B-134223, NOV. 20, 1957

B-134223: Nov 20, 1957

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MARITIME ADMINISTRATION: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25. ARTICLE 6 OF BID FORM II READS AS FOLLOWS: "THE UNDERSIGNED BIDDER ACCEPTS AND AGREES TO ALL THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS AS FULLY AS IF THEY WERE SEPARATELY REPEATED AND AGREED TO IN THIS BID.'. MANITOWOC'S ARTICLE 6 WAS MODIFIED TO READ: "THE UNDERSIGNED BIDDER ACCEPTS AND AGREES TO ALL THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS AS FULLY AS IF THEY WERE SEPARATELY REPEATED AND AGREED TO IN THIS BID. " A COPY OF WHICH IS ATTACHED.'. THERE ARE SEVERAL MATTERS IN CONNECTION WITH THE CONTRACT ON WHICH WE WOULD DESIRE FURTHER DISCUSSION AS WE FEEL CERTAIN MODIFICATIONS SHOULD BE MADE BEFORE WE AGREE TO SAME.'.

B-134223, NOV. 20, 1957

TO HONORABLE CLARENCE G. MORSE, MARITIME ADMINISTRATOR, MARITIME ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25, 1957, RELATIVE TO A BID SUBMITTED ON OCTOBER 5, 1957, BY MANITOWOC SHIPBUILDING, INC., IN RESPONSE TO AN INVITATION FOR BIDS OF MOORE-MCCORMACK LINES, DATED JULY 15, 1957. YOU PRESENT THE FACTS OF THE CASE AS FOLLOWS:

"THE INVITATION CONTAINED TWO TYPES OF BID FORMS--- BID FORM I FOR A FIXED PRICE CONTRACT AND BID FORM II FOR AN ADJUSTED PRICE CONTRACT. MANITOWOC CHOSE THE LATTER TYPE FORM; HOWEVER, IT DID NOT FOLLOW THE FORM EXACTLY, AS REQUIRED. ARTICLE 6 OF BID FORM II READS AS FOLLOWS: "THE UNDERSIGNED BIDDER ACCEPTS AND AGREES TO ALL THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS AS FULLY AS IF THEY WERE SEPARATELY REPEATED AND AGREED TO IN THIS BID.' MANITOWOC'S ARTICLE 6 WAS MODIFIED TO READ: "THE UNDERSIGNED BIDDER ACCEPTS AND AGREES TO ALL THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS AS FULLY AS IF THEY WERE SEPARATELY REPEATED AND AGREED TO IN THIS BID, SUBJECT TO OUR LETTER OF OCTOBER 7, 1957, ACCOMPANYING THIS PROPOSAL," A COPY OF WHICH IS ATTACHED.'

THE LETTER OF OCTOBER 7, 1957, READS, IN PERTINENT PART, AS FOLLOWS:

"IN THE EVENT OUR PROPOSAL SHOULD BE GIVEN FAVORABLE CONSIDERATION BY YOU, THERE ARE SEVERAL MATTERS IN CONNECTION WITH THE CONTRACT ON WHICH WE WOULD DESIRE FURTHER DISCUSSION AS WE FEEL CERTAIN MODIFICATIONS SHOULD BE MADE BEFORE WE AGREE TO SAME.'

YOU EXPRESS THE VIEW THAT (1) SINCE THE BIDDER HAS NOT COMPLIED WITH YOUR BIDDING INSTRUCTIONS FURTHER NEGOTIATIONS WOULD BE REQUIRED, THEREBY GIVING MANITOWOC AN UNDUE ADVANTAGE OVER OTHER BIDDERS, AND, (2) THE TERMS OF MANITOWOC'S DEMANDS COULD VARY, DEPENDING ON WHETHER IT FEELS THE CONTRACT TO BE ADVANTAGEOUS OR NOT. THEREFORE, IT IS YOUR OPINION THAT THE BID IS NON-RESPONSIVE.

WE THINK THE BIDDER'S STATEMENT ABOVE-QUOTED MAY BE ONLY REASONABLY CONSTRUED AS A RESERVATION BY THE BIDDER OF THE RIGHT TO ACCEPT, REJECT OR MODIFY THE TERMS AND CONDITIONS OF THE INVITATION AND SPECIFICATIONS. HENCE, ANY AWARD MADE PURSUANT TO THE BID WOULD NOT APPEAR TO RESULT IN A CONTRACT IMPOSING UPON THE BIDDER THE OBLIGATION TO COMPLY WITH THOSE TERMS AND CONDITIONS AND OBVIOUSLY WOULD NOT BE THE CONTRACT OFFERED TO THE OTHER BIDDERS AS A BASIS OF COMPETITION. SEE 34 COMP. GEN. 82. THEREFORE CONCUR IN YOUR OPINION THAT THE BID IS NOT RESPONSIVE TO THE INVITATION.