B-132442, JULY 16, 1957, 37 COMP. GEN. 27

B-132442: Jul 16, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PRESENTED SWORN EVIDENCE SHOWING THAT THE BROCHURE WAS INADVERTENTLY INCLUDED BY A CLERK CONTRARY TO INSTRUCTIONS MAY HAVE THE BID CORRECTED TO ELIMINATE THE PROVISIONS AT VARIANCE WITH THE INVITATION AND CONSIDERED FOR AWARD. ALTHOUGH AN UNSIGNED BROCHURE WHICH WAS INADVERTENTLY SUBMITTED WITH A LOW BID AND WHICH CONTAINS PROVISIONS MODIFYING THE LEGAL OBLIGATIONS OF THE PARTIES CONTRARY TO THE INVITATION MUST BE CONSIDERED AS PART OF THE BID. TWO BIDS WERE RECEIVED. THE LOW BID WAS ACCOMPANIED BY A BROCHURE WHICH WAS NOT SIGNED. HAVE BEEN THE REFERENCE IN PREPARING THIS PROPOSAL AND NO EXCEPTIONS WHATSOEVER HAVE BEEN TAKEN. IT IS THE INTENTION OF THE TENDERER THAT THIS BID BE IN STRICT ACCORDANCE WITH THE PURCHASER'S SPECIFICATIONS IN THEIR ENTIRETY.

B-132442, JULY 16, 1957, 37 COMP. GEN. 27

BIDS - MISTAKES - CORRECTION - EVIDENCE OF ERROR; BIDS - QUALIFIED - OVERALL OFFER OF COMPLIANCE A LOW BIDDER WHO SUBMITTED WITH THE BID AN UNSIGNED BROCHURE CONTAINING PROVISIONS MODIFYING THE LEGAL OBLIGATIONS OF THE PARTIES CONTRARY TO THE INVITATION BUT WHO, PRIOR TO AWARD, PRESENTED SWORN EVIDENCE SHOWING THAT THE BROCHURE WAS INADVERTENTLY INCLUDED BY A CLERK CONTRARY TO INSTRUCTIONS MAY HAVE THE BID CORRECTED TO ELIMINATE THE PROVISIONS AT VARIANCE WITH THE INVITATION AND CONSIDERED FOR AWARD. ALTHOUGH AN UNSIGNED BROCHURE WHICH WAS INADVERTENTLY SUBMITTED WITH A LOW BID AND WHICH CONTAINS PROVISIONS MODIFYING THE LEGAL OBLIGATIONS OF THE PARTIES CONTRARY TO THE INVITATION MUST BE CONSIDERED AS PART OF THE BID, THE BIDDER'S OVERALL OFFER TO COMPLY WITH THE SPECIFICATIONS, NOTWITHSTANDING THE DEVIATIONS, CURES THE DEVIATIONS AND RENDERS THE BID RESPONSIVE.

TO L. N. MCCLELLAN, DEPARTMENT OF THE INTERIOR, JULY 16, 1957:

BY YOUR LETTER OF JULY 2, 1957, YOU REQUEST AN ADVANCE DECISION IN REGARD TO THE ERROR ALLEGED BY THE BALDWIN-1LIMA-1HAMILTON CORPORATION IN ITS BID SUBMITTED PURSUANT TO BUREAU OF RECLAMATION INVITATION FOR BIDS NO. BS- 4899.

THE INVITATION ISSUED APRIL 29, 1957, SOLICITED BIDS FOR A GOVERNOR FOR THE HYDRAULIC TURBINE AT THE BIG THOMPSON POWER PLANT. TWO BIDS WERE RECEIVED, THE LOW BID OF $21,366.25 SUBMITTED BY BALDWIN AND A BID OF $25,890.75 FROM THE WOODWARD GOVERNOR COMPANY. THE LOW BID WAS ACCOMPANIED BY A BROCHURE WHICH WAS NOT SIGNED. PARAGRAPH 4 OF THE BROCHURE PROVIDES:

4. EXCEPTIONS TO SPECIFICATIONS.

THE PURCHASER'S SPECIFICATIONS, AS IDENTIFIED ABOVE, HAVE BEEN THE REFERENCE IN PREPARING THIS PROPOSAL AND NO EXCEPTIONS WHATSOEVER HAVE BEEN TAKEN.

