B-150536, FEB. 26, 1963

B-150536: Feb 26, 1963

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TO AJAX CORRUGATED PAPER COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27. FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. IT IS REPORTED THAT YOU SUBMITTED THE LOWEST BID ON ITEMS 5 THROUGH 8. IN THE ADMINISTRATIVE REPORT IT IS STATED THAT THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE BECAUSE YOU HAD REMOVED MATERIAL PROVISIONS OF THE INVITATION WHICH INVOLVED MATTERS OF SUBSTANCE. 640.25 AND COVERING ITEMS 3 THROUGH 8 OF THE INVITATION WAS AWARDED TO THE HARCORD MANUFACTURING COMPANY. THE PRIMARY QUESTION FOR DETERMINATION IN CASES SUCH AS THIS IS WHETHER THE ACCEPTANCE OF THE BID AS SUBMITTED WILL RESULT IN A CONTRACT BINDING ON THE BIDDER REQUIRING PERFORMANCE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE PARTICULAR INVITATION.

B-150536, FEB. 26, 1963

TO AJAX CORRUGATED PAPER COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1962, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE HARCORD MANUFACTURING COMPANY, INC., JERSEY CITY, NEW JERSEY, UNDER INVITATION NO. AMC/A/-30-070-63-46, ISSUED BY THE U.S. ARMY CHEMICAL PROCUREMENT DISTRICT, NEW YORK, NEW YORK.

THE INVITATION, AS AMENDED BY AMENDMENT NO. 1, REQUESTED BIDS FOR FURNISHING VARIOUS TYPES OF CORRUGATED FIBERBOARD PRODUCTS DESCRIBED UNDER ITEMS 1 THROUGH 8. FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. YOUR FIRM SUBMITTED A BID ON ONLY ITEMS 5 THROUGH 8.

IT IS REPORTED THAT YOU SUBMITTED THE LOWEST BID ON ITEMS 5 THROUGH 8; THAT YOUR BID CONSISTED OF AMENDMENT NO. 1, THE FACE PAGE OF THE INVITATION TO BID, AND PAGES 2, 5A, 6, 8 AND 9; AND THAT YOU FAILED TO RETURN THE GENERAL PROVISIONS, APPENDIX AND THE TERMS AND CONDITIONS RELATING TO BUY AMERICAN PROVISIONS, OPTION PROVISIONS, SCHEDULE OF DELIVERIES, THE TERMS PERTAINING TO THE INSPECTION AND TESTING OF THE ITEMS, THE TERMS REGARDING SHIPPING AND TERMS PERTAINING TO PREPARATION OF DELIVERIES AS WELL AS INFORMATION TO BE SUBMITTED BY THE BIDDER CONCERNING AVAILABLE TRANSPORTATION FACILITIES. IN THE ADMINISTRATIVE REPORT IT IS STATED THAT THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE BECAUSE YOU HAD REMOVED MATERIAL PROVISIONS OF THE INVITATION WHICH INVOLVED MATTERS OF SUBSTANCE. ON DECEMBER 6, 1962, CONTRACT NO. DA30-070-AMC-52/A) IN THE AMOUNT OF $5,640.25 AND COVERING ITEMS 3 THROUGH 8 OF THE INVITATION WAS AWARDED TO THE HARCORD MANUFACTURING COMPANY, INC.

THE PRIMARY QUESTION FOR DETERMINATION IN CASES SUCH AS THIS IS WHETHER THE ACCEPTANCE OF THE BID AS SUBMITTED WILL RESULT IN A CONTRACT BINDING ON THE BIDDER REQUIRING PERFORMANCE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE PARTICULAR INVITATION. SINCE YOU DID NOT SPECIFICALLY STATE THAT THE GENERAL PROVISIONS, TERMS AND CONDITIONS AND APPENDIX WHICH YOU DETACHED FROM THE INVITATION WERE NOT TO BE REGARDED AS A PART OF ANY CONTRACT WHICH MIGHT BE AWARDED TO YOU, IT COULD BE ARGUED, AND NOT WITHOUT SOME MERIT, THAT HAD THE CONTRACT BEEN AWARDED TO YOU ON THE BASIS OF THE BID AS SUBMITTED IT WOULD HAVE BY REFERENCE INCORPORATED THE DETACHED GENERAL PROVISIONS, TERMS AND CONDITIONS AND APPENDIX.

ON THE OTHER HAND,THE RECORD SHOWS THAT PRIOR TO REJECTING YOUR BID THE CONTRACTING OFFICER REQUESTED AN OPINION FROM THE LEGAL DIVISION OF HIS DEPARTMENT REGARDING THE RESPONSIVENESS OF YOUR BID. AFTER A THOROUGH CONSIDERATION OF YOUR BID IT WAS CONCLUDED THAT THE WITHDRAWAL OF THE DOCUMENTS INVOLVED MATTERS OF SUBSTANCE AND THAT IF A CONTRACT WAS AWARDED TO YOU THE DOCUMENTS WOULD NOT BE INCORPORATED BY REFERENCE. IN VIEW OF THIS YOUR BID WAS CONSIDERED TO BE NONRESPONSIVE AND THEREFORE, FOR REJECTION.

IT IS REPORTED THAT THE HARCORD MANUFACTURING COMPANY, INC., EFFECTED SHIPMENT OF ALL THE REQUIRED ITEMS DURING THE PERIOD FROM DECEMBER 20, 1962, TO JANUARY 2, 1963.

ACCORDINGLY, SINCE THE QUESTION AS TO THE RESPONSIVENESS OF YOUR BID IS NOT FREE FROM DOUBT AND HAVING REGARD FOR THE STATUS OF THE CONTRACT AWARDED WE WOULD NOT BE WARRANTED IN QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.