B-171812, APR 19, 1971

B-171812, APR 19, 1971

BID PROTEST - BID RESPONSIVENESS - AMBIGUOUS WORDING AFFIRMING PRIOR DECISION DENYING PROTEST OF G. H. TENNANT COMPANY AGAINST THE AWARD OF A CONTRACT FOR INDUSTRIAL SWEEPERS UNDER AN IFB ISSUED BY THE POST OFFICE DEPARTMENT TO WAYNE MANUFACTURING CO. THE COMP. GEN. DOES NOT AGREE WITH PROTESTANT'S ANALYSIS THAT THE WORDS "IN ADDITION," SEPARATES THE RELATIONSHIP OF THE SENTENCE FROM THE PRECEDING TWO SENTENCES IN WAYNE'S BID; THEREFORE, WAYNE DID NOT RESERVE TO ITSELF THE RIGHT TO INCREASE ITS PRICES.

TO G. H. TENNANT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 23, 1971, AND SUBSEQUENT CORRESPONDENCE IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION, B 171812, MARCH 22, 1971, AUTHORIZING THE AWARD OF A CONTRACT TO WAYNE MANUFACTURING COMPANY (WAYNE), UNDER INVITATION FOR BIDS (IFB), NO. 3113, ISSUED BY THE POST OFFICE DEPARTMENT ON NOVEMBER 27, 1970, FOR A REQUIREMENT OF INDUSTRIAL SWEEPERS.

YOU CONTENDED THAT WAYNE QUALIFIED ITS BID WITH RESPECT TO THE AMOUNTS OF THE F.O.B. DESTINATION PRICES WHICH THE COMPANY QUOTED FOR ITEMS I AND II OF THE IFB BY MEANS OF CERTAIN STATEMENTS SET FORTH IN THE COVER LETTER TO ITS BID. IN THIS REGARD YOU STATED THAT THE LAST SENTENCE OF THE SECOND PARAGRAPH OF THE LETTER, DEMONSTRATED THAT WAYNE RESERVED THE RIGHT TO INCREASE THE PRICES IT QUOTED FOR ITEMS I AND II ON THE SCHEDULE OF ITS BID. THAT SENTENCE STATES:

"IN ADDITION, INCREASES IN FREIGHT RATES ARE ANTICIPATED IN 1971 THAT WOULD ALSO INCREASE THE 'AVERAGED FREIGHT RATES' USED FOR ITEMS I AND II."

IN OUR DECISION WE HELD THAT THE SENTENCE DID NOT QUALIFY THE PRICES WAYNE QUOTED, SINCE IT WAS OUR OPINION THAT THE SENTENCE IN QUESTION, TOGETHER WITH THE OTHER STATEMENTS IN PARAGRAPH 2, MERELY EXPLAINED WHY THE AVERAGED FREIGHT RATES DEVELOPED FOR USE IN PRICING ITEMS I AND II WERE NOT APPLICABLE TO THE F.O.B. ORIGIN PRICES WAYNE QUOTED FOR ITEMS III AND IV.

IN YOUR REQUEST FOR RECONSIDERATION OF OUR DECISION YOU HAVE SET FORTH AN ANALYSIS OF THE SENTENCE IN QUESTION AND STATE THAT SUCH ANALYSIS DEMONSTRATES THAT THE SENTENCE IS AMBIGUOUS WITH RESPECT TO WHETHER WAYNE RESERVED THE RIGHT TO INCREASE ITS PRICES FOR ITEMS I AND II. ACCORDINGLY, YOU STATE THAT WAYNE'S BID IS NONRESPONSIVE AND SHOULD BE REJECTED IN ACCORDANCE WITH THE HOLDING SET FORTH IN 40 COMP. GEN. 393 (1961).

YOU ALSO STATE THAT OUR DECISION IMPROPERLY RELIED ON THE EXPLANATION FURNISHED BY WAYNE AFTER BID OPENING CONCERNING ITS BIDDING INTENT WITH RESPECT TO THE ABOVE SENTENCE.

WE DO NOT AGREE WITH YOUR ANALYSIS THAT THE WORDS "IN ADDITION," WITH WHICH THE SENTENCE COMMENCES, SEPARATES THE RELATIONSHIP OF THE SENTENCE FROM THE PRECEDING TWO SENTENCES AND ITEMS III AND IV. THE WORD "ADDITION" IS SHOWN AS BEING SYNONYMOUS WITH "JOINING" AND "UNITING" IN WEBSTER'S NEW INTERNATIONAL DICTIONARY, SECOND EDITION, AND THE PHRASE "IN ADDITION" HAS ALSO BEEN HELD TO BE SYNONYMOUS WITH "ALSO", "MOREOVER" AND "LIKEWISE." WORDS AND PHRASES, "IN ADDITION" AND CASES CITED THEREIN. ACCORDINGLY, SINCE IT IS OUR VIEW THAT THE OPENING WORDS OF THE SENTENCE CONNOTE A CONTINUATION, RATHER THAN A SEPARATION, WE ADHERE TO OUR PREVIOUSLY STATED POSITION THAT THE SENTENCE MUST BE CONSIDERED IN CONTEXT WITH THE PRIOR SENTENCES OF PARAGRAPH 2, AND VIEWED AS PROVIDING AN ADDITIONAL REASON WHY THE FREIGHT RATES USED IN PRICING ITEMS I AND II MAY NOT BE APPLIED TO ITEMS III AND IV.

