B-160858, APR. 18, 1967

B-160858, APR. 18, 1967

TO ARNOLD BUSINESS FORMS COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 27, 1967, REQUESTING RECONSIDERATION OF OUR DECISION B-160858, DATED FEBRUARY 24, 1967, TO THE PUBLIC PRINTER, WHEREIN WE HELD THAT THE BID OF YOUR COMPANY SUBMITTED UNDER GOVERNMENT PRINTING OFFICE (GPO) PROGRAM NO. 373 WAS NONRESPONSIVE AND SHOULD BE REJECTED.

THE INVITATION UNDER PROGRAM NO. 373 REQUIRED DELIVERY ON GOVERNMENT BILLS OF LADING "F.O.B. CONTRACTOR'S CITY," THAT IS, THE GOVERNMENT COULD HAVE REQUIRED DELIVERY BY A VENDOR ANYWHERE IN THE CITY WITHOUT CHARGE TO THE GOVERNMENT. WHERE, AS IN YOUR CASE, A BIDDER LIMITED DELIVERY TO ,F.O.B. PLANT," THE BIDDER HAS RESTRICTED ITS LIABILITY WHICH THE INVITATION SOUGHT TO OBTAIN. OUR DECISION CONCLUDED, THEREFORE, THAT THE USE OF THE WORD "PLANT," IN CONJUNCTION WITH THE DESIGNATION OF THE F.O.B. POINT SET FORTH IN YOUR BID, WAS A DEVIATION FROM A MATERIAL REQUIREMENT OF THE INVITATION RENDERING THE BID NONRESPONSIVE. AS RECOGNIZED BY YOU, THIS DEVIATION HAD THE LEGAL EFFECT OF LIMITING YOUR DRAYAGE COST LIABILITY WHICH, UNDER WELL ESTABLISHED RULES OF COMPETITIVE BIDDING, WAS A FATAL DEFECT IN YOUR BID. SEE 30 COMP. GEN. 179; 34 ID. 24; 35 ID. 33; 36 ID. 535. THE GPO ACCORDINGLY REJECTED YOUR BID AND WE ARE INFORMALLY ADVISED BY THAT OFFICE THAT AWARDS HAVE BEEN MADE AND PURCHASE ORDERS HAVE BEEN ISSUED TO SEVERAL OF THE SUCCESSFUL BIDDERS UNDER THE MULTIPLE AWARD INVITATION.

IN YOUR REQUEST FOR RECONSIDERATION, YOU STATE THAT THE EXISTENCE OF CERTAIN INTERVENING CONDITIONS HAD THE EFFECT OF WAIVING THE NORMAL AND USUAL INTERPRETATIONS AS SET FORTH IN OUR DECISION AND, ON SUCH BASIS, THE GOVERNMENT IN GOOD CONSCIENCE AND FAIRNESS SHOULD NOW ACCEPT YOUR BID, PARTICULARLY IN VIEW OF THE INTERPRETATIONS PLACED UPON YOUR BID BY YOUR COMPANY AND BY REASON OF PAST GPO PRACTICES. YOU REQUEST PERMISSION TO CORRECT YOUR BID BY DELETING "F.O.B. PLANT" BECAUSE PRIOR BIDS CONTAINING THE SAME LANGUAGE HAVE BEEN ACCEPTED BY GPO. YOU ALSO CONTEND THAT REASON OF THE PAST PRACTICES THE GOVERNMENT SHOULD BE STOPPED FROM CONTENDING THAT THE INSTANT BID DID NOT CONFORM TO THE BIDDING REQUIREMENTS OF PROGRAM 373. YOU STATE FURTHER AS A BASIS FOR CONSIDERATION OF YOUR REQUEST THAT YOUR BID WAS, IN CERTAIN AREAS, THE LOWEST BID SUBMITTED; THAT YOU HAVE PERFORMED IN THE PAST IN ACCORDANCE WITH ALL THE GOVERNMENT'S REQUIREMENTS; AND THAT SINCE NO CHARGES FOR DRAYAGE FROM YOUR PLANT TO A COMMON CARRIER WERE EVER ASSESSED AGAINST THE GOVERNMENT, THE WORDS,"F.O.B. OUR PLANT" SHOULD NOT HAVE BEEN INTERPRETED ON A STRICT TECHNICAL BASIS. IN A SUBSEQUENT TELEPHONE CALL TO THIS OFFICE, YOU INQUIRED AS TO THE APPLICABILITY OF OUR DECISION B-157429, DATED AUGUST 19, 1965, TO YOUR CASE, AND STATED THAT HAD THE PRESENT MATTER BEEN ONE BETWEEN TWO PRIVATE BUSINESS FIRMS OR INDIVIDUALS THE RESULT COULD BE ADJUSTED INFORMALLY TO THE BENEFIT OF ALL CONCERNED.

