B-137421, OCTOBER 13, 1958, 38 COMP. GEN. 300

B-137421: Oct 13, 1958

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HAS THE EFFECT OF ADVISING BIDDERS THAT FAILURE OF THE DESCRIPTIVE LITERATURE TO CONFORM TO THE SPECIFICATIONS WILL NOT BE A CAUSE FOR REJECTION OF THE BID NOR PERMIT THE BIDDER TO DEVIATE FROM THE SPECIFICATIONS. WHERE GARAGE OR CARPORT IS ATTACHED TO THE HOUSE. WHERE REQUIRED STORAGE IS INCLUDED IN THE GARAGE. IF THE GARAGE OR CARPORT ADDITIVE ALTERNATE IS NOT AWARDED. CONTEND THAT THEIR BIDS WERE RENDERED RESPONSIVE BY THE EXECUTION OF THE FOLLOWING STATEMENT REQUIRED BY THE TERMS OF SUBPARAGRAPH 18D: IN ADDITION. THE BIDDER IS REQUIRED TO INCLUDE WITH THE TECHNICAL PROPOSAL THE FOLLOWING STATEMENT. INVOLVING DISCREPANCIES IN TYPE AND SCOPE OF MATERIALS OR SCOPE OF CLOSET AND/OR STORAGE SPACE WE) I WILL REVISE OUR/MY DESIGN TO COMPLY WITH SAID SPECIFICATIONS AND PLANS AT NO INCREASE IN BID PRICE.'.

B-137421, OCTOBER 13, 1958, 38 COMP. GEN. 300

CONTRACTS - SPECIFICATIONS - DEVIATIONS - DESCRIPTIVE LITERATURE AN EXCULPATORY CLAUSE IN AN INVITATION FOR BIDS FOR CONSTRUCTION WORK, WHICH REQUIRES BIDDERS TO CERTIFY COMPLIANCE WITH THE SPECIFICATIONS AND TO REVISE INADVERTENT DEFICIENCIES AND DEVIATIONS IN THE DESCRIPTIVE LITERATURE TO COMPLY WITH THE SPECIFICATIONS AT NO INCREASE IN BID PRICE, HAS THE EFFECT OF ADVISING BIDDERS THAT FAILURE OF THE DESCRIPTIVE LITERATURE TO CONFORM TO THE SPECIFICATIONS WILL NOT BE A CAUSE FOR REJECTION OF THE BID NOR PERMIT THE BIDDER TO DEVIATE FROM THE SPECIFICATIONS, AND, IF THE MATERIAL DEVIATIONS IN THE DESCRIPTIVE LITERATURE SUBMITTED BY THE BIDDERS MAKE PREPARATION OF THE INITIAL PHASES OF THE CONSTRUCTION WORK A PRACTICAL IMPOSSIBILITY AND THE INVITATION DID NOT ACCURATELY REFLECT THE REQUIREMENTS WITH RESPECT TO THE CONFORMABILITY OF DESCRIPTIVE LITERATURE, THE INVITATION MAY BE CANCELED.

TO THE SECRETARY OF THE AIR FORCE, OCTOBER 13, 1958:

A LETTER OF SEPTEMBER 17, 1958, SIGNED BY THE ASSISTANT SECRETARY REQUESTS OUR OPINION AS TO WHETHER THE LOW BIDS SUBMITTED PURSUANT TO INVITATION NOS. 104-602-58-207, 104-602-58-208 AND 21-603-58-70 MAY BE REJECTED AND AWARDS MADE TO OTHER BIDDERS UNDER THE CIRCUMSTANCES SET OUT BELOW.

THE INVITATIONS CALL FOR THE FURNISHING OF ALL LABOR, EQUIPMENT AND MATERIALS AND FOR THE PERFORMANCE OF ALL WORK REQUIRED FOR THE CONSTRUCTION OF HOUSING UNITS AT VARIOUS AIR FORCE LOCATIONS. PARAGRAPH 18 OF THE PARTIAL INSTRUCTION TO BIDDERS PROVIDES IN PART:

DATA TO ACCOMPANY BID: EACH BIDDER SHALL SUBMIT HIS BID, DRAWINGS AND SPECIFICATIONS IN TRIPLICATE, COVERING EACH TYPE OF DWELLING UNIT WHICH HE PROPOSES TO FURNISH. THE DRAWINGS, SPECIFICATIONS, BROCHURES, ETC., SUBMITTED SHALL BE DESIGNATED TECHNICAL PROPOSAL AND SHALL INCLUDE THE FOLLOWING MINIMUM INFORMATION:

A. FLOOR PLANS AND ELEVATIONS INCLUDING FOOTINGS AND FOUNDATIONS DRAWN OR REPRODUCED TO SCALE WITH COMPLETE ACCURATE INSIDE ROOM DIMENSIONS.

