B-146039, JUL. 20, 1961

B-146039: Jul 20, 1961

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TO AJAX ELECTRIC COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 2. THE BID OPENING WAS HELD ON APRIL 28. FOUR BIDS WERE RECEIVED AS FOLLOWS: TABLE ITEM NO. 1 ITEM NO. 2 AJAX ELECTRIC $ 8. THE BOTTOM OF THIS COVER LETTER CONTAINED THE FOLLOWING STATEMENT: "THIS PROPOSAL IS MADE SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE OF THIS PAGE AND LIST IN THE SHEETS ATTACHED WHICH ARE HEREBY MADE A PART OF THIS PROPOSAL.'. THE LANGUAGE IN THE TERMS AND CONDITIONS APPEARING ON THE REVERSE SIDE OF YOUR LETTER ARE AT VARIANCE WITH THE STANDARD GOVERNMENT FORM PROVISIONS. THE "CANCELLATION" PARAGRAPH OF THE AJAX BID IS AS FOLLOWS: "CANCELLATION. IN SUCH EVENT ANY ITEMS WHICH UPON RECEIPT OF SUCH NOTICE ARE WITHIN THIRTY (30) CALENDAR DAYS OF COMPLETION WILL BE PAID FOR BY THE PURCHASER IN FULL.

B-146039, JUL. 20, 1961

TO AJAX ELECTRIC COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 2, 1961, PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. ORD-11-070-61 175, ISSUED BY ROCK ISLAND ARSENAL, DEPARTMENT OF THE ARMY, ON APRIL 7, 1961.

THE INVITATION CALLED FOR THE SUBMISSION OF BIDS ON 2 "SALT BATH FURNACES," EACH AS DESCRIBED UNDER ITEMS NOS. 1 AND 2, RESPECTIVELY. THE BID OPENING WAS HELD ON APRIL 28, 1961, AND FOUR BIDS WERE RECEIVED AS FOLLOWS:

TABLE

ITEM NO. 1 ITEM NO. 2

AJAX ELECTRIC $ 8,625.00 $ 5,875.00

GENERAL ELECTRIC CO. 15,151.00 13,012.00

HEVI-DUTY ELECTRIC CO. 11,087.00 7,724.00

LINDBERG ENGINEERING CO. 10,724.00 6,395.00

YOU SUBMITTED WITH THE BID FORM A COVER LETTER MARKED AS "PROPOSAL NO. 3132," (ALSO REFERRED TO IN THE BID FORM). THE BOTTOM OF THIS COVER LETTER CONTAINED THE FOLLOWING STATEMENT:

"THIS PROPOSAL IS MADE SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE OF THIS PAGE AND LIST IN THE SHEETS ATTACHED WHICH ARE HEREBY MADE A PART OF THIS PROPOSAL.'

THE REVERSE SIDE OF THE PAGE CONTAINS 13 NUMBERED PARAGRAPHS OF TERMS AND CONDITIONS COVERING SUCH MATTERS AS "DELIVERY," "WARRANTY," "CANCELLATION" AND "TAXES AND DUTIES.'

THE INVITATION ISSUED BY THE CONTRACTING OFFICE INCORPORATED THE CONTRACT PROVISIONS OF STANDARD FORM 32 (OCT. 1957 EDITION), BY REFERENCE. HOWEVER, THE LANGUAGE IN THE TERMS AND CONDITIONS APPEARING ON THE REVERSE SIDE OF YOUR LETTER ARE AT VARIANCE WITH THE STANDARD GOVERNMENT FORM PROVISIONS. FOR EXAMPLE, THE "CANCELLATION" PARAGRAPH OF THE AJAX BID IS AS FOLLOWS:

"CANCELLATION. PURCHASER MAY CANCEL THIS ORDER BY WRITTEN NOTICE TO THE COMPANY. IN SUCH EVENT ANY ITEMS WHICH UPON RECEIPT OF SUCH NOTICE ARE WITHIN THIRTY (30) CALENDAR DAYS OF COMPLETION WILL BE PAID FOR BY THE PURCHASER IN FULL, AS PROVIDED HEREIN. UNLESS OTHERWISE ADVISED, ALL ITEMS WITHIN THIRTY (30) CALENDAR DAYS OF COMPLETION, SHALL BE COMPLETED WITHIN THAT TIME, AND FAILURE TO COMPLETE SUCH ITEMS WITHIN THIRTY (30) CALENDAR DAYS, UNLESS OTHERWISE AGREED UPON SHALL BE PRIMA FACIE EVIDENCE THAT SUCH ITEMS WERE NOT WITHIN THIRTY (30) CALENDAR DAYS OF COMPLETION. ALL ITEMS NOT WITHIN THIRTY (30) CALENDAR DAYS OF COMPLETION SHALL BE PAID FOR ON THE BASIS OF THE ACTUAL COST OF LABOR MATERIALS AND SUPPLIES APPLIED TO THE PRODUCTION OF SUCH ITEMS AND PROPER OVERHEAD EXPENSES, PLUS A REASONABLE PROFIT OVER AND ABOVE SUCH COST AND EXPENSES.

"IN NO CASE SHALL THE CANCELLATION CHARGES EXCEED THE PRICE OF THE EQUIPMENT AND SERVICES TO BE RENDERED THEREWITH.'

