B-150764, FEB. 21, 1963

B-150764, FEB. 21, 1963

TO MR. FRED C. MCCURDY, CONTRACTING OFFICER, SOUTHWESTERN POWER ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 1, 1963, REQUESTING A DECISION AS TO WHETHER AWARD LEGALLY MAY BE MADE TO MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., CHICAGO, ILLINOIS, UNDER INVITATION FOR BIDS NO. SPA-360, ISSUED NOVEMBER 2, 1962.

AS INDICATED IN YOUR LETTER, AND ENCLOSURES, MOTOROLA TOOK EXCEPTION TO VARIOUS PROVISIONS OF THE INVITATION, INCLUDING THE SOIL PRESSURE REQUIREMENTS OF THE CONCRETE TOWER FOUNDATIONS; A LIMITATION ON ITS OBLIGATION TO ERECT THE TOWERS IN THE WINTER AND TO PERFORM THE NECESSARY EXCAVATION WORK FOR TOWER FOUNDATIONS, DEPENDING ON SUBSURFACE CONDITIONS; AND SUGGESTED MODIFICATIONS OF THE GUARANTY, PAYMENTS AND ACCEPTANCE CLAUSES. THESE EXCEPTIONS GO TO THE SUBSTANCE OF THE BID IN THAT THEY AFFECT THE BID PRICE AND LIMIT CERTAIN BASIC OBLIGATIONS OF THE BIDDER AS SET FORTH IN THE SPECIAL CONDITIONS OF THE INVITATION.

IT IS TRUE THAT THE PROPOSED ADDITIONS AND MODIFICATIONS TO THE SPECIAL CONDITIONS ARE ,SUGGESTED" BY MOTOROLA. HOWEVER, THE SUGGESTED MODIFICATIONS APPEAR UNDER THE HEADING SPECIFICALLY ENTITLED "SECTION V CONTRACT ADDITIONS AND MODIFICATIONS.' UNDER THIS SECTION MOTOROLA STATES: "THE FOLLOWING PORTIONS OF THE SPECIAL CONDITIONS HAVE BEEN MODIFIED TO REFLECT ADDITIONAL CLARIFICATION AND DETAIL SUGGESTED BY MOTOROLA.' IN VIEW THEREOF, IT REASONABLY MAY BE CONCLUDED THAT THE "SUGGESTIONS" ARE SO WORDED AS TO CONSTITUTE A COUNTER OFFER AND, AS SUCH, ARE NOT SUBJECT TO CLARIFICATION OR EXPLANATION AFTER BID OPENING. FURTHERMORE, THE CONDITIONS UPON WHICH THE TOWER PRICES ARE BASED ARE NOT SUGGESTIONS, BUT ARE STATED DEFINITELY.

IN THE CIRCUMSTANCES, THE CONCLUSION SEEMS REQUIRED THAT MOTOROLA'S LETTER OF JANUARY 11, 1963, THE BIDS PRESUMABLY HAVING BEEN OPENED ON DECEMBER 11, 1962, MAY NOT BE CONSIDERED AS AN EXPLANATION OF MINOR INFORMALITIES, WHICH COULD BE WAIVED, BUT RATHER AS AN ATTEMPTED WITHDRAWAL OF A COUNTER OFFER, WHICH CONSTITUTED A MATERIAL DEVIATION FROM THE TERMS OF THE INVITATION, RENDERING THE BID NONRESPONSIVE. IN THIS CONNECTION, IT WOULD APPEAR THAT THE REFERENCE IN THE ABOVE LETTER OF JANUARY 11, 1963, TO MOTOROLA'S STANDARD RESTRICTION ON TOWER CONSTRUCTION REASONABLY COULD BE CONSIDERED ONLY AS APPLYING TO THE FIRST PART OF CONDITION NO. 1, UPON WHICH TOWER PRICES WERE BASED, AND NOT AS AFFECTING THE REMAINING EXCEPTIONS.

FOR THE REASONS STATED, WE MUST HOLD THAT AWARD LEGALLY MAY NOT BE MADE TO MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC. ALSO WE AGREE WITH THE SUGGESTION IN YOUR LETTER THAT, UNDER THE CIRCUMSTANCES REPORTED THEREIN, ALL BIDS SHOULD BE REJECTED. IN THE ABSENCE OF INFORMATION AS TO THE JUSTIFICATION FOR NEGOTIATING THE PROCUREMENT RATHER THAN READVERTISING IT, HOWEVER, WE ARE NOT IN A POSITION TO EXPRESS AN OPINION AS TO WHICH PROCEDURE SHOULD BE FOLLOWED.