B-151745, JULY 2, 1963, 43 COMP. GEN. 23

B-151745: Jul 2, 1963

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BIDS - EVALUATION - ESTIMATES AN INTERPRETATION BY A LOW BIDDER THAT AN INVITATION FOR THE FABRICATION AND ERECTION OF SEVERAL LAUNCH TOWERS NOT TO EXCEED A MAXIMUM SPECIFIED WEIGHT REQUIRED THE INSERTION OF A LARGER ESTIMATED WEIGHT IN ONE OF THE BLANKS WHICH INTERPRETATION WAS ONE THAT ANY REASONABLY INFORMED PRUDENT BIDDER MIGHT MAKE ON THE BASIS OF THE INVITATION AND SPECIFICATIONS. INSERTED IN ONE OF THE BLANKS PROVIDED FOR AN ESTIMATED WEIGHT A LARGER WEIGHT THAN THE MAXIMUM BASED ON A REASONABLE INTERPRETATION OF THE INVITATION IS NOT REQUIRED TO HAVE THE ESTIMATE REGARDED AS A WARRANTY NOR AS BINDING ON THE GOVERNMENT. SINCE THE LOW BIDDER DOES NOT HAVE AN OPTION TO FURNISH OTHER THAN THE MAXIMUM WEIGHT AND THE CONTRACTING AGENCY IS NOT REQUIRED TO ACCEPT SOMETHING OTHER THAN INTENDED UNDER THE INVITATION AWARD MAY BE MADE TO THE LOW BIDDER.

B-151745, JULY 2, 1963, 43 COMP. GEN. 23

CONTRACTS - SPECIFICATIONS - AMBIGUOUS - EFFECT NOT PREJUDICIAL TO BIDDERS. BIDS - EVALUATION - ESTIMATES AN INTERPRETATION BY A LOW BIDDER THAT AN INVITATION FOR THE FABRICATION AND ERECTION OF SEVERAL LAUNCH TOWERS NOT TO EXCEED A MAXIMUM SPECIFIED WEIGHT REQUIRED THE INSERTION OF A LARGER ESTIMATED WEIGHT IN ONE OF THE BLANKS WHICH INTERPRETATION WAS ONE THAT ANY REASONABLY INFORMED PRUDENT BIDDER MIGHT MAKE ON THE BASIS OF THE INVITATION AND SPECIFICATIONS, EVEN THOUGH NOT IN CONFORMITY WITH THE EXPECTATIONS OF THE CONTRACTING AGENCY, DOES NOT REQUIRE REJECTION OF THE BID AS NONRESPONSIVE, THE CONTRACTING AGENCY HAVING THE BURDEN TO SET OUT THE REQUIREMENTS WITH SUFFICIENT CLARITY TO PREVENT VARIED INTERPRETATIONS. A LOW BIDDER WHO, IN RESPONSE TO AN INVITATION FOR THE FABRICATION AND ERECTION OF SEVERAL LAUNCH TOWERS NOT TO EXCEED A MAXIMUM SPECIFIED WEIGHT, INSERTED IN ONE OF THE BLANKS PROVIDED FOR AN ESTIMATED WEIGHT A LARGER WEIGHT THAN THE MAXIMUM BASED ON A REASONABLE INTERPRETATION OF THE INVITATION IS NOT REQUIRED TO HAVE THE ESTIMATE REGARDED AS A WARRANTY NOR AS BINDING ON THE GOVERNMENT; THEREFORE, SINCE THE LOW BIDDER DOES NOT HAVE AN OPTION TO FURNISH OTHER THAN THE MAXIMUM WEIGHT AND THE CONTRACTING AGENCY IS NOT REQUIRED TO ACCEPT SOMETHING OTHER THAN INTENDED UNDER THE INVITATION AWARD MAY BE MADE TO THE LOW BIDDER.