ALSO, PARAGRAPH 11 IN REGARD TO "TAXES AND DUTIES" IS AS FOLLOWS:

"TAXES AND DUTIES. IN ADDITION TO THE CONTRACT PRICE AS STATED HEREIN, THE PURCHASER AGREES TO PAY ALL SALES, USE, EXCISE AND OTHER TAXES AND ALL EXPORT OR IMPORT DUTIES WHICH MAY BE LEVIED, ASSESSED OR IMPOSED UPON THIS TRANSACTION OR UPON THE EQUIPMENT AT ANY TIME AT OR AFTER DELIVERY THEREOF AT THE F.O.B. POINT TO THE CARRIER OR THE PURCHASER. IF ANY SUCH TAXES WHICH HAVE BEEN COLLECTED BY THE COMPANY FROM THE PURCHASER AND PAID TO THE TAXING AUTHORITIES ARE THEREAFTER HELD INAPPLICABLE, THE COMPANY WILL REFUND THE SAME TO THE PURCHASER ONLY TO THE EXTENT THAT THE SAME HAVE BEEN REFUNDED TO THE COMPANY BY THE TAXING AUTHORITY.

"IF THE PURCHASER IS EXEMPT FROM THE PAYMENT OF ANY SPECIFIC TAX WHICH WOULD OTHERWISE BE APPLICABLE, IT SHALL BE THE DUTY OF THE PURCHASER TO FURNISH TO THE COMPANY PROPER EXEMPTION CERTIFICATES.'

THE CONTRACTING OFFICER HAS REJECTED YOUR BID AS NONRESPONSIVE TO THE THE INVITATION ON THE BASIS THAT THE TERMS AND CONDITIONS IN YOUR PROPOSAL ARE AT VARIANCE WITH THE INVITATION.

YOU CONTEND THAT THE INSERTION OF YOUR STANDARD FORM TERMS WAS DUE TO INADVERTENCE AND THAT YOU BE ALLOWED TO WAIVE THESE TERMS IN FAVOR OF THE STANDARD GOVERNMENT TERMS. HOWEVER, THE STANDARD FORM WAS USED NOT MERELY AS A TRANSMITTAL LETTER, BUT AS THE ESSENTIAL STATEMENT OF YOUR BID, THE GOVERNMENT BID FORM HAVING BEEN USED BY YOU ONLY TO INSERT YOUR QUOTED PRICES, WITH THE QUALIFICATION INSERTED "PER AJAX PROPOSAL NO. 3132.' THE PROPOSAL, INCLUDING THE STANDARD FORM CONDITIONS, WAS SIGNED BY THE SAME OFFICIAL WHO SIGNED THE BID FORM.

THE TERMS AND CONDITIONS YOU SUBMITTED SHOW SUBSTANTIAL DEVIATION FROM THE PROVISIONS CONTAINED IN THE STANDARD GOVERNMENT FORM. YOUR "CANCELLATION" CLAUSE QUOTED ABOVE, PROVIDES FOR A 30-DAY PERIOD FOR COMPLETION AFTER NOTICE OF CANCELLATION. THIS CONDITION IS NOT CONTAINED UNDER THE ,TERMINATION FOR CONVENIENCE OF THE GOVERNMENT" CLAUSE CONTAINED IN STANDARD FORM 32. OVERALL, THE GOVERNMENT'S RIGHTS UPON TERMINATION WOULD BE SUBSTANTIALLY ALTERED. ALSO YOUR "TAXES AND DUTIES" PARAGRAPH, IMPOSES OBLIGATIONS DIFFERENT FROM THOSE CONTAINED UNDER THE STANDARD CLAUSE.

IT IS A FUNDAMENTAL RULE UNDER ADVERTISED BIDDING THAT THE CONTRACT AWARDED TO A BIDDER MUST BE THE CONTRACT OFFERED TO ALL BIDDERS. 17 COMP. GEN. 554, 558. SO THAT IF A BIDDER IMPOSES CONDITIONS AT VARIANCE WITH THOSE EXTENDED BY THE INVITATION TO ALL BIDDERS HIS BID MUST BE REJECTED AS NONRESPONSIVE. ONLY THOSE DEVIATIONS WHICH ARE IMMATERIAL AND DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO PREJUDICE THE RIGHTS OF THE OTHER BIDDERS MAY BE WAIVED. 30 COMP. GEN. 179.

IN THE CIRCUMSTANCES HERE PRESENT, THE PROVISIONS AND CONDITIONS IN YOUR LETTER BID MUST BE REGARDED AS AN INTEGRAL PART OF THE BID, WHICH WOULD, UNDER APPLICABLE PRINCIPLES OF LAW, BECOME A PART OF THE CONTRACT RESULTING FROM ACCEPTANCE OF YOUR BID, AND CONTROL OVER THE PROVISIONS PRINTED IN THE GOVERNMENT'S FORM. SEE 36 COMP. GEN. 535. THESE PROVISIONS, AS INDICATED ABOVE, ARE SUBSTANTIALLY AT VARIANCE WITH MATERIAL PROVISIONS OFFERED BY THE INVITATION. UNDER THESE CIRCUMSTANCES YOUR BID MAY NOT BE ACCEPTED AS OFFERED AND THE DEVIATIONS IN YOUR BID MAY NOT PROPERLY BE WAIVED. SEE 37 COMP. GEN. 110.

ACCORDINGLY, WE CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED AND THAT YOUR PROTEST MUST BE DENIED.