B-150414, MARCH 21, 1963, 42 COMP. GEN. 502

B-150414, MARCH 21, 1963, 42 COMP. GEN. 502

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - INVITATION TO BID PROVISIONS UNDER AN INVITATION SUBJECT BOTH TO THE SCHEDULE AND SPECIAL PROVISIONS ATTACHED THERETO AND TO THE ADDITIONAL TERMS AND CONDITIONS, AND THE GENERAL PROVISIONS INCORPORATED BY REFERENCE, A BID SUBMITTED WITH SEVERAL PAGES OF THE INVITATION MISSING, WHICH CONTAINED SUBSTANTIVE PROVISIONS CONCERNING THE SPECIFICATIONS AND CONTRACTOR OBLIGATIONS, IS A NONRESPONSIVE BID PROPERLY FOR REJECTION, THE BIDDER BEING FREE TO ELECT TO BE BOUND ONLY BY THE SPECIAL PROVISIONS ATTACHED TO THE BID, NOTWITHSTANDING INTENT TO BE BOUND, THE DETERMINING FACTOR BEING WHETHER THAT INTENTION IS APPARENT FROM THE BID SUBMITTED, AND THE MISSING PAGES GOING TO THE SUBSTANCE OF THE BID, THE EXECUTION OF AN AMENDMENT PROVIDING THAT THE "TERMS AND CONDITIONS OF THE ORIGINAL ADVERTISEMENT REMAIN UNCHANGED" WOULD NOT OVERCOME THE FAILURE TO ATTACH THE REQUIRED PROVISIONS OF THE INVITATION TO THE BID.

TO ROBERT D. WITTE, MARCH 21, 1963:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 19, 1962, WITH AN AFFIDAVIT BY MICHAEL T. GASPARIK, PRESIDENT OF GENERAL ELECTRONICS, INC., PROTESTING THE REJECTION OF THE FIRM'S BID AS NOT BEING RESPONSIVE TO INVITATION ISSUED BY THE GENERAL SERVICES ADMINISTRATION FOR BIDS ON ELECTRON TUBES, FSC GROUP 59, FOR THE PERIOD NOVEMBER 1, 1962, THROUGH OCTOBER 31, 1963.

BIDS TO BE OPENED JUNE 11, 1962, WERE REQUESTED ON VARIOUS TYPES OF ELECTRON TUBES AS INDICATED ABOVE. BEFORE BID OPENING SPECIAL NOTICE NO. 1 WAS ISSUED EMPHASIZING THAT CONTRACTORS WOULD BE REQUIRED TO COMPLY FULLY WITH THE PROVISIONS OF MILITARY SPECIFICATIONS MIL-3-1 DURING THE SCHEDULE PERIOD AND REQUESTING QUOTATIONS ON ADDITIONAL TUBE TYPES. THIS SPECIAL NOTICE STATES THAT BIDDERS SHOULD ACKNOWLEDGE RECEIPT OF SAME BY FORWARDING THREE SIGNED COPIES TOGETHER WITH THEIR BID SETS AND THAT THE TERMS AND CONDITIONS OF THE ORIGINAL ADVERTISEMENT REMAIN UNCHANGED.

IT APPEARS THAT GENERAL ELECTRONICS' BID WAS LOW ON CERTAIN ITEMS, BUT WAS REJECTED AS NONRESPONSIVE BECAUSE THE BID, WHEN RECEIVED BY THE PROCURING AGENCY, DID NOT INCLUDE PAGES 3, 4, 7, 8, AND 9 OF THE INVITATION. THESE PAGES CONTAINED PROVISIONS RELATIVE TO THE OBLIGATION OF THE CONTRACTOR TO FILL ORDERS PLACED BY VARIOUS GOVERNMENT AGENCIES UNDER ANY RESULTING CONTRACT AND ALSO INCLUDED SPECIAL PROVISIONS RELATING TO (1) THE METHOD OF AWARD; (2) THE APPLICABLE SPECIFICATION FOR ELECTRON TUBES; (3) THE TIME WITHIN WHICH THE BIDDER WOULD MAKE DELIVERIES; AND (4) THE REQUIREMENT THAT BID PRICES MUST INCLUDE DELIVERY TO ANY DESTINATION WITHIN THE 50 STATES, THE DISTRICT OF COLUMBIA AND PUERTO RICO.