TO THE ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, JULY 2, 1963:

BY LETTER OF JUNE 8, 1963, WITH ENCLOSURES, YOU HAVE REQUESTED OUR ADVICE AS TO THE RESPONSIVENESS OF THE LOW BID SUBMITTED PURSUANT TO INVITATION FOR BIDS NO. CC-144-3 ISSUED MARCH 16, 1963, BY THE LAUNCH OPERATIONS CENTER AT COCOA BEACH, FLORIDA, FOR THE FABRICATION AND ERECTION OF THREE LAUNCH UMBILICAL TOWERS.

ON MAY 20, 1963, THE BIDS WERE OPENED AND PUBLICLY READ. THE LOW BID WAS FOUND TO HAVE BEEN SUBMITTED BY THE INGALLS IRON WORKS COMPANY AT $11,225,368.85; THE NEXT LOW BID WAS FROM THE BETHLEHEM STEEL CORPORATION AT $11,264,353. NO QUESTION HAS BEEN RAISED AS TO THE RESPONSIVENESS OF THE SECOND LOW BID OR THE RESPONSIBILITY OF EITHER OF THE TWO LOWEST BIDDERS. A SINGLE QUESTION, SET OUT BELOW, ARISES WITH RESPECT TO THE RESPONSIVENESS OF THE LOW BID.

EACH OF THE THREE ITEMS CALLED FOR UNDER THE TERMS OF THE INVITATION INCLUDES A MOBILE BASE DESCRIBED AS A LAUNCHER ON WHICH IS MOUNTED A 380- FOOT TOWER AT THE TOP OF WHICH IS A CRANE CAPABLE OF SUPPORTING A PAYLOAD OF 50 TONS. WITH RESPECT TO THE CRANE AND PAYLOAD PARAGRAPH 2 04 (J) OF THE SPECIFICATIONS STATES:

* * * DEAD LOAD ON TOP OF TOWER INCLUDING 25 TON HOOK LOAD NOT TO EXCEED 236,000 POUNDS.

AMENDMENT NO. 1 TO THE INVITATION AMENDED PARAGRAPH 2-10 (A) OF THE SPECIFICATIONS BY ADDING THE FOLLOWING SENTENCE:

* * * CRANE DIMENSIONS AND WEIGHT SHALL BE WITHIN THE LIMITS SPECIFIED HEREINABOVE UNDER PARAGRAPH 2-04 (J).

WE THINK IT CLEAR FROM THE FOREGOING THAT THE SPECIFICATIONS SET A MAXIMUM ACCEPTABLE WEIGHT FOR THE CRANE AND PAYLOAD OF 236,000 POUNDS. VIEW THEREOF, AND PARTICULARLY SINCE THE DEAD WEIGHT AT THE TOP OF THE ASSEMBLY IS A CRITICAL FACTOR IN ITS OPERATION, ANY ATTEMPT TO INCREASE SUCH WEIGHT WOULD RENDER A BID UNRESPONSIVE.

INCLUDED IN THE SPECIFICATIONS WAS A SERIES OF DRAWINGS DEPICTING VARIOUS PARTS OF THE TOWER. IN GENERAL THE DRAWINGS SPELL OUT THE REQUIRED CHARACTERISTICS OF THE TOWER IN CONSIDERABLE DETAIL. SHEET NO. 50 SHOWS THE FRAMING PLAN FOR THE TOPMOST LEVEL OF THE TOWER, IDENTIFIED AS LEVEL 380. A NOTE ON THE SHEET MAKES IT CLEAR THAT UNLIKE OTHER LEVELS, THE SIZE AND LOCATION OF MEMBERS DEPICTED FOR LEVEL 380 ARE APPROXIMATE ONLY AND WILL ULTIMATELY DEPEND ON THE CHARACTERISTICS OF THE CRANE. WE HAVE BEEN ADVISED BY THE ATTORNEY FOR INGALLS THAT THE FIRM'S ENGINEERS CONSIDERED THAT LEVEL 380 WOULD REQUIRE OTHER AND ADDITIONAL STRUCTURAL MEMBERS INCREASING THE WEIGHT OF THE LEVEL BY SOME 14,000 POUNDS IN ORDER TO PROPERLY SUPPORT THE CRANE PROPOSED TO BE PLACED AT THE TOP.

