B-148548, APR. 17, 1962

B-148548, APR. 17, 1962

CONTRACTING OFFICER, BOULDER LABORATORIES, NATIONAL BUREAU OF STANDARDS:

WE REFER TO YOUR LETTER OF MARCH 29, 1962 (REF. 80.40), CONCERNING THE MATTER OF AN AWARD UNDER INVITATION FOR BIDS NO. 62-62.

THE SUBJECT INVITATION WAS ISSUED ON MARCH 5, 1962, BY THE BOULDER LABORATORIES OF THE NATIONAL BUREAU OF STANDARDS, CONSISTING OF SPECIFICATIONS, DRAWINGS AND OTHER ATTACHMENTS, CALLING FOR 2 ITEMS OF ELECTRICAL DISTRIBUTION PANEL SWITCHBOARDS FOR THE BUREAU'S FORT COLLINS, COLORADO VERY-LOW-FREQUENCY RADIO STATION. THE FACE OF THE INVITATION (PAGE NO. 1), STATES THAT SEALED BIDS IN SINGLE ORIGINAL, SUBJECT TO (1) THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, (2) THE ACCOMPANYING SCHEDULE, (3) GENERAL CONTRACT PROVISIONS INCORPORATED BY REFERENCE, AND (4) SUCH OTHER CONTRACT PROVISIONS AND SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED BY REFERENCE IN THE SCHEDULE, WILL BE RECEIVED BY BID OPENING. PROVISION FOR PRICE INSERTION ON THE REQUIRED ITEMS IS SET FORTH ON THE INVITATION FACE AS FOLLOWS:

CHART

QUANTITY UNIT "ITEM NO. SUPPLIES OR SERVICES (NO.OF UNITS) UNIT PRICE AMOUNT

DESTINATION: NATIONAL BUREAU

OF STANDARDS

VLF STATION

FORT COLLINS,

COLORADO

1. PANEL FOR TRANSMITTER BLDG.,

SHEET 6. 1 EA. $

2. PANEL FOR HELEX HOUSE, SHEET 7. 2 EA. $ $

3. TRANSPORTATION TO SITE.

THE ABOVE IN ACCORDANCE WITH

THE FOLLOWING SPECIFICATIONS: $ "

BIDS WERE OPENED ON MARCH 27, 1962, AND 7 BIDS WERE RECEIVED AND TABULATED. THE LOW BID AS TO PRICE IS SUBMITTED BY EASTER-OWENS ELECTRIC COMPANY, DENVER, COLORADO, IN THE TOTAL AMOUNT OF $7,612. THE SECOND LOW BID IS IN THE AMOUNT OF $8,330, AND HIGHEST BID IS IN THE AMOUNT OF $12,663.60.

IT IS NOTED THAT THE APPARENT LOW BIDDER, EASTER-OWENS ELECTRIC COMPANY, SIMPLY RETURNED THE FACE PAGE OF THE INVITATION AND THE COMPANY IDENTIFICATION INFORMATION FORM. BID PRICES FOR THE REQUESTED ITEMS APPEAR IN THE PROPER LOCATION PROVIDED ON THE BID FACE. THE NAME OF THE BIDDING FIRM AND THE SIGNATURE OF THE PRESIDENT ALSO APPEAR IN PROPER ORDER. OTHER REPRESENTATIONS REQUIRED FROM THE BIDDER ON THE INVITATION FACE, INCLUDING WHETHER THE FIRM IS A REGULAR DEALER OR MANUFACTURER OF THE SUPPLIES BID ON, AND THE CONTINGENT FEE STATEMENT, ARE NOT ANSWERED. THE TOP OF THE SHEET CONTAINS A NOTATION INSERTED PRESUMABLY BY THE BIDDER, STATING "MARCH 20, 1962 QUOTE NO. 1436.' IT IS REPORTED BY THE CONTRACTING OFFICE THAT THE COMPLETE INVITATION WAS MAILED OUT TO THE BIDDER.

YOU REQUEST OUR DECISION AS TO WHETHER THE EASTER-OWNES ELECTRIC COMPANY BID MAY BE CONSIDERED TO BE RESPONSIVE TO THE TERMS OF THE INVITATION.

