Tel-Instrument Electronics Corporation�, B-291309; B-291309.2, November 20, 2002

Tel-Instrument Electronics Corporation�, B-291309; B-291309.2, November 20, 2002 TITLE: Tel-Instrument Electronics Corporation�, 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.