PARAGRAPH 2-28 OF THE SPECIFICATIONS PROVIDES:

ESTIMATED WEIGHTS: EACH BIDDER SHALL STATE IN HIS BID FORM THE ESTIMATED TOTAL DEAD WEIGHT OF THE CRANE AND ALL COMPONENTS THAT HE PROPOSES TO PUT ON TOP OF THE UMBILICAL TOWER AND INCLUDING 25-TON PAYLOAD.

THE ONLY PLACE FOUND TO INCLUDE THIS ESTIMATE IS AT ITEM NO. 13 OF THE BID SHEET WHICH READS AS FOLLOWS:

CHART

13 HAMMERHEAD CRANES:

THE HAMMERHEAD CRANES WILL BE MANUFACTURED BY:

(NAME OF MANUFACTURER)

CRANE DRIVE CONTROLS WILL BE MANUFACTURED BY:

(NAME OF MANUFACTURER) TOTAL WEIGHT IN PLACE WITH 25-TON

PAYLOAD: ---------LBS. FAILURE TO FURNISH THE ABOVE REQUIRED

INFORMATION SHALL RENDER THE BID NONRESPONSIVE AND RESULT IN ITS

REJECTION WITHOUT FURTHER CONSIDERATION.

MINDFUL OF THE ADDITIONAL WEIGHT PROPOSED TO BE PLACED AT LEVEL 380AND THE LANGUAGE OF PARAGRAPH 2-28, INGALLS INSERTED THE FIGURE "250,000" IN THE LAST BLANK OF ITEM NO. 13. THE CONTRACTING OFFICER, IN A DETERMINATION DATED MAY 25, 1963, CONSTRUED THE INSERTED FIGURE AS A MATERIAL QUALIFICATION OF THE PERMISSIBLE WEIGHT LIMITATION AND PROPOSED TO REJECT THE LOW BID AS UNRESPONSIVE. YOU HAVE REFERRED THE MATTER FOR OUR DECISION PRIOR TO MAKING ANY AWARD.

IT SHOULD BE NOTED INITIALLY THAT THE INGALLS BID DOES NOT INCLUDE ANY OF THE FOREGOING EXPLANATIONS CONCERNING THE INSERTION OF THE FIGURE "250,000.' THESE EXPLANATIONS WERE SUBMITTED BY THE FIRM'S ATTORNEY AFTER OPENING. UNDER THE GENERAL RULE, OF COURSE, COMPETITIVE BIDS ARE TO BE INTERPRETED IN ACCORDANCE WITH THE FORM IN WHICH THEY APPEARED AT BID OPENING AND NOT ON THE BASIS OF EXPLANATIONS OFFERED THEREAFTER.

SINCE OUR DECISIONS AT 36 COMP. GEN. 376; ID. 415, WE HAVE CONSISTENTLY RECOGNIZED THAT IN APPROPRIATE CIRCUMSTANCES INVITATIONS MAY REQUIRE AS A MATERIAL CONDITION OF RESPONSIVENESS, THE SUBMISSION WITH THE BID OF DESCRIPTIVE DATA IN ORDER TO FIX PRECISELY THE NATURE OF THE ITEM CALLED FOR. SEE 40 COMP. GEN. 132. HOWEVER, WE HAVE ALSO HELD THAT THE NATURE AND EXTENT OF DESCRIPTIVE DATA REQUIRED SHOULD BE SPELLED OUT IN THE INVITATION WITH SUFFICIENT CLARITY TO PUT BIDDERS ON NOTICE OF WHAT IS DESIRED. 38 COMP. GEN. 59, 63. THE FOREGOING IS CONSISTENT WITH THE PRINCIPLE THAT THE REQUIREMENTS OF AN INVITATION SHOULD BE SET FORTH CLEARLY AND ACCURATELY IN ORDER TO PERMIT BIDDERS TO COMPETE ON AN EQUAL FOOTING. 17 COMP. GEN. 789, 790.