IN CASES WHERE A BIDDER HAS SUBMITTED HIS BID IN THE FORM OF A LETTER RATHER THAN ON THE STANDARD FORM PROVIDED, WE HAVE CONSIDERED THE LETTER BID TO BE RESPONSIVE TO THE INVITATION, IF ACCEPTANCE OF THE BID AS SUBMITTED WOULD CREATE A VALID AND BINDING CONTRACT REQUIRING THE BIDDER TO PERFORM IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE INVITATION. B-128399, JULY 19, 956; B-113920, FEBRUARY 27, 1953. THE SAME CONSIDERATION GOVERNS HERE, THAT IS, WHETHER EASTER-OWENS HAS SUBMITTED A BID WHICH, IF ACCEPTED, WOULD BIND IT TO PERFORM IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS.

THE FACE OF THE INVITATION CONTAINING THE QUOTED BID PRICES SUBMITTED BY EASTER-OWENS STATES THAT SEALED BIDS, SUBJECT TO THE TERMS AND CONDITIONS OF THE INVITATION, THE ACCOMPANYING SCHEDULE, AND SUCH PROVISIONS AND SPECIFICATIONS AS ARE INCORPORATED BY REFERENCE AS ATTACHED SHALL BE RECEIVED BY THE TIME OF BID OPENING. THE EASTER OWENS BID QUOTATIONS MUST NECESSARILY REFER TO THE INVITATION AS A WHOLE. IF THE BIDDER CONTEMPLATED ANY EXCEPTIONS TO THE INVITATION IT WOULD HAVE SO STATED. THE NOTATION APPEARING ON THE FACE OF THE BID STATING "MARCH 20 1962 QUOTE NO. 1436" HAS NO MEANING CONTRARY TO THE TERMS OF THE INVITATION. PERCEIVE NO BASIS UPON WHICH EASTER-OWENS COULD REPUDIATE ITS BID MERELY BECAUSE IT DID NOT ENCLOSE THE INVITATION PAGES FOLLOWING THE INVITATION FACE.

OF COURSE, THE BID COULD NOT PROPERLY BE ACCEPTED IF THE INVITATION REQUIRED THE SUBMISSION OF MATERIAL INFORMATION WHICH THE BIDDER FAILED TO FURNISH. SEE 36 COMP. GEN. 376. HOWEVER, THIS DOES NOT APPEAR TO BE THE SITUATION HERE. THE FAILURE BY EASTER-OWENS TO INDICATE WHETHER IT IS A REGULAR DEALER OR MANUFACTURER OF THE SUPPLIES BID ON IS NOT MATERIAL SINCE YOUR OFFICE IS APPARENTLY AWARE OF THE BIDDER'S STATUS (BASED PERHAPS ON PAST PROCUREMENTS). IN THE CASE OF THE CONTINGENT FEE REPRESENTATION LEFT OUT BY THE BIDDER, THE FEDERAL PROCUREMENT REGULATIONS PROVIDE UNDER SECTION 1-1.508-1 (C) THAT IF THE SUCCESSFUL BIDDER FAILS TO FURNISH A STATEMENT IN THE BID CONCERNING CONTINGENT FEES, THAT: " * * * SUCH FAILURE SHALL BE CONSIDERED A MINOR INFORMALITY AND, PRIOR TO AWARD, SUCH BIDDER OR PROPOSED CONTRACTOR SHALL BE OFFERED A FURTHER OPPORTUNITY TO FURNISH SUCH REPRESENTATION AND AGREEMENT.'

EASTER-OWENS HAS SUBMITTED A BID ON THE ITEMS REQUIRED UNDER INVITATION FOR BIDS NO. 62-62. THE BIDDER HAS NOT QUALIFIED ITS BID, NOR HAS THE BIDDER FAILED TO FURNISH INFORMATION SO AS TO CAUSE THE BID TO BE REJECTED.

ACCORDINGLY, WE FIND ON THE BASIS OF THE PRESENT RECORD THAT THE EASTER- OWENS ELECTRIC COMPANY BID AS SUBMITTED MAY BE CONSIDERED FOR AWARD UNDER THE SUBJECT INVITATION.