B-141591, MARCH 29, 1960, 39 COMP. GEN. 653

B-141591: Mar 29, 1960

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BIDS - CONFIRMATION - PROPRIETY - BID AS INCLUDING ALL ITEMS A CONFIRMATION BY A LOW BIDDER THAT HIS BID WAS INTENDED TO COVER ALL THE ITEMS UNDER AN INVITATION WHICH DID NOT SPECIFY THAT INDIVIDUAL PRICES WERE TO BE QUOTED ON EACH PARTICULAR ITEM MAY BE REGARDED AS A CONFIRMATION WHICH IS NOT INCONSISTENT WITH A REASONABLE INTERPRETATION OF THE BID AS SUBMITTED. UNDER THE RULE THAT ANY AMBIGUITY IS TO BE CONSTRUED AGAINST THE PARTY CAUSING THE AMBIGUITY. 1960: FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE AWARD MADE TO HEATING SERVICES. THERE WAS NO PROVISION IN THE INVITATION REQUIRING BIDDERS TO QUOTE INDIVIDUAL PRICES ON EACH ITEM AND ONLY ONE OF THE BIDS RECEIVED QUOTED INDIVIDUAL PRICES FOR ALL 6 ITEMS LISTED ON SCHEDULE A.

B-141591, MARCH 29, 1960, 39 COMP. GEN. 653

BIDS - CONFIRMATION - PROPRIETY - BID AS INCLUDING ALL ITEMS A CONFIRMATION BY A LOW BIDDER THAT HIS BID WAS INTENDED TO COVER ALL THE ITEMS UNDER AN INVITATION WHICH DID NOT SPECIFY THAT INDIVIDUAL PRICES WERE TO BE QUOTED ON EACH PARTICULAR ITEM MAY BE REGARDED AS A CONFIRMATION WHICH IS NOT INCONSISTENT WITH A REASONABLE INTERPRETATION OF THE BID AS SUBMITTED; AND, THEREFORE, UNDER THE RULE THAT ANY AMBIGUITY IS TO BE CONSTRUED AGAINST THE PARTY CAUSING THE AMBIGUITY, THE LOW BID MAY BE REGARDED AS RESPONSIVE TO THE INVITATION, AND AWARD ON THE BASIS OF THE CONFIRMATION WOULD NOT BE PREJUDICIAL TO THE OTHER BIDDERS.

TO CLEAVER-BROOKS SPECIAL PRODUCTS, INC., MARCH 29, 1960:

FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE AWARD MADE TO HEATING SERVICES, INC., UNDER INVITATION FOR BIDS NO. 1002-1043-0, ISSUED BY THE UNITED STATES COAST GUARD, CURTIS BAY, BALTIMORE, MARYLAND.

THE INVITATION REQUESTED BIDS FOR FURNISHING HEATING BOILERS FOR COAST GUARD PATROL BOATS PLUS SPARE PARTS, DRAWINGS, AND INSTRUCTION BOOKS, AS SET FORTH IN SCHEDULE A AS FOLLOWS:

1. 17 HEATING BOILERS IN ACCORDANCE WITH SPECIFICATION NO.

82-S-51-1.

1.A. 17 SETS OF SPARE PARTS.

1.B. 2 SETS OF DRAWINGS.

1.C. 2 SETS OF INSTALLATION DRAWINGS.

1.D. 1 INSTRUCTION BOOK (ROUGH DRAFT).

1.E. 95 INSTRUCTION BOOKS (COMPLETE).

THERE WAS NO PROVISION IN THE INVITATION REQUIRING BIDDERS TO QUOTE INDIVIDUAL PRICES ON EACH ITEM AND ONLY ONE OF THE BIDS RECEIVED QUOTED INDIVIDUAL PRICES FOR ALL 6 ITEMS LISTED ON SCHEDULE A.

YOUR PROTEST IS PREMISED ENTIRELY ON THE BASIS THAT HEATING SERVICES, INC., QUOTED A PRICE OF $446.34 PER UNIT FOR ITEM 1 OF SCHEDULE A; THAT NO PRICES WERE SUBMITTED ON ITEMS 1.A THROUGH E; AND THAT, THEREFORE, THE BID WAS NOT RESPONSIVE TO THE INVITATION AND SHOULD HAVE BEEN REJECTED. VIEW THEREOF YOU CONTEND THAT THE AWARD MADE BY THE COAST GUARD MUST BE CANCELED AND THE AWARD MADE TO YOU AS THE LOWEST BIDDER RESPONSIVE TO THE INVITATION.

