B-128645, SEP. 28, 1956

B-128645: Sep 28, 1956

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 14. THE INVITATION WAS ISSUED BY THE FEDERAL SUPPLY SERVICE ON MAY 28. A COPY OF THE INVITATION WAS FURNISHED TO YOU BY YOUR WASHINGTON REPRESENTATIVE. IT WAS DETERMINED THAT THE SPECIFICATION HAD BEEN SUPERSEDED A MONTH BEFORE BY INTERIM FEDERAL SPECIFICATION AA-H-00600/GSA-FSS). SPECIAL NOTICE NO. 1 WAS ISSUED ON MAY 31. BIDDERS WERE REQUIRED TO ACKNOWLEDGE RECEIPT OF THE SPECIAL NOTICE BY SIGNING AND RETURNING TWO COPIES WITH THEIR BIDS. THE GENERAL SERVICES ADMINISTRATION'S RECORDS INDICATE THAT A COPY OF THE SPECIAL NOTICE WAS SENT TO YOUR WASHINGTON REPRESENTATIVE. YOU INDICATE THAT YOU NEVER RECEIVED THE SPECIAL NOTICE AND IN ANY CASE THE SIGNED COPIES WERE NOT FORWARDED WITH YOUR BID IN ACCORDANCE WITH THE REQUIREMENTS.

B-128645, SEP. 28, 1956

TO YOUNG MANUFACTURING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 14, 1956, TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, WASHINGTON, D.C., PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER PURSUANT TO INVITATION NO. FNW-1M-3018-A-6-14-56.

THE INVITATION WAS ISSUED BY THE FEDERAL SUPPLY SERVICE ON MAY 28, 1956. A COPY OF THE INVITATION WAS FURNISHED TO YOU BY YOUR WASHINGTON REPRESENTATIVE. SUBSEQUENT TO THE ISSUANCE OF THE INVITATION WHICH REQUIRED THAT THE ITEMS TO BE PROCURED THEREUNDER SHOULD BE IN CONFORMANCE WITH GENERAL SERVICES ADMINISTRATION GENERAL SPECIFICATION FOR BEDROOM FURNITURE, WOOD, DATED JUNE 18, 1952, IT WAS DETERMINED THAT THE SPECIFICATION HAD BEEN SUPERSEDED A MONTH BEFORE BY INTERIM FEDERAL SPECIFICATION AA-H-00600/GSA-FSS), HOUSEHOLD FURNITURE, WOOD. ACCORDINGLY, SPECIAL NOTICE NO. 1 WAS ISSUED ON MAY 31, 1956, ADVISING PROSPECTIVE BIDDERS OF THE CHANGE IN SPECIFICATIONS. BIDDERS WERE REQUIRED TO ACKNOWLEDGE RECEIPT OF THE SPECIAL NOTICE BY SIGNING AND RETURNING TWO COPIES WITH THEIR BIDS. THE GENERAL SERVICES ADMINISTRATION'S RECORDS INDICATE THAT A COPY OF THE SPECIAL NOTICE WAS SENT TO YOUR WASHINGTON REPRESENTATIVE. YOU INDICATE THAT YOU NEVER RECEIVED THE SPECIAL NOTICE AND IN ANY CASE THE SIGNED COPIES WERE NOT FORWARDED WITH YOUR BID IN ACCORDANCE WITH THE REQUIREMENTS.

YOUR BID, WHICH WAS LOWER THAN THE ACCEPTED BID FOR ITEMS NOS. 1 AND 3, WAS REJECTED BECAUSE IT WAS NOT ACCOMPANIED BY THE TWO SIGNED COPIES OF THE SPECIAL NOTICE AS REQUIRED BY THE TERMS OF THAT NOTICE. YOU CONTEND THAT YOUR BID WAS IMPROPERLY REJECTED SINCE YOU WERE AWARE OF THE NEW SPECIFICATIONS, HAD INTENDED CONFORMING WITH THEM, AND YOUR FURNITURE MEETS BOTH THE OLD AND NEW SPECIFICATIONS.

PAGE 3 OF THE INVITATION CLEARLY STATED THAT THE FURNITURE TO BE SUPPLIED WOULD CONFORM TO THE SPECIFICATION DATED JUNE 18, 1952. WHEN YOU COMPLETED THE INVITATION AND RETURNED IT IN ACCORDANCE WITH ITS PROVISIONS, THE STIPULATION IN REGARD TO THE SPECIFICATION WAS AN INTEGRAL PART OF YOUR BID. IN OTHER WORDS, YOUR BID CLEARLY STATED THAT THE FURNITURE YOU PROPOSED TO SUPPLY WOULD MEET THE OLD SPECIFICATION. THE SIGNED COPIES OF THE SPECIAL NOTICE WHICH HAD THE EFFECT OF MAKING THE NEW SPECIFICATION APPLICABLE TO THE BIDS OF THE SUCCESSFUL BIDDERS WERE ABSENT IN YOUR CASE.

A BID SUBMITTED IN RESPONSE TO AN INVITATION ISSUED BY AN AGENCY OF THE GOVERNMENT CONSTITUTES AN OFFER; THE AWARD IS, IN FACT, AN ACCEPTANCE WHICH EFFECTS A BINDING AGREEMENT BETWEEN THE CONTRACTOR AND THE GOVERNMENT. IT IS A WELL RECOGNIZED RULE OF LAW THAT AN OFFER IS TO BE INTERPRETED IN ACCORDANCE WITH ITS CLEAR LANGUAGE NOTWITHSTANDING THAT THE OFFEROR (THE BIDDER) INTENDED SOMETHING ELSE OR SOMETHING IN ADDITION. YOUR OFFER CLEARLY PROPOSED ONLY TO SUPPLY FURNITURE IN ACCORDANCE WITH THE OLD SPECIFICATION. SINCE THE INVITATION WAS PROPERLY AMENDED BY THE SPECIAL NOTICE TO MAKE THE LATER SPECIFICATION APPLICABLE, YOUR BID WAS NOT RESPONSIVE TO THE ADVERTISED REQUIREMENTS OF THE GOVERNMENT. TO HAVE ACCEPTED THE BID UNDER SUCH CIRCUMSTANCES WOULD HAVE BEEN PREJUDICIAL TO THE RIGHTS OF THE OTHER BIDDERS AND THE GOVERNMENT AS WELL. THE CONTRACTING OFFICER WAS THEREFORE WITHOUT LEGAL AUTHORITY TO ACCEPT YOUR BID.

IT IS REGRETTABLE THAT YOU HAVE NOT BEEN ON THE MAILING LIST TO RECEIVE INVITATIONS AND AMENDMENTS THERETO ISSUED BY THE ADMINISTRATION FOR PROCUREMENT OF ITEMS WHICH YOU MANUFACTURE. WE ARE ADVISED, HOWEVER, THAT YOUR FIRM'S NAME WAS PLACED ON THE MAILING LIST EFFECTIVE JULY 6, 1956. WE TRUST THAT IN THE FUTURE YOU WILL SYSTEMATICALLY RECEIVE ALL APPROPRIATE INVITATIONS AND AMENDMENTS THERETO ISSUED BY THE ADMINISTRATION.