B-138384, MARCH 17, 1959, 38 COMP. GEN. 612

B-138384: Mar 17, 1959

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WHICHEVER IS LATER. WHICH WAS A MATERIAL QUALIFICATION TO THE BID AFFECTING THE BIDDER'S LIABILITY. WERE PROPER LEGAL ACTIONS. MARCH 17. 1959: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 8. BIDS WERE REQUESTED. SEVEN BIDS WERE RECEIVED. (A) COMPLETE SHIPMENT FROM THE SHIPPING POINT OR POINTS IS DESIRED WITHIN 80 CALENDAR DAYS AFTER DATE OF RECEIPT BY THE CONTRACTOR OF NOTICE OF AWARD OF CONTRACT. BIDDERS ARE REQUIRED TO STATE. A DEFINITE PERIOD OF TIME WITHIN WHICH SHIPMENT WILL BE MADE. IF THE BIDDER FAILS TO INSERT THE NUMBER OF DAYS IN WHICH COMPLETE SHIPMENT WILL BE MADE. THE BID WILL BE CONSIDERED UPON THE BASIS THAT COMPLETE SHIPMENT WILL BE MADE WITHIN THE DESIRED PERIOD.

B-138384, MARCH 17, 1959, 38 COMP. GEN. 612

BIDS - QUALIFIED - DELIVERY SCHEDULE - MODIFICATION AFTER OPENING THE REJECTION OF A LOW BID WHICH CONTAINS A STIPULATION THAT SHIPMENT WOULD BE MADE THIRTY DAYS AFTER RECEIPT OF ORDER "OR TERMINATION OF STRIKE, WHICHEVER IS LATER," AS BEING NONRESPONSIVE TO THE DEFINITE DELIVERY SCHEDULE IN THE INVITATION AND THE REFUSAL, AFTER OPENING, OF PERMISSION TO DELETE THE STRIKE STIPULATION, WHICH WAS A MATERIAL QUALIFICATION TO THE BID AFFECTING THE BIDDER'S LIABILITY, WERE PROPER LEGAL ACTIONS.

TO THE CATERPILLAR TRACTOR CO., MARCH 17. 1959:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 8, 1959, PROTESTING THE AWARD OF A CONTRACT TO INTERNATIONAL HARVESTER COMPANY PURSUANT TO INVITATION (D) 20,029-A, ISSUED BY THE BUREAU OF RECLAMATION, DENVER, COLORADO.

BY THE INVITATION REFERRED TO, AS AMENDED, BIDS WERE REQUESTED-- TO BE OPENED NOVEMBER 28, 1958--- FOR FURNISHING ONE DIESEL-ENGINE-POWERED CRAWLER TRACTOR FOR DELIVERY TO THE TALENT DIVISION, ROGUE RIVER BASIN PROJECT, OREGON. SEVEN BIDS WERE RECEIVED, RANGING FROM YOURS IN THE AMOUNT OF $11,579.19 TO $17,591.81. REGARDING DELIVERY, PARAGRAPH 2 (A) OF THE INVITATION PROVIDED AS FOLLOWS:

2. DELIVERY. (A) COMPLETE SHIPMENT FROM THE SHIPPING POINT OR POINTS IS DESIRED WITHIN 80 CALENDAR DAYS AFTER DATE OF RECEIPT BY THE CONTRACTOR OF NOTICE OF AWARD OF CONTRACT. BIDDERS ARE REQUIRED TO STATE, IN THE BLANK PROVIDED THEREFOR IN THE INVITATION, A DEFINITE PERIOD OF TIME WITHIN WHICH SHIPMENT WILL BE MADE, AND THE TIME SO STATED, IF IN EXCESS OF THE TIME DESIRED, MAY BE CONSIDERED IN MAKING AWARD OF CONTRACT. IF THE BIDDER FAILS TO INSERT THE NUMBER OF DAYS IN WHICH COMPLETE SHIPMENT WILL BE MADE, THE BID WILL BE CONSIDERED UPON THE BASIS THAT COMPLETE SHIPMENT WILL BE MADE WITHIN THE DESIRED PERIOD, AND THE BIDDER AGREES TO ACCEPT AWARD ON THAT BASIS. ALL BIDS SPECIFYING COMPLETE SHIPMENT WITHIN THE DESIRED NUMBER OF CALENDAR DAYS WILL BE CONSIDERED ON AN EQUAL BASIS AS REGARDS TIME OF DELIVERY.

YOUR BID CONTAINED THE FOLLOWING STIPULATION: " SHIPMENT FROM FACTORY 30 DAYS AFTER RECEIPT OF ORDER OR TERMINATION OF STRIKE, WHICHEVER IS LATER.' SUBSEQUENTLY, BY TELEGRAM OF DECEMBER 2, 1958, YOU AUTHORIZED DELETION OF THAT PORTION OF YOUR DELIVERY STIPULATION RELATING TO "TERMINATION OF STRIKE; " HOWEVER, YOUR BID WAS REJECTED ON THE BASIS THAT THE PROVISIONS, WHICH YOU SOUGHT TO WITHDRAW AFTER BID OPENING, LIMITED YOUR LIABILITY FOR DELAYS AND FOR FAILURE TO PERFORM AND THEREFORE, THE CHANGE WAS NOT PERMISSIBLE.

