B-148081, MAR. 5, 1962

B-148081: Mar 5, 1962

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PERMANENT BUILDERS COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30. FAILURE TO DO SO WILL DISQUALIFY THE BID. INFORMALITIES WHICH ARE AUTHORIZED TO BE WAIVED ARE THOSE OF FORM. OR DEFECTS IN OR VARIATIONS OF BIDS FROM THE EXACT REQUIREMENTS OF THE ADVERTISED INVITATION SUCH AS ARE IMMATERIAL AND INCONSEQUENTIAL. 20 COMP. BEFORE THIS WAS SUBMITTED AS THE FINAL BID PRICE. IT IS CLEAR FROM THE TERMS ON THE BID FORM. THE REQUIREMENT FOR THE INITIALING OF CHANGES IS A MATTER OF FORM THAT COULD BE WAIVED AS AN INFORMALITY IN THIS CASE. SINCE THE BIDDER BY THE TERMS OF THE BID IS OTHERWISE BOUND TO THE OFFER CONTAINED IN THE BID. EVEN IF PARAGRAPH 5 (B) OF THE INSTRUCTIONS IS INTERPRETED AS REQUIRING DISQUALIFICATION OF A BID THAT FAILS TO STATE PRICES FOR ALL ITEMS.

B-148081, MAR. 5, 1962

TO MR. DAVID T. EISEN, PERMANENT BUILDERS COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30, 1962, PROTESTING AGAINST ANY AWARD BEING MADE TO THE E. JAY SMITH CONSTRUCTION CO. UNDER INVITATION FOR BIDS MD 49-024-62-30 BECAUSE IT DID NOT INITIAL A PRICE CHANGE IN THE BID NOR DID IT BID UPON AN ADDITIVE ALTERNATE.

PARAGRAPH 5 (A) OF THE INSTRUCTIONS TO BIDDERS SPECIFIES THAT ANY ERASURE OR OTHER CHANGE ON THE BID FORM MUST BE INITIALED BY THE PERSON SIGNING THE BID. PARAGRAPH 5 (B) OF THE INSTRUCTIONS SPECIFIES THAT WHERE THE BID FORM EXPLICITLY REQUIRES THAT THE BIDDER BID ON ALL ITEMS, FAILURE TO DO SO WILL DISQUALIFY THE BID. YOU SUGGEST THAT SINCE THE BIDDER HAS NOT COMPLIED WITH THE CITED INSTRUCTIONS, ITS BID SHOULD BE DISREGARDED.

ALTHOUGH PARAGRAPH 5 (A) OF THE INSTRUCTIONS REQUIRES THAT CHANGES ON THE BID FORM MUST BE INITIALED, PARAGRAPH 10 (B) OF THE INSTRUCTIONS PROVIDES THAT THE GOVERNMENT MAY, WHEN IN ITS INTEREST, WAIVE ANY INFORMALITY IN THE BIDS RECEIVED. INFORMALITIES WHICH ARE AUTHORIZED TO BE WAIVED ARE THOSE OF FORM, AS OPPOSED TO SUBSTANCE, OR DEFECTS IN OR VARIATIONS OF BIDS FROM THE EXACT REQUIREMENTS OF THE ADVERTISED INVITATION SUCH AS ARE IMMATERIAL AND INCONSEQUENTIAL. 20 COMP. GEN. 4.

THE BID FORM, MANUALLY SIGNED AT THE END BY E. JAY SMITH, OWNER OF THE FIRM, STATES THAT THE SIGNATORY PROPOSES TO PERFORM THE CONTRACT FOR THE AMOUNT OF $121,670. BEFORE THIS WAS SUBMITTED AS THE FINAL BID PRICE, TWO OTHER PRICES HAD BEEN WRITTEN ON THE BID FORM AND EACH HAD BEEN CROSSED OUT.

IT IS CLEAR FROM THE TERMS ON THE BID FORM--- THAT THE UNDERSIGNED PROPOSES TO PERFORM THE CONTRACT AT THE STATED PRICE--- THAT THE BIDDER HAS MADE A LEGALLY BINDING OFFER, ACCEPTANCE OF WHICH WOULD CONSUMMATE A VALID CONTRACT WHICH THE BIDDER WOULD BE OBLIGED TO PERFORM AT THE OFFERED PRICE. THEREFORE, IN OUR OPINION, THE REQUIREMENT FOR THE INITIALING OF CHANGES IS A MATTER OF FORM THAT COULD BE WAIVED AS AN INFORMALITY IN THIS CASE, SINCE THE BIDDER BY THE TERMS OF THE BID IS OTHERWISE BOUND TO THE OFFER CONTAINED IN THE BID.

WITH REGARD TO THE FAILURE TO BID ON THE ADDITIVE ALTERNATE SPECIFIED IN THE PLANS, EVEN IF PARAGRAPH 5 (B) OF THE INSTRUCTIONS IS INTERPRETED AS REQUIRING DISQUALIFICATION OF A BID THAT FAILS TO STATE PRICES FOR ALL ITEMS, PARAGRAPH 10 (E) OF THE INSTRUCTIONS PERMITS AN EXCEPTION TO THIS REQUIREMENT IN THAT IT ALLOWS THE GOVERNMENT TO ACCEPT ANY ITEM OR COMBINATION OF ITEMS IT MAY CHOOSE. IN THIS CASE THE CONTRACTING OFFICER HAS STATED THAT THE GOVERNMENT HAS DECIDED NOT TO MAKE AN AWARD THAT WILL INCLUDE THE ADDITIVE ALTERNATE. THEREFORE, FOR PURPOSES OF AWARD, THE PRICE FOR THE ADDITIVE ALTERNATE WOULD BE IMMATERIAL AND UNNECESSARY TO THE EVALUATION OF BIDS AND ITS OMISSION ALSO CAN BE CONSIDERED AN INFORMALITY THAT MAY BE WAIVED. IN B 143271, OCTOBER 7, 1960, THERE WAS CONSIDERED A CASE IN WHICH THE INSTRUCTIONS TO BIDDERS STATED THAT THE BIDS ,MUST BE SUBMITTED ON ALL ITEMS" AND THAT "BIDS NOT SO SUBMITTED WILL BE CONSIDERED NON RESPONSIVE AND WILL BE REJECTED.' NEVERTHELESS, IT WAS CONCLUDED THAT IT WAS IMPROPER TO REJECT THE BID OF THE LOW BIDDER FOR FAILING TO BID ON AN ITEM THAT WAS NOT PART OF THE EVALUATION FOR BIDS, SINCE THE ITEM DID NOT AFFECT THE SUBSTANCE OF THE BID.

ACCORDINGLY, IN THE CIRCUMSTANCES OF THE CASE, WE WILL INTERPOSE NO OBJECTION TO AN AWARD TO THE E. JAY SMITH CONSTRUCTION CO. ..END :