B-145624, JUN. 5, 1961

B-145624: Jun 5, 1961

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YOU HAVE PROTESTED AWARD TO ANOTHER BIDDER OF A CONTRACT PURSUANT TO INVITATION FOR BIDS NO. 1850 ISSUED MARCH 13. WE HAVE BEEN INFORMED THAT SOMETIME PRIOR TO THE DEADLINE. WHILE YOU WERE INTERESTED IN BIDDING. THE SHORT TIME REMAINING WAS INSUFFICIENT TO PERMIT YOU TO FILE A BID IN THE USUAL FORM. WE WERE ADVISED ALSO THAT YOU OFFERED AS AN ALTERNATIVE TO SUBMIT A BID BY TELEGRAM AND TO CONFIRM IT BY PROMPTLY SUBMITTING A PROPERLY EXECUTED STANDARD FORM 33 ON WHICH THE INVITATION WAS ISSUED AND BIDS WERE TO BE SUBMITTED. WE HAVE BEEN INFORMED THE CONTRACTING OFFICER STATED THAT THE ACTION YOU HAD PROPOSED WOULD BE ACCEPTABLE. WAS RECEIVED PRIOR TO THE DEADLINE: "BID ON INVITATION 1850 FIXED PRICE $178.

B-145624, JUN. 5, 1961

TO SMITH ELECTRONICS, INC.:

BY LETTER OF APRIL 12, 1961, WITH ENCLOSURES, YOU HAVE PROTESTED AWARD TO ANOTHER BIDDER OF A CONTRACT PURSUANT TO INVITATION FOR BIDS NO. 1850 ISSUED MARCH 13, 1961, BY THE FEDERAL COMMUNICATIONS COMMISSION FOR THE FABRICATION, INSTALLATION AND CHECK-OUT OF A TELEVISION ANTENNA ON THE EMPIRE STATE BUILDING.

THE INVITATION NOTIFIED BIDDERS THAT BIDS WOULD BE RECEIVED UNTIL 2:00 P.M. ON MARCH 31, 1961. WE HAVE BEEN INFORMED THAT SOMETIME PRIOR TO THE DEADLINE, A REPRESENTATIVE OF YOUR FIRM CONTACTED THE CONTRACTING OFFICER TO ADVISE HIM THAT, WHILE YOU WERE INTERESTED IN BIDDING, THE SHORT TIME REMAINING WAS INSUFFICIENT TO PERMIT YOU TO FILE A BID IN THE USUAL FORM. WE WERE ADVISED ALSO THAT YOU OFFERED AS AN ALTERNATIVE TO SUBMIT A BID BY TELEGRAM AND TO CONFIRM IT BY PROMPTLY SUBMITTING A PROPERLY EXECUTED STANDARD FORM 33 ON WHICH THE INVITATION WAS ISSUED AND BIDS WERE TO BE SUBMITTED. WE HAVE BEEN INFORMED THE CONTRACTING OFFICER STATED THAT THE ACTION YOU HAD PROPOSED WOULD BE ACCEPTABLE, I.E., THAT A TELEGRAPHIC BID RECEIVED PRIOR TO THE TIME SET FOR OPENING AND CONFIRMED IN THE MANNER INDICATED WOULD BE REGARDED AS RESPONSIVE.

PURSUANT TO THIS UNDERSTANDING, YOU SENT THE FOLLOWING WIRE ON MARCH 30 WHICH, WE UNDERSTAND, WAS RECEIVED PRIOR TO THE DEADLINE:

"BID ON INVITATION 1850 FIXED PRICE $178,500.00 PLUS $10,710.00 FOR ANDREW CORPORATION SIX PERCENT SKEW ANTENNA PATENT FEE WILL CONFIRM BY EXECUTION OF STANDARD FORM 33.'

ON APRIL 1 YOU MAILED OUT A PROPERLY EXECUTED STANDARD FORM 33 DATED MARCH 30, WHICH WAS RECEIVED BY THE COMMISSION ON APRIL 3, 1961, WELL AFTER BID OPENING. THE BID FORM WAS ACCOMPANIED BY A LETTER CONTAINING WHAT THE CONTRACTING OFFICER CONTENDS IS A MATERIAL CONDITION RENDERING YOUR BID NONRESPONSIVE. THE ALLEGED CONDITION RELATES TO LIABILITY FOR POSSIBLE PATENT FEES. FOR THAT REASON, IT WAS DETERMINED TO REJECT YOUR BID ALTHOUGH IT WAS LOWER BY SOME $58,000 THAN THE ONLY OTHER BID RECEIVED, AND AWARD WAS MADE TO THE OTHER BIDDER ON APRIL 10, 1961.

