_______________________________ DENIED: January 4, 1999 _______________________________ GSBCA 11904-P FUTURA SYSTEMS, INC., Protester, v. DEPARTMENT OF THE ARMY, Respondent. Edward J. Tolchin of Fettmann & Tolchin, Fairfax, VA, counsel for Protester. William R. Medsger and Vera Meza, Office of Command Counsel, Department of the Army, Alexandria, VA, counsel for Respondent. Before Board Judges DEVINE, BORWICK, AND HYATT. BORWICK, Board Judge. Background On June 26, 1992, protester, Futura Systems Incorporated, protested the Department of the Army's award of contracts for computer repair kits to Video and Telecommunications Incorporated and Tri-City Computer Services. The procurement was by sealed bid. The contracting officer had determined that protester's bid for items 0001 and 0002 was not responsive to the Invitation for Bids (IFB) because the items bid required modification. The bid for item 0003 was determined non-responsive because protester had bid a ninety-day warranty rather than the one-year warranty required by the IFB. Protester alleges that the determination of the contracting officer as to the responsiveness of its bid for these items was erroneous. Protester contests the contracting officer's inter- pretation that items 0001 and 0002 had to be installable without modification of the original unit. As for item 0003, protester argues that it should have been allowed to correct, as a clerical error, the length of the warranty it had bid. The parties submitted the case on the record, pursuant to Rule 11. We find no error by the contracting officer in reject- ing protester's bid as non-responsive. The contracting officer correctly understood the IFB to require that items 0001 and 0002 be installable without modification, and acted correctly in rejecting protester's bid for item 0003 without allowing for correction of the length of the warranty as a clerical error. We deny the protest. Findings of Fact The IFB called for supply of: ITEM 0001 Stock Item: 6606CPU386S KIT, COMPUTER REPAIR-CONSISTS OF CPU 3860X, PROCESSOR SPEED 25 MHZ AS MEASURED BY NORTON SI, ON BOARD MEMORY 4MB EXPANDABLE TO 8MB, SPEED 70 NANOSECONDS, MATH COPROCESSOR SOCK- ET, MEMORY TYPE - DIP 1MB X 1 CHIP, CACHE MEMORY PAGE INTERWEAVE, ROM SHADOW SUPPORT MAIN BIOS AND VIDEO, I/O OF 1 SERIAL AND 1 PARALLEL PORT, LIN 4.2 SUPPORT FOR USE ON ZENITH MODEL Z-248 0002- [Same as 0001] 0003 Stock Item 701000X420660 KIT, COMPUTER REPAIR CONSISTS OF: MOTHERBOARD 3860X 25 MHZ AS MEASURED BY NORTON SI. A COPROSSOR SOCKET, ON BOARD MEMORY OF 4 MEGA- BYTES, MEMORY TYPE DIP 1MB X 1 CHIPS SPEED 70 NANOSECONDS, CACHE MEMORY PAGE INTERWEAVE, ROM SHADOW SUPPORT MAIN BIOS AND VIDEO, I/O OF 2 SERIAL AND 1 PARALLEL PORTS. Protest File, Exhibit 1, B. The quantity specified was 100 for CLINS 001 and 002 and 131 for CLIN 0003. Id. Varying delivery dates were specified, depending on the CLIN, and CLIN 0002 was the same item as CLIN 0001 except for the delivery date speci- fied. Id. Delivery was to be at the Sacramento Army Depot, Sacramento California. Id. The IFB contained a requirement for descriptive literature: Descriptive literature is required to establish, for the purpose of evaluation and award, details of the product offered that are specified elsewhere in this solicitation and pertain to such significant elements such as (1) design; (2) materials; (3) components; (4) performance characteristics; and (5) methods of manu- facture, assembly, construction or operation. The term includes only information required to determine the technical acceptability of the offered product. It does not include other information such as that used in determining the responsibility of a prospective con- tractor or for operating or maintaining the equipment. Protest File, Exhibit 1, L.14 52.214-0021 (a). Award was to be made to the responsive and responsible bidder submitting the lowest priced bid meeting the terms and conditions of the solicitation. Protest File, Exhibit 1, M.7. The contemplated award was for a firm fixed-price supply con- tract. Id., at L.15. Bid opening was initially to be May 26, 1992. Protest File, Exhibit 1. On May 22, respondent issued an amendment to the IFB which decreased the quantities of the items to be delivered, added standard Federal Acquisition Regulation (FAR) clause 52- 214-22, allowing for multiple awards, extended the bid opening date to June 9, and added a one year warranty provision to the specifications of item 0003. Protest File, Exhibit 2. The amendment also answered vendors' pre-bid questions, including the following: 1. QUESTION: The size and shape of 386DX motherboard will be different from the backplane board of the Z-248's. Your repair engineer will have to drill new holes on the Zenith case to install the 386 board, also to align add-on cards and keyboard plugs, etc. Please clarify that this is not a problem so long as the new board will fit in the case. ANSWER: This does pose a problem. There are items available which do not require additional modifica- tions. Id. Futura submitted a "technical proposal" which provided in pertinent part: Futura will install the required hardware on-site at the work sites as specified by the contracting officer's representative. Futura will be responsible for connecting all hardware items . . . . . . . . When the systems are returned to their owners they will function as they did prior to the upgrade with greatly enhanced performance. . . . Protest File, Exhibit 4. Futura proposed to remove the Z248 backplanes and all Zenith proprietary boards and replace them with "industry standard" motherboards containing the 386 microprocessor. Futura proposed to reinstall the hard disk controller board as well as other non- proprietary boards into the new motherboards. Futura also proposed to replace the proprietary Zenith input output ports controller board with a standard input output ports controller board. Futura offered a ninety-day warranty for the motherboard. Id. Respondent's procurement specialist contacted an