B-150019, DEC. 5, 1962

B-150019, DEC. 5, 1962

TO TOWN AND COUNTRY PEST CONTROL INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 29, 1962, PROTESTING AGAINST THE ACTION OF THE BASE PROCUREMENT OFFICE, TURNER AIR FORCE BASE, GEORGIA, IN REJECTING YOUR BID SUBMITTED IN RESPONSE TO INVITATION NO. 09-629-62-73.

THE INVITATION REQUESTED BIDS FOR FURNISHING LABOR AND MATERIALS AND FOR PERFORMING ALL WORK REQUIRED FOR THE CONTROL OF TERMITES AT THE FAMILY HOUSING FACILITIES AT THE TURNER AIR FORCE BASE, GEORGIA. THE RECORD INDICATES THAT YOUR FIRM SUBMITTED THE LOWEST BID IN THE AMOUNT OF $7,356; THAT THE SECOND LOWEST BID IN THE AMOUNT OF $7,480 WAS SUBMITTED BY RAY PEST CONTROL SERVICE, INC.; AND THAT THE MCGRATH PEST CONTROL COMPANY SUBMITTED THE THIRD LOWEST BID IN THE AMOUNT OF $13,500. YOUR BID WAS REJECTED AS NONRESPONSIVE TO THE INVITATION BECAUSE YOUR LETTER OF JUNE 19, 1962, WHICH FORMED A PART OF YOUR BID, IMPOSED A CONDITION WHICH WOULD HAVE MODIFIED THE REQUIREMENTS OF THE INVITATION IN A MATERIAL RESPECT. THE BID OF THE SECOND LOWEST BIDDER WAS ALSO REJECTED AS NONRESPONSIVE TO THE INVITATION BECAUSE IT HAD FAILED TO FURNISH AN ADEQUATE BID BOND. JUNE 25, 1962, AWARD WAS MADE TO THE MCGRATH PEST CONTROL COMPANY AS THE LOW RESPONSIVE BIDDER. IT IS REPORTED THAT THE COMPANY HAS COMPLETED OVER 90 PERCENT OF THE WORK CALLED FOR UNDER THE CONTRACT.

IN YOUR LETTER OF JUNE 19, 1962, WHICH ACCOMPANIED YOUR BID, YOU STATED AS FOLLOWS:

"THIS LETTER DOES IN NO WAY QUALIFY MY BID.

"REFERENCE IS MADE TO THE TECHNICAL PROVISION SECTION I, TERMITE CONTROL, WHERRY HOUSING, TP-1-04, TP-1-05, TP-1-06 THAT THE CONTRACTOR HAS THE OPTION TO USE ANY OF THE LISTED SOIL POISONS MENTIONED IN THESE SPECIFICATIONS APPLIED IN THE WATER OR OIL SOLUTION WITH THE EXCEPTION OF USING OIL EMULSIONS AROUND PLANTS AND VEGETATION IN ALL PHASES OF THE JOB.

"MY INTERPRETATION OF THESE SPECIFICATIONS IS THAT WATER EMULSION CAN BE USED IN ALL PHASES OF THIS JOB.'

PARAGRAPHS TP-1-04, TP-1-05, AND TP-1-06 PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"TP-1-04. APPLICABLE SPECIFICATIONS. * * *

"B. PAMPHLET, DECAY AND TERMITES, BUILDING RESEARCH ADVISORY BOARD. BENZENE HEXACHLORIDE (TECHNICAL). TO BE USED AT CONCENTRATION OF .8 GAMMA ISOMER, APPLIED ON OIL SOLUTION OR WATER EMULSION AS HEREINAFTER SPECIFIED.

CHLORDANE: CONCENTRATION OF 1.0 PERCENT APPLIED IN WATER OR OIL

SOLUTION.

DIELDRIN: CONCENTRATION .5 PERCENT APPLIED IN WATER OR OIL

SOLUTION.

LINDANE:CONCENTRATION OF .8 PERCENT IN OIL OR WATER SOLUTION.

"TP-1-05. SOIL POISONS. AT THE OPTION OF THE CONTRACTOR ANY OF THE ABOVE LISTED SOIL POISONS SHALL BE ACCEPTABLE FOR USE WITH THE EXCEPTION THAT WATER EMULSIFIABLE POISONS SHALL BE USED IN AND AROUND PLANTS AND VEGETATION.

"A. EMULSIFYING AGENTS.

(1) OIL SOLUTION, NO. 2 FUEL OIL.

(2) WATER.

"TP-1-06. APPLICATION OF SOIL POISONS. DETAILED METHODS OF APPLICATION SHALL BE AS FOLLOWS:

"B. (2) PARALLEL RODDING. INTO THESE HOLES THE CONTRACTOR SHALL INSERT A COUPLED 1/4 INCH PIPE AND NOZZLE FROM WHICH AN APPROVED OIL EMULSION SOIL POISON SHALL BE APPLIED AT THE RATE OF TWO GALLONS PER 5 LIN.FT. OF WALL.