B. FLOOR PLANS AND ELEVATIONS OF THE CARPORT OR GARAGE PROPOSED AS AN ADDITIVE ALTERNATE. WHERE GARAGE OR CARPORT IS ATTACHED TO THE HOUSE, THE ADJACENT PORTIONS OF THE HOUSE MUST BE INCLUDED ON THE GARAGE OR CARPORT DRAWINGS. WHERE REQUIRED STORAGE IS INCLUDED IN THE GARAGE, AN ALTERNATE DETAIL MUST BE SUBMITTED TO INDICATE A PROPOSAL FOR PROVIDING THE REQUIRED STORAGE AT NO ADDITION TO THE BID PRICE FOR THE HOUSE, IF THE GARAGE OR CARPORT ADDITIVE ALTERNATE IS NOT AWARDED.

C. AN OUTLINE SPECIFICATION DESCRIBING THE MATERIALS AND CONSTRUCTION PROPOSED. THIS SPECIFICATION SHALL CONTAIN ALL OF THE INFORMATION REQUIRED BY FHA FORM 2005. IT MAY BE FURNISHED ON THE ABOVE MENTIONED FORM OR IN OTHER FORMAT AS DESIRED BY THE BIDDER.

IN EACH INSTANCE, THE DRAWINGS AND SPECIFICATIONS SUBMITTED BY THE LOW BIDDER CONTAINED MATERIAL VARIATIONS, OMISSIONS AND DEVIATIONS MAN OF WHICH WOULD AFFECT THE QUALITY OF THE WORK TO BE PERFORMED. THESE BIDDERS, HOWEVER, CONTEND THAT THEIR BIDS WERE RENDERED RESPONSIVE BY THE EXECUTION OF THE FOLLOWING STATEMENT REQUIRED BY THE TERMS OF SUBPARAGRAPH 18D:

IN ADDITION, THE BIDDER IS REQUIRED TO INCLUDE WITH THE TECHNICAL PROPOSAL THE FOLLOWING STATEMENT, PROPERLY EXECUTED:

"WE) I HEREBY CERTIFY THAT WE) I PROPOSE TO COMPLY WITH ALL REQUIREMENTS OF THE PROJECT SPECIFICATIONS AND THAT IF THIS TECHNICAL PROPOSAL INADVERTENTLY CONTAINS ANY DEFICIENCIES OR DEVIATIONS FROM SAID SPECIFICATIONS AND PLANS, INVOLVING DISCREPANCIES IN TYPE AND SCOPE OF MATERIALS OR SCOPE OF CLOSET AND/OR STORAGE SPACE WE) I WILL REVISE OUR/MY DESIGN TO COMPLY WITH SAID SPECIFICATIONS AND PLANS AT NO INCREASE IN BID PRICE.'

THE LETTER OF SEPTEMBER 17 INDICATES TWO POSSIBLE INTERPRETATIONS OF THE SCOPE OF THE CLAUSE QUOTED ABOVE. THE FIRST IS THAT THE CLAUSE CONSTITUTES AN OVERALL OFFER TO COMPLY WHICH CURES DEVIATIONS IN DETAIL AND RENDERS THE BID RESPONSIVE IF OTHERWISE CORRECT, SUCH AS THOSE CONSIDERED IN 37 COMP. GEN. 27 AND 10 COMP. GEN. 160. IT IS NOTED, HOWEVER, THAT THE AWARDS HERE UNDER CONSIDERATION, UNLIKE THOSE COVERED IN THE CITED DECISIONS, WOULD INVOLVE MAJOR CONSTRUCTION CONTRACTS WITH ALL OF THE ATTENDANT COMPLEXITIES. WITH REGARD TO THE APPLICATION OF THE OVERALL OFFER TO COMPLY TO THIS TYPE OF CONTRACT, THE LETTER STATES:

TO CURE MAJOR VARIATIONS IN A COMPLICATED CONSTRUCTION CONTRACT BY PERMITTING BIDDERS TO REVISE THEIR OTHERWISE NONCONFORMING PLANS AND SPECIFICATIONS TO PROPER STANDARDS WOULD CREATE ADMINISTRATIVE DIFFICULTIES AND PROVIDE A BREEDING GROUND FOR ENDLESS DISPUTES. THE FACT THAT EACH PROTESTANT HAS MADE SPECIFIC, MATERIAL DEVIATIONS AND OMISSION IN THEIR BID SUBMISSIONS NECESSARILY RAISES THE POSSIBILITY THAT THERE MAY SUBSEQUENTLY OCCUR EITHER AN UNWILLINGNESS OR INABILITY ON THEIR PART TO ABIDE BY THEIR GENERAL PROMISES TO CONFORM TO THE GOVERNMENT'S PLANS. SITUATIONS INVOLVING RELATIVELY TIGHT SCHEDULES OF CONSTRUCTION AND INSTALLATION, THE DELAYS INCURRED MAY PROVE COSTLY AND BURDENSOME TO THE GOVERNMENT.