WE HAVE BEEN INFORMALLY ADVISED BY NASA PERSONNEL THAT THE INFORMATION SOLICITED FOR THE LAST BLANK IN ITEM NO. 13 WAS THE MAXIMUM WEIGHT OF THE CRANE AND PAYLOAD NOT TO EXCEED 236,000 POUNDS. THE POSITION OF THE LOW BIDDER IS, HOWEVER, THAT SINCE THE MAXIMUM PERMISSIBLE FIGURE HAD ALREADY BEEN CLEARLY STIPULATED AND SINCE PARAGRAPHS 2-04 (J) AND 2-10 (A) TO WHICH THE MAXIMUM LIMITATION CLEARLY APPLIED REFERRED TO THE CRANE AND THE PAYLOAD WHEREAS PARAGRAPH 2-28 ASKED FOR AN ESTIMATED WEIGHT OF THE CRANE, PAYLOAD AND "ALL COMPONENTS" PROPOSED TO BE PLACED ON TOP OF THE UMBILICAL TOWER, THE WEIGHT TO BE PLACED IN THE LAST BLANK OF ITEM NO. 13 WAS INTENDED TO COVER THE CRANE, PAYLOAD AND ADDITIONAL WEIGHT REPRESENTED BY CHANGES IN STRUCTURAL MEMBERS AT LEVEL 380. NASA ENGINEERING PERSONNEL ARE OF THE OPINION, WE HAVE BEEN ADVISED, THAT THE INTERPRETATION OF THE LANGUAGE OF PARAGRAPH 2-28 SAID TO HAVE RESULTED IN THE 250,000 POUND FIGURE, WHILE NOT THAT INTENDED, IS NOT UNREASONABLE FROM AN ENGINEERING STANDPOINT. IN OTHER WORDS, A REASONABLY INFORMED AND PRUDENT BIDDER COULD WELL HAVE INTERPRETED THE LANGUAGE OF THE INVITATION AND SPECIFICATIONS IN SUCH MANNER AS TO REQUIRE THE INCLUSION OF THE 250,000 POUND FIGURE. UNDER THE CIRCUMSTANCES, WE QUESTION WHETHER THE INVITATION EXPRESSED THE GOVERNMENT'S REQUIREMENTS WITH SUCH CLARITY AS TO CONFORM WITH 10 U.S.C. 2305, STATING IN PART:

(A) * * * THE SPECIFICATIONS AND INVITATIONS FOR BIDS SHALL PERMIT SUCH FREE AND FULL COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY AND SERVICES NEEDED BY THE AGENCY CONCERNED.

(B) THE SPECIFICATIONS IN INVITATIONS FOR BIDS * * * MUST BE SUFFICIENTLY DESCRIPTIVE IN LANGUAGE AND ATTACHMENTS, TO PERMIT FULL AND FREE COMPETITION.

THE LOW BIDDER RESPONDED IN A REASONABLE FASHION TO THE INFORMATION REQUIREMENTS OF THE INVITATION. THE FACT THAT THIS REASONABLE RESPONSE WAS NOT IN CONFORMITY WITH THE EXPECTATIONS OF THE CONTRACTING AGENCY PROVIDES NO BASIS FOR REJECTING SUCH BID AS UNRESPONSIVE SINCE THE AGENCY BEARS THE BURDEN OF SETTING OUT THE REQUIREMENTS WITH SUFFICIENT CLARITY TO AVOID SITUATIONS OF THIS KIND.

UNDER ORDINARY CIRCUMSTANCES, THE INVITATION MIGHT PROPERLY BE REGARDED AS SO DEFECTIVE AS TO REQUIRE READVERTISING. HOWEVER, WHERE COMPETITION HAS NOT BEEN ADVERSELY AFFECTED, WHERE THE AGENCY BY AWARD WOULD ENTER INTO A BINDING CONTRACT FOR WHAT IT WANTED, AND WHERE NO BIDDER OBTAINED AN OPTION OR OTHER UNDUE ADVANTAGE BECAUSE OF THE DEFECT IN THE INVITATION, WE HAVE, INSTEAD OF REQUIRING THAT THE PROCUREMENT BE READVERTISED, PERMITTED AWARD UNDER THE INVITATION WITH THE OMISSION OR CORRECTION OF THE PROVISION WHICH WOULD OTHERWISE RENDER THE AWARD INVALID. 40 COMP. GEN. 561, 563; 39 COMP. GEN. 834; ID. 563; B-147370, MARCH 28, 1962.

