B-147224, OCT. 16, 1961

B-147224: Oct 16, 1961

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KREMS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15. YOU STATE THAT THE BID WAS SUBMITTED AS IT WAS BECAUSE WHEN YOU WERE READY TO PREPARE THE BID FORMS YOU COULD NOT LOCATE THEM AND THERE WAS NOT TIME TO SECURE THEM FROM THE ISSUING OFFICE IN SAN FRANCISCO SO YOU MADE AN INQUIRY OF THE POST OFFICE DEPARTMENT REAL ESTATE OFFICE IN LOS ANGELES AND FOLLOWED THE SUGGESTION OF A PERSON IN THAT OFFICE THAT YOU BID ON THE FORM 1400 HE GAVE YOU. THE FORM UPON WHICH THE BID WAS MADE WAS DIFFERENT THAN THE FORM REQUIRED FOR THE IMMEDIATE PROJECT IN THAT. DECISIONS OF OUR OFFICE HAVE HELD THAT DEVIATIONS FROM ADVERTISED REQUIREMENTS ARE MATERIAL IF THEY GO TO THE SUBSTANCE OF BIDS SO AS TO AFFECT EITHER PRICE.

B-147224, OCT. 16, 1961

TO MR. NATHAN S. KREMS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15, 1961, PROTESTING AS A PARTNER IN DETROIT PROPERTIES AGAINST THE PROPOSED REJECTION OF THE FIRM'S BID FOR THE LEASE OF POST OFFICE QUARTERS IN WHITTIER, CALIFORNIA.

INSTEAD OF YOUR FIRM SUBMITTING THE BID ON THE AGREEMENT TO LEASE FORM PRESCRIBED FOR THE IMMEDIATE PROJECT, IT SUBMITTED THE BID OF POST OFFICE DEPARTMENT AGREEMENT TO LEASE FORM 1400. YOU STATE THAT THE BID WAS SUBMITTED AS IT WAS BECAUSE WHEN YOU WERE READY TO PREPARE THE BID FORMS YOU COULD NOT LOCATE THEM AND THERE WAS NOT TIME TO SECURE THEM FROM THE ISSUING OFFICE IN SAN FRANCISCO SO YOU MADE AN INQUIRY OF THE POST OFFICE DEPARTMENT REAL ESTATE OFFICE IN LOS ANGELES AND FOLLOWED THE SUGGESTION OF A PERSON IN THAT OFFICE THAT YOU BID ON THE FORM 1400 HE GAVE YOU.

THE FORM UPON WHICH THE BID WAS MADE WAS DIFFERENT THAN THE FORM REQUIRED FOR THE IMMEDIATE PROJECT IN THAT, AMONG OTHER ITEMS, IT DID NOT CONTAIN, AS DID THE LATTER FORM, AN OFFER TO FURNISH A PAYMENT BOND AND TO REMIT THE SUM OF $200,579.92 FOR LAND ACQUISITION COST.

DECISIONS OF OUR OFFICE HAVE HELD THAT DEVIATIONS FROM ADVERTISED REQUIREMENTS ARE MATERIAL IF THEY GO TO THE SUBSTANCE OF BIDS SO AS TO AFFECT EITHER PRICE, QUANTITY OR QUALITY OF THE OFFERS. 30 COMP. GEN. 179; 31 ID. 660; AND 37 ID. 410. SINCE THE TWO REFERENCED ITEMS OMITTED FROM YOUR BID ORDINARILY HAVE A BEARING UPON THE RENT TO BE CHARGED, THE OMISSION OF THEM WAS THEREFORE A MATERIAL OMISSION. THE FAILURE TO ACKNOWLEDGE THOSE SUBSTANTIVE CONDITIONS IN YOUR BID RENDERS IT UNRESPONSIVE AND REQUIRES THAT IT BE REJECTED.

IT IS UNFORTUNATE THAT YOU MAY HAVE RELIED UPON THE ERRONEOUS ADVICE FURNISHED BY THE INDIVIDUAL WHO SUPPLIED YOU THE WRONG FORM, OR THAT, IN RELIANCE UPON ADVICE FROM THE SAN FRANCISCO OFFICE THAT YOUR BID WAS IN ORDER, YOU MAY HAVE INCURRED EXPENSES IN ANTICIPATION OF BEING AWARDED THE LEASE; HOWEVER, THE FACT REMAINS THAT THE ADVICE FURNISHED BY BOTH OFFICES WAS INCORRECT AND CONTRARY TO PROPER BIDDING PROCEDURE AND, THEREFORE, NOT BINDING UPON THE GOVERNMENT.

A BID SUBMITTED IN RESPONSE TO AN INVITATION ISSUED BY AN AGENCY OF THE GOVERNMENT CONSTITUTES AN OFFER. THE AWARD IS AN ACCEPTANCE WHICH EFFECTS THE ONLY BINDING AGREEMENT BETWEEN THE BIDDER AND THE GOVERNMENT. IT IS WELL RECOGNIZED THAT AN OFFER IS TO BE INTERPRETED IN ACCORDANCE WITH ITS CLEAR LANGUAGE. YOUR OFFER PROPOSED ONLY TO COMPLY WITH THE PROVISIONS IN FORM 1400. THEREFORE, THE GOVERNMENT COULD NOT, WITHOUT YOUR CONSENT, HAVE ACCEPTED YOUR OFFER AND REQUIRED PERFORMANCE IN ACCORDANCE WITH THE INVITATION ISSUED FOR THE PROJECT. TO GIVE YOU AN OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR THE AWARD BY ALLOWING YOU TO AGREE TO ABIDE BY THE PROVISIONS OF THE REQUIRED INVITATION OR TO PRECLUDE THE AWARD BY ALLOWING YOU TO ALLEGE THAT YOU DID NOT INTEND TO BE BOUND BY THE REQUIRED INVITATION, WOULD GIVE YOU AN UNFAIR ADVANTAGE OVER THOSE BIDDERS WHOSE BID CONFORMED IN EVERY WAY TO THE INVITATION. SUCH ADVANTAGE WOULD BE CONTRARY TO THE PURPOSE OF THE STATUTES GOVERNING PUBLIC PROCUREMENT.

AS WAS STATED IN 17 COMP. GEN. 554, AT PAGES 558 AND 559:

"THESE ARE FUNDAMENTAL RULES GOVERNING THE AWARD OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. AS WAS SAID BY THE COURT IN CITY OF CHICAGO V. MOHR, 216 ILL. 320; 74 N.E. 1056---

" "* * * WHERE A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--- A DIRECT VIOLATION OF LAW--- AND CANNOT BE TOO STRONGLY CONDEMNED.'"

ACCORDINGLY, WE CONCUR IN THE PROPOSED REJECTION OF THE BID YOU SUBMITTED FOR THE IMMEDIATE PROJECT.