B-169824, OCT. 15, 1970

B-169824, OCT. 15, 1970

BID PROTEST - AMBIGUOUS INVITATION SPECIFICATIONS DENIAL OF PROTEST OF MANLOADING & MANAGEMENT ASSOCIATES, INC., AGAINST THE ADEQUACY OF AN INVITATION FOR BIDS ISSUED BY THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. PROTESTANT, WHO ALLEGES THAT THE STATEMENTS IN THE INVITATION FOR BIDS CONCERNING THE PERFORMANCE OF CERTAIN RESEARCH AND CLERICAL WORK FOR THE GOVERNMENT WAS AMBIGUOUS AS TO THE SPECIFIC REQUIREMENTS FOR FACILITIES TO PERFORM THE WORK, AND MATERIALS AND SUPPLIES TO BE USED, IS CONSIDERED TO HAVE TAKEN THE LANGUAGE OUT OF CONTEXT; WHEN THE PARAGRAPHS ARE READ PROPERLY, IT LEAVES NO DOUBT THAT THE CONTRACTOR SHOULD PREPARE ALL NECESSARY ITEMS TO COMPLETE THE JOB, WITH EXCEPTION OF THOSE ITEMS TO BE FURNISHED BY THE GOVERNMENT. IN ADDITION, WHEN BRAND NAMES ARE TO BE USED, IT IS SO SPECIFIED. THEREFORE, WHEN THE INVITATION IS READ IN CONTEXT, IT CANNOT BE CONSTRUED TO BE AMBIGUOUS.

TO PATTISON, WRIGHT & PATTISON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 27, 1970, REQUESTING THAT WE CONSIDER YOUR LETTER OF JULY 16, 1970, TO THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD), CONTRACTS AND AGREEMENTS DIVISION, AS THE BASIS OF A PROTEST ON BEHALF OF MANLOADING AND MANAGEMENT ASSOCIATES, INCORPORATED (M&M), AGAINST THE ADEQUACY OF INVITATION FOR BIDS (IFB) NO. H-5-71.

YOU STATED THAT THE STATEMENT OF WORK WAS AMBIGUOUS AND REQUIRED CLARIFICATION, AS FOLLOWS:

"BY WAY OF EXAMPLE, THE LANGUAGE APPEARING IN PARAGRAPH A(2) UNDER THE STATEMENT OF WORK, WHICH READS: ' ... AND SUCH OTHER EQUIPMENT, MATERIALS, RELATED SERVICES, MISCELLANEOUS SUPPLIES ... ' IS PARTICULARLY MORE AMBIGUOUS AND INCAPABLE OF PRECISE INTERPRETATION THAN WAS THE WORD 'FACILITIES' IN THE PREVIOUS INVITATION, WHICH WORD WAS INITIALLY DETERMINED TO BE AMBIGUOUS."

IN THE REFERRED TO PREVIOUS INVITATION, HUD'S IFB NO. H-32-70, WHICH WAS THE SUBJECT OF OUR DECISION OF JUNE 26, 1970 (SUSTAINED UNDER DATE OF AUGUST 14, 1970), THE WORD "FACILITIES" WAS HELD TO BE AMBIGUOUS IN THE CONTEXT IN WHICH IT APPEARED, I.E., PARAGRAPH A OF ARTICLE I, WHICH READS, IN PERTINENT PART, AS FOLLOWS:

"USING GOVERNMENT-FURNISHED FACILITIES THE CONTRACTOR SHALL PROVIDE ALL TECHNICAL AND CLERICAL PERSONNEL NECESSARY TO PREPARE *** ."

IN THE INSTANT INVITATION, IFB H-5-71, THE COUNTERPART OF THE ABOVE QUOTED PROVISION WAS CHANGED TO READ AS FOLLOWS:

"A. IN ACCORDANCE WITH SUB-PARAGRAPHS 1 AND 2 OF THIS PARAGRAPH, THE CONTRACTOR SHALL PREPARE FEDERAL HOUSING ADMINISTRATION HOME MORTGAGE CASE BINDERS FOR CONVERSION TO A MAGNETIC TAPE INFORMATION STORAGE AND RETRIEVAL SYSTEM.

1. THE GOVERNMENT SHALL PROVIDE FOR USE BY THE CONTRACTOR THE NECESSARY OFFICE SPACE, AS DESCRIBED IN PARAGRAPH D.2., TOGETHER WITH THE FOLLOWING ANCILLARY SERVICES, EQUIPMENT AND MATERIAL: JANITORIAL SERVICE, HEAT AND LIGHT, AIR-CONDITION WHERE PRESENTLY INSTALLED, WATER, AND REST ROOMS; NECESSARY TABLES AND CHAIRS; THE NECESSARY FHA HOME MORTGAGE INSURANCE CASE BINDERS AND FILE CABINETS THEREFOR; AND 75 TWO-HOLE PUNCHES.

