DENIED: November 16, 1992 GSBCA 12113-P VALIX FEDERAL PARTNERSHIP I, Protester, v. DEPARTMENT OF THE ARMY, Respondent, and UNIVERSITY SYSTEMS, INC., Intervenor. Shelton H. Skolnick, c/o Valix Federal Partnership I, Vienna, VA, counsel for Protester. Craig E. Hodge and Major William R. Medsger, U.S. Army Materiel Command, Alexandria, VA, and David H. Scott, U.S. Army Test and Evaluation Command, Aberdeen Proving Ground, MD, counsel for Respondent. Keith W. Griffen, Vice President of University Systems, Inc., Portland, OR, and Satish Attawar, Senior Vice President of University Systems, Inc., Milpitas, CA, appearing for Intervenor. Before Board Judges DANIELS, PARKER, and VERGILIO. PARKER, Board Judge. In June 1992, the Aberdeen Proving Ground branch of the Army Materiel Command, respondent, issued a sealed-bid solicitation to obtain twenty microcomputer systems and five hard drives. Valix Federal Partnership I, protester, submitted the low bid, although its descriptive literature contained a discrepancy between the caption and the actual description of the microcomputer offered. For the reasons discussed below, we hold that respondent did not violate statute or regulation in rejecting protester's bid as non-responsive. Findings of Fact 1. On June 25, 1992, respondent issued solicitation number DAAD05-92-B-0146 to obtain sealed bids to provide twenty computers, as described at contract line item number (CLIN) 0001. Protest File, Exhibit 1 at 8th unnumbered page. The CLIN 0001 heading read as follows: "CLIN 0001 486 Industry Standard Architecture Microcomputer System." Id. at 9th unnumbered page. CLIN 0001 listed twenty-one features that the microcomputer should have; among them were, at subheading (c), "Minimum EISA 32 Bit expanded bus," and at subheading (d), "Eight (8) EISA expansion slots." Id. 2. Respondent's second amendment of the solicitation, dated July 22, 1992, lists a user question: "Is computer system ISA or EISA?" and the response: "Computer system shall be 486 Enhanced Industry Standard Architecture." Protest File, Exhibit 1 at 40th unnumbered page. Respondent's third solicitation amendment, however, included a substitute page for the original one describing the CLIN 0001 requirements, whose heading, like the original's, read: "CLIN 0001 486 Industry Standard Architecture Microcomputer System." Id. at 45th unnumbered page. 3. The stated purpose of the fourth solicitation amendment, dated August 3, 1992, was to "clarify inconsistencies which exist between Amendment 0002 and 0003." Protest File, Exhibit 1 at 49 the unnumbered page. As respondent did in the second amendment, in this final amendment, it stated that the "architecture requirement for CLIN 0001 is: 486 Enhanced Industry Standard Architecture (EISA)." Id. Finally, the fourth amendment established August 24, 1992, as the closing date for receipt of bids. Id. at 50 the unnumbered page. Protester acknowledged receipt of each of the four solicitation amendments. Id., Exhibit 3 at 7th unnumbered page. 4. Protester captioned the portion of its offer describing the microcomputers as follows: "Valix EISA Tower Model Ohio-A4/200." Protest File, Exhibit 3 at 48th unnumbered page. In the detailed specifications which followed, however, protester described the microcomputer's motherboard as: 8Slot ISA Coprocessor Socket Weitek 120pin On-board Clock/Calendar/Battery Id. No other descriptive literature (or any other part of the bid) suggests that protester obligated itself to supply an EISA system. 5. On September 24, 1992, respondent awarded the contract to University Systems, Inc., intervenor, for a total price of $38,695, Protest File, Exhibit 7 at 1, which was $410 higher than protester's bid, id., Exhibit 3. Protester filed an agency-level protest with respondent on September 25, 1992, id., Exhibit 8, which emphasized that the heading of the microcomputer page read "EISA." Protester then described the reference to "8Slot ISA" as a "minor typographical error." Id. Protester received the agency's denial of the protest on October 9, 1992, id., Exhibit 9, and, in compliance with Rule 5(b)(iii), filed this protest with the Board on October 13, 1992. Id., Exhibit 10. Discussion Protester