B-128399, JUL. 19, 1956

B-128399: Jul 19, 1956

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 25. THE BASIS OF THE PROTEST IS THAT THE CONTRACTING OFFICER DID NOT CONSIDER FOR AWARD AN . THE SAID OFFICER HAVING DETERMINED THAT THE BID WAS NOT ACCEPTABLE SINCE HE BELIEVED THAT THE INVITATION (STANDARD FORM 33. 1956) IS AS FOLLOWS: "RE: FT. 840.00 "WE WERE UNABLE TO OBTAIN THE NECESSARY FORMS FOR THIS QUOTATION. WE WISH TO STATE THAT WE WILL MEET THE SPECIFICATIONS ON THIS PARTICULAR JOB. DELIVERY WILL BE F.O.B. DELIVERY TIME WILL BE AS PER SPECIFICATIONS. OUR PAYMENT TERMS ARE NET 30 DAYS. "WE WILL ACCEPT ALL CONDITIONS OF THE FORMAL BID FORMS. IN THE EVENT THAT WE ARE IN LINE FOR THIS AWARD. IF WE ARE GRANTED THIS AWARD.

B-128399, JUL. 19, 1956

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 25, 1956, WITH ENCLOSURES, RELATIVE TO A PROTEST BY YARDLEY VENETIAN BLIND COMPANY UNDER INVITATION FOR BIDS NO. 15-056-56-128, ISSUED BY FORT CAMPBELL, KENTUCKY.

THE BASIS OF THE PROTEST IS THAT THE CONTRACTING OFFICER DID NOT CONSIDER FOR AWARD AN ,INFORMAL" BID SUBMITTED BY YARDLEY VENETIAN BLIND COMPANY IN LETTER FORM, THE SAID OFFICER HAVING DETERMINED THAT THE BID WAS NOT ACCEPTABLE SINCE HE BELIEVED THAT THE INVITATION (STANDARD FORM 33, INVITATION, BID AND AWARD) REQUIRED SUBMISSION OF BIDS ON THAT FORM.

THE "INFORMAL" BID (LETTER DATED APRIL 25, 1956) IS AS FOLLOWS:

"RE: FT. CAMPBELL, KENTUCKY

INV. NO. 15-056-128

OPENS 4/26/56

"SPECIFICATIONS

"MATERIAL TO BE DELIVERED F.O.B. FT. CAMPBELL, KENTUCKY.

"BLINDS, VENETIAN - METAL SLATS, TYPE 1, CLASS I OR CLASS II. FEDERAL SPECIFICATIONS RR-B-446 JUNE 30, 1950.

CHART

EACH TOTAL TOTAL "1,000 EACH 44 IN. BY 62 IN. $4.34 $4,340

1,000 EACH 44 IN. BY 54 IN. 3.90 3,900

500 EACH 36 IN. BY 54 IN. 3.20 1,600 $9,840.00

"WE WERE UNABLE TO OBTAIN THE NECESSARY FORMS FOR THIS QUOTATION, BUT WE WISH TO STATE THAT WE WILL MEET THE SPECIFICATIONS ON THIS PARTICULAR JOB; DELIVERY WILL BE F.O.B. FT. CAMPBELL, KENTUCKY, DELIVERY TIME WILL BE AS PER SPECIFICATIONS; OUR PAYMENT TERMS ARE NET 30 DAYS.

"WE WILL ACCEPT ALL CONDITIONS OF THE FORMAL BID FORMS, IN THE EVENT THAT WE ARE IN LINE FOR THIS AWARD. IF WE ARE GRANTED THIS AWARD, WE WILL FILL OUT THE ADDITIONAL NECESSARY FORMS SO THAT WE CAN COMPLY WITH ALL OF YOUR BID REQUIREMENTS.

"BECAUSE WE WOULD NOT LIKE TO HAVE THIS RECUR, WE WOULD BE PLEASED IF YOU WOULD PLACE US ON YOUR MAILING LIST SO THAT WE MAY BID ON YOUR FUTURE VENETIAN BLIND REQUIREMENTS.'

WHILE IT IS CONTEMPLATED--- AND IT IS PREFERABLE--- THAT BIDDERS USE THE STANDARD FORM IN SUBMITTING BIDS, THERE IS NO PROVISION DEFINITELY REQUIRING THAT THE STANDARD FORM BE USED. IT IS COMMON PRACTICE FOR BIDDERS TO SET FORTH PRICES OR OTHER INFORMATION IN AN ACCOMPANYING LETTER AND SUCH BIDS HAVE ALWAYS BEEN CONSIDERED PROPER.

THE QUESTION FOR DETERMINATION IN SUCH CASES IS WHETHER THE ACCEPTANCE OF THE BID AS SUBMITTED WILL EFFECT A CONTRACT BINDING ON THE BIDDER REQUIRING PERFORMANCE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE PARTICULAR INVITATION.

IN THE ABOVE-QUOTED LETTER THE YARDLEY VENETIAN BLIND COMPANY SET FORTH ALL THE INFORMATION REQUIRED BY THE INVITATION AS TO PRICE, DELIVERY, SPECIFICATIONS, ETC., AND UNQUALIFIEDLY AGREED TO ABIDE BY ALL THE REQUIREMENTS AND CONDITIONS OF THE PARTICULAR INVITATION. THUS, THE ACCEPTANCE OF THE BID AS SUBMITTED WOULD HAVE CREATED A VALID AND BINDING CONTRACT REQUIRING THE BIDDER TO PERFORM IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE INVITATION. UNDER THE CIRCUMSTANCES THE INFORMALITY, IF IN FACT IT WAS AN INFORMALITY, SHOULD HAVE BEEN WAIVED AND THE BID CONSIDERED FOR AWARD. COMPARE 30 COMP. GEN. 179.

WHILE, IN THE INSTANT CASE, THE BID OF YARDLEY VENETIAN BLIND COMPANY WAS LOW ON ITEM 3, IT APPEARS THAT THE DETERMINATION OF THE CONTRACTING OFFICER WAS MADE IN GOOD FAITH, AND SINCE THE SUPPLIES HAVE BEEN DELIVERED AND PAID FOR, NO QUESTION WILL BE RAISED BY THIS OFFICE CONCERNING THE TRANSACTION.