2. THE CONTRACTOR SHALL PROVIDE ALL TECHNICAL AND CLERICAL PERSONNEL AND SUCH OTHER EQUIPMENT, MATERIALS, RELATED SERVICES, MISCELLANEOUS SUPPLIES AS ARE NECESSARY TO PERFORM THE WORK UNDER THIS CONTRACT."

YOUR ALLEGATION OF AN AMBIGUITY TAKES A PORTION OF PARAGRAPH A.2. OUT OF CONTEXT AND MAKES IT APPEAR AS THOUGH SUCH LANGUAGE STANDS ALONE. BELIEVE THAT PARAGRAPH A.2., WHEN READ IN CONJUNCTION WITH PARAGRAPH A.1, LEAVES NO DOUBT THAT THE PARAGRAPH WAS DESIGNED TO INDICATE THAT THE CONTRACTOR WOULD BE REQUIRED TO SUPPLY ALL THINGS TO PERFORM THE WORK WITH THE EXCEPTION OF THOSE ITEMS WHICH PARAGRAPH A.1. STATED WOULD BE FURNISHED BY THE GOVERNMENT.

YOU ALSO ALLEGE THAT THE INVITATION WAS NOT CLEAR SINCE ONE PROVISION MIGHT BE CONSTRUED AS A REQUIREMENT TO USE A PARTICULAR BRAND OF TRANSPARENT ADHESIVE TAPE, AS FOLLOWS:

"IN ADDITION TO THE FOREGOING, ATTENTION IS CALLED TO THE FACT THAT UNDER THE BINDER PREPARATION INSTRUCTIONS, PARAGRAPH III(3), THE REQUIREMENT FOR USE OF '... TRANSPARENT SCOTCH TAPE ... ' WOULD SEEM TO REQUIRE THE USE OF TRANSPARENT TAPE MANUFACTURED BY MINNESOTA MINING & MANUFACTURING COMPANY, WHO OWNS THE TRADEMARK RIGHTS TO 'SCOTCH TAPE'. IT IS PRESUMED THAT IT WAS NOT THE INTENTION OF THE SOLICITATION TO REQUIRE A SPECIFIC BRAND NAME TRANSPARENT TAPE FOR REPAIR OF BINDERS, BUT COMPLIANCE WITH THE SPECIFICATION WOULD REQUIRE SUCH BRAND NAME TAPE AND WOULD RESULT IN IMPROPER COMPLIANCE SHOULD A CONTRACTOR USE TAPE MANUFACTURED BY SOME OTHER CONCERN, EVEN THOUGH IT MIGHT BE 'EQUIVALENT TO THE SPECIFIED BRAND."

PARAGRAPH III(3) OF THE BINDER PREPARATION INSTRUCTIONS, READS AS FOLLOWS:

"DOCUMENTS TORN BUT NOT SEPARATED ARE TO BE REPAIRED WITH TRANSPARENT SCOTCH TAPE."

WHILE THE WORD "SCOTCH" MAY BE A TRADE MARK OF THE MINNESOTA MINING AND MANUFACTURING COMPANY, IT HAS ACQUIRED THROUGH COMMON USAGE A SECONDARY MEANING AS APPLYING TO ANY OF NUMEROUS ADHESIVE TAPES THAT CAN BE MADE TO ADHERE UNDER SLIGHT PRESSURE WITHOUT HEATING OR MOISTENING. SEE WEBSTER'S SEVENTH NEW COLLEGIATE DICTIONARY. WE BELIEVE THAT THE TERM "TRANSPARENT SCOTCH TAPE" IN THE ABOVE-QUOTED PARAGRAPH CLEARLY WAS USED IN SUCH SECONDARY OR GENERIC SENSE. FURTHERMORE, THE REFERENCE TO "TRANSPARENT SCOTCH TAPE" APPEARS ONLY IN PARAGRAPH III(3) OF THE BINDER PREPARATION INSTRUCTIONS, WHILE REFERENCES TO "TRANSPARENT TAPE" AND "OPAQUE TAPE" APPEAR IN PARAGRAPHS III (4), (5), (6), AND (10).

IN VIEW OF THE FOREGOING, WE FIND NO REASON TO QUESTION THE ADEQUACY OF INVITATION FOR BIDS NO. H-5-71 TO AFFORD FREE AND OPEN COMPETITION ON A COMMON BASIS. ACCORDINGLY YOUR PROTEST IS DENIED.