B-165792, MARCH 13, 1969 48 COMP. GEN. 593

B-165792, MARCH 13, 1969 48 COMP. GEN. 593

BIDS--DELIVERY PROVISIONS--FAILURE TO MEET THE FAILURE TO DESIGNATE IN A BID THE F.O.B. POINT OF ORIGIN AS REQUIRED BY THE INVITATION WAS A DEVIATION THAT AFFECTED PRICE AND THE DEVIATION WAS IMPROPERLY WAIVED UNDER PARAGRAPH 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION ON THE BASIS THE INFORMATION WAS OBTAINABLE ELSEWHERE IN THE BID. UNDER THE SO-CALLED "CHRISTIAN DOCTRIN"--- APPLICABLE ONLY TO INITIALLY RESPONSIVE BIDS---PARAGRAPH 2 201 (B) (XXXII) B PRESCRIBING THAT A BID WILL BE EVALUATED ON THE BASIS OF DELIVERY FROM THE PLANT AT WHICH THE CONTRACT WILL BE PERFORMED WAS NOT INCORPORATED IN THE INVITATION BY OPERATION OF LAW TO MAKE THE NONRESPONSIVE BID RESPONSIVE, NOR DID THE CONTRACTING OFFICER'S KNOWLEDGE OF THE F.O.B. POINT OF ORIGIN HAVE THIS EFFECT. HOWEVER, IN THE BEST INTERESTS OF THE GOVERNMENT, THE CONTRACT WILL NOT BE CANCELED, BUT THE QUANTITY OPTION SHOULD NOT BE EXERCISED.

TO THE SECRETARY OF THE NAVY, MARCH 13, 1969:

REFERENCE IS MADE TO LETTERS SUP 0232A DATED JANUARY 29 AND 31 AND FEBRUARY 25 AND 27, 1969, FROM THE DEPUTY COMMANDER, PURCHASING, AND LETTER OF JANUARY 31, 1969, FROM THE HEAD, PROTEST AND CLAIM BRANCH, PURCHASING OPERATIONS DIVISION, NAVAL SUPPLY SYSTEMS COMMAND, REPORTING ON THE PROTEST BY THE ADMIRAL CORPORATION OF AWARD OF A CONTRACT TO THE COLLINS RADIO COMPANY UNDER AVIATION SUPPLY OFFICE INVITATION FOR BIDS N00383-69-B-0553.

THE INVITATION, ISSUED NOVEMBER 13, 1968, SOLICITED BIDS FOR AN/ARC 51A/AX/BX RADIO SETS AND RELATED DATA ITEMS. SECTION 422 OF THE INVITATION REQUIRED BIDDERS TO OFFER PRICES F.O.B. ORIGIN. THE INVITATION ALSO REQUESTED BIDS ON TWO DIFFERENT BASES, I.E; WITH FIRST ARTICLE TESTING AND WAIVER THEREOF IN APPROPRIATE CIRCUMSTANCES. THE INVITATION PROVIDED THAT WITHIN 30 DAYS AFTER FIRST ARTICLE APPROVAL, OR 120 DAYS AFTER DATE OF CONTRACT IF FIRST ARTICLE IS WAIVED, THE GOVERNMENT COULD EXERCISE A 100-PERCENT OPTION TO PURCHASE ADDITIONAL RADIO SETS UNDER THE CONTRACT.

THE FACESHEET OF THE INVITATION PROVIDED THAT THE BIDDER AGREES "TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED, AT THE PRICE SET OPPOSITE EACH ITEM, DELIVERED AT THE DESIGNATED POINTS)." SECTION 422 OF THE INVITATION FOR BIDS PROVIDED AS TO F.O.B. ORIGIN:

422---PLACE OF DELIVERY: ORIGIN: (A) THE ARTICLES TO BE FURNISHED SHALL BE DELIVERED FREE OF EXPENSE TO THE GOVERNMENT AND, AT THE GOVERNMENT'S OPTION, (I) LOADED, BLOCKED, AND BRACED ON BOARD CARRIER'S EQUIPMENT, (II) AT THE FREIGHT STATION, OR (III) PLACED ON WHARF OF WATER CARRIER (WHERE MATERIAL WILL ORIGINATE WITHIN OR ADJACENT TO A PORT AREA AND IS ADAPTABLE TO WATER MOVEMENT), AT OR NEAR CONTRACTOR'S PLANT AT:

(1) (BIDDER INSERT CITY OR TOWN IN WHICH PLANT IS LOCATED),

(2) (BIDDER INSERT EXACT LOCATION OF PRIVATE SIDING OR NEAREST RAIL TERMINAL FROM WHICH RAIL SHIPMENT WILL BE MADE, TOGETHER WITH THE NAME OF SERVING RAILROADS)),

(3) (BIDDER INSERT THE EXACT LOCATION FROM WHICH TRUCK SHIPMENTS WILL BE MADE, INCLUDING THE NAME OF THE STREET OR HIGHWAY), AND

(4) (BIDDER INSERT THE PORT, OR THE SPECIFIC AREA WITHIN SUCH PORT TO WHICH SUPPLIES WILL BE DELIVERED), FOR SHIPMENT AT GOVERNMENT EXPENSE (NORMALLY ON GOVERNMENT BILL OF LADING) TO DESTINATIONS TO BE SPECIFIED AT A LATER DATE. ALLOCATIONS FOR THE MATERIAL COVERED HEREBY SHOULD BE REQUESTED FROM THE AVIATION SUPPLY OFFICE BY THE COGNIZANT INSPECTOR AT LEAST FOUR WEEKS PRIOR TO THE ANTICIPATED DELIVERY DATES OF SUCH MATERIAL. AFTER RECEIPT OF SUCH REQUEST, THE AVIATION SUPPLY OFFICE WILL FURNISH THE INSPECTOR WITH ALLOCATIONS FOR SUCH MATERIAL.

