B-125497, DEC. 6, 1955

B-125497, DEC. 6, 1955

TO BUILDERS-PROVIDENCE, INC.:

REFERENCE IS MADE TO YOUR TELEFAX OF SEPTEMBER 14 AND LETTER DATED SEPTEMBER 16, 1955, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER ON INVITATION NO. DS-4454, ISSUED BY THE BUREAU OF RECLAMATION FOR BIDS FOR BUTTERFLY VALVES WITH OPERATING UNITS AND ACCESSORIES FOR PINEVIEW DAM ENLARGEMENT, WEBER BASIN PROJECT, UTAH.

IT APPEARS THAT THE INVITATION REQUESTED BIDS TO BE OPENED JULY 28, 1955, AND THAT FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. YOUR BID PRICE ON ITS FACE WAS THE LOWEST RECEIVED, BUT IT WAS QUALIFIED BY A LETTER DATED JULY 25, 1955, WHICH REFERRED TO A COPY OF BUILDERS QUOTATION NO. G-3461-WS ENCLOSED. ALTHOUGH YOUR LETTER STATED THAT THE EQUIPMENT OFFERED COMPLIED IN ALL RESPECTS WITH THE REQUIREMENTS OF THE INSTALLATION, THE QUOTATION CONTAINED, IN ADDITION TO THE PRINTED STATEMENT UNDER THE HEADING,"ALL ORDERS SUBJECT TO CONDITIONS ON REVERSE SIDE UNLESS OTHERWISE SPECIFIED," THE TYPED STATEMENT,"THIS QUOTATION IS SUBJECT TO THE CONDITIONS SHOWN ON THE BACK OF PAGE 1. PRICES DO NOT INCLUDE SALES, USE OR TRANSPORTATION TAXES AND WHEN SUCH TAXES ARE PAID BY US THEY ARE ITEMIZED AND ADDED TO INVOICES.' SOME OF THE CONDITIONS ON THE BACK OF PAGE 1, WHICH MATERIALLY DEVIATED FROM THE ADVERTISED REQUIREMENTS, WERE AS FOLLOWS:

"1. "THE COMPANY RESERVES THE RIGHT TO CORRECT ALL TYPOGRAPHICAL OR CLERICAL ERRORS IN THE PRICES OR SPECIFICATIONS.'

"2. "ALL ORDERS SHALL BE MADE OUT TO BUILDERS-PROVIDENCE, INC., PROVIDENCE, RHODE ISLAND, AND SHALL BE SUBJECT TO ACCEPTANCE BY US AT PROVIDENCE.'

"3. "THE COMPANY MAKES NO WARRANTIES WITH RESPECT TO THE EQUIPMENT SOLD; BUT IT WILL, FREE OF CHARGE, REPLACE OR REPAIR, AFTER RECEIPT F.O.B. ITS FACTORY PROMPTLY AND WITHIN ONE YEAR FROM SHIPMENT BY IT, ANY PART OF AN INSTRUMENT OR OTHER APPARATUS WHICH, UNDER NORMAL OR PROPER USE, PROVES TO BE DEFECTIVE IN CALIBRATION, WORKMANSHIP, OR MATERIAL. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR CONSEQUENTIAL DAMAGES.'

"4. "THE COMPANY SHALL NOT BE LIABLE FOR FAILURE TO PERFORM OR DELAY IN PERFORMING ANY OBLIGATION IF SUCH FAILURE OR DELAY SHALL BE CAUSED DIRECTLY OR INDIRECTLY BY INVASION, INSURRECTION, RIOT, WAR, MILITARY OR USURPED POWER OR BY ORDER OF ANY CIVIL OR MILITARY AUTHORITY, OR BY FIRE, FLOOD, STRIKE OR LABOR DIFFICULTIES OR BY ANY OTHER CAUSE, WHETHER OF THE SAME OR DIFFERENT NATURE FROM THOSE ENUMERATED, BEYOND OUR REASONABLE CONTROL.'"

AFTER THE BIDS WERE OPENED AND MADE PUBLIC YOU SENT A TELEGRAM, CONFIRMED BY LETTER OF THE SAME DATE, REQUESTING DELETION OF THE ABOVE QUOTED FINAL PARAGRAPH OF YOUR QUOTATION. THE CONTRACTING OFFICER,HOWEVER, DETERMINED THAT THE CONDITIONS CONSTITUTED SUBSTANTIAL DEVIATIONS FROM THE TERMS OF THE INVITATION, WERE IRRECONCILABLE WITH THE NEEDS OF THE GOVERNMENT, AND COULD NOT BE REGARDED AS INFORMALITIES OR IRREGULARITIES WHICH COULD BE WAIVED BY HIM OR AMENDED BY YOU AFTER BID OPENING. HENCE, YOUR BID WAS DISREGARDED ON THE GROUND THAT IT WAS NOT RESPONSIVE TO THE INVITATION.

