B-131756, MAY 21, 1957

B-131756: May 21, 1957

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED MAY 6. THE LETTER AND ITS ENCLOSURES INDICATE THAT AN INVITATION FOR BIDS WAS ISSUED ON FEBRUARY 19. BIDS WERE TO BE PUBLICLY OPENED AT 10:00 A.M. SUPPLEMENT I TO THE INVITATION WAS ISSUED. AMENDING THE INVITATION TO INCLUDE SUCH REVISION PAGES AS MIGHT BE NECESSARY TO KEEP THE EXISTING HANDBOOK OF OPERATION AND SERVICE INSTRUCTIONS CURRENT DURING THE LIFE OF THE CONTRACT IF ANY CHANGES WERE MADE IN THE EQUIPMENT. PRICES FOR SUCH PAGES WERE TO BE SUBMITTED AND APPROVED BY THE CONTRACTING OFFICER AND THE CONTRACT THEN BE AMENDED TO PROVIDE FOR PAYMENT OF SUCH INCREASED COST. IT ALSO PROVIDED A SPACE ON WHICH ANY CHANGES IN BID PRICE RESULTING FROM SUCH AMENDMENT WERE TO BE LISTED ON AN ITEM BY ITEM BASIS.

B-131756, MAY 21, 1957

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED MAY 6, 1957 (R11.3 L4-1/L4/NT4 12), FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, RELATIVE TO A PROTEST BY FRIEZ INSTRUMENT DIVISION, BENDIX AVIATION CORPORATION, AGAINST THE AWARD OF CONTRACT N383-46394A TO RETT PRODUCTS COMPANY.

THE LETTER AND ITS ENCLOSURES INDICATE THAT AN INVITATION FOR BIDS WAS ISSUED ON FEBRUARY 19, 1957, FOR PROCUREMENT OF WIND MEASURING EQUIPMENT CONSISTING OF 80 DETECTORS UNDER ITEM 1, 40 TRIGGER ASSEMBLIES UNDER ITEM 2, 40 VANE WINDS UNDER ITEM 3, AND 485 WIND MEASURING SETS UNDER ITEM 4. BIDS WERE TO BE PUBLICLY OPENED AT 10:00 A.M., ON MARCH 19, 1957. FEBRUARY 26, 1957, SUPPLEMENT I TO THE INVITATION WAS ISSUED, AMENDING THE INVITATION TO INCLUDE SUCH REVISION PAGES AS MIGHT BE NECESSARY TO KEEP THE EXISTING HANDBOOK OF OPERATION AND SERVICE INSTRUCTIONS CURRENT DURING THE LIFE OF THE CONTRACT IF ANY CHANGES WERE MADE IN THE EQUIPMENT. THIS SUPPLEMENT PROVIDED THAT, IF REVISION PAGES SHOULD BE REQUIRED DURING THE LIFE OF THE CONTRACT, PRICES FOR SUCH PAGES WERE TO BE SUBMITTED AND APPROVED BY THE CONTRACTING OFFICER AND THE CONTRACT THEN BE AMENDED TO PROVIDE FOR PAYMENT OF SUCH INCREASED COST. IT ALSO PROVIDED A SPACE ON WHICH ANY CHANGES IN BID PRICE RESULTING FROM SUCH AMENDMENT WERE TO BE LISTED ON AN ITEM BY ITEM BASIS. WHILE THE SUCCESSFUL BIDDER INSERTED "NO CHANGE IN BID PRICE" IN SUCH SPACE, AND THE REMAINING BIDDERS FAILED TO INSERT ANY COMMENT THEREON, THE BUREAU OF SUPPLIES AND ACCOUNTS HAS INDICATED THAT SUPPLEMENT I CONTEMPLATED AN UNPRICED ITEM AND, SINCE ALL BIDDERS ACKNOWLEDGED THEIR AGREEMENT TO ITS TERMS BY SIGNING AND RETURNING IT TO THE CONTRACTING OFFICER, THE FAILURE TO INSERT PRICE INFORMATION IN THIS SUPPLEMENT DID NOT BECOME A FACTOR IN THE EVALUATION OF BIDS.

SUPPLEMENT II TO THE INVITATION WAS ISSUED ON MARCH 7, 1957, AND FURTHER AMENDED THE INVITATION TO REQUIRE THE SUCCESSFUL BIDDER TO FURNISH, AS ITEM 6, ONE SET OF REPRODUCIBLE DRAWINGS, CONFORMING TO THE REQUIREMENTS OF MIL-D-5028B, TO COVER ITEM 4, AND PROVIDED THAT AWARD WOULD BE MADE TO THE LOW BIDDER FOR ITEMS 1 TO 4 INCLUSIVE AND ITEM 6. UNLIKE SUPPLEMENT I THIS SUPPLEMENT DID NOT SPECIFICALLY REQUEST BIDDERS TO SUBMIT A BID PRICE, OR A REVISION IN BID PRICES ALREADY SUBMITTED, BASED UPON ITEM 6, NOR WAS A SPACE PROVIDED THEREIN FOR THE SPECIFIC PURPOSE OF SHOWING EITHER A BID PRICE OR A REVISION THEREOF. CONVERSELY, THE REQUIREMENT THAT THE BIDDER AGREE TO THE TERMS OF SUPPLEMENT II AND THE METHOD OF INDICATING SUCH AGREEMENT WERE IDENTICAL WITH THE REQUIREMENTS OF SUPPLEMENT I.

THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. ALL BIDDERS RETURNED SUPPLEMENT II AND SIGNIFIED THEIR AGREEMENT TO ITS PROVISIONS BY SIGNATURE IN THE SPACE PROVIDED THEREFOR. HOWEVER, IN ADDITION TO SUCH SIGNATURE, THE SECOND LOW BIDDER INDICATED, OPPOSITE THE DESCRIPTION OF THE ARTICLES CONSTITUTING ITEM 6, THAT NO CHARGE WOULD BE MADE FOR SUCH ARTICLES, WHILE THE HIGH BIDDER INSERTED THE FIGURES "$90.00" IN THE SAME PLACE. NO EXPRESS STATEMENT AS TO THE LOW BIDDER'S INTENTION TO EITHER CHARGE AN EXTRA AMOUNT FOR ITEM 6, OR TO FURNISH SUCH ITEM WITHOUT AN ADDITION TO ITS TOTAL BID PRICE ON ITEMS 1 THROUGH 4, WAS INSERTED BY RETT PRODUCTS COMPANY.

BASED UPON THE BIDS AND EXECUTED SUPPLEMENTS, THE BID SUBMITTED BY RETT PRODUCTS COMPANY WAS COMPUTED AS $98,376, THE SUM OF ITEMS 1 THROUGH 4, AS COMPARED TO THE SECOND LOW BID IN THE AMOUNT OF $99,150 SUBMITTED BY FRIEZ INSTRUMENT DIVISION, BENDIX AVIATION CORPORATION, AND CONTRACT N383-64393A WAS AWARDED TO RETT PRODUCTS COMPANY IN THE ABOVE AMOUNT ON APRIL 1, 1957.

THE PROTEST BY FRIEZ INSTRUMENT DIVISION TO SUCH AWARD IS BASED UPON AN ALLEGATION THAT COMPLIANCE WITH SUPPLEMENT II BY RETT PRODUCTS COMPANY WOULD HAVE INCREASED ITS COSTS IN AN AMOUNT GREATER THAN THE DIFFERENCE IN THE TWO LOW BID PRICES, SINCE RETT PRODUCTS COMPANY HAD NOT PREVIOUSLY MANUFACTURED THE ITEM 4 ARTICLE. IT FURTHER CONTENDS THAT, SINCE THE INVITATION FOR BIDS STATES THAT EACH BIDDER MUST SHOW A UNIT PRICE FOR EACH ITEM UPON WHICH HE IS BIDDING, AND SINCE SUPPLEMENT II STATES THAT AWARD WOULD BE MADE TO THE LOW BIDDER FOR ITEMS 1 THROUGH 4 AND ITEM 6, RETT PRODUCTS WAS REQUIRED TO EITHER SHOW SUCH AMOUNT AS AN INCREASE IN ITS BID PRICE OR SPECIFICALLY STATE THAT ITEM 6 WOULD BE SUPPLIED WITHOUT CHARGE, AND THAT FAILURE TO SHOW A PRICE STIPULATION OF ANY KIND FOR ITEM 6 RENDERS THE BID INCOMPLETE AS TO ESSENTIAL REQUIREMENTS AND REQUIRES THAT THE BID BE DISQUALIFIED.

WITH RESPECT TO THE QUESTION OF THE AMOUNT OF INCREASED COSTS WHICH WOULD BE INCURRED BY RETT PRODUCTS COMPANY IN COMPLYING WITH SUPPLEMENT II, THE RECORD BEFORE US IS INCONCLUSIVE, THE COMPANY ITSELF ALLEGING THAT THE COST WOULD BE NEGLIGIBLE AND POINTING TO THE FACT THAT THE SECOND LOW BIDDER INDICATED NO CHARGE FOR SUCH ITEM, WHILE THE HIGH BIDDER QUOTED A PRICE OF $90.00, IN SUPPORT OF SUCH ALLEGATION. WE DO NOT CONSIDER IT NECESSARY TO ATTEMPT TO ASCERTAIN THE EXACT AMOUNT FOR THE PURPOSE OF ANSWERING THE SPECIFIC QUESTION PRESENTED.

