B-143716, AUG. 25, 1960

B-143716: Aug 25, 1960

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SIX BIDS WERE RECEIVED AND OPENED AND IT APPEARS THAT ORDNANCE PRODUCTS. WAS DETERMINED TO BE NONRESPONSIVE TO THE INVITATION SINCE IT HAD QUALIFIED ITS BID BY TYPING A NOTE ON THE TOP OF A PAGE OF THE INVITATION SINCE IT HAD QUALIFIED ITS BID BY TYPING A NOTE ON THE TOP OF A PAGE OF THE INVITATION ENTITLED. " READING: "NO CHARGES FOR TOOLING HAVE BEEN INCLUDED IN THE UNIT PRICE OF THIS ITEM.'. WHICH WAS REVIEWED AND APPROVED BY THE PROCUREMENT AGENCY'S LEGAL STAFF. THE BID WAS REJECTED AND THE CONTRACT WAS AWARDED TO AMCOL PROPULSION. ITS USE IS LIMITED TO THE PRODUCTION OF THE END ITEM. IN THE INVITATION WITH REFERENCE TO SPECIAL TOOLING IS SUBJECT TO VARYING INTERPRETATIONS AND. IS AMBIGUOUS.

B-143716, AUG. 25, 1960

TO THE SECRETARY OF THE ARMY:

BY LETTER DATED AUGUST 8, 1960, WITH ENCLOSURE, THE CHIEF, CONTRACTS BRANCH, PROCUREMENT DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REQUESTED THAT WE REVIEW THE PROTEST OF ORDNANCE PRODUCTS, INC., AGAINST THE DISQUALIFICATION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. CML-30-070-60-140.

THE INVITATION, AS AMENDED, REQUESTED BIDS FOR THE FURNISHING OF 22,289 UNITS OF "BURSTER, INCENDIARY, M4" TO BE OPENED ON JUNE 22,1960, AT THE U.S. ARMY CHEMICAL PROCUREMENT DISTRICT, NEW YORK. SIX BIDS WERE RECEIVED AND OPENED AND IT APPEARS THAT ORDNANCE PRODUCTS, INC., SUBMITTED THE LOWEST BID IN THE AMOUNT OF $142,649.60 AND THAT AMCEL PROPULSION, INC., SUBMITTED THE NEXT LOWEST BID IN THE AMOUNT OF $145,433. THE BID OF ORDNANCE PRODUCTS, INC., WAS DETERMINED TO BE NONRESPONSIVE TO THE INVITATION SINCE IT HAD QUALIFIED ITS BID BY TYPING A NOTE ON THE TOP OF A PAGE OF THE INVITATION SINCE IT HAD QUALIFIED ITS BID BY TYPING A NOTE ON THE TOP OF A PAGE OF THE INVITATION ENTITLED,"GENERAL PROVISION NO. 33 SPECIAL TOOLING," READING: "NO CHARGES FOR TOOLING HAVE BEEN INCLUDED IN THE UNIT PRICE OF THIS ITEM.' BASED UPON SUCH DETERMINATION, WHICH WAS REVIEWED AND APPROVED BY THE PROCUREMENT AGENCY'S LEGAL STAFF, THE BID WAS REJECTED AND THE CONTRACT WAS AWARDED TO AMCOL PROPULSION, INC., ON JUNE 30, 1960.

THE SPECIAL TOOLING PROVISION OF THE INVITATION (SECTION 13-504, ASPR) DEFINES "SPECIAL OOLING" AS PROPERTY OF SUCH SPECIALIZED NATURE THAT, WITHOUT SUBSTANTIAL MODIFICATION OR ALTERATION, ITS USE IS LIMITED TO THE PRODUCTION OF THE END ITEM. IT ALSO PROVIDES THAT UPON COMPLETION OF THE CONTRACT, THE GOVERNMENT MAY ASSERT TITLE TO ANY SPECIAL TOOLING MANUFACTURED OR ACQUIRED FOR THE PERFORMANCE OF THE CONTRACT.

THE NOTE INSERTED BY ORDNANCE PRODUCTS, INC., IN THE INVITATION WITH REFERENCE TO SPECIAL TOOLING IS SUBJECT TO VARYING INTERPRETATIONS AND, AS SUCH, IS AMBIGUOUS. FIRST, THE NOTE MIGHT BE SAID TO MEAN THAT ORDNANCE PRODUCTS, INC., DOES NOT NEED ANY SPECIAL TOOLING TO PERFORM THE CONTRACT AND, HENCE, HAS NOT INCLUDED A CHARGE THEREFOR. SECOND, IT COULD BE INTERPRETED TO MEAN THAT THE BIDDER BID A UNIT PRICE WITHOUT INCLUDING ANY ALLOWANCE FOR SPECIAL TOOLING, SO THAT, IN THE EVENT SPECIAL TOOLING THEREAFTER IS REQUIRED FOR PRODUCTION, ORDNANCE PRODUCTS, INC., AS THE CONTRACTOR MAY HAVE A CLAIM AGAINST THE GOVERNMENT FOR THE COST THEREOF. THIRD, IT COULD BE CONSTRUED THAT ORDNANCE PRODUCTS, INC., HAS, IN EFFECT, STATED THAT IT HAS NOT INCLUDED A SPECIAL TOOLING CHARGE IN ITS BID AND THAT THEREAFTER IF IT DOES ACQUIRE SPECIAL TOOLING AT ITS OWN EXPENSE, SUCH TOOLING WILL REMAIN ITS PROPERTY.

HENCE, IT IS EVIDENT THAT THE INTENDED MEANING OF THE TYPED NOTE COULD NOT HAVE BEEN DETERMINED WITH ANY DEGREE OF CERTAINTY WITHOUT CONSULTING ORDNANCE PRODUCTS, INC. IN SIMILAR SITUATIONS WE HAVE HELD THAT SUCH A BID WAS LEGALLY DEFECTIVE. SEE B-118428,DATED APRIL 19, 1954. IN ADDITION TO THE OBVIOUS FACT THAT SUCH A BID COULD NOT BE REGARDED AS "CONFORMING TO THE INVITATION" AS REQUIRED BY ARTICLE 8 (A) OF THE TERMS AND CONDITIONS, TO PERMIT THE BIDDER TO DECIDE FOR ITSELF WHETHER IT INTENDED TO MEET THE ESSENTIAL REQUIREMENTS OF AN INVITATION WOULD BE TANTAMOUNT TO BE GIVING THE BIDDER AN ELECTION TO WITHDRAW ITS BID AFTER OPENING, AN ADVANTAGE NOT ENJOYED BY OTHER BIDDERS IN THE ABSENCE OF BONA FIDE ERROR IN THEIR BIDS.

WITH RESPECT TO THE REQUEST OF ORDNANCE PRODUCTS, INC., THAT ITS LETTER OF JULY 5, 1960, BE CONSIDERED AS AN AMENDMENT TO ITS ORIGINAL BID, WE HAVE HELD CONSISTENTLY THAT A BIDDER MAY NOT BE PERMITTED TO CHANGE A MATERIAL PROVISION IN ITS BID SUBSEQUENT TO THE OPENING OF THE BID. SEE 37 COMP. GEN. 780.

ACCORDINGLY, WE AGREE THAT THE BID OF ORDNANCE PRODUCTS, INC., PROPERLY WAS REJECTED AS NOT BEING RESPONSIVE TO THE INVITATION FOR BIDS. IN VIEW THEREOF, WE FIND NO LEGAL BASIS TO OBJECT TO THE AWARD OF THE CONTRACT TO AMCEL PROPULSION, INC. ..END :