  November 20, 2002
**********************************************************************
Tel-Instrument Electronics Corporation , B-291309; B-291309.2, November 20, 2002

   Decision
    
    
Matter of:   Tel-Instrument Electronics Corporation 
    
File:            B-291309; B-291309.2
    
Date:              November 20, 2002
    
Lars E. Anderson, Esq., and Thomas J. Madden, Esq., Venable, Baetjer &
Howard, for the protester.
Joshua A. Kranzberg, Esq., and E. Rita Eady, Esq., U.S. Army Materiel
Command, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protest that agency improperly rejected protester's bid as nonresponsive
is denied where bid included statement that bidder would require certain
government-furnished equipment that the solicitation did not obligate the
agency to provide and thus materially altered the rights and obligations
of the bidder and contracting agency.
DECISION
    
Tel-Instrument Electronics Corporation (TIC) protests the rejection, as
nonresponsive, of the bid it submitted in response to invitation for bids
(IFB)
No. DAAH01-01-B-0004, issued by the Department of the Army for a portable
radar test set. 
    
We deny the protest.
    
The IFB, conducted as a two-step, sealed bid procurement, contemplated the
award of a fixed-priced, indefinite-quantity, indefinite-delivery
contract, for a period of
5 years.  During step I, bidders were required to submit a bid sample that
was tested for electrical performance and facility of use.  Those firms
that passed the step I performance test would be requested to submit a
sealed bid under step II.  The Army received three acceptable bids under
step I, including TIC's.  TIC then submitted the low bid under step II,
but its bid was rejected as nonresponsive on the basis that the cover
letter to the bid conditioned TIC's offer on the use of specified
government-furnished equipment (GFE), while the solicitation did not
contain any provision allowing for the use of GFE.  Specifically, the
cover letter included the following statement:
    
TIC will require the following GFE for the life of the production contract
to support PVT (Product Verification Testing) and production GSI
(Government Source Inspection):
    
Qty 2-Mode S capable military transponders
Qty 2-KIR/1C Crypto Computers
Qty 2- KIT/1C Crypto Computers
Qty 2- Maintenance tapes and suitable loading devices for above Crypto
Computers
Qty 1 An-PPX-3 Interrogator with associated antenna, cables and loader
TIC maintains that its bid should not be found nonresponsive because the
value of the items it requested--approximately $150,000--is negligible
compared to the overall value of the contract ($28.7 million).[1]
    
All bidders must compete for sealed bid contracts on a common basis.  No
individual bidder can reserve rights or immunities that are not extended
to all bidders by the conditions and specifications advertised in the
IFB.  Interstate Constr., Inc.,
B-281465, Feb. 10, 1999, 99-1 CPD P: 31 at 2.  Therefore, in order to be
responsive and considered for award, a bid must contain an unequivocal
offer to perform, without exception, the exact thing called for in the
IFB, in total conformance to the material terms of the solicitation.  If
in its bid a bidder attempts to impose conditions that would modify
material requirements of the IFB, limit its liability to the government,
or limit the rights of the government under any contract clause, then the
bid must be rejected.  Id.  Further, a bid that is nonresponsive on its
face may not be made into a responsive bid by post-bid-opening
clarifications or corrections.  In this regard, we have specifically held
that, where a bidder conditions its bid upon the use of government
facilities not specifically made available in the IFB, the bidder has
availed itself of benefits not extended to other bidders by the advertised
specifications and rendered its bid nonresponsive.  Walashek Indus. &
Marine,
B-281577, Jan. 29, 1999, 99-1 CPD P: 30 at 3. 
The conditions set forth in TIC's bid cover letter concerning the
provision of transponders, computers, an interrogator, and associated
equipment altered the rights of the agency by conditioning TIC's
obligation to perform on the agency's guaranteeing that it would make this
equipment available for the life of the contract.  While TIC argues that
the condition is not material, and thus should be waived because the value
of the required GFE is small compared to the value of the overall
contract, price is not the only consideration in determining whether a
condition placed on a bid is material.[2]  Here, the condition is material
because, essentially, it provided that TIC would not assume the obligation
to perform the contract unless the agency agreed to furnish the requested
equipment.  Thus, the condition affected the rights and liabilities of the
contractor and the agency.  Walashek Indus. & Marine, supra.  The bid
condition also extended benefits to TIC that were not available to any
other bidder.  Id.  In this regard, TIC itself asserts that the equipment
is not commercially available; assuming that this is true, a bidder's
ability to compete could have been affected by its ability to obtain the
equipment.  Under these circumstances, TIC's bid was properly rejected as
nonresponsive.[3]
TIC argues that the awardee's bid also contained conditions not part of
the solicitation, and therefore should have been rejected as
nonresponsive.  However, since TIC's bid was properly found nonresponsive,
and there is another bidder besides the awardee eligible for award, TIC is
not an interested party to raise this argument.  4 C.F.R. S: 21.1(a); see
TRS Research, B-283342, Nov. 4, 1999, 99-2 CPD
P: 85 at 4. 
The protest is denied.

   Anthony H. Gamboa
General Counsel
    

   ------------------------

   [1] TIC also argues that the condition should be waived because the
equipment it requested is not commercially available, making it implicit
that the government would furnish it to all bidders, and because it
allegedly was told during step I testing that certain tests were to be
performed using equipment in the Army's TMDE (Test Measurement and
Diagnostic Equipment) activity inventory.  Comments at 8-11 and 13.  These
arguments are without merit.  Notwithstanding what TIC may have assumed or
been told, the solicitation did not provide for use of the GFE that TIC
requested (or any other GFE); the qualifying language in TIC's bid cover
letter indicates that TIC was aware of this fact.  If TIC believed the
agency should structure the requirement to provide that the requested GFE
would be provided, it was required to protest this alleged solicitation
impropriety prior to the time set for the receipt of bids.  See Bid
Protest Regulations, 4 C.F.R. S: 21.2(a)(1) (2002). 
[2] We do not reach the question of whether the value of the requested GFE
(estimated by TIC as $150,000) is sufficient to render the qualification
material.
[3] The agency also found that TIC's bid was nonresponsive because TIC
took exception to the warranty requirements established by the
solicitation, a conclusion that TIC disputes.  As we have found that TIC's
bid is otherwise nonresponsive, we need not reach this issue.