THE LETTER ALSO NOTES THAT THE INTENDED PURPOSE OF THE EXCULPATORY CLAUSE WAS MERELY TO PERMIT CORRECTIONS OF A MINOR INADVERTENT TYPE.

IT IS STATED, FURTHER, THAT THE CLAUSE UNDER CONSIDERATION DIFFERS FROM THOSE IN THE CITED DECISIONS IN THAT IN THE LATTER THE OVERALL OFFERS TO COMPLY WERE VOLUNTARILY PREPARED AND SUBMITTED BY THE INDIVIDUAL BIDDERS, WHILE IN THE INSTANCES CURRENTLY UNDER CONSIDERATION THE CLAUSE WAS PREPARED AND SUBMITTED BY THE ISSUING AGENCY AND REQUIRED UNDER THE TERMS OF THE INVITATION TO BE SIGNED BY THE BIDDER.

THE SECOND POSSIBLE INTERPRETATION OF THE CLAUSE, DESCRIBED IN THE LETTER OF SEPTEMBER 17, WOULD RESTRICT ITS CORRECTIVE POWERS TO DEVIATIONS OR DEFICIENCIES WHICH WERE INADVERTENTLY INCLUDED IN THE DRAWINGS AND SPECIFICATIONS SUBMITTED BY THE BIDDER. IT IS POINTED OUT IN THE LETTER THAT NONE OF THE LOW BIDDERS IN QUESTION HAS SUBMITTED ANY EVIDENCE WHICH WOULD TEND TO INDICATE THAT THE DEVIATIONS WERE DUE TO ANY INADVERTENCE.

IN 36 COMP. GEN. 376, WE RECOGNIZED THE RIGHT OF ADMINISTRATIVE AGENCIES OF THE GOVERNMENT, WHEN JUSTIFIED BY THE CIRCUMSTANCES, TO REQUIRE THE SUBMISSION OF DESCRIPTIVE MATERIAL WITH A BID AND TO REJECT A BID FOR FAILURE OF THE DESCRIPTIVE LITERATURE TO CONFORM TO A STATED STANDARD, PROVIDED THAT THE PURPOSE AND EFFECT OF THE REQUIREMENT WAS CLEARLY POINTED OUT IN THE INVITATION FOR BIDS. THE DECISION FURTHER STATES:

IN OTHER WORDS, WE FEEL THAT THE INVITATION SHOULD EITHER (1) DISTINCTLY POINT OUT THAT, NOTWITHSTANDING A VARIANCE BETWEEN THE SPECIFICATIONS AND DESCRIPTIVE MATERIAL FURNISHED, THE SPECIFICATIONS WILL BE CONTROLLING, OR (2) WHERE DESCRIPTIVE MATERIAL IS DEEMED ESSENTIAL, CONTAIN AN AFFIRMATIVE STATEMENT TO THE EFFECT THAT SUCH MATERIAL WILL BE IN STRICT COMPLIANCE WITH THE SPECIFICATIONS AND THAT A FAILURE TO SUBMIT SUCH MATERIAL WITH THE BID OR A FAILURE OF THE MATERIAL SUBMITTED TO COMPLY STRICTLY WITH THE SPECIFICATION REQUIREMENTS, WILL PRECLUDE CONSIDERATION OF THE BID AS NOT CONFORMING TO THE INVITATION.

IT SHOULD BE NOTED THAT PARAGRAPH 18 DOES NOT, IN ACCORDANCE WITH THE SECOND ALTERNATIVE, PROVIDE THAT A FAILURE STRICTLY TO COMPLY WILL PRECLUDE CONSIDERATION OF THE BID. RATHER, THAT PARAGRAPH, PARTICULARLY WHEN READ IN CONJUNCTION WITH SUBPARAGRAPH D WHICH HAS THE EFFECT OF REQUIRING PERFORMANCE STRICTLY IN ACCORDANCE WITH THE SPECIFICATIONS ISSUED BY THE ADMINISTRATIVE AGENCY NOTWITHSTANDING ANY DEVIATION IN THE DATA SUBMITTED BY THE BIDDER, WOULD APPEAR TO FALL WITHIN THE FIRST ALTERNATIVE OF THE FOREGOING QUOTATION.

