B-150214, NOV. 29, 1962

B-150214, NOV. 29, 1962

SKYLINE CLOTHING CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 31, 1962, PROTESTING AGAINST ANY POSSIBLE AWARD OF A CONTRACT TO KINGS POINT INDUSTRIES, INC., UNDER INVITATION NO. DSA-1-63-327 BY THE DEFENSE SUPPLY AGENCY. LETTERS DATED OCTOBER 31, NOVEMBER 2 AND 21, 1962, IN YOUR BEHALF, ALSO WERE RECEIVED FROM THE ABOVE ATTORNEY IN FURTHER REGARD TO YOUR PROTEST.

THE DEFENSE SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA, BY THE REFERRED-TO INVITATION DATED OCTOBER 1, 1962, REQUESTED BIDS FOR THE MANUFACTURE OF 23,600 MEN'S JACKET LINERS TO BE DELIVERED TO THE FOUR DESTINATIONS LISTED THEREIN.

AMENDMENT NO. 1 WAS ISSUED ON OCTOBER 9, 1962, AN IMPLEMENTATION OF THE WORK HOURS ACT OF 1962, 76 STAT. 357. AMENDMENT NO. 2 WAS ISSUED ON OCTOBER 19, 1962, TO INCLUDE A SPECIFIC CHANGE IN THE SPECIFICATIONS AND TO EXTEND THE TIME FOR OPENING OF BIDS TO OCTOBER 29, 1962. THE BIDS WERE RECEIVED AND OPENED ON OCTOBER 29, 1962. AT THE BID OPENING, YOUR BID, AS MODIFIED BY TELEGRAM OF OCTOBER 29, 1962, WAS READ AND RECORDED AS $11.39 EACH FOR THE JACKET LINERS. YOU ALSO OFFERED A PROMPT PAYMENT DISCOUNT OF ONE-TENTH OF 1 PERCENT FOR PAYMENT WITHIN 20 CALENDAR DAYS. ONE OF THE OTHER BIDS RECEIVED WAS FROM KINGS POINT INDUSTRIES, INC. (HEREINAFTER REFERRED TO AS KINGS POINT), AND THAT BID WAS READ AND RECORDED AS $14.80 EACH FOR THE JACKET LINERS. THAT CORPORATION ALSO OFFERED A PROMPT PAYMENT DISCOUNT OF 1 PERCENT FOR PAYMENT WITHIN 20 CALENDAR DAYS. SUBSEQUENTLY, APPROXIMATELY TEN MINUTES AFTER THE CONCLUSION OF THE BID OPENING, A PROCUREMENT CLERK, WHO WAS COMPARING THE OPENED BIDS WITH THE PRICES RECORDED AS READ, DISCOVERED THAT KINGS POINT HAD BY A HANDWRITTEN NOTATION ON AMENDMENT NO. 2 REDUCED ITS UNIT BID PRICE TO $11.44. IF THE PROMPT PAYMENT DISCOUNTS OFFERED BY YOUR FIRM AND KINGS POINT ARE USED IN THE EVALUATION OF THE MODIFIED BIDS, YOUR NET UNIT PRICE FOR THE JACKET LINERS WOULD BE $11.37861 AND KINGS POINT'S NET UNIT PRICE WOULD BE $11.3256.

IN REGARD TO THE BID RECEIVED FROM KINGS POINT THE CONTRACTING OFFICER STATES IN HIS REPORT OF NOVEMBER 7, 1962, AS FOLLOWS:

"4. THE FOLLOWING COMMENTS ARE APPLICABLE TO THE BID RECEIVED FROM KINGS POINT. THE BID AND AMENDMENT NO. 1 WERE SUBMITTED BY MAIL IN THE GOVERNMENT FURNISHED PREPRINTED BID ENVELOPE. THE ENVELOPE WAS POST MARKED OCTOBER 19, 1962, 9:00 P.M., NEW YORK, NEW YORK AND WAS RECEIVED AT THIS CENTER ON 22 OCTOBER 1962 AT 8:00 A.M. EDT. AMENDMENT NO. 2 WAS MAILED IN A SEPARATE ENVELOPE, POST MARKED OCTOBER 27, 1962, 2:00 P.M. GREAT NECK, NEW YORK AND WAS RECEIVED AT THIS CENTER ON 29 OCTOBER 1962 AT 8:00 A.M. EST. BOTH ENVELOPES BEAR THE NAME AND ADDRESS OF KINGS POINT AND PROPERLY IDENTIFY THE I/B IN QUESTION. PAGE 1 OF THE BID AS COMPLETED BY KINGS POINT PROVIDES IN PART AS FOLLOWS:

" "DISCOUNTS WILL BE ALLOWED BY BIDDER FOR PROMPT PAYMENT AS FOLLOWS: 1 PERCENT, 20 CALENDAR DAYS.'