employee of protester and asked if the kits could be installed by Government personnel. Protester's employee stated that without training by protester and special tools, the Government could not install the kits. This employee also stated that protester's price did not include charges for installation at the one hundred and thirty four sites where the computers were in use. Declaration of Respondent's Procurement Specialist Cathy M. Keith dated July 16, 1992 (Keith Declaration). The kits would be installed by remov- ing the existing boards, redrilling three holes and installing the motherboards or advance input/output board, then connecting the input/output boards and the power supply to the motherboard. Protest File, Exhibit 11, Response 4(d) to Respondent's Interrog- atories. On June 17, 1992, the contracting officer advised protester in pertinent part: You are . . . notified that your offer submitted in response to the above solicitation was not accepted because it failed to meet the Government requirements. The computer systems for which line items 0001 and 0002 are being purchased must all be fully functional imme- diately upon receipt. Drop in cards which were offered by the successful offeror will allow this while the training and installation that you have proposed will not. Additionally the price offered did not include installation costs. The descriptive literature you provided . . . was insufficient to determine if the product you are offer- ing will meet the requirements of line item 0003, because you failed to address the EGA/VGA boards and the power supply. Protest File, Exhibit 7. The contracting officer advised pro- tester that award had been made to Video and Telecommunications, Incorporated for line items 0001 and 0002 and to Tri-City Comput- er Services Incorporated for line item 0003. Discussion Contract Line Items 0001 and 0002 Protester says that in the IFB, respondent never prohibited "free installation," and that it never prohibited the "non- drilling of holes" to install the kits. Protester's Memorandum at 11, 12. It argues that saying that installation is "a prob- lem" is not the same as making lack of installation a mandatory requirement. Protester's arguments are not persuasive. In saying that "this does pose a problem," the contracting officer was answering directly the vendor's particular question. The contracting officer said more: "[t]here are items available which do not require additional modifications." The clear implication is that the requirement was for items needing no modification to the basic unit. The pre-bid question and answer cannot reasonably be read any other way. Since protester proposed equipment needing modification to satisfy items 0001 and 0002, it submitted a non- responsive bid for those items. Even if we were disposed to regard the contracting officer's response as unclear, Futura's bid was also non-responsive for ambiguity with respect to the scope of the installation protester had bid. Futura stated in its bid that it would install the components at no charge. A Futura employee told the contract specialist that the cost of installation was not included at the one hundred and thirty four sites where the basic units were located. Furthermore, the bid is ambiguous because it is not clear whether the bid is conditioned on Futura's performing the installation. The IFB did not call for installation. Futura's bid states that it will perform the installation, and that "when the systems are returned to their owners they will function as they did prior to the upgrade with greatly enhanced performance." This language implies that the components will work only if Futura installs them. An ambiguous bid cannot be considered. DynaLantic Corp., et al., GSBCA 10923-P, et al., 91-1 BCA 23,520, 1990 BPD 385. Contract Line Item 0003 Protester filled in the bid schedule stating a one-year warranty for CLIN 0003. In its descriptive literature, however, protester offered a ninety-day warranty. Protester argues that the IFB did not require descriptive literature, and that the contracting officer should have thus ignored the ninety-day warranty statement contained in the "technical proposal" submit- ted with protester's bid. Protester also argues that the con- tracting officer should have allowed correction of its "clerical mistake." First, protester is wrong--paragraph L.14 52.214-0021 (a) of the IFB required descriptive literature: "[d]escriptive litera- ture is required to establish. . . ." (emphasis supplied). We do not understand protester to argue that the warranty specifica- tion was not a "significant element" to be addressed by the descriptive literature clause. Even if the warranty requirement is viewed as an insignifi- cant element under the descriptive warranty provision of this IFB, that does not mean that the contracting officer is prevented from relying on the information contained in the technical proposal in determining the responsiveness of the bid. The technical proposal, including the statement about the length of warranty was specifically written to describe the bid for this procurement; the warranty information was not pre-printed. Contracting officers are entitled to rely on "all the accompany- ing literature" in establishing compliance with specifications. Memopro Inc., GSBCA 8264-P, 86-1 BCA 18,702, at 94,047, 1986 BPD 6, at 3. An ambiguous and non-responsive bid may not be made responsive through a claim of clerical error. To permit such material corrections would introduce unfairness in the bidding process. University Systems Inc., et. al. v. Department of Energy, et. al., 1992 BPD 93, at 4 (March 27, 1992). Protester has not shown that the contracting officer acted in violation of statute or regulation in rejecting protester's bid for non-responsiveness. Decision The protest is DENIED. ________________________________ ANTHONY S. BORWICK Board Judge We concur: ___________________________ DONALD W. DEVINE Board Judge ___________________________ CATHERINE B. HYATT Board Judge