FURTHER, PARAGRAPH 20 OF THE PARTIAL INSTRUCTION TO BIDDERS PROVIDES:

FLOOR AREA AND MAXIMUM COST: TO COMPLY WITH CERTAIN STATUTORY LIMITATIONS IMPOSED BY LAW IT IS MANDATORY THAT THE BID PRICE OF EACH UNIT TO THE 5 FOOT LINE NOT EXCEED THE MAXIMUM COST, AND THAT THE NET FLOOR AREA OF EACH UNIT AS DEFINED IN PARAGRAPH 1-05 OF THE SPECIFICATIONS SHALL FALL WITHIN THE AREA LIMITATIONS, PRESCRIBED IN THE FOLLOWING TABULATION:

CHART

HOUSE TYPE MINIMUM NET AREA MAXIMUM NET AREA MAXIMUM COST 4-BR OFFICE-- DETACHED SQUARE FEET 1,185SQUARE FEET 1,540 $15,500 3 BR OFFICE-- DETACHED 1,040

1,250 13,500 3-BR AIRMEN--- DETACHED 895 1,080 11,500

FAILURE TO COMPLY WITH THESE LIMITATIONS WILL BE CAUSE FOR REJECTION OF THE BID. * * * ( ITALICS SUPPLIED.)

THE DEFINITE STATEMENT THAT NONCOMPLIANCE WITH THE SPECIFIC PROVISION QUOTED WILL BE CAUSE FOR REJECTION OF THE BID WOULD APPEAR TO INDICATE THAT SUCH EFFECT IS LIMITED TO THAT PROVISION AND WOULD NOT APPLY TO FAILURE OF THE DATA SUBMITTED BY THE BIDDER TO CONFORM WITH THE SPECIFICATIONS GENERALLY.

WITH REGARD TO WHETHER THE CLAUSE CONTAINED IN SUBPARAGRAPH 18D SHOULD BE GIVEN A BROAD OR RESTRICTED INTERPRETATION, IT COULD REASONABLY BE DEDUCED FROM THE LANGUAGE OF THE PROVISION THAT SINCE THE BIDDER CERTIFIES HIS INTENTION TO COMPLY WITH ALL THE REQUIREMENTS OF THE SPECIFICATION, ANY SHORTCOMING IN THE DRAWINGS SUBMITTED WHICH WOULD INDICATE A NONCOMPLIANCE MUST PERFORCE RESULT FROM INADVERTENCE. THEREFORE, ANY DEVIATIONS WOULD APPEAR TO BE INCLUDED UNDER THE PROVISION. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO THE EXCULPATORY CLAUSE IN 37 COMP. GEN. 27, 28, WHICH WAS INTERPRETED AS AN OVERALL OFFER TO COMPLY AND WHICH CONTAINED LANGUAGE SIMILAR TO THE CLAUSE UNDER CONSIDERATION AS FOLLOWS:

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.

WE ARE NOT AWARE THAT THE FACT THAT ONE PARTY OR ANOTHER MAY HAVE DRAWN A PARTICULAR PROVISION WOULD HAVE ANY OTHER EFFECT UPON ITS INTERPRETATION THAN THAT ALL AMBIGUITIES WOULD BE RESOLVED AGAINST THE WRITER.