THE ESTABLISHED RULE IS THAT THE ONLY INFORMALITIES WHICH MAY BE WAIVED ARE THOSE WHICH DO NOT GO TO THE SUBSTANCE OF THE BID AND DO NOT WORK AN INJUSTICE TO THE OTHER BIDDERS. 30 COMP. GEN. 179. IN THE PRESENT MATTER THE DEVIATIONS OBVIOUSLY WERE OF SUCH SUBSTANCE AS TO AFFECT MATERIALLY YOUR LIABILITY UNDER THE TERMS OF THE CONTRACT HAD IT BEEN AWARDED TO YOU. UNDER THE SECOND OF THE CONDITIONS QUOTED, FOR EXAMPLE, ACCEPTANCE OF YOU BID WOULD NOT HAVE CONSUMMATED A BINDING CONTRACT FOR DELIVERY OF THE REQUIRED SUPPLIES, BUT MERELY ANUNDER TAKING BY THE GOVERNMENT TO ORDER FROM YOU, WITHOUT OBLIGATION ON YOUR PART TO ACCEPT SUCH ORDER. THIS CONDITION WAS WHOLLY IRRECONCILABLE WITH THE PROVISIONS OF THE INVITATION, AND THE CONTRACTING OFFICER WAS CORRECT IN REFUSING TO ACCEPT YOUR BID ON THE BASIS SUBMITTED.

WITH RESPECT TO QUOTED CONDITION NO. 4, THERE WOULD HAVE BEEN NO AUTHORITY FOR THE CONTRACTING OFFICER TO WAIVE AS AN INFORMALITY SUCH A CONDITION DELIBERATELY IMPOSED FOR THE MANIFEST PURPOSE OF LIMITING YOUR LIABILITY OR SAVING YOURSELF HARMLESS IN THE EVENT OF DELAY OR FAILURE TO PERFORM TO SUCH AN EXTENT AS TO RESTRICT MATERIALLY IF NOT TO CONCLUDE THE RIGHT OF REDRESS OF THE GOVERNMENT IN SUCH EVENT. IT WOULD APPEAR TO BE OBVIOUS WITHOUT ARGUMENT THAT SUCH AN EXPRESS AND POSITIVE CONDITION, WHICH COULD HAVE MATERIALLY AFFECTED THE RIGHTS OF THE PARTIES UNDER THE CONTRACT HAD IT BEEN AWARDED TO YOU, DOES NOT FALL WITHIN THE CATEGORY OF "INFORMALITIES" WHICH MAY BE WAIVED. IT IS EQUALLY CLEAR THAT TO HAVE PERMITTED YOU TO WITHDRAW THE CONDITION WOULD HAVE BEEN TANTAMOUNT TO GIVING YOU AN ELECTION, AFTER OPENING OF BIDS, TO CHANGE YOUR BID IN A MATERIAL ELEMENT. WE HAVE CONSISTENTLY TAKEN THE POSITION THAT A BIDDER PROPERLY MAY NOT BE GIVEN MORE THAN ONE CHANCE UNDER THE SAME INVITATION. SEE 34 COMP. GEN. 82.

WITH RESPECT TO THE AWARD ALLEGED IN YOUR LETTER OF SEPTEMBER 23, 1955, TO SENATOR GREEN, TO HAVE BEEN MADE TO YOU BY THE BUREAU OF RECLAMATION UNDER SIMILAR CIRCUMSTANCES IN 1950, THE BUREAU REPORTS AS FOLLOWS:

"* * * THE RECORDS REVEAL THAT NO RESPONSIVE BID WAS RECEIVED UNDER INVITATION (D) 21-732-A-1, AND THAT BUILDERS IRON FOUNDRY SUBMITTED THE ONLY BID AND THEREFORE COULD BE CONSIDERED AS THE ONLY AVAILABLE SOURCE OF SUPPLY. UNDER THESE CIRCUMSTANCES THERE WAS OBVIOUS AUTHORITY TO NEGOTIATE THE DELETION OF THE OBJECTIONABLE CONDITIONS PURSUANT TO THE STATUTORY EXEMPTION OF R.S. 3709 (41U.S.C. 5) AS AMENDED (41 U.S.C. 5).'

IN THE ABSENCE OF MORE DETAILS THAN WERE FURNISHED IN YOUR LETTER WE ARE UNABLE TO VERIFY THE OTHER INSTANCE CITED BY YOU AS A PRECEDENT. HOWEVER, IN NO EVENT COULD AN IMPROPER AWARD IN ONE CASE BE CONSIDERED AS JUSTIFICATION FOR REPETITION OF THE SAME ERROR.

FOR THE REASONS STATED, WE FIND THAT YOUR PROTEST IS WITHOUT SUFFICIENT MERIT TO JUSTIFY OUR OFFICE IN RAISING ANY OBJECTION TO THE ADMINISTRATIVE ACTION TAKEN IN DISREGARDING YOUR BID.