THE PER UNIT PRICE OF $14.80 IS QUOTED FOR EACH DESTINATION ON PAGES 2 AND 3 OF THE BID. AMENDMENT NO. 2 BEARS THE FOLLOWING HANDWRITTEN NOTATION IMMEDIATELY BELOW THE STATEMENT OF CHANGE AND IN THE BLOCK ENTITLED,"THE ABOVE IFB IS AMENDED AS FOLLOWS (ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED): "

" "CHANGE OUR PRICES ON ALL DESTINATIONS TO READ $11.44 EACH.'

THE INITIALS,"JG," APPEAR ADJACENT TO AND TO THE LEFT OF THIS HANDWRITTEN NOTATION. THE BID, AMENDMENT NO. 1 AND AMENDMENT NO. 2 WERE SIGNED BY J. GURWIN, PRESIDENT OF KINGS POINT AND WERE EACH SUBMITTED IN TRIPLICATE. ALL COPIES ARE IDENTICAL.'

IN THE LETTERS SUBMITTED BY YOUR ATTORNEY FOUR REASONS ARE GIVEN AS TO WHY THE PRICE REVISION SUBMITTED BY KINGS POINT SHOULD NOT BE CONSIDERED IN EVALUATING THE BIDS FOR AWARD.

THE FIRST REASON GIVEN IS THAT THE PRICES READ AT THE PUBLIC BID OPENING ARE CONTROLLING. SINCE PARAGRAPH 4 OF THE INVITATION FOR BIDS PROVIDES FOR CONSIDERATION OF LATE BIDS AND MODIFICATIONS UNDER CERTAIN CIRCUMSTANCES, TO REGARD THE PRICES READ AT THE BID OPENING AS CONTROLLING WOULD DEFEAT THE PURPOSE OF SUCH PROVISION AND WOULD NOT BE IN THE INTERESTS OF THE GOVERNMENT.

YOUR SECOND CONTENTION IS NOT CLEAR. IT IS NOT APPARENT WHETHER YOU ARE CONTENDING THAT AMENDMENT NO. 2 ACCOMPANIED KINGS POINT'S ORIGINAL BID AND, THEREFORE, THE PRICE REVISION SHOULD HAVE BEEN SHOWN ON ITS ORIGINAL BID IN THE AMOUNT COLUMN. IF THIS IS YOUR CONTENTION, IT IS WITHOUT MERIT SINCE THE RECORD INDICATES THAT AMENDMENT NO. 2 DID NOT ACCOMPANY KINGS POINT'S ORIGINAL BID BUT THAT IT WAS MAILED BY THE CORPORATION IN A SEPARATE ENVELOPE EIGHT DAYS AFTER IT HAD MAILED ITS ORIGINAL BID. ON THE OTHER HAND, IF YOU ARE CONTENDING THAT SINCE AMENDMENT NO. 2 WAS ISSUED BY THE GOVERNMENT IT BECAME A PART OF THE BID AND SINCE IT DID NOT RELATE TO THE PRICE OF THE ITEM, THE PRICE REVISION SHOULD HAVE BEEN SHOWN ON A SEPARATE PIECE OF PAPER, SUCH AS A TELEGRAM OR LETTER, IT IS OUR VIEW THAT SUCH CONTENTION ALSO IS WITHOUT MERIT. WE SEE NO REASON FOR OBJECTING TO KINGS POINT'S ACTION IN INSERTING A PRICE REVISION ON AMENDMENT NO. 2 SINCE THE ORIGINAL BID HAD PREVIOUSLY BEEN SUBMITTED TO THE GOVERNMENT. IT IS NOTED THAT PARAGRAPH 2 (A) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, WHICH AUTHORIZES THE MODIFICATION OF BIDS IF RECEIVED PRIOR TO THE TIME OF THE BID OPENING, DOES NOT PRESCRIBE THAT A SPECIAL FORM SHALL BE USED FOR THE SUBMISSION OF BID MODIFICATIONS. CONSEQUENTLY, WE ARE OF THE OPINION THAT THE PRICE REVISION INSERTED BY KINGS POINT ON AMENDMENT NO. 2 IS A VALID MODIFICATION OF ITS BID PRICE.

