BNUMBER: B-262187
DATE: December 4, 1995
TITLE: GNB Technologies, Industrial Battery Company
**********************************************************************
Matter of:GNB Technologies, Industrial Battery Company
File: B-262187
Date: December 4, 1995
L. Stephen Quatannens, Esq., Gardner, Carton & Douglas, for the
protester.
James B. Coker, for Yuasa-Exide, Inc., an interested party.
A. F. Thibodeau, Esq., and Cynthia S. Guill, Esq., Department of the
Navy, for the agency.
Katherine I. Riback, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protester's bid was properly rejected as nonresponsive where, on
its face, it took exception to a material requirement.
2. Allegation that contracting agency should have rejected low bid as
nonresponsive is denied where bid takes no exception to the
solicitation's material requirements.
DECISION
GNB Technologies, Industrial Battery Company protests the rejection of
its bid and the award of a contract to Yuasa-Exide, Inc. under
invitation for bids (IFB)
No. N47408-94-B-2033, issued by the Department of the Navy for lead
calcium and antimony hybrid batteries.
We deny the protest.
The IFB, issued on March 29, 1995, contemplated the award of a
fixed-priced requirements contract for a variety of batteries, battery
systems, and related services, such as battery disposal, to support
the Navy's uninterrupted power support (UPS) systems. These systems
provide a constant level of electrical power and are installed in
critical communication and intelligence centers where maintenance of
the highest level of reliability and continuity of operation are
critical.[1]
To demonstrate that they were capable of successful performance,
bidders were instructed to submit with their bids a "comprehensive
response to the requirements of the Invitation to Bid to enable the
Government to evaluate offeror's understanding of and capability to
perform the Navy's requirements as set forth in . . . this
solicitation." The solicitation did not contain a descriptive
literature requirement.
The IFB specifications provided, in pertinent part, that battery types
D through J shall consist of single cell units and that battery types
K through S shall have a maintenance-free valve regulated design, with
a pressure valve limit of less than
4 pounds per square inch (psi).[2]
Five bids were received by the May 25 bid opening date. The protester
submitted the apparent low bid at $65,120,595; and Yuasa-Exide
submitted the second-low bid at $76,083,679. The agency determined
that the protester's bid was nonresponsive and, on July 20, made award
to Yuasa-Exide, Inc., as the low, responsive bidder. This protest
followed.
The Navy viewed the protester's bid as nonresponsive because while the
IFB required that battery types K through S have a pressure valve
limit of less than
4 psi, in its bid GNB offered N through S batteries with a pressure
relief vent valve which operates in the range of 3 to 7 psi.
To be responsive, a bid, as submitted, must represent an unequivocal
offer to perform, without exception, in accordance with requirements
set forth in the IFB so that the bidder will be bound to perform in
accordance with all the material terms and conditions. Contech
Constr. Co., B-241185, Oct. 1, 1990, 90-2 CPD 264. A deficiency or
deviation which goes to the substance of the bid by affecting price,
quality, quantity, or delivery of the article offered is a material
deviation that requires the bid to be rejected as nonresponsive.
Seaboard Elecs. Co., B-237352,
Jan. 26, 1990, 90-1 CPD 115.
The agency explains that the pressure valve limit requirement is
material because it is safety related and significantly affects
battery quality; the vents in maintenance-free batteries are prone to
failure and excess pressure may rupture a container. The requirement
for a pressure valve limit of less than 4 psi was intended to provide
a margin of safety to prevent rupture of any battery container,
irrespective of any nuances of a particular bidder's container design.
By proposing N through S batteries that use a pressure relief vent
valve which operates in the range of 3 to 7 psi, GNB's bid took
exception to an IFB specification requirement. Since the pressure
valve limit requirement was material, the contracting officer properly
determined that GNB's bid was nonresponsive because it did not
constitute an unequivocal offer to perform in accordance with all
material IFB requirements.[3]
GNB contends that its particular battery design makes the pressure
valve limit unnecessary. This argument is untimely. In essence, GNB
is contesting the unqualified specification requirement that K through
S batteries have a pressure valve limit of less than 4 psi. Under our
Bid Protest Regulations, such protests based on alleged improprieties
in a solicitation, which are apparent prior to the bid opening time,
must be filed prior to that time. 4 C.F.R. 21.2(a) (1995).
GNB argues that if its bid is considered nonresponsive, the agency
should have rejected Yuasa-Exide's bid as nonresponsive as well,
because it also fails to meet the pressure valve limit of less than 4
psi.
In general, a nonresponsive bidder, such as GNB, is not an interested
party eligible to protest an award to another firm where there are
other apparently responsive bidders that would be in line for award if
the protest were sustained.
4 C.F.R. 21.0(a), 21.1(a); K & M Elec. Corp., B-247450, Apr. 23,
1992, 92-1 CPD 387. However, this rule does not apply where a
bidder protests that it was denied equal treatment because the agency
rejected its nonconforming bid while accepting a competitor's
similarly nonconforming bid. Maintenance and Repair, B-251223, Mar.
19, 1993, 93-1 CPD 247; Raymond Corp., B-224577, Jan. 8, 1987, 87-1
CPD 36; Dillingham Ship Repair, B-218653, Aug. 14, 1985, 85-2 CPD
167. In other words, we view a protester as an interested party when
the basis for protest is that the protester and one or more
competitors were treated disparately. Id. Therefore, GNB is an
interested party to argue that Yuasa-Exide's bid was defective just as
its own bid was defective. Tel-Med Info. Sys., 66 Comp. Gen. 504
(1987), 87-1 CPD 561.
By signing its bid Yuasa-Exide bound itself to comply with the
pressure valve limit requirement and nothing on the face of its bid
limited, reduced, or modified its obligation to perform in accordance
with this requirement. In this regard, unlike GNB's bid,
Yuasa-Exide's bid did not include any information bearing upon whether
its proposed K through S batteries meet the pressure valve limit of
less than 4 psi. A bid which, on its face, takes no exception to the
IFB's requirements is responsive, since it is an unqualified promise
to do the exact thing called for in the solicitation. Hicklin GM
Power Co., B-222538, Aug. 5, 1986, 86-2 CPD 153. Since
Yuasa-Exide's bid did not qualify the pressure valve limit
requirement, the bid was responsive to this requirement.
The protest is denied.
Comptroller General
of the United States
1. Normally, commercial power is fed through the UPS system; however,
in the event of a power failure, each UPS system has a battery backup
to keep the system from crashing. If there is a power failure and the
battery backup is underpowered or malfunctioning, the entire system
will shut down.
2. The term "valve regulated" is applied to these types of batteries
because each cell is filled with a self-resealing pressure relief vent
valve which is supposed to open if the internal pressure of the cell
exceeds the vent valve's limit.
3. GNB's bid was also determined to be nonresponsive because of a
number of other factors, such as the fact that the bid materials show
that its offered battery types D through J do not meet the IFB
requirement that these batteries be single cell units. While GNB's
proposed D, E, F, and G battery types meet the specified voltage
requirements and the power delivery capabilities, the materials
submitted clearly indicate that they consist of two individual cells
packaged in a single container. However, because we find that GNB's
bid was nonresponsive to the IFB's pressure valve limit requirement,
we need not address GNB's protest of these other matters.
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