PARAGRAPH 1/C) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, STANDARD FORM 30, TO WHICH THE PROTESTANT IS APPARENTLY REFERRING IN HIS ALLEGATION THAT EACH BIDDER IS REQUIRED TO SHOW A UNIT PRICE FOR EACH ITEM UPON WHICH HE IS BIDDING, READS AS FOLLOWS:

"/C) UNIT PRICE FOR EACH UNIT BID ON SHALL BE SHOWN AND SUCH PRICE SHALL INCLUDE PACKING UNLESS OTHERWISE SPECIFIED. A TOTAL SHALL BE ENTERED IN THE AMOUNT COLUMN OF THE SCHEDULE FOR EACH ITEM BID ON. IN CASE OF ERROR IN EXTENSION OF PRICE, THE UNIT PRICE WILL GOVERN.'

SUCH PROVISIONS WERE INSERTED IN THE INVITATION FOR THE BENEFIT AND PROTECTION OF THE GOVERNMENT AND, CONSEQUENTLY, THEIR APPLICATION TO ITEMS SUBSEQUENTLY ADDED TO THE ORIGINAL INVITATION, OR THE EXEMPTION OF THESE ITEMS FROM SUCH PROVISIONS, IS WITHIN THE SOUND DISCRETION OF THE CONTRACTING OFFICIALS AND CONFERS NO RIGHT OF PROTEST UPON BIDDERS. WHILE SUCH PROVISIONS WERE APPLICABLE WITHOUT RESERVATION TO ITEMS 1 THROUGH 4 UNDER THE UNAMENDED INVITATION FOR BIDS, IT IS A WELL ESTABLISHED RULE OF CONTRACT CONSTRUCTION THAT WHERE GENERAL PROVISIONS ARE IN CONFLICT WITH SUBSEQUENT SPECIFIC REVISIONS OR AMENDMENTS, THE LATTER WILL GOVERN. POWER SERVICE CORPORATION V. JOSLIN, 76 F.SUPP. 604, 611; STANDARD STEEL CAR CO. V. UNITED STATES, 67 C.CLS. 445, 480; 19 COMP. GEN. 440. THUS, IN SUPPLEMENT I, THE GENERAL REQUIREMENT THAT A UNIT PRICE BE INSERTED ON EACH ITEM WAS MODIFIED TO REQUIRE THE INSERTION OF PRICES ONLY IF A CHANGE IN BID PRICE RESULTED FROM SUCH AMENDMENT. IN VIEW OF SUCH MODIFICATION, THERE CAN BE NO DOUBT THAT A FAILURE TO STATE EITHER UNIT OR TOTAL PRICES ON ITEM 5 WOULD BE EXCEPTED FROM THE PROVISIONS OF PARAGRAPH 1/C) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS. THIS IS AMPLY EVIDENCED BY THE FACT THAT THE ACKNOWLEDGMENTS OF SUPPLEMENT I EXECUTED BY BOTH THE SECOND AND THIRD LOW BIDDERS FAILED TO INDICATE EITHER A CHANGE OR NO CHANGE IN BID PRICE BUT, NEVERTHELESS, WERE CONSIDERED COMPLETE FOR EVALUATION PURPOSES.

WITH RESPECT TO SUPPLEMENT II, NO PROVISION WAS MADE THEREIN FOR THE INSERTION OF EITHER THE UNIT OR TOTAL PRICES AS CONTEMPLATED BY PARAGRAPH 1/C) OF THE INVITATION, NOR WAS ANY REQUIREMENT CONTAINED THEREIN THAT BIDDERS MUST AFFIRMATIVELY INDICATE NO REVISION IN THEIR BID PRICES AS A RESULT OF SUCH AMENDMENT. THE RECORD INDICATES THAT THE ORIGINAL INVITATION AND BOTH SUPPLEMENTS THERETO WERE EXECUTED BY RETT PRODUCTS COMPANY ON THE SAME DAY, AND THERE IS NOTHING TO INDICATE THAT ANY ADDITIONAL COST TO THE BIDDER RESULTING FROM THE REQUIREMENTS OF SUPPLEMENT II HAD NOT ALREADY BEEN CONSIDERED AND INCORPORATED INTO THE UNIT AND TOTAL PRICES QUOTED FOR ITEM 4 PRIOR TO ACKNOWLEDGMENT OF THE AMENDMENT.

UNDER THE CIRCUMSTANCES, IT IS OUR OPINION THAT THE ACKNOWLEDGMENT OF SUPPLEMENT II BY RETT PRODUCTS COMPANY WITHOUT AFFIRMATIVELY INDICATING A SPECIFIC AMOUNT IN WHICH ITS BID PRICE SHOULD BE INCREASED DID NOT RENDER THE BID INCOMPLETE UNDER THE TERMS OF THE INVITATION BUT DID OBLIGATE THE BIDDER TO SUPPLY THE ITEM 6 ARTICLES ON A NO CHARGE BASIS. ACCORDINGLY, THE PROTEST FILED BY FRIEZ INSTRUMENT DIVISION PRESENTS NO VALID GROUND FOR CANCELLATION OF THE AWARD BASED UPON THE BID PRICE COMPUTED ON THAT BASIS.

THE ENCLOSURES TRANSMITTED WITH THE LETTER FROM THE BUREAU OF SUPPLIES AND ACCOUNTS ARE RETURNED.