B-144897, FEB. 3, 1961

B-144897: Feb 3, 1961

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UNDER THE INVITATION BIDS WERE TO BE SUBMITTED ON THE BASIS OF A PERCENTAGE OF SALES PRICES AND RENTAL INCOME. TWO BIDS WERE RECEIVED AND OPENED ON JANUARY 17. WAS AN UNSIGNED STATEMENT ON ITS BUSINESS STATIONERY THAT "THIS BID INCLUDES ALL PROMOTIONAL EXPENSE. PROVIDES THAT THESE EXPENSES WILL BE BORNE BY THE GOVERNMENT TO THE EXTENT AND IN THE MANNER AUTHORIZED FROM TIME TO TIME. WE HAVE CONSISTENTLY HELD THAT DEVIATIONS IN A BID FROM THE ADVERTISED REQUIREMENTS OF AN INVITATION WHICH GO TO THE SUBSTANCE OF THE BID SO AS TO AFFECT PRICE. QUANTITY OR QUALITY ARE FATAL AND MAY NOT BE WAIVED. THE REASON FOR THAT RULE IS TO PUT ALL BIDDERS ON AN EQUAL FOOTING AND TO PREVENT ANY BIDDER FROM OBTAINING AN ADVANTAGE BY BEING PERMITTED TO DEPART FROM THE ADVERTISED REQUIREMENTS TO THE PREJUDICE OF CONFORMING BIDDERS.

B-144897, FEB. 3, 1961

TO DIRECTOR, GENERAL SERVICES DIVISION, FEDERAL HOUSING ADMINISTRATION:

BY LETTER DATED JANUARY 24, 1961, WITH ENCLOSURES, YOU REQUESTED OUR DECISION WHETHER THE BID OF THE PADEN REALTY COMPANY SUBMITTED IN RESPONSE TO INVITATION NO. 5633 MAY BE ACCEPTED.

THE INVITATION DATED JANUARY 6, 1961, REQUESTED BIDS FOR FURNISHING BROKERAGE SERVICES COVERING THE MANAGEMENT, OPERATION, REPAIR, MAINTENANCE, RENTAL AND SALE OF RESIDENTIAL REAL PROPERTIES IDENTIFIED AS MORGAN MANOR, BESSEMER, ALABAMA. UNDER THE INVITATION BIDS WERE TO BE SUBMITTED ON THE BASIS OF A PERCENTAGE OF SALES PRICES AND RENTAL INCOME, THE PERCENTAGE FIGURE TO BE THE SAME FOR BOTH TYPES OF COMPENSATION. TWO BIDS WERE RECEIVED AND OPENED ON JANUARY 17, 1961, ONE FOR 5 PERCENT AND THE OTHER FOR 7 1/2 PERCENT OF SALES PRICES AND RENTAL INCOME. ATTACHED TO THE BID OF THE PADEN REALTY COMPANY, THE LOW BIDDER, WAS AN UNSIGNED STATEMENT ON ITS BUSINESS STATIONERY THAT "THIS BID INCLUDES ALL PROMOTIONAL EXPENSE, SUCH AS BILL BOARDS, SALE SIGNS, RENT SIGNS AND ALL SALES ADVERTISING.' HOWEVER, SCHEDULE "C" OF THE SAMPLE CONTRACT, ATTACHED TO AND MADE A PART OF THE INVITATION, PROVIDES THAT THESE EXPENSES WILL BE BORNE BY THE GOVERNMENT TO THE EXTENT AND IN THE MANNER AUTHORIZED FROM TIME TO TIME. THE 7 1/2 PERCENT BID CONTAINED NO QUALIFICATIONS.

IN VIEW OF THE ABOVE STATEMENT ATTACHED TO THE LOW BID, AND THE DECISIONS OF OUR OFFICE CONCERNING QUALIFIED BIDS, YOU EXPRESS DOUBT WHETHER SUCH BID PROPERLY MAY BE ACCEPTED.

WE HAVE CONSISTENTLY HELD THAT DEVIATIONS IN A BID FROM THE ADVERTISED REQUIREMENTS OF AN INVITATION WHICH GO TO THE SUBSTANCE OF THE BID SO AS TO AFFECT PRICE, QUANTITY OR QUALITY ARE FATAL AND MAY NOT BE WAIVED. COMP. GEN. 170; 39 ID. 259. THE REASON FOR THAT RULE IS TO PUT ALL BIDDERS ON AN EQUAL FOOTING AND TO PREVENT ANY BIDDER FROM OBTAINING AN ADVANTAGE BY BEING PERMITTED TO DEPART FROM THE ADVERTISED REQUIREMENTS TO THE PREJUDICE OF CONFORMING BIDDERS. UNITED STATES V. BROOKRIDGE FARM, INC., 111 F. 2D 461-463. HOWEVER, WHERE, AS HERE, THE LOW BIDDER OFFERS TO FURNISH ADDITIONAL SERVICES TO THE GOVERNMENT--- WHICH WERE OTHERWISE THE OBLIGATIONS OF THE GOVERNMENT--- AT NO INCREASE IN COST, IT MAY NOT BE HELD THAT SUCH A BIDDER HAS OBTAINED AN ADVANTAGE TO THE PREJUDICE OF THE OTHER BIDDER. CF. ALECK LEITMAN V. UNITED STATES, 104 CT.CL. 324. SEE 41 U.S.C. 253 (B).

ACCORDINGLY, THE BID OF THE PADEN REALTY COMPANY MAY BE ACCEPTED IF PROPER IN OTHER RESPECTS. 36 COMP. GEN. 515, 37 ID. 251.