MR. GASPARIK'S AFFIDAVIT STATES THAT TO THE BEST OF HIS KNOWLEDGE THE BID WAS COMPLETE WHEN SUBMITTED BY GENERAL ELECTRONICS. HOWEVER, THE GENERAL SERVICES ADMINISTRATION REPORTS THAT THREE COPIES OF THE BID WERE SUBMITTED BY GENERAL ELECTRONICS AND THAT AS TO EACH COPY, PAGES 3, 4, 7, 8, AND 9 WERE MISSING WHEN THE BID WAS RECEIVED. SINCE THERE WOULD BE NO REASON TO REMOVE PARTS OF A BID AFTER RECEIPT AND SINCE IT IS HIGHLY UNLIKELY THAT THE SAME PAGES COULD BECOME SEPARATED INADVERTENTLY FROM THREE DIFFERENT COPIES THE CONCLUSION SEEMS JUSTIFIED THAT THESE PAGES WERE, IN FACT, MISSING.

IT IS YOUR POSITION THAT IF THESE PAGES WERE OMITTED FROM THE BID, THEIR OMISSION CONSTITUTED AN INNOCUOUS, CLERICAL ERROR, WHICH WAS SUBJECT TO CORRECTION WITHOUT AFFECTING THE STATUS OF THE BID AND THAT, REGARDLESS OF WHETHER THE PAGES WERE MISSING OR NOT, THE BID WAS RESPONSIVE FOR THE REASONS THAT (1) THERE WAS NOTHING TO BE COMPLETED BY THE BIDDER ON THE PAGES IN QUESTION; (2) GENERAL ELECTRONICS HAS BEEN A REGULAR SUPPLIER FOR MANY YEARS, HAS NEVER TAKEN EXCEPTION TO ANY CLAUSE AND KNOWS THAT ANY EXCEPTION WOULD VITIATE THE BID; (3) THE INVITATION IS STATED TO BE ,SUBJECT TO THE SCHEDULE AND THE SPECIAL PROVISIONS WHICH ARE ATTACHED HERETO" AND THE BIDDER WAS THEREFORE OBLIGATED TO COMPLY WITH ALL TERMS AND CONDITIONS WHETHER HE RETURNED THEM ATTACHED OR NOT; AND (4) THE AMENDMENT TO THE BID (YOU APPARENTLY REFER TO SPECIAL NOTICE NO. 1), WHICH GENERAL ELECTRONICS ACKNOWLEDGED, REQUIRED THAT THE TERMS AND CONDITIONS OF THE ORIGINAL ADVERTISEMENT REMAIN UNCHANGED, WHICH BOUND THE BIDDER TO ALL PROVISIONS OF THE INVITATION, WHETHER PHYSICALLY INCORPORATED IN THE BID OR NOT.

