Kim's General Maintenance, Inc.

B-275823 Apr 03, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Is nonresponsive where the bid does not otherwise unambiguously indicate agreement to the minimum required bid acceptance period. 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. 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. 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. 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. View Decision Matter of: Kim's General Maintenance, Inc. File: B-275823 Date: April 3, 1997 DIGEST Attorneys 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.