2006-01-09_Kidde_Fire_Trainers_v_Dept_of_Finance_Findings_of_Fact_conclusions_of_Law_and_Decision

Home

evidence that Respondent's determinations were not in accordance with the Constitution, statutes,regulations, and terms and conditions of the solicitation or contract. It is not disputed that Petitioner took exception to the liquidated damages section of the IPB,and that the bid Petitioner submitted attempted to amend Special Provisions Section 21 to limit the liquidated damages it may be assessed. Hawaii Administrative Rules ("HAR") § 3-122-97 provides that a bid shall be rejected if it is. not responsive, that is, it does not conform in all material respects to the solicitation by reason of its failure to meet the requirements of the specifications or permissible alternatives or other acceptability criteria set forth in the solicitation, pursuant to section 3-122-33. In Southern Food Groups, L.P. v. Dept. of Educ., et al., 89 Hawaii 443, 456-457 (1999) the Hawaii Supreme Court found that material terms and conditions of a solicitation involve price, quantity or quality of the items. The Court described as "insightful" a discussion on bid responsiveness by the United States Court of Claims in Toyo Menka Kaisha, Ltd. v. United States 5971~-2d 1371, 1376-77 (Ct. Cl. 1979)which stated: The requirement that a bid be responsive is designed to avoid unfairness to other contractors who submitted a sealed bid on the understanding that they must comply with all of the specifications and conditions in the invitation for bids, and who could have made a better proposal if they imposed conditions upon or variances from the contractual terms the government had specified. Responsiveness is determined by reference to when they are opened and not by reference to subsequent changes in a bid. Allowing a bidder to modify a nonresponsive bid when., upon opening the bids, it appears that the variations will preclude an award, would permit the very kind of bid manipulation and negotiation that the rule is designed to prevent. Based on the evidence presented, the Hearings Officer finds that Petitioner's exception to the liquidated damages provision of the Special Conditions involved price, and as such, was a material deviation from the bid solicitation_ Accordingly, the Hearings Officer concludes that Petitioner's bid was non-responsive and was properly rejected. Respondent's rejection of Petitioner's offer to withdraw its exception after bid opening was - 5 -