WITH RESPECT TO YOUR FIRST TWO CONTENTIONS, IT IS NOTED THAT PAGE 3 OF THE INVITATION REQUESTED THE BIDDER TO INSERT IN THE APPROPRIATE SPACES PROVIDED THEREFOR THE TIME WITHIN WHICH DELIVERY WOULD BE MADE AFTER RECEIPT OF ORDER; AND THE FAILURE OF GENERAL ELECTRONICS TO TAKE EXCEPTION TO PREVIOUS INVITATIONS WOULD NOT APPEAR TO BE MATERIAL SINCE WE MUST DETERMINE THE BIDDER'S INTENTIONS FROM THE BID AS SUBMITTED. IT STATES THAT IT IS SUBJECT TO THE SCHEDULE AND SPECIAL PROVISIONS "WHICH ARE ATTACHED HERETO" AND SUBJECT TO CERTAIN ADDITIONAL "TERMS AND CONDITIONS" AND "GENERAL PROVISIONS" BOTH OF WHICH ARE INCORPORATED THEREIN BY REFERENCE. THE INVITATION NOTIFIES BIDDERS WHERE THEY MAY OBTAIN COPIES OF THE PROVISIONS WHICH ARE INCORPORATED BY REFERENCE, AND THESE PROVISIONS APPEAR CLEARLY TO BE BINDING ON ANY BIDDER WHO FAILS TO TAKE EXCEPTION TO SAME, BUT IT IS NOT PERCEIVED HOW A BIDDER COULD BE OBLIGATED TO COMPLY WITH ANY ,SPECIAL PROVISIONS" WHICH WERE NOT, IN FACT, ATTACHED TO THE BID. SOME OF THE "SPECIAL PROVISIONS" WERE ATTACHED TO THE BID AND, WHILE THE INVITATION APPARENTLY INCLUDED A FULL SET OF ,SPECIAL PROVISIONS," A BIDDER WAS AT LIBERTY TO REMOVE ANY PROVISIONS TO WHICH HE TOOK EXCEPTION, AND WHEN THE INVITATION BECAME A BID THROUGH EXECUTION BY THE BIDDER, IT REASONABLY SHOULD BE CONSIDERED AS REFERRING ONLY TO SPECIAL PROVISIONS WHICH WERE "ATTACHED" WHEN SUBMITTED TO THE PROCURING AGENCY.

IT IS TRUE THAT THE FAILURE TO COMPLY WITH A SUBSTANTIAL REQUIREMENT WILL VITIATE THE BID, AND THE REPRESENTATIVES OF GENERAL ELECTRONICS MAY WELL HAVE KNOWN THIS AND INTENDED TO BE FOUND BY ALL TERMS AND CONDITIONS, BUT THE DETERMINING FACTOR IS NOT WHETHER THE BIDDER INTENDS TO BE BOUND, IT IS WHETHER THIS INTENTION IS APPARENT FROM THE BID AS SUBMITTED. IN THE PRESENT SITUATION, A BIDDER COULD TAKE THE POSITION THAT HE WAS BOUND ONLY BY THE SPECIAL PROVISIONS ACTUALLY ATTACHED TO THE BID--- A CONTENTION WHICH IF MADE WOULD APPEAR TO BE LEGALLY SOUND. FURTHERMORE IT IS NOT BELIEVED THAT THE EXECUTION OF AN AMENDMENT PROVIDING THAT THE "TERMS AND CONDITIONS OF THE ORIGINAL ADVERTISEMENT REMAIN UNCHANGED" WOULD ALTER THE SITUATION, SINCE THE MISSING PAGES COULD HAVE BEEN OMITTED FROM THE INVITATION FORWARDED TO GENERAL ELECTRONICS, AND EVEN IF THERE WAS NO QUESTION ABOUT THE RECEIPT OF A COMPLETE INVITATION, THE INCLUSION IN THE AMENDMENT OF THE PROVISION LAST QUOTED WOULD NOT APPEAR TO OVERCOME THE POSITIVE ACTION OF THE BIDDER IN FAILING TO ATTACH CERTAIN PROVISIONS WHICH, TO BE BINDING, THE BID STATES MUST BE ATTACHED. AT BEST, THE BID WOULD BE AMBIGUOUS AND, AS SUCH, SUBJECT TO REJECTION.

FOR THE REASONS STATED, WE BELIEVE THAT GENERAL ELECTRONICS COULD HAVE ELECTED TO BE BOUND ONLY BY THE SPECIAL PROVISIONS WHICH WERE ATTACHED TO ITS BID AND THAT THE CORPORATION THEREFORE COULD NOT HAVE BEEN OBLIGATED TO ALL OF THE TERMS AND CONDITIONS OF THE INVITATION BY ACCEPTANCE OF ITS BID, AS SUBMITTED, WITHOUT FURTHER CLARIFICATION, AND SINCE THE MISSING PROVISIONS GO TO THE SUBSTANCE OF THE BID, WE CONCLUDE THAT THE BID WAS NOT RESPONSIVE AND WAS PROPERLY REJECTED. YOUR PROTEST MUST THEREFORE BE DENIED.