IT IS THE INTENTION OF THE TENDERER THAT THIS BID BE IN STRICT ACCORDANCE WITH THE PURCHASER'S SPECIFICATIONS IN THEIR ENTIRETY. WHEREVER THERE ARE DISCREPANCIES BETWEEN DETAILS IN THIS TENDER AND THE REQUIREMENTS OF THE SPECIFICATIONS THEY HAVE BEEN INADVERTENTLY MADE AND ARE NOT TO BE CONSTRUED AS AN INTENT ON THE PART OF THE TENDERER TO IN ANY MANNER TAKE EXCEPTIONS TO THE SPECIFICATIONS.

PARAGRAPH 5 OF THE BROCHURE OFFERS THE SERVICES OF A QUALIFIED ERECTOR TO SUPERVISE THE INSTALLATION OF THE EQUIPMENT TO BE AVAILABLE "ON A PER DIEM RATE PLUS TRAVELING AND LIVING EXPENSES.' PARAGRAPH 8 OF THE BROCHURE LIMITS THE BIDDER'S WARRANTY TO REPAIRING OR REPLACING PARTS F.O.B. POINT OF MANUFACTURE WITHIN ONE YEAR FROM DATE OF SHIPMENT FROM COMPANY'S PLANT. THE PARAGRAPH FURTHER SPECIFICALLY PROVIDES THAT THE BIDDER SHALL NOT BE LIABLE FOR TRANSPORTATION OR INSTALLATION CHARGES INCIDENT TO THE REPAIRING OR REPLACEMENT OF DEFECTIVE PARTS. THE PROVISIONS OF PARAGRAPHS 5 AND 8 ARE CLEARLY IN CONFLICT WITH PROVISIONS OF THE INVITATION WHICH STATE THAT SUBSISTENCE OR OTHER PERSONAL EXPENSES OF AN ERECTOR WHILE HE IS EN ROUTE OR AT THE JOB SITE WILL NOT BE PAID BY THE GOVERNMENT; THAT THE CONTRACTOR'S WARRANTY SHALL BE IN EFFECT FOR ONE YEAR AFTER THE MATERIALS ARE PLACED IN USE NOT TO EXCEED 24 MONTHS AFTER COMPLETE DELIVERY OF THE PRODUCT AND THAT ALL EXPENSES IN CONNECTION WITH CORRECTION OF DEFECTS WILL BE BORNE BY THE CONTRACTOR.

AFTER OPENING OF THE BIDS AND PRIOR TO AWARD, THE LOW BIDDER ALLEGED THAT THE PROVISIONS OF THE BROCHURE IN CONFLICT WITH THE TERMS OF THE INVITATION HAD BEEN INCLUDED IN ERROR AND SUBMITTED SWORN STATEMENTS FROM TWO OF ITS EMPLOYEES INDICATING THAT THE RESPONSIBLE OFFICER OF THE COMPANY HAD DIRECTED THAT THE CONFLICTING PROVISIONS BE OMITTED BUT THAT THEY WERE NEVERTHELESS INADVERTENTLY INCLUDED BY THE SALES CLERK. IT IS CLEAR THAT THE BROCHURE MUST BE CONSIDERED A PART OF THE BID, 36 COMP. GEN. 535, 539, AND THAT THE CONFLICTING PROVISIONS OF THE BROCHURE CONTAIN MATERIAL VARIATIONS WHICH MAY NOT BE WAIVED AS INFORMALITIES. CF. 30 COMP. GEN. 179.