(D) BIDS SUBMITTED ON A BASIS OTHER THAN F.O.B. ORIGIN WILL BE REJECTED AS NONRESPONSIVE.

WITH FURTHER REFERENCE TO THE F.O.B. ORIGIN REQUIREMENT, SECTION 60.6 OF THE INVITATION INCORPORATED BY REFERENCE THE FOLLOWING CLAUSE:

RESPONSIBILITY FOR SUPPLIES.

EXCEPT AS OTHERWISE PROVIDED IN THIS CONTRACT, (I) THE CONTRACTOR SHALL BE RESPONSIBLE FOR THE SUPPLIES COVERED BY THIS CONTRACT UNTIL THEY ARE DELIVERED AT THE DESIGNATED DELIVERY POINT, REGARDLESS OF THE POINT OF INSPECTION; (II) AFTER DELIVERY TO THE GOVERNMENT AT THE DESIGNATED POINT AND PRIOR TO ACCEPTANCE BY THE GOVERNMENT OR REJECTION AND GIVING NOTICE THEREOF BY THE GOVERNMENT, THE GOVERNMENT SHALL BE RESPONSIBLE FOR THE LOSS OR DESTRUCTION OF OR DAMAGE TO THE SUPPLIES ONLY IF SUCH LOSS, DESTRUCTION, OR DAMAGE RESULTS FROM THE NEGLIGENCE * * * OF THE GOVERNMENT

BIDS WERE RECEIVED FROM COLLINS AND ADMIRAL ON DECEMBER 4, 1968, AND, IN ACCORDANCE WITH PARAGRAPH 2 OF THE "NOTES TO BIDDERS," BIDS WERE EVALUATED ON THE BASIS OF THE QUANTITIES SELECTED FOR AWARD WITH THE RESULT THAT COLLINS' BID PRICES ON BOTH BASES (FIRST ARTICLE TESTING AND WAIVER THEREOF) WERE LOWER THAN ADMIRAL'S LOW BID PRICE FOR WAIVER OF FIRST ARTICLE TESTING. IT WAS NOTED, HOWEVER, THAT COLLINS' LOWEST BID PRICE WAS PREDICATED UPON COMPLIANCE WITH THE FIRST ARTICLE TESTING REQUIREMENT, WHEREAS, ITS BID PRICE BASED ON WAIVER OF THE TESTING REQUIREMENT WAS $23,620 HIGHER.

UNDER THE AUTHORITY VESTED IN THE CONTRACTING OFFICER BY ASPR 2 406.2, COLLINS' BID WAS EVALUATED ON THE BASIS THAT THE PRICE OFFERED FOR FIRST ARTICLE TESTING WAS ACTUALLY INTENDED AS ITS BID FOR WAIVER OF THAT REQUIREMENT. THE CITED REGULATION PROVIDES, IN PART, THAT "ANY CLERICAL MISTAKE APPARENT ON THE FACE OF THE BID MAY BE CORRECTED BY THE CONTRACTING OFFICER PRIOR TO AWARD, IF THE CONTRACTING OFFICER HAS FIRST OBTAINED FROM THE BIDDER * * * VERIFICATION OF THE BID ACTUALLY INTENDED."

BY LETTER DATED DECEMBER 11, 1968, ADDRESSED TO THE PROCUREMENT ACTIVITY, WITH COPY TO OUR OFFICE, COUNSEL FOR ADMIRAL PROTESTED CONSIDERATION OF COLLINS' BID FOR AWARD ON THE BASIS THAT COLLINS HAD SUBMITTED A BID THAT WAS NOT PROPER FOR ACCEPTANCE UNDER FORMAL ADVERTISING PROCEDURES. SPECIFICALLY, IT IS ARGUED ON BEHALF OF ADMIRAL THAT COLLINS' FAILURE TO DESIGNATE IN ITS BID THE F.O.B. POINT OF ORIGIN (CITY OR TOWN AT OR NEAR PLANT) AS REQUIRED BY SECTION 422 OF THE INVITATION FOR BIDS, SUPRA, FOR PURPOSES OF BID EVALUATION AND CONTRACT PERFORMANCE PREVENTED THE GOVERNMENT FROM ACCURATELY EVALUATING COLLINS' BID TO DETERMINE THE TOTAL COST OF THE PROCUREMENT, INCLUDING TRANSPORTATION TO DESTINATION.

SUBSEQUENT TO RECEIPT OF ADMIRAL'S LETTER OF DECEMBER 11, THE CONTRACTING OFFICER BY TELETYPE MESSAGE DATED DECEMBER 20, 1968, REQUESTED, IN PART, THAT COLLINS "CONFIRM":

A. THAT THE INFORMATION REQUIRED BY CLAUSE 442, ENTITLED "PLACE OF DELIVERY: ORIGIN:" IS AS FOLLOWS:

1. CEDAR RAPIDS, IOWA.

2. 325 10TH AVE; S.E; CEDAR RAPIDS, IOWA--ROCK ISLAND & CHICAGO NORTHWESTERN.

3. 325 10TH AVE; S.E; CEDAR RAPIDS, IOWA. IN ANSWER THERETO, COLLINS, ON JANUARY 2, 1969, RESPONDED AS FOLLOWS:

(A) IN RESPONSE TO CLAUSE NBR 511 THE BID INDICATES THAT THE PRINCIPAL PLACE OF MANUFACTURE AND THE POINT OF INSPECTION AND ACCEPTANCE WILL BE CEDAR RAPIDS, IOWA. THE DATA RELATING TO CLAUSE NBR 422 ENTITLED "PLACE OF DELIVERY: ORIGIN" IS AS FOLLOWS:

1. CEDAR RAPIDS, IOWA.

2. 325 10TH AVENUE S.E; CEDAR RAPIDS, IOWA---ROCK ISLAND & CHICAGO NORTHWESTERN.