YOU QUESTIONED THE AWARD OF A CONTRACT TO THE INTERNATIONAL HARVESTER, THE NEXT LOWEST BIDDER, CONTENDING THAT YOUR WIRE OF DECEMBER 2, 1958, ESTABLISHED A DEFINITE DELIVERY SCHEDULE AND THAT BY DECEMBER 4 THE BUREAU OF RECLAMATION HAD SUFFICIENT DATA TO ESTABLISH A DELIVERY DATE AS EARLY AS 19 TO 21 DAYS PRIOR TO THE DATE OF THE AWARD TO INTERNATIONAL HARVESTER ON DECEMBER 23, 1958. YOU CONTEND FURTHER THAT IT WAS A MATTER OF PUBLIC KNOWLEDGE THAT THE SUCCESSFUL BIDDER WAS STRIKEBOUND AT THE TIME OF THE BID OPENING, AT THE TIME OF AWARD, AND ON THE DATE OF YOUR LETTER OF PROTEST TO US, I.E., JANUARY 8, 1959.

IN HIS REPORT TO US IN THE MATTER, THE ADMINISTRATIVE ASSISTANT TO THE SECRETARY OF THE INTERIOR STATES THAT THE BID OF INTERNATIONAL HARVESTER, WHICH WAS DETERMINED TO BE RESPONSIVE IN ALL RESPECTS, MADE NO MENTION OF A LABOR STRIKE, NOR WAS THE DELIVERY PROMISE OTHERWISE QUALIFIED. THE ADMINISTRATIVE OBSERVATION IS MADE THAT, HAD INTERNATIONAL HARVESTER EXPECTED A STRIKE THEN IN EXISTENCE TO INTERFERE WITH TIMELY DELIVERY OF THE EQUIPMENT, IT IS UNLIKELY THAT FIRM DELIVERY WOULD HAVE BEEN PROMISED. AS A MATTER OF FACT, IT IS REPORTED THAT, WHEREAS THE CONTRACT DATE FOR SHIPMENT WAS FEBRUARY 19, 1959, THE TRACTOR WAS SCHEDULED FOR SHIPMENT FROM THE COMPANY'S CHICAGO PLANT DURING THE WEEK OF FEBRUARY 2, 1959. FURTHERMORE, HAD THE EXISTING STRIKE INTERFERED WITH TIMELY DELIVERY OF THE EQUIPMENT, WE BELIEVE THAT THE CONTRACTOR COULD NOT HAVE BEEN EXCUSED BY ASSERTING THAT THE STRIKE MADE PERFORMANCE IMPOSSIBLE. WHERE, AS IN THIS CASE, THERE IS AN ABSOLUTELY UNCONDITIONAL CONTRACT NOT SHOWING ANY INTENTION THAT THE POSSIBILITY OF PERFORMANCE WAS AN IMPLIED CONDITION, THE PARTIES ARE BOUND, NOTWITHSTANDING THE PERFORMANCE WAS IMPOSSIBLE AT THE TIME. 17 C.J.S. 462. SEE, ALSO, RUNYON V. CULVER, 181 S.W. 640; TRANSBAY CONST. CO. V. CITY AND COUNTY OF SAN FRANCISCO, 35 F.1SUPP. 433, 436.

BASED UPON ALL THE ATTENDANT FACTORS MENTIONED ABOVE, IT IS OUR VIEW THAT YOUR BID PROPERLY WAS CONSIDERED BY THE CONTRACTING AGENCY AS BEING NONRESPONSIVE. YOUR TELEGRAM IN WHICH YOU OFFERED TO DELETE THAT PORTION OF YOUR DELIVERY STIPULATION REGARDING TERMINATION OF THE STRIKE CANNOT PROPERLY BE GIVEN ANY CONSIDERATION. IN 31 COMP. GEN. 660 WE HELD (QUOTING IN PERTINENT PART FROM THE SYLLABUS) THAT:

A BIDDER MAY NOT CHANGE A PROVISION IN A BID SUBSEQUENT TO ITS OPENING IF THE PROVISION IS MATERIAL AND IN ANY WAY AFFECTS THE PRICE, QUANTITY, OR LIMITS THE BIDDER'S LIABILITY FOR DELAYS OR FOR FAILURE TO PERFORM, * * *

IN SUPPORT OF THIS POSITION ATTENTION IS INVITED TO THE CASE OF CITY OF CHICAGO V. MOHR, 216 ILL. 320; 74 N.E. 1056, WHEREIN THE COURT STATED AS FOLLOWS:

* * * WHERE A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--- A DIRECT VIOLATION OF LAW -- AND CANNOT BE TOO STRONGLY CONDEMNED.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BID WAS ILLEGAL OR IMPROPER.