B-145731, JUN. 22, 1961

B-145731, JUN. 22, 1961

TO THE KENBERT ARPAG COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 27, 1961, ENCLOSING A COPY OF YOUR LETTER DATED APRIL 26, 1961, TO THE ARMY CORPS OF ENGINEERS, CHICAGO, ILLINOIS, PROTESTING THE ACTION TAKEN BY THE CORPS OF ENGINEERS UNDER INVITATION NO. ENG-11-184-61-AF-382-JD. A LETTER DATED MAY 10, 1961, IN YOUR BEHALF, ALSO WAS RECEIVED FROM THE ABOVE ATTORNEY IN FURTHER REGARD TO THE PROTEST.

IN RESPONSE TO THE INVITATION, WHICH WAS ISSUED ON MARCH 14, 1961, BY THE PROCUREMENT OFFICE OF THE CHICAGO CORPS OF ENGINEERS, YOU SUBMITTED A BID DATED APRIL 5, 1961, OFFERING TO FURNISH ITEM NO. 1, COVERING VARIOUS QUANTITIES OF A SPECIFIED TYPE OF LIGHTING FIXTURE FOR DELIVERY TO THE DESIGNATED DESTINATIONS FOR A TOTAL PRICE OF $34,831.15, LESS A DISCOUNT OF 2 PERCENT-20 DAYS. ONE OF THE OTHER BIDS RECEIVED WAS FROM THE HOUSE-O -LITE CORPORATION WHOSE BID APPEARS TO HAVE BEEN IN THE TOTAL AMOUNT OF $34,417.20--- READ AT THE BID OPENING AS A NET AMOUNT. SUBSEQUENTLY, AN AWARD WAS MADE TO HOUSE-O LITE ON THE BASIS THAT THE CORPORATION ALSO HAD OFFERED AT 2 PERCENT 20 DAY DISCOUNT AND PURCHASE ORDER NO. 88-AF-47648-07 ACCORDINGLY WAS ISSUED.

YOU PROTEST THE AWARD ON THE GROUND THAT THIS DISCOUNT OFFER WAS NOT MADE ON THE BASIS OF THE BIDS AS PUBLICLY OPENED. YOU CONTEND THAT THE 2 PERCENT-20 DAY DISCOUNT TERMS WERE FOUND ON A SUBSEQUENT COPY OF THE HOUSE -O-LITE CORPORATION'S BID AND THAT CORPORATION WAS THEN CONTACTED, AFTER IT KNEW OF ITS RELATIVE POSITION IN THE BIDDING, AND ALLOWED THE CHOICE OF STATING WHETHER IT INTENDED TO OFFER SUCH A DISCOUNT.

AN ORIGINAL AND TWO COPIES OF THE BID OF THE HOUSE-O-LITE CORPORATION WERE RECEIVED UNDER INVITATION NO. ENG-11-184-61-AF-328 JD. AT THE TIME OF THE BID OPENING NEITHER THE ORIGINAL BID, WHICH WAS IN THE POSSESSION OF THE GOVERNMENT REPRESENTATIVES IN CHARGE OF THE OPENING, NOR ONE OF THE COPIES, WHICH WAS THEN BEING EXAMINED BY A REPRESENTATIVE OF A "BIDDER'S SERVICE," CONTAINED ANY REFERENCE TO DISCOUNT TERMS AND, THEREFORE, THE BID WAS READ IN THE GROSS AMOUNT. AFTER ADJOURNMENT A MR. STONE OF HOUSE- O-LITE STATED TO THE GOVERNMENT REPRESENTATIVE THAT HE THOUGHT A 2 PERCENT DISCOUNT HAD BEEN INCLUDED IN THE CORPORATION'S BID AT WHICH TIME MR. STONE WAS TOLD THAT IF IT WAS NOT IN THE BID FORMS AT THAT TIME IT WAS TOO LATE. ON THE FOLLOWING DAY MR. STONE AGAIN CALLED AT THE CONTRACTING OFFICER AND STATED THAT HIS SECRETARY HAD INFORMED HIM THAT SHE HAD REMEMBERED WRITING IN A 2 PERCENT-20 DAY DISCOUNT ON AT LEAST ONE OF THE THREE COPIES OF THE BID. THE TWO CARBON COPIES OF THE BID WERE THEN FURTHER EXAMINED AND ONE COPY WAS FOUND TO HAVE THE 2 PERCENT-20 DAY DISCOUNT TERMS INSERTED IN THE PROPER SPACE ON THE BID FORM. THUS, IT IS APPARENT THAT THE DISCOUNT OFFER WAS IN THE POSSESSION OF THE PROPER GOVERNMENT REPRESENTATIVE AT THE TIME OF THE OPENING OF BIDS. THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE DISCOUNT TERMS WERE OFFERED IN A COPY OF A BID SUBMITTED AFTER THE BID OPENING OR THAT THE HOUSE O-LITE CORPORATION WAS EXTENDED ANY CHOICE AS TO WHETHER IT HAD OR HAD NOT OFFERED THE DISCOUNT.

WHILE IT MIGHT BE ARGUED THAT THERE WAS SOME AMBIGUITY IN THE THE HOUSE-O -LITE BID AS SUBMITTED, THE CONTRACTING OFFICER INTERPRETED THE DISCOUNT NOTED ON ONE COPY AS BEING APPLICABLE TO ALL COPIES. UNDER THE PRINCIPLE THAT AN AMBIGUOUS BID IS TO BE CONSTRUED AGAINST THE BIDDER, WE FEEL THAT THIS INTERPRETATION WAS PROPER. 39 COMP. GEN. 546; ID. 653.

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THE AWARD ACTION TAKEN BY THE DEPARTMENT OF THE ARMY IN THE MATTER IS NOT SUBJECT TO LEGAL OBJECTION.