3. 325 10TH AVENUE S.E; CEDAR RAPIDS, IOWA.

THE CONTRACTING OFFICER DETERMINED THAT COLLINS' FAILURE TO DESIGNATE ITS F.O.B. POINT OF ORIGIN AS REQUIRED BY SECTION 422 OF THE INVITATION FOR BIDS WAS A MINOR DEVIATION WHICH, UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-405 AND APPLICABLE DECISIONS OF OUR OFFICE, COULD BE CURED BY REFERENCE TO THE INFORMATION CONTAINED IN THE INSPECTION AND ACCEPTANCE CLAUSE (SECTION 511 OF THE INVITATION) AND TO THE INFORMATION CONTAINED ON THE FACESHEET OF THE INVITATION. AT SECTION 511, COLLINS AFFIRMATIVELY STATED THAT THE "PLACE OF PRINCIPAL MANUFACTURE" WAS CEDAR RAPIDS, IOWA. THE FACESHEET OF THE INVITATION SHOWED COLLINS' BUSINESS ADDRESS IN CEDAR RAPIDS, IOWA.

THE JANUARY 29 ADMINISTRATIVE REPORT CONCLUDES IN THIS REGARD THAT "IT IS KNOWN BY THE CONTRACTING OFFICER THAT SHIPMENT WOULD BE MADE FROM CEDAR RAPIDS SINCE ALL PREVIOUS CONTRACTS WITH COLLINS FOR THESE ARTICLES AND THEIR SPARE PARTS WERE PERFORMED AT, AND SHIPMENT MADE FROM THE CEDAR RAPIDS PLANT." THE CONTRACTING OFFICER ACCORDINGLY CONCLUDED THAT COLLINS WAS THE LOWEST RESPONSIVE,RESPONSIBLE BIDDER UNDER THE TERMS OF THE INVITATION. IN VIEW OF THE URGENCY OF THE PROCUREMENT, THE CONTRACTING OFFICIALS DETERMINED TO MAKE IMMEDIATE AWARD TO COLLINS FOR THE MAXIMUM QUANTITY AVAILABLE. IN THE LATTER PART OF JANUARY 1969, A CONTRACT WAS AWARDED TO COLLINS IN THE TOTAL AMOUNT OF $4,628,251.50 WHICH INCLUDED A PORTION OF THE OPTION QUANTITIES.

IN SUPPORT OF THE AWARD MADE, COLLINS CONTENDS THAT FAILURE TO DESIGNATE IN SECTION 422 THE "CITY OR TOWN IN WHICH PLANT IS LOCATED" DID NOT RENDER COLLINS' BID DEFECTIVE SINCE ITS ACTUAL F.O.B. SHIPPING POINT WAS PLAINLY STATED ELSEWHERE IN ITS BID. COLLINS STATES FURTHER THAT BIDDERS WERE REQUIRED UNDER ARTICLE 422 TO IDENTIFY ONLY THE CITY OR TOWN AT OR NEAR THEIR PLANT AND THAT NO BIDDER HAD A FREE CHOICE EITHER BEFORE OR AFTER OPENING OF BIDS TO SELECT AN F.O.B. SHIPPING POINT AT A LOCATION DIFFERENT THAN THE POINT NEAR ITS PLANT. COLLINS ARGUES THAT ITS F.O.B. POINT OF ORIGIN HAD TO BE CEDAR RAPIDS, IOWA, THE CITY IN WHICH COLLINS' MANUFACTURING PLANT IS LOCATED. RESTATED, COLLINS' POSITION IS THAT THE LANGUAGE OF ARTICLE 422 OBLIGATED A RESPONDING BIDDER TO USE THE CITY WHERE ITS PLANT IS LOCATED AS ITS SHIPPING POINT. THAT IS TO SAY, "THE READER HAD ONLY TO TURN OVER TWO PAGES TO CLAUSE 511 TO ASCERTAIN THE LOCATION OF THE POINT OF MANUFACTURE, THE PLACE OF INSPECTION, AND THE PLACE OF DELIVERY OR SHIPPING POINT." COLLINS CONCLUDES THAT BECAUSE IT WAS STATED IN SECTION 511 THAT COLLINS IS THE PRINCIPAL MANUFACTURER AND THAT ITS PLACE OF PRINCIPAL MANUFACTURE IS CEDAR RAPIDS, THERE IS NO ROOM FOR QUESTION THAT CEDAR RAPIDS IS COLLINS' F.O.B. POINT OF ORIGIN AND THAT THAT POINT COULD NOT BE CHANGED EITHER BEFORE OR AFTER OPENING OF BIDS.

IN THE ALTERNATIVE, COLLINS URGES THAT THE CONTRACTING OFFICER HAD A CLEAR DUTY TO LOOK TO COLLINS' BUSINESS ADDRESS STATED ON THE FACE OF ITS BID "IN ORDER TO VERIFY THE LOCATION OF COLLINS' MANUFACTURING PLANT/SHIPPING POINT" PURSUANT TO ASPR 19-212. THAT SECTION PROVIDES THAT A MANDATORY CLAUSE PRESCRIBED BY ASPR 2-201 (B) (XXXII) B SHOULD BE INCLUDED IN INVITATIONS CALLING FOR F.O.B. ORIGIN BIDS. THE CITED CLAUSE PROVIDES:

IF THE BIDDER (OR OFFEROR), PRIOR TO BID OPENING (OR THE CLOSING DATE SPECIFIED FOR RECEIPT OF PROPOSALS), FAILS TO INDICATE ANY SHIPPING POINT OR PLANT, THE GOVERNMENT WILL EVALUATE THE BID (OR PROPOSAL) ON THE BASIS OF DELIVERY FROM THE PLANT AT WHICH THE CONTRACT WILL BE PERFORMED, AS INDICATED IN THE BID OR PROPOSAL. IF NO SUCH PLANT IS INDICATED IN THE BID (OR PROPOSAL), THEN THE BID OR PROPOSAL WILL BE EVALUATED ON THE BASIS OF DELIVERY FROM THE CONTRACTOR'S BUSINESS ADDRESS INDICATED ON STANDARD FORM 33 OR OTHER BID (PROPOSAL) FORM.

