B-165272, DEC. 3, 1968

B-165272, DEC. 3, 1968

TO HANSON EXCAVATING COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 9, 1968, WHEREIN YOU PROTEST THE REJECTION OF YOUR BID UNDER, AND THE SUBSEQUENT CANCELLATION OF, INVITATION FOR BIDS (IFB) NO. DABF15-68-B0309, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, LOGISTICS CENTER, FORT LEWIS, WASHINGTON.

THE INVITATION COVERED THE INSTALLATION OF SANITARY SEWERS AT FORT LEWIS, WASHINGTON. PARAGRAPH 20 OF THE SPECIAL PROVISIONS (COMMENCEMENT, PROSECUTION AND COMPLETION OF WORK) PROVIDED AS FOLLOWS:

"THE CONTRACTOR WILL BE REQUIRED TO COMMENCE WORK UNDER THIS CONTRACT WITHIN 10 CALENDAR DAYS AFTER THE DATE OF RECEIPT BY HIM OF NOTICE TO PROCEED, TO PROSECUTE SAID WORK DILIGENTLY, AND TO COMPLETE THE ENTIRE WORK READY FOR USE NOT LATER THAN 150 CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED. THE TIME STATED FOR COMPLETION SHALL INCLUDE FINAL CLEAN-UP OF THE MISES.' HOWEVER, THE REVERSE SIDE OF THE BID FORM READS AS FOLLOWS: "*UNLESS OTHERWISE INDICATED BY THE BIDDER, COMMENCEMENT AND COMPLETION WILL MEET THE REQUIREMENTS OF SPECIAL PROVISION 20, COMMENCEMENT, PROSECUTION AND COMPLETION OF WORK.

* * * * * * * "THE UNDERSIGNED AGREES, IF AWARDED THE CONTRACT, TO COMMENCE THE WORK WITHIN --*-- CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED, AND TO COMPLETE THE WORK WITHIN --*-- CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED.'

IN RESPONSE TO THE LATTER PROVISION, YOU INSERTED A COMMENCEMENT DATE OF 120 CALENDAR DAYS AND A COMPLETION DATE OF 240 CALENDAR DAYS. ALTHOUGH YOU PROTEST THE CONTRACTING OFFICER'S REJECTION OF YOUR LOW BID AS BEING NONRESPONSIVE FOR FAILURE TO MEET THE DELIVERY SCHEDULE SET FORTH IN THE SPECIAL PROVISIONS, THE ADMINISTRATIVE RECORD INDICATES THAT YOUR BID WAS ULTIMATELY FOUND TO BE RESPONSIVE. WE HAVE BEEN ADVISED THAT THE CONTRACTING OFFICER SUBSEQUENTLY CANCELLED THE INVITATION BECAUSE HE FELT THE IFB WAS AMBIGUOUS CONCERNING THE DELIVERY SCHEDULE DUE TO THE CONFLICTING PROVISIONS, RAISING SUBSTANTIAL DOUBT THAT ALL BIDDERS HAD BID ON THE SAME REQUIREMENT.

ARMED SERVICES PROCUREMENT REGULATION 2-404.1 (B) (I) PROVIDES THAT INVITATIONS FOR BIDS MAY BE CANCELLED AFTER BID OPENING BUT BEFORE AWARD WHERE INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION. SEE B-155025, MARCH 3, 1965; B-154415, AUGUST 4, 1964. IT IS OUR OPINION THAT THE SPECIFICATIONS UNDER THE INSTANT IFB COULD BE INTERPRETED AS CONFERRING ON BIDDERS THE OPTION OF INSERTING COMMENCEMENT AND COMPLETION TIMES AT VARIANCE WITH THE OUTSIDE LIMITS OF THE STATED REQUIRED TIME AND COULD THEREFORE BE CONSTRUED AS AN AGREEMENT BY THE GOVERNMENT TO ACCEPT ANY REASONABLE TIME OF PERFORMANCE OFFERED BY THE LOWEST BIDDER. SEE B-162706, MARCH 5, 1968. IN SUCH CIRCUMSTANCES IT IS APPARENT THAT A BIDDER WHO OFFERED LONGER PERIODS FOR COMMENCEMENT AND COMPLETION THAN THOSE SET OUT IN PARAGRAPH 20 OF THE SPECIAL PROVISIONS WAS BIDDING ON MORE FAVORABLE TERMS THAN THOSE ON WHICH OTHER BIDS WERE BASED. WE MUST THEREFORE CONCUR WITH THE PROCUREMENT OFFICIALS THAT THE INVITATION WAS AMBIGUOUS, THUS DID NOT AFFORD PROSPECTIVE BIDDERS A COMMON GROUND UPON WHICH TO COMPETE. THE FACTS OF THIS CASE THEREFORE SUBSTANTIALLY SUPPORT THE DETERMINATION TO REJECT ALL BIDS AND CANCEL THE INVITATION.