EXAMINATION OF THE ORIGINAL BID OF HEATING SERVICES, INC., SHOWS THAT YOUR INFORMATION WAS NOT CORRECT. YOUR REPRESENTATIVE, WHO ATTENDED THE OPENING OF THE BIDS, MAY HAVE BEEN LED TO BELIEVE FROM THE MANNER IN WHICH THE ABSTRACT OF BIDS WAS PREPARED THAT HEATING SERVICES HAD SUBMITTED A BID ON SCHEDULE A FOR ITEM 1 ONLY, AND THAT NO QUOTATIONS WERE SUBMITTED ON THE REMAINING REQUIRED ITEMS; HOWEVER, THE BID OF HEATING SERVICES DID NOT SHOW THE QUOTATION ON THE SHEET CONTAINING SCHEDULE A, WHICH WAS LEFT COMPLETELY BLANK, BUT ON THE FACE SHEET OF THE INVITATION AS FOLLOWS:

QUANTITY ITEM NO. SUPPLIES OR ( NUMBER OF UNIT UNIT PRICE AMOUNT

SERVICES UNITS) --------------------------------- -----------------------

SEE SCHEDULE 17 $446.34 $7,587.78

"A" ATTACHED

THE CONTRACTING OFFICER, WHO WAS NOT PRESENT AT THE BID OPENING, BELIEVED THAT THE PROPER INTERPRETATION OF THE BID OF HEATING SERVICES WAS THAT IT COVERED ALL ITEMS SET FORTH IN THE ATTACHED SCHEDULE A FOR THE TOTAL PRICE OF $7,587.78. HOWEVER, FOR CLARIFICATION, THE BIDDER WAS REQUESTED TO CONFIRM ITS BID. THE BIDDER DID SO, AND ADVISED THAT ITS BID WAS INTENDED TO COVER ALL ITEMS. IT WAS ALSO DETERMINED THAT THE EQUIPMENT WHICH THE BIDDER PROPOSED TO FURNISH MET THE REQUIREMENTS OF THE SPECIFICATIONS AND, THEREFORE, THE AWARD WAS MADE TO HEATING SERVICES, INC., IN THE TOTAL AMOUNT OF $7,587.78.

ALTHOUGH IT MIGHT BE ARGUED THAT THERE WAS SOME AMBIGUITY IN THE BID SUBMITTED BY HEATING SERVICES, INC., IT WAS BELIEVED, AND SUCH FACT WAS SUBSEQUENTLY CONFIRMED BY THE BIDDER, THAT THE BID OF $7,587.78 WAS INTENDED TO COVER THE FURNISHING OF ALL ITEMS REQUIRED BY SCHEDULE A. A BIDDER PROPERLY MAY BE REQUESTED TO CONFIRM A BID BUT THE CONFIRMATION MAY NOT BE INCONSISTENT WITH A REASONABLE INTERPRETATION OF THE BID AS SUBMITTED. UNDER THE PRINCIPLE THAT AN AMBIGUOUS BID IS TO BE CONSTRUED AGAINST THE BIDDER, WE FEEL THAT THIS INTERPRETATION WAS PROPER. FURTHERMORE, EVEN IF THE BID OF HEATING SERVICES HAD BEEN CONSIDERED AS NOT BEING RESPONSIVE TO THE INVITATION, THE CONTRACTING OFFICER, HAVING KNOWLEDGE THAT THE BOILERS COULD BE PURCHASED FOR APPROXIMATELY $7,600, WOULD HAVE HAD DIFFICULTY IN JUSTIFYING AWARD OF A CONTRACT TO YOU FOR DOUBLE THAT AMOUNT. THE INTEREST OF THE GOVERNMENT MIGHT WELL HAVE BEEN FOUND TO REQUIRE THE REJECTION OF ALL BIDS AND READVERTISING.

THE FACTUAL CIRCUMSTANCES HERE INVOLVED ARE SUBSTANTIALLY DIFFERENT FROM THOSE INVOLVED IN YOUR BID WHICH WAS THE SUBJECT OF OUR DECISION OF SEPTEMBER 3, 1959, B-140490, SINCE YOUR BID IN THAT CASE WAS CLEARLY QUALIFIED. IN THE CIRCUMSTANCES HERE DESCRIBED, IT IS NOT BELIEVED THAT HEATING SERVICES, INC., WAS GRANTED ANY UNDUE ADVANTAGE OVER OTHER BIDDERS IN BEING PERMITTED TO CONFIRM ITS INTENDED BID. FOR THE REASONS STATED, WE FIND NO BASIS FOR QUESTIONING THE LEGALITY OF THE AWARD MADE BY THE UNITED STATES COAST GUARD TO HEATING SERVICES, INC. ..END :