EVEN THOUGH THE ABOVE-QUOTED CLAUSE WAS NOT INCLUDED IN THE INVITATION, COLLINS CONTENDS THAT UNDER THE DOCTRINE ENUNCIATED IN G. L. CHRISTIAN AND ASSOCIATES V. UNITED STATES, 160 CT. CL. 1; AND CONDEC CORPORATION V. UNITED STATES, 177 CT. CL. 958, SUCH CLAUSE WAS INCLUDED IN THE INVITATION BY OPERATION OF LAW.

BRIEFLY, THE SO-CALLED "CHRISTIAN DOCTRINE" IS TO THE EFFECT THAT CONTRACT CLAUSES REQUIRED BY STATUTORY REGULATIONS ARE INCORPORATED BY LAW IN A CONTRACT. THE DECISION IN THE CONDECCASE WENT ONE STEP FURTHER BY HOLDING THAT A LATE TELEGRAPHIC BID MODIFICATION CLAUSE REQUIRED BY REGULATION TO BE IN GOVERNMENT SOLICITATIONS WAS INCORPORATED INTO A SOLICITATION BY OPERATION OF LAW. THE COURT HELD IN THE CONDEC CASE AT PAGE 966 THAT:

THE PROCUREMENT REGULATIONS WERE ISSUED UNDER STATUTORY AUTHORITY AND HAD THE FORCE AND EFFECT OF LAW AND THEIR REQUIREMENTS WERE THUS CONTROLLING ON THE CONTRACTING OFFICER; FOR THE CONTRACTING OFFICER IS AN AGENT OF THE GOVERNMENT AND AS SUCH MAY BIND THE UNITED STATES ONLY IN ACCORDANCE WITH THE AUTHORITY GRANTED HIM BY STATUTE OR REGULATION. FOR THIS REASON, THE REQUIREMENTS OF THE REGULATIONS (INCLUDING SECTION 2.305 (A)) MUST BE DEEMED APPLICABLE TO THE INVITATION, AT LEAST IF THE LATTER IS TO BE LEGALLY VALID.

BOTH THE PROCUREMENT AGENCY AND COLLINS RELY ON OUR DECISION B 155429, NOVEMBER 23, 1964, WHEREIN WE HELD THAT IF A BIDDER SUBMITTING A "LETTER BID" FAILS TO EXPLICITLY DESIGNATE AN F.O.B. POINT OF ORIGIN, THE F.O.B. POINT MAY, IN THE PROPER CIRCUMSTANCES, BE ASCERTAINED BY A READING OF THE BID AS A WHOLE. IN THAT CASE OUR OFFICE CONSIDERED THE RESPONSIVENESS OF SUCH A BID SUBMITTED BY A SMALL BUSINESS CONCERN OFFERING TO FURNISH THE ADVERTISED SUPPLIES AT A PRICE LOWER THAN OTHER BIDDERS. WE HELD IN THAT CASE, IN PERTINENT PART, THAT:

THE COMPETITIVE BIDDING STATUTE CODIFIED AT 10 U.S.C. 2305 REQUIRES THAT AWARD OF A CONTRACT BE MADE TO THAT RESPONSIBLE BIDDER SUBMITTING THE LOWEST RESPONSIBLE BID. 37 COMP. GEN. 550. WHERE BIDS ARE SUBMITTED ON AN F.O.B. ORIGIN BASIS, ONE OF THE FACTORS FOR CONSIDERATION IS THE GOVERNMENT'S COST OF TRANSPORTATION. SEE GENERALLY 42 COMP. GEN. 434. ESSENTIALLY YOU APPEAR TO TAKE THE POSITION THAT SINCE SARATOGA DID NOT EXPLICITLY DESIGNATE ITS INTENDED F.O.B. POINT OF ORIGIN, ITS BID CANNOT BE EVALUATED FAIRLY SINCE THE GOVERNMENT CANNOT COMPUTE THE COST OF TRANSPORTATION. THE CONTRACTING OFFICER ON THE OTHER HAND HAS TAKEN THE POSITION THAT SINCE SARATOGA HAS ONLY ONE PLANT, WHICH IS LOCATED AT SARATOGA SPRINGS, NEW YORK, IT IS ONLY FAIR TO ASSUME THAT SARATOGA INTENDED TO DESIGNATE SARATOGA SPRINGS AS THE F.O.B. POINT OF ORIGIN FOR PURPOSES OF BID EVALUATION. IT COULD WELL BE ARGUED THAT SARATOGA'S LETTER BID ITSELF INDICATES SARATOGA SPRINGS, NEW YORK, AS ITS INTENDED F.O.B. ORIGIN POINT, SINCE THAT LETTER SHOWS SARATOGA SPRINGS AS THE COMPANY LOCATION, NO OTHER LOCATION IS MENTIONED IN THE LETTER, AND THE LETTER STATES THE COMPANY IS A SMALL BUSINESS INCORPORATED IN THE STATE OF NEW YORK. FURTHER, IN VIEW OF THE FACT THAT SARATOGA'S BID IS APPROXIMATELY $150,000 LESS THAN THE NEXT LOWEST BID (BY RODALE ELECTRONICS), IT IS APPARENT THAT THE COST OF TRANSPORTATION FROM ANY POINT OF ORIGIN (TOTAL WEIGHT IS UNDER 30,000 POUNDS) COULD NOT CHANGE SARATOGA'S STANDING AS LOW BIDDER. * * * IT IS ALSO ARGUED THAT THE LOCATION OF THE COLLINS' PLANT IN CEDAR RAPIDS WAS WELL KNOWN TO THE GOVERNMENT BECAUSE COLLINS HAS HELD 11 PREVIOUS CONTRACTS FOR THE IDENTICAL PROCUREMENT ITEM AND ON EACH CONTRACT SHIPMENTS HAVE BEEN MADE ON AN F.O.B. ORIGIN BASIS FROM CEDAR RAPIDS.

