B-161801, NOV. 27, 1967

B-161801, NOV. 27, 1967

BIDS - DEVIATIONS - DELIVERY PROVISIONS DECISION TO DEFENSE SUPPLY AGENCY CONCERNING CONTENTION THAT BID OF ORTHOPEDIC EQUIPMENT CO., INC. SHOULD NOT HAVE BEEN HELD TO BE NONRESPONSIVE TO THE PACKING TERMS OF INVITATION. WHERE THERE IS A QUESTION OF WHETHER A BID IS RESPONSIVE TO THE PACKING SPECIFICATIONS REQUIRING 2 CHAIRS TO BE PACKED IN A SHIPPING CONTAINER BUT THE BIDDER INDICATES THAT 4 WILL BE PACKED IN THE CONTAINER, SUCH A BID DOES NOT SHOW AN INTENT TO MEET THE PACKING REQUIREMENTS. THEREFORE THE RULE OF CONSTRUCTION IN UNITED STATES V LENNOX METAL MFG. CO., 225 F.2D. 302, CONCERNING THE INTERPRETATION OF A SINGLE WORD IN THE CONTEXT OF THE AGREEMENT MAY NOT BE APPLIED IN THE CASE OF A BID THAT IS NONRESPONSIVE TO A CONTRACT CLAUSE.

TO GENERAL HEDLUND:

REFERENCE IS MADE TO LETTER DSAH-G DATED OCTOBER 13, 1967, WITH ENCLOSURES, FROM THE OFFICE OF COUNSEL, FURNISHING A REPORT ON THE REQUEST OF NATIONAL INDUSTRIES, INC., FOR RECONSIDERATION OF OUR DECISION OF SEPTEMBER 6, 1967, B-161801, TO YOUR, CONCERNING THE PROTEST OF THE CORPORATION AGAINST THE ACTION OF THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, IN AWARDING A CONTRACT TO ORTHOPEDIC EQUIPMENT COMPANY, INC., UNDER INVITATION FOR BIDS NO. DSA-400-67-B-6040.

ENCLOSED IS A COPY OF DECISION OF TODAY TO THE CORPORATION'S ATTORNEY IN WHICH WE ADVISE THAT NOTWITHSTANDING THE FACT THAT THE PRESENT RECORD INDICATES THAT NO DELIVERIES HAVE BEEN MADE BY ORTHOPEDIC UNDER THE CONTRACT IN QUESTION, IN VIEW OF THE SUBSTANTIAL COSTS INCURRED BY THE CORPORATION TOWARDS PERFORMANCE OF THE CONTRACT, WE DO NOT BELIEVE THAT IT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT TO CANCEL THE CONTRACT WITH THAT FIRM.