WE HAVE HELD THAT AN OVERALL OFFER TO COMPLY WITH THE SPECIFICATIONS, NOTWITHSTANDING MATERIAL VARIATIONS IN THE DETAILS OF THE BID, CURES SUCH VARIATIONS IN THE DETAIL AND RENDERS THE BID RESPONSIVE IF OTHERWISE CORRECT. 10 COMP. GEN. 160; A-68974, FEBRUARY 17, 1936. THIS PRINCIPLE HAS RECENTLY BEEN CONFIRMED BY DECISIONS PUBLISHED AT 36 COMP. GEN. 376; ID. 415. THE DECISION OF FEBRUARY 17, 1936, INVOLVED AN *INVITATION FOR BIDS WHICH REQUIRED THE SUBMISSION BY THE BIDDERS OF DETAILED DATA RELATIVE TO THE PRODUCT OFFERED. THE LOW BID, WHICH WAS ACCOMPANIED BY DATA CONTAINING SPECIFICATIONS AT VARIANCE IN SEVERAL MATERIAL RESPECTS WITH THE SPECIFICATIONS PROVIDED BY THE CONTRACTING AGENCY, WAS NEVERTHELESS HELD TO BE RESPONSIVE ON THE BASIS OF THE BIDDER'S OVERALL OFFER TO COMPLY SIMILAR IN FORM TO THAT CONTAINED IN THE BALDWIN BROCHURE THERE IS A DIFFERENCE IN THE TWO SITUATIONS IN THAT THE EARLIER CASE INVOLVED VARIATIONS IN TECHNICAL SPECIFICATIONS WHILE THE INSTANT MATTER CONCERNS STATEMENTS IN THE BROCHURE WHICH WOULD MODIFY THE LEGAL OBLIGATIONS OF THE PARTIES. NEVERTHELESS, IT DOES NOT APPEAR THAT SUCH DIFFERENCE WOULD REQUIRE A DIFFERENT CONCLUSION AS TO THE EFFECT OF THE OVERALL OFFER TO COMPLY.

HOWEVER, IT IS NOT NECESSARY THAT THE CASE BE DECIDED ON THAT BASIS SINCE THE SITUATION IS CLEARLY GOVERNED BY OUR RULING IN B-128049, JUNE 5, 1956. IN THAT CASE, A LOW BID OTHERWISE RESPONSIVE WAS ACCOMPANIED BY A LETTER SIGNED BY A REPRESENTATIVE OF THE FIRM OTHER THAN THE ONE WHO HAD SIGNED THE BID. THE LETTER SOUGHT TO EXCLUDE FROM APPLICATION ONE OF THE SIGNIFICANT PROVISIONS OF THE INVITATION. AFTER OPENING AND PRIOR TO AWARD, THE LOW BIDDER ALLEGED THAT THE EXCEPTION STATED IN THE LETTER HAD BEEN INCLUDED BY MISTAKE AND IN SUPPORT OF THIS CONTENTION THERE WAS SUBMITTED AN AFFIDAVIT BY THE REPRESENTATIVE OF THE FIRM RESPONSIBLE FOR THE EXCEPTION STATING THAT IT HAD BEEN TAKEN IN ERROR AND WITHOUT AUTHORITY. WE HELD IN THAT CASE THAT UNDER THE CIRCUMSTANCES, AND IN VIEW OF THE EVIDENCE PRESENTED IN THE FORM OF THE EXPLANATION AND AFFIDAVIT, THE EXCEPTION SHOULD BE REGARDED AS AN ERROR SUFFICIENTLY ESTABLISHED TO WARRANT CORRECTION OF THE BID.

IN THE PRESENT CASE THE VARIATIONS CONTAINED IN THE BROCHURE, AS INDICATED BY THE SWORN AFFIDAVITS, WERE INCLUDED BY MISTAKE AND WITHOUT AUTHORITY. THEREFORE, AND IN VIEW OF OUR HOLDING ABOVE REFERRED TO, THE LOW BID SHOULD BE CORRECTED BY ELIMINATION OF THE PROVISIONS AT VARIANCE WITH THE INVITATION AND CONSIDERED FOR AWARD AS CORRECTED.