AFTER THOROUGH CONSIDERATION OF THIS FACET OF THE ADMIRAL PROTEST IN THE LIGHT OF THE VARIOUS DECISIONS OF OUR OFFICE, THE BRIEFS OF OPPOSING COUNSEL, AND SEVERAL IN-DEPTH DISCUSSIONS AND CONFERENCES WITH ALL INTERESTED PARTIES, INCLUDING REPRESENTATIVES OF THE PROCUREMENT AGENCY, WE ARE UNABLE TO CONCLUDE THAT THE COLLINS' BID MANIFESTED A CLEAR AND FIRM OFFER TO ASSUME THE OBLIGATION AND RESPONSIBILITIES INHERENT IN DELIVERING THE END ITEMS FREE OF CHARGE TO THE GOVERNMENT TO AN F.O.B. POINT WHERE THE SUPPLIES WILL BE LOADED, BLOCKED AND BRACED ON BOARD THE CARRIER'S EQUIPMENT.

WE HAVE HELD ON NUMEROUS OCCASIONS THAT IN THE SELECTION OF A LOW BID SUBMITTED ON AN F.O.B. ORIGIN BASIS ONE OF THE FACTORS FOR CONSIDERATION IS THE COST TO THE GOVERNMENT OF TRANSPORTATION TO DESTINATION. B-161287, JUNE 28, 1967. THE PURPOSE OF SUCH EVALUATION IS TO FIX THE MAXIMUM COST OF THE ITEM TO THE GOVERNMENT. 40 COMP. GEN. 160; B-147284, NOVEMBER 13, 1961. DEVIATIONS FROM ADVERTISED MANDATORY REQUIREMENTS MAY BE WAIVED AS INFORMALITIES PROVIDED THE DEVIATIONS DO NOT GO TO THE SUBSTANCE OF THE BID OR PREJUDICE OTHER BIDDERS. HOWEVER, IT HAS BEEN CONSISTENTLY HELD THAT DEVIATIONS WHICH AFFECT PRICE, QUANTITY, OR QUALITY GO TO THE SUBSTANCE OF A BID AND WAIVER OF SUCH DEVIATIONS IS PREJUDICIAL TO THE OTHER BIDDERS AND THE COMPETITIVE BIDDING SYSTEM. SEE 30 COMP. GEN. 179; 17 ID. 554.

WE ARE OF THE OPINION THAT THE ARGUMENT OF COLLINS AND THE PROCUREMENT AGENCY THAT THE RATIONALE IN THE SARATOGA CASE IS DISPOSITIVE OF THE QUESTION PRESENTED HERE DOES NOT AFFORD A SOUND BASIS FOR CONCLUDING THAT THE BID OF COLLINS UNQUALIFIEDLY OFFERED TO COMPLY WITH THE MANDATORY F.O.B. ORIGIN REQUIREMENTS OF THE INVITATION. THE FACTS AND CIRCUMSTANCES INVOLVED IN THE SARATOGA CASE ARE SIGNIFICANTLY DIFFERENT FROM THOSE INVOLVED HERE. IN THE SARATOGA CASE, WE HELD THAT BECAUSE THE BIDDER HAD ONLY ONE PLANT AT SARATOGA SPRINGS, NEW YORK, IT WAS FAIR TO ASSUME THAT THE SMALL BUSINESS BIDDER COULD ONLY INTEND TO DESIGNATE THAT CITY AS ITS F.O.B. POINT OF ORIGIN FOR PURPOSES OF BID EVALUATION. MOREOVER, SARATOGA AFFIRMATIVELY OFFERED IN ITS LETTER BID TO BE BOUND BY THE INVITATION F.O.B. ORIGIN TERMS INCLUDING, BY INFERENCE, THE PROVISIONS OF THE RESPONSIBILITY FOR SUPPLIES CLAUSE. AS AN ADJUNCT THERETO, IT IS IMPORTANT TO NOTE THAT SARATOGA'S LETTER BID ITSELF INDICATED NO ADDRESS OTHER THAN SARATOGA SPRINGS AS THE LOCATION OF ITS PLANT.

NOWHERE IN COLLINS' BID DOES THERE APPEAR AN OFFER TO COMPLY WITH THE F.O.B. ORIGIN TERMS OF THE INVITATION. THE ONLY PLACE PROVIDED IN THE INVITATION FOR BIDS FOR A BIDDER TO AFFIRMATIVELY SHOW ITS COMPLIANCE WITH THE F.O.B. ORIGIN REQUIREMENTS WAS THE BLANKS PROVIDED IN SECTION 422. MOST COLLINS DESIGNATED A PLANT WHERE A MAJOR PORTION OF THE MANUFACTURE OF THE SUPPLIES WOULD TAKE PLACE, BUT HAS NOT SPECIFIED A SHIPPING POINT (CITY) FOR THE PURPOSE OF AFFIRMATIVELY ASSUMING ALL DELIVERY OBLIGATIONS AS REQUIRED UNDER THE RESPONSIBILITY FOR SUPPLIES CLAUSE AND THE F.O.B. ORIGIN TERMS OF THE INVITATION. MOREOVER, COLLINS IS A LARGE BUSINESS CONCERN AND, AS WE UNDERSTAND IT, HAS SEVERAL OTHER MANUFACTURING PLANTS IN THE CONTINENTAL UNITED STATES.