THE BASIS FOR THE DECISION OF FEBRUARY 24, 1967, LIES IN THE STATUTORY REQUIREMENT IN 41 U.S.C. 253 (B), THAT AN AWARD MADE UNDER FORMAL ADVERTISING PROCEDURES MUST BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE PROVISIONS IN THE INVITATION. IN OTHER WORDS, THE CONTRACT TENDERED TO THE SUCCESSFUL BIDDER MUST BE THE SAME CONTRACT OFFERED TO ALL BIDDERS BY THE INVITATION. THE ADDITION OF THE WORD "PLANT" IN CONJUNCTION WITH THE DESIGNATION OF THE F.O.B. POINT IN YOUR BID CONSTITUTED A QUALIFICATION WHICH LIMITED YOUR OBLIGATION TO MAKE DELIVERY ,F.O.B. CONTRACTOR'S CITY.' SEE B-146170, SEPTEMBER 15, 1961.

THE GOVERNMENT PRINTING OFFICE HAS REPORTED THAT ANY DEVIATIONS FROM DELIVERY SPECIFICATIONS WHICH MAY HAVE OCCURRED IN THE PAST WERE INADVERTENTLY OVERLOOKED BY THE CONTRACTING OFFICER, OTHERWISE THOSE BIDS WOULD HAVE BEEN REJECTED AS NONRESPONSIVE. THE PRIOR INADVERTENT ACCEPTANCE OF BIDS BY GPO CONTAINING A QUALIFICATION SIMILAR TO THAT INVOLVED HERE WORKS NO ESTOPPEL AGAINST THE GOVERNMENT TO REJECT A SUBSEQUENT BID SO QUALIFIED. SEE UTAH POWER AND LIGHT CO. V. UNITED STATES, 243 U.S. 389, 408, 409. UNRELATED ACTS OF ACCEPTANCE, ACQUIESCENCES OR OVERSIGHTS IN CONNECTION WITH OTHER INVITATIONS DOES NOT ESTABLISH IN LAW A "COURSE OF DEALING" WHEREBY THE GOVERNMENT IS THEREAFTER ESTOPPED FROM INVOKING THE LEGAL REQUIREMENTS OF COMPETITIVE BIDDING. THUS, AN IMPROPER AWARD UNDER ONE OR MORE INVITATIONS WOULD NOT JUSTIFY A REPETITION OF THE SAME ERROR UNDER A LATER INVITATION.

IN OUR DECISION B-157429, DATED AUGUST 19, 1965, TO WHICH YOU HAVE CALLED OUR ATTENTION, A CORRECTION WAS PERMITTED IN A BID INVOLVING AN OBVIOUS CLERICAL ERROR. THERE THE BID WAS SUSCEPTIBLE OF NO OTHER REASONABLE INTERPRETATION AND WAS OTHERWISE RESPONSIVE IN ALL MATERIAL ASPECTS. ALLEGATIONS OF ERROR ARE PROPERLY FOR CONSIDERATION FOR CORRECTION ONLY IN THOSE CASES WHERE BIDS ARE RESPONSIVE TO THE INVITATION AND OTHERWISE PROPER FOR ACCEPTANCE. 40 COMP. GEN. 432. YOUR BID DID NOT INVOLVE ERROR AS SUCH BUT CONSTITUTED AN OFFER TO THE GOVERNMENT WHICH DEVIATED FROM ITS ADVERTISED REQUIREMENTS, THE ACCEPTANCE OF WHICH IS PRECLUDED BY LAW. SINCE THE CONTRACTS HAVE BEEN AWARDED, THE MATTER OF CORRECTION OR AMENDMENT OF YOUR BID MAY NOT BE CONSIDERED.

AFTER DISCUSSING THIS MATTER INFORMALLY WITH A REPRESENTATIVE OF THIS OFFICE, YOU HAVE TACITLY AGREED THAT YOUR REQUEST FOR A FORMAL HEARING TO FURTHER PRESENT YOUR POSITION WOULD NOT BE NECESSARY.