characterizes the discrepancy between its technical literature's heading ("EISA"), Finding 4, and its subsequent description of the motherboard itself ("8Slot ISA"), id., as a minor clerical or typographical error, which the contracting officer should have waived, corrected himself, or asked the protester to clarify, pursuant to 48 CFR 14.406-1 (1991) (FAR 14.406-1) and FAR 14.405. FAR 14.406-1 indeed provides that the contracting officer, after opening bids, "shall examine them for mistakes" and, when the mistake is apparent, the contracting officer "shall request from the bidder a verification of the bid, calling attention to the suspected mistake." FAR 14.406-2(a)(1)-(4) lists common "apparent clerical mistakes," such as obvious decimal point misplacement, obvious incorrect discounts, obvious reversal of price freight on board (FOB) destination versus FOB origin, and obvious mistake in designation of unit. However, FAR 14.406-3 provides that: "[t]he authority to permit correction of bids is limited to bids that, as submitted, are responsive to the invitation and may not be used to permit correction of bids to make them responsive." Likewise, FAR 14.405 allows the Government to waive a bid irregularity "that is merely a matter of form and not of substance," which the contracting officer can waive "without being prejudicial to other bidders." Such defects are "immaterial" when their effect on the "price, quantity, quality, or delivery is negligible when contrasted with the total cost or scope" of the supplies being procured. Examples include failure to return copies of signed bids, failure to furnish the number of employees, failure to acknowledge receipt of amendments, failure to furnish data concerning corporate structure, and failure to certify Equal Employment Opportunity Commission (EEOC) compliance. This Board has consistently held that the regulations do not allow a contracting officer to clarify or waive an error or discrepancy concerning a "material" portion of a bid, since "[i]t is fundamental to Government procurement that responsiveness is determined at the time of bid opening. Neither the contracting officer nor the bidder is free to modify a bid after opening." Culver Group v. National Aeronautics & Space Administration, GSBCA 11964-P, 1992 BPD 289, at 11 (Oct. 13, 1992) (citing Concept Automation, Inc. v. General Accounting Office, GSBCA 11688-P, 92-2 BCA 24,937, at 124,302, 1992 BPD 95, at 5). Examples of discrepancies concerning requirements we have deemed to be "material" in sealed bids include: 1) technical literature promising compliance with temperature range requirements combined with a letter in which the manufacturer specifically refuses to promise requisite temperature range operability, id.; 2) an offer of a one-year warranty in the bid schedule paired with a ninety-day warranty in descriptive literature, Futura Systems, Inc. v. Department of the Army, GSBCA 11904-P, slip op. at 5-6 (Aug. 26, 1992); and 3) a promise in the bid schedule using an acronym ("KB" for kilobyte) to provide better-than-commercially- available equipment, paired with descriptive literature using the term "kilobit" offering sub-specification equipment, University Systems, Inc. v. Department of Energy, GSBCA 11754-P, 92-2 BCA 24,932, at 124,288, 1992 BPD 93, at 5. Respondent issued no less than three solicitation amendments to clarify to bidders that it wanted enhanced industry standard architecture; protester acknowledged each of them. Findings 2 and 3. Protester's bid, however, although captioned "EISA," appeared to offer "ISA," a more basic version of the equipment than respondent actually wanted. Respondent's Final Brief at 3 (Nov. 9, 1992). This defect was no minor irregularity or correctable clerical error. Protester's error created an ambiguity in a material element of protester's bid, which the contracting officer could not modify without undermining the competitive bidding system. Decision Because the ambiguity in protester's bid made it non- responsive, we DENY the protest. ________________________ ROBERT W. PARKER Board Judge We concur: ________________________ ________________________ STEPHEN M. DANIELS JOSEPH A. VERGILIO Board Judge Board Judge