CONTRARY TO THE ARGUMENT ADVANCED, WE DO NOT THINK THAT THE PLACE OF PRINCIPAL MANUFACTURE STATED BY COLLINS IN SECTION 511 OF ITS BID CAN BE PROPERLY USED TO SUPPLY THE INFORMATION CALLED FOR IN SECTION 422 AS TO THE PLACE OF F.O.B. DELIVERY "AT OR NEAR CONTRACTOR'S PLANT." WE TAKE THIS VIEW BECAUSE ASPR 19-104.1 (C) (1) STATES SUCCINCTLY THAT "THE PLACE OF GOVERNMENT PROCUREMENT QUALITY ASSURANCE ACTIONS AND PLACE OF ACCEPTANCE SHALL NOT CONTROL THE TRANSPORTATION TERM." IN THIS REGARD, COLLINS CONTENDS THAT ALL THAT THE CITED REGULATION DOES IS TO ADVISE THAT "THE F.O.B. POINT MAY BE DIFFERENT FROM THE PLACE OF INSPECTION AND ACCEPTANCE." BUT THIS SUPPORTS OUR VIEW THAT THERE IS NO NECESSARY CORRELATION BETWEEN THE DESIGNATED PLACE OF PRINCIPAL MANUFACTURE NAMED IN THE INSPECTION AND ACCEPTANCE CLAUSE AND THE TOWN OR CITY AT OR NEAR THE CONTRACTOR'S PLANT IDENTIFIED UNDER SECTION 422 AS THE F.O.B. ORIGIN POINT.

SIGNIFICANTLY, IN THIS RESPECT THE ADMINISTRATIVE REPORT FURNISHED TO OUR OFFICE ON OCTOBER 23, 1964, BY THE AVIATION SUPPLY OFFICE IN THE SARATOGA CASE (THE SAME PROCURING ACTIVITY AS HERE) URGED THAT SARATOGA'S FAILURE TO IDENTIFY THE PRINCIPAL MANUFACTURER AND PLACE OF PRINCIPAL MANUFACTURE, AS REQUESTED IN A CLAUSE SUBSTANTIALLY SIMILAR TO SECTION 511 IN THE PRESENT CASE, IN NO WAY AFFECTED THE RESPONSIVENESS OF SARATOGA'S BID, AND THAT THIS KIND OF INFORMATION "IS CERTAINLY THE KIND OF INFORMATION THAT MAY BE OBTAINED AFTER BID OPENING." ON PAGE 5 OF THE SARATOGA DECISION, WE STATED THAT "IN CONNECTION WITH (THE PROTESTANT'S) REFERENCE TO THE 'INSPECTION AND ACCEPTANCE' INFORMATION REQUIRED AT PAGE 43, THE NAVY AVIATION OFFICE HAS TAKEN THE POSITION, WITH WHICH WE AGREE, THAT THIS INFORMATION IS THE TYPE WHICH MAY BE FURNISHED AFTER BID OPENING." INFORMATION THAT MAY BE SUPPLIED AFTER OPENING OF BIDS NECESSARILY RELATES TO A BIDDER'S RESPONSIBILITY AND IT IS AXIOMATIC THAT SUCH STATEMENTS OF INFORMATION REPRESENT A FREE CHOICE BY THE BIDDER WHICH MAY BE CHANGED AFTER OPENING OF BIDS. SEE 42 COMP. GEN. 434.

IN OUR DECISION B-161287, MENTIONED ABOVE, WE HELD THAT A BIDDER'S FAILURE TO DESIGNATE ITS F.O.B. POINT OF ORIGIN, DESPITE THE INCLUSION OF DESCRIPTIVE LITERATURE SHOWING A PLANT LOCATION AT EAU CLAIRE, WISCONSIN, RENDERED THE BID NONRESPONSIVE BECAUSE THE LITERATURE BORE A LEGEND RESERVING THE RIGHT "TO CHANGE SPECIFICATIONS OR DESIGN WITHOUT NOTICE." WE ARE OF THE OPINION THAT THE IMPORT OF THAT CASE IS EQUALLY APPLICABLE HERE. IN THAT CASE THE BIDDER RESERVED THE RIGHT AFTER OPENING TO CHANGE THE INFORMATION IN ITS BID CONCERNING ITS F.O.B. SHIPPING POINT INFORMATION. HERE, THE INFORMATION GIVEN BY COLLINS IN SECTION 511 AS TO ITS "PLACE OF PRINCIPAL MANUFACTURE" CANNOT SERVE TO PROVIDE THE REQUESTED F.O.B. POINT OF ORIGIN INFORMATION BECAUSE THE SECTION 511 INFORMATION IS LEGALLY SUBJECT TO FREE-CHOICE CHANGES AFTER OPENING OF BIDS.

AS TO THE APPLICABILITY OF THE "CHRISTIAN DOCTRINE" TO THIS CASE, IT CANNOT BE ARGUED THAT ANY ELEMENT OF NONRESPONSIVENESS WAS INVOLVED IN THE CONSIDERATION OF THE CHRISTIAN BID. IN 48 COMP. GEN. 171, OCTOBER 3, 1968, DISCUSSING THE "CHRISTIAN DOCTRINE," WE STATED:

* * * THE SOLICITATION FAILED TO INCLUDE A CLAUSE WHICH WAS REQUIRED BY THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) TO BE INCLUDED IN THE SOLICITATION AND RESULTING CONTRACT. SINCE ASPR IS A STATUTORY REGULATION WITH THE FORCE AND EFFECT OF LAW, THE COURT HELD THAT THE MISSING CLAUSE WAS INCORPORATED IN THE CONTRACT AS A MATTER OF LAW. IN THE INSTANT CASE THE SOLICITATION INCLUDES THE CLAUSES REQUIRED BY THE FEDERAL PROCUREMENT REGULATIONS, BUT THE PAGES INCORPORATING SEVERAL OF THOSE CLAUSES AND OTHER SUBSTANTIVE PROVISIONS OF THE SOLICITATION ARE MISSING FROM THE BID SUBMITTED. THE ISSUE, THEREFORE, IS ONE OF RESPONSIVENESS OF THE BID TO THE SOLICITATION, A MATTER WHICH IS FOR DETERMINATION PRIOR TO AWARD. ACCORDINGLY, WE DO NOT BELIEVE THAT THE "CHRISTIAN DOCTRINE," RELATING AS IT DOES TO THE CONSTRUCTION OF THE CONTRACT ACTUALLY EXECUTED BY THE BIDDER AND THE GOVERNMENT, MAY BE INVOKED TO INSERT CONDITIONS IN A BID, AFTER BID OPENING AND BEFORE AWARD, WHICH THE BIDDER, EITHER BY ACCIDENT OR DESIGN, MAY HAVE FAILED TO INCLUDE. RATHER, WE BELIEVE THAT THE MATTER IS FOR RESOLUTION UNDER THE RULE LONG FOLLOWED BY OUR OFFICE THAT IN THE CASE OF MISSING BID PAPERS THE INTENT OF A BIDDER IS TO BE DETERMINED FROM THE BID AS SUBMITTED. IN LINE WITH SUCH DECISIONS, * * * IT IS OUR VIEW THAT SINCE THE BENNER BID DOES NOT EVIDENCE A SPECIFIC AND UNEQUIVOCAL INTENT ON THE PART OF BENNER TO BE BOUND BY ALL OF THE PROVISIONS WHICH WERE SET FORTH ON THE MISSING PAGES, THE REJECTION OF THE BID WAS REQUIRED * * *. SIMILARLY, IN 47 COMP. GEN. 682, MAY 28, 1968, WE STATED THAT:

* * * WE BELIEVE THAT THE COURT'S DECISION (IN CHRISTIAN) MUST OF NECESSITY BE LIMITED TO SITUATIONS WHEREIN MANDATORY CONTRACT PROVISIONS IMPOSED BY STATUTORY PROCUREMENT REGULATIONS ARE INCORPORATED BY OPERATION OF LAW IN OTHERWISE PROPERLY AWARDED GOVERNMENT CONTRACTS AS TO WHICH SUCH REGULATIONS CLEARLY APPLY.

THE CONDEC DECISION DID NOT INVOLVE THE RESPONSIVENESS OF A BID. CONDEC'S BID WAS RESPONSIVE, BUT IT SOUGHT TO PREVENT THE GOVERNMENT FROM TAKING ADVANTAGE OF A LATE TELEGRAPHIC MODIFICATION LOWERING ITS ALREADY LOW BID PRICE BY CLAIMING THAT THE INVITATION DID NOT PROVIDE FOR THE FAVORABLE CONSIDERATION OF LATE TELEGRAPHIC MODIFICATIONS. THE COURT HELD THAT ASPR IS CONTROLLING ON THE CONTRACTING OFFICER AND THAT EVEN THOUGH THE MANDATORY PROVISION HAD BEEN OMITTED FROM THE INVITATION, ASPR REQUIRED THE CONSIDERATION OF LATE TELEGRAPHIC BID MODIFICATIONS. OTHER WORDS, THE MISSING ASPR PROVISION HAD NO EFFECT UPON THE RESPONSIVENESS OF CONDEC'S BID, BUT MERELY CONSTITUTED A PROCEDURAL REQUIREMENT CONCERNING THE CONSIDERATION OF LATE TELEGRAPHIC BID MODIFICATIONS.

WE THEREFORE BELIEVE THAT THE "CHRISTIAN DOCTRINE" HAS BEEN APPLIED ONLY IN CASES WHERE THE RESPONSIVENESS OF THE BID IN QUESTION HAS NOT BEEN IN ISSUE. COLLINS' BID WAS NOT RESPONSIVE TO THE F.O.B. DELIVERY TERMS OF THE INVITATION; THEREFORE, THE "CHRISTIAN DOCTRINE" WAS NOT APPLICABLE SO AS TO HAVE MADE COLLINS' NONRESPONSIVE BID RESPONSIVE TO A MANDATORY INVITATION REQUIREMENT.

CONCERNING COLLINS' AND THE CONTRACTING OFFICER'S STATEMENTS THAT THE F.O.B. POINT OF ORIGIN OF THE COLLINS' BID WAS CLEARLY KNOWN TO THE CONTRACTING OFFICIALS TO BE CEDAR RAPIDS BECAUSE OF PAST DEALINGS WITH THAT FIRM, WE HAVE HELD ON NUMEROUS OCCASIONS THAT THE RESPONSIVENESS OF A BID IS TO BE DETERMINED BY THE INTENTION OF THE BIDDER MANIFESTED WITHIN THE "FOUR-CORNERS" OF THE BID DOCUMENTS. ACCEPTANCE OF A BID BY A CONTRACTING OFFICER ON THE BASIS OF INDEPENDENT KNOWLEDGE OUTSIDE OF THE BID ITSELF WOULD NOT OPERATE TO CREATE A VALID AND BINDING CONTRACT. 161287, SUPRA. THIS WOULD BE TANTAMOUNT TO GIVING A BIDDER THE OPTION OF ACCEPTING THE AWARD OR ALLEGING THAT ITS BID CONTEMPLATED MANUFACTURE AT A PLANT OTHER THAN THE ONE UTILIZED IN PAST CONTRACTS. SUCH OPTION IS CONTRARY TO THE PRINCIPLE THAT NO BIDDER HAS A RIGHT, AFTER OPENING, TO ANOTHER OPPORTUNITY TO BID IN DEROGATION OF THE RIGHTS OF OTHER BIDDERS. 34 COMP. GEN. 82; 35 ID. 33; 36 ID. 705.