IN THE DECISION OF SEPTEMBER 6, 1967, WE HELD THAT THE BID OF ORTHOPEDIC EQUIPMENT COMPANY, C., WAS NONRESPONSIVE TO THE PACKING TERMS OF THE INVITATION FOR BIDS AND, THEREFORE, A CONTRACT SHOULD NOT HAVE BEEN AWARDED TO THAT CORPORATION. THE SPECIFICATIONS CALLED FOR THE PACKING OF 2 CHAIRS IN A SHIPPING CONTAINER, WHEREAS ORTHOPEDIC INDICATED ON PAGE 43 OF ITS BID THAT 4 CHAIRS WOULD BE PACKED IN A SHIPPING CONTAINER. STATED THEREIN, HOWEVER, THAT HAVING REGARD FOR THE ADVANCED STAGE OF THE DELIVERY SCHEDULE, IT DID NOT APPEAR TO BE IN THE GOVERNMENT'S INTEREST TO CANCEL THE CONTRACT AT THIS TIME. IN HIS LETTER OF OCTOBER 13, 1967, YOUR ASSISTANT COUNSEL STATES, IN EFFECT, THAT OUR OFFICE SHOULD NOT HAVE DECLARED THE BID OF ORTHOPEDIC TO BE NONRESPONSIVE TO THE PACKING TERMS OF THE INVITATION FOR BIDS SINCE THE INTERPRETATION PLACED UPON THE BID OF ORTHOPEDIC BY THE CONTRACTING OFFICER WAS NOT SO CLEARLY ERRONEOUS AS TO RENDER THE AWARD A NULLITY. IN OUR DECISION WE STATED THAT WHILE THE PACKING INFORMATION FURNISHED BY ORTHOPEDIC UNDER THE GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS CLAUSE OF ITS BID IS AMBIGUOUS WHEN READ AGAINST THE INVITATION, IT IS NOT AMBIGUOUS IN ITSELF. IT IS STATED BY YOUR ASSISTANT COUNSEL THAT IN HIS OPINION THE CONTRACTING OFFICER'S INTERPRETATION OF ORTHOPEDIC'S BID IS THE MOST LOGICAL CONSTRUCTION OF THE BID WHEN THE WORDS USED TO DESCRIBE THE REQUIRED SHIPPING DATA ARE CONSIDERED IN THE LIGHT OF THE REQUIREMENTS OF THE INVITATION AND THAT THE CONSTRUCTION OF THE BID CANNOT REST ON THE MERE DICTIONARY OR GRAMMATICAL MEANING OF WORDS, BUT THAT THE MEANING THEREOF MUST BE DETERMINED FROM THE WORDS AND THE CONTEXT IN WHICH THEY ARE USED. IN SUPPORT OF THE FOREGOING CONTENTION YOUR ASSISTANT COUNSEL HAS CITED THE CASE OF UNITED STATES V. LENNOX METAL MANUFACTURING COMPANY, INC., 225 F.2D. 302, WHEREIN THE UNITED STATES COURT OF APPEALS, SECOND CIRCUIT, STATED ON PAGE 310 AS FOLLOWS:

"EVEN IF A WORD IN A WRITTEN AGREEMENT IS NOT AMBIGUOUS ON ITS FACE, THE BETTER AUTHORITIES HOLD THAT ITS CONTEXT, ITS -ENVIRONMENT, - MUST BE TAKEN INTO ACCOUNT IN DECIDING WHAT THE PARTIES MUTUALLY HAD IN MIND WHEN THEY USED THAT VERBAL SYMBOL.' THE VERBAL SYMBOL REFERRED TO BY THE COURT WAS THE WORD "MAY.'

THE FACTS IN THE LENNOX CASE ARE DISTINGUISHABLE FROM THOSE PRESENT IN THE INSTANT CASE. IN THE LENNOX CASE THERE WAS INVOLVED THE MATTER OF THE INTERPRETATION OF A SINGLE WORD IN A PARTIAL PAYMENT CLAUSE IN A CONTRACT AMENDMENT FOR WHICH THE CONTRACTOR BARGAINED. IN THE INSTANT CASE, THERE IS INVOLVED A QUESTION OF WHETHER A BID IS RESPONSIVE WHERE THE PACKING SPECIFICATIONS REQUIRE TWO CHAIRS TO BE PACKED IN A SHIPPING CONTAINER, BUT A BIDDER INDICATES THAT FOUR WILL BE PACKED IN A SHIPPING CONTAINER. WE DO NOT BELIEVE THAT A PROPOSAL OF FOUR IN A BOX SHOWS AN INTENT TO MEET A REQUIREMENT FOR TWO IN A BOX AND THUS THE PACKING INFORMATION SHOULD NOT HAVE BEEN CONSIDERED RESPONSIVE.

ACCORDINGLY, UPON REVIEW, WE FIND NO BASIS FOR CHANGING OUR CONCLUSION THAT THE BID OF ORTHOPEDIC, AS SUBMITTED, WAS NONRESPONSIVE TO THE PACKING TERMS OF THE INVITATION FOR BIDS.