YOU CONTEND THAT YOUR BID FULFILLED ALL OF THE BID REQUIREMENTS AND THAT THE LETTER WHICH ACCOMPANIED YOUR BID STATED THAT IT IN NO WAY QUALIFIED YOUR BID. YOU STATE THAT YOUR INTERPRETATION OF THE SPECIFICATIONS WAS THAT WATER EMULSION COULD BE USED AT THE OPTION OF THE CONTRACTOR AND THAT YOU DID NOT INDICATE THE MATERIAL ON WHICH YOU WERE BIDDING BECAUSE YOU WERE BIDDING STRICTLY IN ACCORDANCE WITH THE SPECIFICATIONS.

CONCEDING ARGUENDO THAT THE ONLY CONCLUSION ONE COULD REACH FROM READING PARAGRAPH TP-1-05 OF THE SPECIFICATIONS IS THAT WATER EMULSION COULD BE USED AT THE OPTION OF THE CONTRACTOR IN ALL PHASES OF THE WORK, THE FACT REMAINS THAT PARAGRAPH TP-1-06 (B) (2) DID PROVIDE THAT IN THE PARALLEL RODDING AN APPROVED OIL EMULSION SOIL POISON SHOULD BE APPLIED. THUS, WHILE THE PROVISIONS OF PARAGRAPH TP-1-05 OF THE SPECIFICATIONS, STANDING ALONE, MAY HAVE BEEN SUBJECT TO MISINTERPRETATION, THE PROVISIONS OF PARAGRAPH TP-1-06 (B) (2) OF THE SPECIFICATIONS COULD NOT HAVE BEEN MORE CLEARLY STATED.

THE RESPONSIVENESS OF A BID MUST BE DETERMINED SOLELY ON THE BASIS OF THE BID AND ANY EXPLANATORY INFORMATION SUBMITTED THEREWITH PRIOR TO BID OPENING. IF A BID IS SO PREPARED AS TO CREATE A REASONABLE DOUBT CONCERNING THE BIDDER'S INTENTION TO COMPLY WITH THE INVITATION REQUIREMENTS, ANY NEGOTIATIONS WITH THE BIDDER TO CLARIFY SUCH INTENTION WOULD BE OBJECTIONABLE ON THE GROUND THAT NO BIDDER SHOULD BE AFFORDED A SECOND CHANCE TO BID AFTER BIDS ARE OPENED. SEE 36 COMP. GEN. 705 AND OTHER DECISIONS OF THIS OFFICE REFERRED TO THEREIN.

YOUR EXECUTED BID FORM AND THE ACCOMPANYING LETTER OF JUNE 19, 1962, HAVE BEEN CAREFULLY CONSIDERED IN THE LIGHT OF THE FOREGOING PRINCIPLES AND WE ARE UNABLE TO CONCLUDE THEREFROM THAT THE CONTRACTING OFFICER WAS UNJUSTIFIED IN REGARDING YOUR BID AS NONRESPONSIVE. NOR DO WE FIND IN YOUR BID SUFFICIENT GROUNDS TO JUSTIFY THE CONCLUSION THAT THE STATEMENT ON THE TOP OF YOUR LETTER OF JUNE 19, 1962,"THIS LETTER DOES IN NO WAY QUALIFY MY BID," RENDERS MEANINGLESS THE STATEMENT IN THAT LETTER SHOWING THAT YOUR BID PRICE WAS BASED ON THE ASSUMPTION THAT WATER EMULSION COULD BE USED IN ALL PHASES OF THIS JOB. THE CONTRACTING OFFICER STATES THAT HE WAS INFORMED BY THE NEXT LOWEST BIDDER THAT ITS BID IN THE AMOUNT OF $7,480 WAS BASED ON THE USE OF WATER EMULSION IN ALL PHASES OF THE JOB. IN VIEW OF THE SLIGHT DIFFERENCE BETWEEN YOUR BID OF $7,356 AND THE NEXT LOW BID OF $7,480 AND THE GREAT DIFFERENCE BETWEEN YOUR BID AND THE BID OF THE THIRD LOWEST BIDDER WHO QUOTED A PRICE OF $13,500, THERE IS A BASIS FOR CONCLUDING THAT YOUR BID PRICE WAS BASED ON THE USE OF WATER EMULSION IN ALL PHASES OF THE JOB.

WE HAVE STATED IN THE PAST THAT WHERE EACH OF TWO POSSIBLE MEANINGS CAN BE REACHED FROM THE TERMS OF A BID, THE BIDDER SHOULD NOT BE ALLOWED TO EXPLAIN HIS MEANING WHEN HE IS IN A POSITION THEREBY TO PREJUDICE OTHER BIDDERS OR TO AFFECT THE RESPONSIVENESS OF HIS BID. 40 COMP. GEN. 393. UNDER THIS RULE WE FIND THAT YOUR BID IS UNACCEPTABLE.