COLLINS HAS ADVISED FURTHER THAT REEVALUATION OF THE TRANSPORTATION COSTS TO THE GOVERNMENT UNDER ITS BID ON THE BASIS OF WIDELY SCATTERED F.O.B. ORIGIN POINTS IN THE UNITED STATES SHOWS THAT COLLINS WOULD REMAIN THE LOWEST EVALUATED BIDDER IN ANY EVENT. THIS IS VERIFIED BY THE PROCUREMENT AGENCY.

ON FEBRUARY 25, 1969, WE INFORMALLY REQUESTED THAT THE PROCUREMENT AGENCY ADVISE US OF THE ESTIMATED AMOUNT OF TERMINATION CHARGES THAT MIGHT BE CLAIMED BY COLLINS IN THE EVENT THE PRESENT CONTRACT SHOULD BE CANCELED AT THE DIRECTION OF OUR OFFICE. BY SUPPLEMENTAL REPORT DATED FEBRUARY 27, 1969, THE DEPUTY COMMANDER, NAVAL SUPPLY SYSTEMS COMMAND, SUPPLIED US WITH THE REQUESTED INFORMATION, ALREADY IN HIS POSSESSION AS OF THE CLOSE OF COLLINS' BUSINESS ON FEBRUARY 21, AS FOLLOWS:

A. COLLINS ADVISED THAT PERFORMANCE HAS BEEN UNDERTAKEN TO THE EXTENT INDICATED BELOW:

(1) PURCHASED ELECTRICAL PARTS---ALL ON ORDER---TOTAL ESTIMATED COST $1,675,000.00---ESTIMATED TERMINATION CHARGES---$150,000.00.

(2) FABRICATED PURCHASE PARTS---(METAL AND PLASTIC PARTS BOUGHT OUTSIDE)- --ALL ON ORDER---TOTAL ESTIMATED COST $614,000.00---ESTIMATED TERMINATION CHARGES $185,000.00.

(3) FABRICATED MAKE PARTS---(INCLUDES MINOR LABOR CHARGES)---TOTAL ESTIMATED COST $428,000.00---ESTIMATED TERMINATION CHARGES-- $85,000.00.

(4) TOTAL ESTIMATED TERMINATION CHARGE AS OF 21 FEBRUARY 1969 IS $420,000.00 (SUM OF A (1), (2) AND (3) ABOVE).

B. COLLINS ADVISED IT WAS NECESSARY TO PLACE ALL ORDERS EXPEDITIOUSLY, AND TO REQUEST EXPEDITED EFFORT FROM ITS SUB CONTRACTORS BECAUSE (I) THE CONTRACT REQUIRES DELIVERY BEGINNING 180 DAYS AFTER DATE OF CONTRACT AT HIGH MONTHLY RATES, (II) THE CONTRACT REQUIRES TIME-CONSUMING RELIABILITY TESTS THAT MUST BE PERFORMED BEFORE DELIVERY, AND (III) THE CONTRACT CONTAINS LIQUIDATED DAMAGES PROVISIONS AGAINST LATE DELIVERY.

C. THE DETAILS OF COLLINS PRODUCTION PLANNING SCHEDULE WERE STATED BY COLLINS TO BE AS FOLLOWS:

(1) PARTS FOR THE FIRST 20 SETS ARE REQUIRED TO BE RELEASED TO THE PLANT BY 14 APRIL 1969; THEREFORE, ALL PARTS FOR 20 SETS MUST BE "IN HOUSE" BY 14 MARCH 1969 TO PROVIDE FOR 30 DAY IN-HOUSE INSPECTION AND ACCEPTANCE.

(2) PARTS FOR THE NEXT 195 SETS ARE REQUIRED TO BE RELEASED TO THE PLANT BY 12 MAY 1969; THEREFORE, ALL PARTS FOR 195 SETS MUST BE IN HOUSE BY 12 APRIL 1969 TO PROVIDE FOR 30 DAY IN-HOUSE INSPECTION AND ACCEPTANCE. (3) THEREAFTER RELEASES CONTINUE EACH MONTH UNTIL FINAL RELEASE TO THE PLANT WHICH IS SCHEDULED FOR 14 AUGUST 1969.

D. ALL ORDERS ARE IN THE FORM OF WRITTEN PURCHASE ORDERS OR WRITTEN INTERNAL SHOP ORDERS.

WHILE WE CONCLUDE THAT THE AWARD MADE TO COLLINS WAS IMPROPER AND CONTRARY TO WELL-ESTABLISHED PRINCIPLES OF COMPETITIVE BIDDING, IN VIEW OF THESE REPRESENTATIONS, WE ARE OF THE OPINION THAT THE BEST INTERESTS OF THE GOVERNMENT WOULD NOT BE SERVED BY CANCELLATION OF THE CONTRACT AT THIS DATE. HOWEVER, SINCE WE DO NOT THINK THAT THE INJURY TO THE COMPETITIVE BIDDING SYSTEM SHOULD BE COMPOUNDED BY EXERCISING THE CONTRACT QUANTITY OPTION, SUCH OPTION SHOULD NOT BE EXERCISED AND, IN THE EVENT THAT THE OPTION HAS ALREADY BEEN EXERCISED, WE BELIEVE THAT PORTION OF THE CONTRACT SHOULD BE CANCELED.

IN VIEW OF THE CONCLUSION REACHED HEREIN, IT IS UNNECESSARY TO CONSIDER THE OTHER CONTENTIONS MADE BY ADMIRAL IN SUPPORT OF ITS PROTEST.