AS NOTED IN OUR DECISION WE CONSIDER PARAGRAPH 2 TO BE AN UNNECESSARY EXPLANATION OF WHY THE "AVERAGED FREIGHT RATES" USED FOR THE F.O.B. DESTINATION PRICES QUOTED FOR ITEMS I AND II OF WAYNE'S BID WERE NOT APPLICABLE TO THE F.O.B. ORIGIN PRICES WAYNE QUOTED FOR ITEMS III AND IV, SINCE THE IFB SPECIFICALLY PROVIDED THAT THE GOVERNMENT ASSUMED THE COST OF SHIPPING BEYOND THE POINT OF ORIGIN. WHILE YOU STATE THAT AN EXPERIENCED BIDDER WOULD NOT INTENTIONALLY INSERT AN UNNECESSARY STATEMENT IN ITS BID, IF IT DID NOT INTEND TO QUALIFY ITS OFFER IN SOME WAY, WE CANNOT CONCLUDE THAT AN INTENT TO QUALIFY ITS PRICES ON ITEMS I AND II IS APPARENT IN PARAGRAPH 2 OF WAYNE'S COVER LETTER.

SINCE WE CAN NOT CONCLUDE THAT THE WAYNE BID IS NONRESPONSIVE, OUR DECISION, 40 COMP. GEN. 393 (1961), WHICH YOU HAVE CITED IN SUPPORT OF YOUR ARGUMENT IS NOT APPLICABLE TO THE PRESENT SITUATION. IN THE CITED CASE OUR OFFICE HELD THAT THE BID IN QUESTION WAS NONRESPONSIVE TO THE REQUIREMENTS OF THE IFB SINCE IT CONTAINED TWO DIAMETRICALLY OPPOSITE TERMS REGARDING THE BIDDER'S LIABILITY FOR TRANSPORTATION CHARGES - UNLIKE THE CIRCUMSTANCES OF THE SUBJECT CASE - AND THEREFORE THE LOW BID COULD NOT BE CONSIDERED FOR AWARD.

WITH RESPECT TO YOUR CONTENTION THAT OUR MARCH 22 DECISION IMPROPERLY RELIED ON THE INTERPRETATION WAYNE SUBMITTED AFTER BID OPENING CONCERNING THE COVER LETTER IN QUESTION, OUR DECISION MERELY NOTED SUCH INTERPRETATION, AS WELL AS THE INTERPRETATION YOU ADVANCED CONCERNING THE LETTER, WITHOUT RELYING ON WAYNE'S POSITION AS A BASIS FOR OUR HOLDING. THE HOLDING, AS SHOWN ABOVE, WAS BASED ON A CONTEXTUAL ANALYSIS OF THE PERTINENT STATEMENTS CONTAINED IN THE COVERING LETTER SUBMITTED WITH WAYNE'S BID. IN THIS CONNECTION IT IS WELL ESTABLISHED THAT THE RESPONSIVENESS OF A BID IS TO BE DETERMINED FROM THE BID DOCUMENTS ALONE WITHOUT REFERENCE TO EXTRANEOUS AIDS OR EXPLANATIONS REGARDING THE BIDDER'S INTENTION. 45 COMP. GEN. 221 (1965).

WE HAVE NOTED YOUR ARGUMENT THAT WAYNE'S ALTERNATE BID, WHICH SUBMITS INDIVIDUAL DELIVERED UNIT PRICES ON ITEMS I AND II, IS ALSO AMBIGUOUS BY REASON OF THE SENTENCE IN QUESTION. WHILE OUR INABILITY TO AGREE WITH YOUR CONTENTION THAT THE SENTENCE IN QUESTION QUALIFIES WAYNE'S BASIC BID, WOULD NECESSARILY REQUIRE THE SAME CONCLUSION WITH RESPECT TO WAYNE'S ALTERNATE BID, WE THINK IT APPROPRIATE TO POINT OUT THAT BOTH THE LANGUAGE OF THE SENTENCE AND THE LANGUAGE OF THE REMAINING PORTION OF PARAGRAPH 2 IN WHICH THE SENTENCE APPEARS, RELATE SOLELY AND SPECIFICALLY TO "AVERAGED FREIGHT RATES". CONCEDING, AS YOU CONTEND, THAT THE "AVERAGED FREIGHT RATES" IN WAYNE'S BASIC BID WERE COMPUTED FROM THE INDIVIDUAL FREIGHT RATES INCLUDED FOR EACH ITEM IN WAYNE'S ALTERNATE BID, THE FACT REMAINS THAT THE "AVERAGED FREIGHT RATES" APPEAR ONLY IN WAYNE'S BASIC BID, AND WE THEREFORE SEE NO LEGAL BASIS ON WHICH LANGUAGE DIRECTED SOLELY TO THE "AVERAGED FREIGHT RATES" COULD BE APPLIED TO THE NON-AVERAGED FREIGHT RATES INCLUDED IN WAYNE'S ALTERNATE BID. IT FOLLOWS THAT, EVEN IF WE WERE ABLE TO AGREE WITH YOUR POSITION THAT WAYNE'S BASIC BID IS QUALIFIED, WE WOULD BE UNABLE TO AGREE THAT ITS ALTERNATE BID WAS ALSO QUALIFIED, IN WHICH EVENT THE POST OFFICE DEPARTMENT WOULD BE FREE, AS WE BELIEVE IT NOW IS, TO MAKE AN AWARD BASED UPON WAYNE'S ALTERNATE BID IF IT SO DESIRES.

FOR THE REASONS SET FORTH ABOVE, WE AFFIRM THE CONCLUSIONS SET FORTH IN OUR DECISION OF MARCH 22, 1971.