THE THIRD BASIS FOR YOUR PROTEST IS THAT THE NOTATION ON AMENDMENT NO. 2 REVISING THE PRICE BID BY KINGS POINT DOES NOT APPEAR TO HAVE BEEN WRITTEN BY MR. J. GURWIN, THE PERSON WHO SIGNED THE AMENDMENT. ALSO, THAT THE INITIALS "JG" ADJACENT TO AND ON THE LEFT OF THIS HANDWRITTEN NOTATION "APPEARED TO BE DIFFERENT FROM THAT OF MR. GURWIN.' IN THAT CONNECTION, MR. GURWIN STATES IN A LETTER DATED NOVEMBER 5, 1962, THAT HE PERSONALLY WROTE THE PRICE REVISION ON AMENDMENT NO. 2. ALSO, MR. GURWIN HAS STATED ORALLY THAT HE INITIALED THE PRICE REVISION.

THE FOURTH REASON GIVEN BY YOU IS THAT KINGS POINT'S PURPORTED REVISED PRICE IN THE AMOUNT OF $11.44 MUST BE CONSTRUED AS A NET PRICE AS THAT FIRM DID NOT SPECIFICALLY STATE THAT THE PREVIOUSLY QUOTED DISCOUNT OF 1 PERCENT FOR PAYMENT WITHIN 20 CALENDAR DAYS WAS APPLICABLE TO THE REDUCED PRICE. WE BELIEVE THAT IT WAS NOT NECESSARY FOR KINGS POINT TO SPECIFICALLY STATE IN THE MODIFICATION THAT THE PROMPT PAYMENT DISCOUNT OFFERED IN ITS ORIGINAL BID WAS APPLICABLE TO ITS REDUCED PRICE OF $11.44 SINCE THE MODIFICATION BECAME A PART OF ITS ORIGINAL BID AND WAS NOT A SEPARATE OFFERING. ALSO, IT IS NOTED THAT THE BLOCK UNDER AMENDMENT NO. 2 IN WHICH THE PRICE REVISION WAS INSERTED BY KINGS POINT BEARS THE FOLLOWING PREPRINTED HEADING: "THE ABOVE IFB IS AMENDED AS FOLLOWS (ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED).' IT IS OUR OPINION THAT KINGS POINT BY PLACING ITS PRICE REVISION UNDER THIS HEADING, IN EFFECT, INCORPORATED BY REFERENCE THE PHRASE "ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED" INTO SUCH MODIFICATION.

THE MODIFICATION SUBMITTED BY KINGS POINT IS A PART OF THE CORPORATION'S BID. A CONTRACT MUST BE CONSTRUED AS A WHOLE AND ALL ITS PARTS HARMONIZED SO FAR AS REASONABLY POSSIBLE; EVERY WORD IN IT BEING GIVEN EFFECT, IF POSSIBLE; AND NO PART IS TO BE TAKEN AS ELIMINATED OR STRICKEN BY SOME OTHER PART UNLESS SUCH A RESULT IS FAIRLY INESCAPABLE. LAEVIN V. ST. VINCENT DE PAUL SOC. OF GRAND RAPIDS, 36 N.W.2D 163; ASSOCIATED TRUCK LINES V. BAER, 77 N.W.2D 384. HENCE, THERE APPEARS NO LEGAL BASIS FOR CONCLUDING THAT THE PROMPT PAYMENT DISCOUNT OFFERED BY KINGS POINT WAS ELIMINATED OR STRICKEN FROM ITS ORIGINAL BID BY REASON OF ITS FAILURE TO INCLUDE SUCH PROVISION IN ITS MODIFICATION.

IN VIEW OF THE FOREGOING, AND SINCE WE HAVE BEEN INFORMALLY ADVISED BY THE DEFENSE SUPPLY AGENCY THAT AWARD WAS MADE TO KINGS POINT INDUSTRIES, INC., ON NOVEMBER 16, 1962, WE CONCLUDE THAT IT WAS PROPER FOR THE CONTRACTING OFFICER IN EVALUATING THE BIDS FOR AWARD TO CONSIDER THE MODIFICATION APPEARING ON AMENDMENT NO. 2 TO THE BID OF KINGS POINT INDUSTRIES, INC., AND ALSO THE PROMPT PAYMENT DISCOUNT OFFERED IN ITS ORIGINAL BID. ACCORDINGLY, YOUR PROTEST IS DENIED.