B-146451, AUG. 7, 1961

B-146451: Aug 7, 1961

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TO NASH ENGINEERING COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JULY 18. YOU STATE THAT YOUR BID IN RESPONSE TO THE INVITATION WAS ON AN F.O.B. YOUR BID WAS REJECTED AS BEING NONRESPONSIVE SINCE YOU DID NOT QUOTE F.O.B. WHICH IN THIS CASE WAS WASHINGTON. YOU REQUEST ADVICE AS TO WHETHER THE REJECTION OF YOUR BID WAS "IN ACCORDANCE WITH ESTABLISHED PROCEDURE.'. OUR OFFICE HAS HELD THAT A DEVIATION FROM ADVERTISED REQUIREMENTS IS MATERIAL IF IT AFFECTS EITHER THE PRICE. WOULD HAVE VARIED THE OBLIGATION INTENDED TO BE ASSUMED BY A PROSPECTIVE CONTRACTOR UNDER THE INVITATION. UNDER SUCH A CONTRACT YOU COULD HAVE SATISFIED THE DELIVERY REQUIREMENT BY MERELY HANDING IT TO A COMMON CARRIER AT SOUTH NORWALK.

B-146451, AUG. 7, 1961

TO NASH ENGINEERING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 18, 1961, IN REGARD TO THE REJECTION OF YOUR BID UNDER INVITATION NO. WA-BH-R-92143 ISSUED BY FEDERAL SUPPLY SERVICE, REGION 3, GENERAL SERVICE ADMINISTRATION.

YOU STATE THAT YOUR BID IN RESPONSE TO THE INVITATION WAS ON AN F.O.B. BASIS, SOUTH NORWALK, CONNECTICUT, WITH FREIGHT TO JOB SITE. YOUR BID WAS REJECTED AS BEING NONRESPONSIVE SINCE YOU DID NOT QUOTE F.O.B. DESTINATION, WHICH IN THIS CASE WAS WASHINGTON, D.C.

YOU REQUEST ADVICE AS TO WHETHER THE REJECTION OF YOUR BID WAS "IN ACCORDANCE WITH ESTABLISHED PROCEDURE.' ALSO, YOU REQUEST ADVICE AS TO WHETHER YOU WOULD SUBJECT YOURSELF TO THE LAWS OF ALL THE STATES CONCERNED IF YOU QUOTE F.O.B. DESTINATION SINCE YOU WOULD BE DOING BUSINESS IN THAT AREA.

OUR OFFICE HAS HELD THAT A DEVIATION FROM ADVERTISED REQUIREMENTS IS MATERIAL IF IT AFFECTS EITHER THE PRICE, QUANTITY OR QUALITY OF THE ARTICLES OFFERED. SEE 30 COMP. GEN. 179; 31 ID. 660; AND 33 ID. 421. UNDER THE FACTS STATED BY YOU, YOUR OFFER TO FURNISH THE EQUIPMENT ON AN F.O.B. ORIGIN BASIS, IF IT HAD BEEN ACCEPTED, WOULD HAVE VARIED THE OBLIGATION INTENDED TO BE ASSUMED BY A PROSPECTIVE CONTRACTOR UNDER THE INVITATION. IN OTHER WORDS, UNDER SUCH A CONTRACT YOU COULD HAVE SATISFIED THE DELIVERY REQUIREMENT BY MERELY HANDING IT TO A COMMON CARRIER AT SOUTH NORWALK, CONNECTICUT, THUS RELIEVING YOUR COMPANY OF ANY FURTHER LIABILITY FOR LOSS OR DAMAGE ON ROUTE, AND AT THE SAME TIME PLACE UPON THE GOVERNMENT THE BURDEN AN EXPENSE INCIDENT TO THE DETERMINATION OF RESPONSIBILITY FOR POSSIBLE LOSS OR DAMAGE IN TRANSIT. THE CHANGES IN CONTRACT TERMS WHICH WOULD HAVE RESULTED FROM THE ACCEPTANCE OF YOUR BID MUST BE REGARDED AS AFFECTING THE CONTRACT PRICE. IN THE CIRCUMSTANCES OUTLINED BY YOU IT WOULD APPEAR THAT YOUR BID WAS PROPERLY REJECTED AS BEING NONRESPONSIVE.

WITH REGARD TO YOUR QUESTION AS TO WHETHER, IN BIDDING F.O.B. DESTINATION, YOU WOULD SUBJECT YOURSELF TO THE LAW IN THAT AREA, OUR OFFICE IS UNABLE TO ADVISE YOU. SINCE THE LAWS OF THE STATES VARY, WE CAN ONLY SUGGEST THAT YOU CONTACT THE TAXING AND OTHER STATE AUTHORITIES FOR ADVICE AS TO WHAT IS REQUIRED WHERE A SALE IS MADE ON THIS BASIS.