IN ACCORDANCE WITH THE FOREGOING, WE CONCLUDE THAT THE PROVISIONS OF PARAGRAPH 18 TAKEN TOGETHER HAVE THE EFFECT OF ADVISING THE BIDDER THAT FAILURE OF HIS DESCRIPTIVE LITERATURE TO CONFORM TO THE SPECIFICATIONS WILL NEITHER CAUSE THE REJECTION OF HIS BID NOR PERMIT HIM TO VARY FROM THE SPECIFICATIONS IF HE RECEIVES THE AWARD. SEE, AGAIN, THE FIRST ALTERNATIVE AT 36 COMP. GEN. 376, 378. OUR DECISION, AT 36 COMP. GEN. 415 IS NOT APPLICABLE IN THE PRESENT SITUATION BECAUSE (1) THE INVITATION WAS ISSUED AND THE BID SUBMITTED PRIOR TO THE TIME 36 COMP. GEN. 376 WAS DECIDED; AND (2) ALTHOUGH THE PURPOSE AND EFFECT OF THE DESCRIPTIVE LITERATURE REQUIREMENT WAS NOT SO CLEARLY AND SPECIFICALLY SPELLED OUT AS RECOMMENDED IN 36 COMP. GEN. 376, THE TERMS OF THE INVITATION WERE SUCH, WHEN TAKEN TOGETHER, AS TO MAKE ANY REASONABLE BIDDER AWARE THAT THE DESCRIPTIVE LITERATURE WAS OF EXTREME IMPORTANCE AND THAT FAILURE OF THE DESCRIPTIVE LITERATURE TO CONFORM TO THE REQUIREMENTS WOULD MAKE PREPARATIONS BY THE GOVERNMENT FOR THE INITIAL PHASES OF THE WORK A PRACTICAL IMPOSSIBILITY. WE THINK THAT THE ISSUANCE OF 36 COMP. GEN. 376 GAVE NOTICE TO PROCURING AGENCIES AND BIDDERS THAT THE PURPOSE AND EFFECT OF DESCRIPTIVE LITERATURE REQUIREMENTS IN INVITATIONS WOULD FALL INTO THE TWO GENERAL CATEGORIES AND COULD BE RECOGNIZED BY LANGUAGE CONSISTENT IN MEANING AND SIMILAR IN FORM TO THAT SUGGESTED IN THE DECISION.

AS WE NOTED EARLIER, THE LETTER OF SEPTEMBER 17 POINTS OUT THAT, BECAUSE OF THE COMPLEXITIES AND THE INHERENT NATURE OF CONSTRUCTION CONTRACTS, THE ACCEPTANCE OF A BID WHICH WAS ACCOMPANIED BY NONCONFORMING DRAWINGS AND OTHER DATA MIGHT CREATE DIFFICULTIES AND DISPUTES ADVERSELY AFFECTING EXECUTION OF THE CONTRACT REQUIREMENTS. THIS POSSIBILITY RECOGNIZED IN 36 COMP. GEN. 376, AND WAS A MAJOR REASON FOR SUGGESTING THE TWO ALTERNATIVES THERE STATED. IF IT IS DETERMINED THAT SUCH RESULTS MIGHT FOLLOW AN AWARD TO A BIDDER WHOSE DESCRIPTIVE LITERATURE CONTAINS DEVIATIONS, THE INVITATION SHOULD PROVIDE, AS RECOMMENDED IN 36 COMP. GEN. 376, THAT THE FAILURE OF THE DESCRIPTIVE LITERATURE OR ANY DESIGNATED PORTION THEREOF TO COMPLY STRICTLY WITH THE SPECIFICATIONS WILL PRECLUDE CONSIDERATION OF THE BID. IN THE INSTANCES UNDER CONSIDERATION, HOWEVER, THE BIDDERS WERE GIVEN THE IMPRESSION THAT DEVIATIONS IN THEIR DATA WOULD NOT AFFECT THE CONSIDERATION OF THEIR BIDS AND, THEREFORE, THAT IT WAS NOT NECESSARY TO EXPEND THE TIME, EFFORT AND MONEY WHICH OTHERWISE MIGHT BE NEEDED TO ASSURE STRICT CONFORMANCE. PRESUMABLY, TOO, THIS LATITUDE, WHICH A BIDDER MAY WELL HAVE INFERRED, WOULD HAVE LOWERED THE COST OF BID PREPARATION; AND THE SAVINGS MIGHT WELL BE REFLECTED IN THE BID.

IF IT IS NOW DETERMINED THAT THE INVITATIONS AS ORIGINALLY ISSUED DID NOT ACCURATELY REFLECT THE REQUIREMENTS OF THE GOVERNMENT WITH RESPECT TO THE CONFORMABILITY OF THE DESCRIPTIVE LITERATURE TO ACCOMPANY EACH BID, THE INVITATIONS MAY BE CANCELED AND NEW INVITATIONS CONTAINING APPROPRIATE PROVISIONS ISSUED. IN THIS REGARD, HOWEVER, CONSIDERATION SHOULD BE GIVEN TO THE FACT THAT THE REJECTION OF ALL BIDS AFTER OPENING MUST INEVITABLY HAVE AN ADVERSE EFFECT UPON THE COMPETITIVE SYSTEM AND SHOULD NOT BE UNDERTAKEN EXCEPT WHEN REQUIRED TO SERVE THE LEGITIMATE PURPOSES OF THE GOVERNMENT.

THE ENCLOSURES TO THE LETTER OF SEPTEMBER 17, WITH THE EXCEPTION OF A COPY OF ONE OF THE INVITATIONS, ARE RETURNED.