PARAGRAPH 2 (A) OF THE TERMS AND CONDITIONS OF THE INVITATION CLEARLY PROVIDED THAT ,TELEGRAPHIC BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION.' NO AUTHORIZATION TO SUBMIT TELEGRAPHIC BIDS APPEARS IN THE INVITATION. SINCE THE TELEGRAM WAS THE ONLY FORM IN WHICH YOUR BID WAS RECEIVED BY THE DEADLINE SET IN THE INVITATION AND SINCE A BID IN SUCH FORM IS NOT PERMISSIBLE UNDER THE TERMS OF THE INVITATION, THERE IS NO BASIS UPON WHICH YOUR BID SHOULD BE REGARDED AS RESPONSIVE, WITHOUT REGARD TO THE QUESTION OF THE PATENT FEES. A PROHIBITION AGAINST TELEGRAPHIC BIDS IS A MATERIAL PROVISION OF THE INVITATION WHICH MAY NOT BE WAIVED AS AN INFORMALITY. 40 COMP. GEN. 279.

WE ARE AWARE THAT THE CONTRACTING OFFICER ADVISED YOU PRIOR TO OPENING THAT A TELEGRAPHIC BID WOULD BE ACCEPTABLE IF CONFIRMED BUT AS WE STATED IN B-106183, NOVEMBER 7, 1951, INVOLVING A SIMILAR SITUATION AND AN INVITATION WITH SUBSTANTIALLY THE LANGUAGE OF PARAGRAPH 2 (A/--

"* * * THE PROCUREMENT OFFICER WAS WITHOUT AUTHORITY TO WAIVE THIS PROVISION IN THE INVITATION FOR BIDS EITHER ORALLY OR IN WRITING SO AS TO CONFER A SPECIAL PRIVILEGE UPON ONE OF THE BIDDERS.'

WE HELD IN THE CITED CASE THAT A BID SUBMITTED BY TELEGRAM PRIOR TO THE DEADLINE AND CONFIRMED BY A BID ON THE PROPER FORM RECEIVED AFTER THE TIME SET FOR OPENING HAD BEEN IMPROPERLY CONSIDERED FOR AWARD, WHERE THE INVITATION SENT TO ALL BIDDERS DID NOT PERMIT TELEGRAPHIC BIDS, NOTWITHSTANDING THE ASSURANCES BY THE CONTRACTING OFFICER TO THE BIDDER IN QUESTION THAT A BID SUBMITTED IN SUCH FORM WOULD BE CONSIDERED. IN OUR VIEW THE SAME CONCLUSION IS REQUIRED HERE NOT ONLY UPON THE CITED PRECEDENCE BUT ALSO TO CARRY OUT THE INTENT OF THE STATUTES GOVERNING PUBLIC PROCUREMENT THROUGH COMPETITIVE BIDDING--- TO ESTABLISH THE SAME MATERIAL CONDITIONS OF RESPONSIVENESS OF ALL BIDDERS. THIS INTENT IS RECOGNIZED AT PARAGRAPH 1-2.207 (D) OF THE FEDERAL PROCUREMENT REGULATIONS WHICH PROVIDES:

"ANY INFORMATION GIVEN TO A PROSPECTIVE BIDDER CONCERNING AN INVITATION FOR BIDS SHALL BE FURNISHED PROMPTLY TO ALL OTHER PROSPECTIVE BIDDERS, AS AN AMENDMENT TO THE INVITATION, IF SUCH INFORMATION IS NECESSARY TO BIDDERS IN SUBMITTING BIDS ON THE INVITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED BIDDERS. NO AWARD SHALL BE MADE ON THE INVITATION UNLESS SUCH AMENDMENT HAS BEEN ISSUED IN SUFFICIENT TIME TO PERMIT ALL PROSPECTIVE BIDDERS TO CONSIDER SUCH INFORMATION IN SUBMITTING OR MODIFYING THEIR BIDS.'

IT APPEARS THAT THE CONTRACTING OFFICER'S PURPOSE IN ORALLY AUTHORIZING THE SUBMISSION OF A TELEGRAPHIC BID IN THE FACE OF A PROVISION IN THE INVITATION TO THE CONTRARY WAS TO OBTAIN GREATER COMPETITION. SUCH PURPOSE IS CERTAINLY CONSISTENT WITH THE INTENT OF THE ADVERTISING STATUTES BUT IT SHOULD BE CARRIED OUT IN SUCH MANNER AS NOT TO CONFLICT WITH ANOTHER EQUALLY SIGNIFICANT PURPOSE OF THOSE STATUTES. SEE IN THIS REGARD 8 COMP. GEN. 52, 53, WHERE IT IS STATED:

"* * * THE PRACTICE OF GIVING INSTRUCTIONS, EXPLANATIONS, OR INFORMATION TO BIDDERS ORALLY INSTEAD OF IN THE WRITTEN OR PRINTED SPECIFICATIONS, INVITATIONS FOR BIDS, OR INSTRUCTIONS TO BIDDERS, IS OBJECTIONABLE AND SHOULD BE DISCONTINUED.'

WE CONCLUDE THAT YOUR BID COULD NOT BE CONSIDERED FOR AWARD FOR THE REASONS AFORESAID. IN VIEW OF OUR CONCLUSION IT BECOMES UNNECESSARY TO CONSIDER THE QUESTION RAISED WITH REGARD TO LIABILITY FOR PATENT FEES.