B-146629, SEP. 29, 1961

B-146629: Sep 29, 1961

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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF JULY 26. UPON THE GROUND THAT THE SPECIFICATIONS MADE A PART THEREOF ARE AMBIGUOUS. IS THAT THE SCHEDULE LISTING THE LOCATIONS OF TRASH CONTAINERS TO BE SERVICED INCLUDES ITEMS ADJACENT TO ELEVATORS NOS. 9 AND 10 AT THE PENTAGON. THAT FROM PAST EXPERIENCE GAINED AS THE PRIOR CONTRACTOR YOU HAVE FOUND THE WASTE MATERIALS GENERATED AT THOSE POINTS CONSIST MOSTLY OF SCRAP WOOD. WHICH IS CONSIDERED "BULK DEBRIS" IN THE TRADE. NO EXCEPTION WAS RAISED UNTIL IT WAS ESTABLISHED THAT YOU HAD LOST THE ACCOUNT TO A LOWER BIDDER. DEFINE IN PARAGRAPH 4 THE MATERIAL TO BE REMOVED AS FOLLOWS: "TRASH AND DEBRIS INCLUDES BUT IS NOT LIMITED TO. REGARDLESS OF YOUR CONTENTION THAT "BULK DEBRIS" IS CONSIDERED IN THE TRADE TO BE THE WASTE MATERIALS WHICH YOU STATE HAVE HERETOFORE BEEN REGULARLY DEPOSITED IN THE CONTAINERS ADJACENT TO ELEVATORS NOS. 9 AND 10 AT THE PENTAGON BUILDING.

B-146629, SEP. 29, 1961

TO SQUARE DEAL TRUCKING COMPANY, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF JULY 26, 1961, TO GENERAL SERVICES ADMINISTRATION, AND TO LETTER DATED AUGUST 14, 1961, FROM YOUR ATTORNEY, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. GS-03B-8962, FOR TRASH REMOVAL SERVICES, UPON THE GROUND THAT THE SPECIFICATIONS MADE A PART THEREOF ARE AMBIGUOUS. YOU CONTEND THAT SINCE CLAIMS FOR ADDITIONAL COMPENSATION MAY ARISE UNDER THE CONTRACT AWARDED UNDER THOSE CIRCUMSTANCES, WE SHOULD DIRECT THE ADMINISTRATIVE OFFICE TO CANCEL THE INVITATION AND TO READVERTISE THE PROCUREMENT WITH AMENDED SPECIFICATIONS.

YOUR COMPLAINT, IN SUBSTANCE, IS THAT THE SCHEDULE LISTING THE LOCATIONS OF TRASH CONTAINERS TO BE SERVICED INCLUDES ITEMS ADJACENT TO ELEVATORS NOS. 9 AND 10 AT THE PENTAGON; THAT FROM PAST EXPERIENCE GAINED AS THE PRIOR CONTRACTOR YOU HAVE FOUND THE WASTE MATERIALS GENERATED AT THOSE POINTS CONSIST MOSTLY OF SCRAP WOOD, PLASTER, BRICK, ETC., WHICH IS CONSIDERED "BULK DEBRIS" IN THE TRADE; AND, THAT SUCH FACTS MAY CONSTITUTE A BASIS FOR SUPPLEMENTAL CLAIMS BY THE CURRENT CONTRACTOR WHICH, IN THE AGGREGATE COULD EXCEED YOUR BID.

IT APPEARS SIGNIFICANT THAT, NOTWITHSTANDING YOUR KNOWLEDGE OF THOSE FACTS BEFORE BIDDING, TO THE APPARENT EXCLUSION OF THE OTHER BIDDERS, NO EXCEPTION WAS RAISED UNTIL IT WAS ESTABLISHED THAT YOU HAD LOST THE ACCOUNT TO A LOWER BIDDER. HOWEVER THAT MAY BE, THE INVITATION SOUGHT BIDS ON A YEARLY BASIS TO REMOVE ALL TRASH AND DEBRIS WHICH ACCUMULATE AT THE STIPULATED SITES. THE SPECIFICATIONS MADE A PART OF THE BID INVITATION, AND TO BE INCORPORATED IN THE AWARDED CONTRACT, DEFINE IN PARAGRAPH 4 THE MATERIAL TO BE REMOVED AS FOLLOWS: "TRASH AND DEBRIS INCLUDES BUT IS NOT LIMITED TO, SCRAP LUMBER, CARDBOARD, CRATES, BOXES, SKIDS, PLASTER, WALLBOARD, BRICK, STONE, CERAMIC TILE, OLD FLUORESCENT TUBES, ETC.' REGARDLESS OF YOUR CONTENTION THAT "BULK DEBRIS" IS CONSIDERED IN THE TRADE TO BE THE WASTE MATERIALS WHICH YOU STATE HAVE HERETOFORE BEEN REGULARLY DEPOSITED IN THE CONTAINERS ADJACENT TO ELEVATORS NOS. 9 AND 10 AT THE PENTAGON BUILDING, IT IS CLEAR FROM THE QUOTED PROVISION OF THE SPECIFICATIONS THAT, FOR THE PURPOSES OF THIS CONTRACT, SUCH WASTE MATERIALS ARE TO BE INCLUDED AS TRASH AND DEBRIS IF PLACED IN THE CONTAINERS LISTED IN THE SCHEDULE UNDER PARAGRAPH 2A THEREOF DEFINING THE TYPES OF SERVICE TO BE PERFORMED. IT IS EQUALLY CLEAR THAT PARAGRAPH 2B PROVIDES FOR THE REMOVAL OF THE SAME MATERIALS "IN BULK" AT A UNIT RATE, AS DISTINGUISHED FROM THE CONTAINER SERVICE, WHERE SUCH ACCUMULATIONS EXCEED THE SERVICES CONTRACTED FOR UNDER PARAGRAPH A.

WITH RESPECT TO YOUR UNDERSTANDING OF THE TERM "BULK DEBRIS," IT HAS BEEN HELD REPEATEDLY BY THE COURTS, AND BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT, THAT A CUSTOM OF THE TRADE, OR THE USAGE AND UNDERSTANDING AS TO THE MEANING OF A PHRASE COMMON TO A PRACTICE, MAY NOT BE INVOKED TO VARY OR CONTRADICT THE EXPRESS TERMS OF A CONTRACT. IN VIEW THEREOF, AND SINCE THE TERMS OF THE INVITATION DID NOT LIMIT THE AMOUNT OR PERCENTAGE OF ANY TYPE OF THE VARIOUS WASTE MATERIALS COVERED BY THE INVITATION, THE POSITION TAKEN BY YOU AND YOUR ATTORNEY IS UNTENABLE.

ACCORDINGLY, THE ACTION TAKEN BY GENERAL SERVICES ADMINISTRATION IN THE AWARDING OF A CONTRACT TO THE LOW BIDDER WILL NOT BE DISTURBED.