CLEARLY, IN THIS CASE, NO BIDDER WAS DISCOURAGED FROM BIDDING BY THE AMBIGUITY WITH RESPECT TO THE "COMPONENTS" TO BE INCLUDED IN THE WEIGHT INSERTED IN THE BLANK FOR ITEM NO. 13, AND WE DO NOT BELIEVE THAT ASPECT REQUIRES FURTHER CONSIDERATION. A SIGNIFICANT QUESTION HAS BEEN RAISED, HOWEVER, AS TO WHETHER THE LOW BIDDER COULD BE REQUIRED TO FURNISH A CRANE WHICH WITH PAYLOAD WOULD NOT EXCEED 236,000 POUNDS OR WHETHER HE COULD SUCCESSFULLY CONTEND THAT UNDER HIS BID THE MAXIMUM LIMITATION WAS 250,000 POUNDS. IF THE LOW BIDDER COULD SUCCESSFULLY MAINTAIN THIS CONTENTION, OR IF HE COULD NOW DECIDE WHETHER OR NOT TO ACCEPT THE LOWER MAXIMUM WEIGHT, READVERTISING WOULD BE REQUIRED.

AS NOTED PREVIOUSLY, THE SPECIFICATIONS MADE IT CLEAR THAT THE WEIGHT OF THE CRANE AND PAYLOAD COULD NOT EXCEED 236,000 POUNDS. IT IS ALSO REASONABLE TO CONCLUDE THAT THE ESTIMATED WEIGHT TO BE FURNISHED UNDER PARAGRAPH 2-28 WAS TO BE INSERTED AT ITEM NO. 13 AS MODIFIED BY AMENDMENT NO. 4. THE TERM "ESTIMATED" PARTICULARLY AS USED IN SUCH CONTEXT REFERS TO A ROUGH OR APPROXIMATE CALCULATION DERIVED FROM INCOMPLETE OR IMPERFECT DATA. BEELER V. MILLER (MO. 1953), 254 S.W.2D 986, 990; STATE HIGHWAY COMMISSION V. BOARD OF COUNCILMEN (KY. 1932), 54 S.W.2D 315, 319. FURTHER, AN ESTIMATE INCLUDED IN A CONTRACT IS NOT A WARRANTY OR A MATERIAL REPRESENTATION OF FACT, AND SO LONG AS IT IS MADE IN GOOD FAITH DOES NOT RENDER THE MAKER LIABLE IF IT SHOULD PROVE FAULTY. MIDDLESEX COUNTY SEWER AUTH. V. MIDDLESEX BOROUGH (N.J. 1962), 181 A.2D 818; INDIANA GAS AND WATER CO. V. WILLIAMS (IND. 1961), 175 N.E.2D 31. IN THE LAST TWO CASES CITED THE ACTIONS WERE BROUGHT TO REQUIRE THE ESTIMATOR TO COMPLY WITH HIS ESTIMATE. AS INDICATED, THE ACTIONS DID NOT SUCCEED. THE PERSON MAKING THE ESTIMATE IS NOT BOUND THEREBY, A FORTIORI SUCH PERSON CANNOT ASSERT THAT HIS OWN ESTIMATE BINDS THE OTHER PARTY.

ON THE BASIS OF THE FOREGOING, WE CONCLUDE THAT THE INSERTION OF THE 250,000 POUND FIGURE IN ITEM NO. 13, WOULD NOT JUSTIFY A CONTENTION BY INGALLS THAT IT WOULD NOT UPON AWARD BE BOUND BY THE 236,000 POUND MAXIMUM FOR CRANE AND PAYLOAD. THEREFORE, IT CANNOT BE SAID THAT INGALLS WOULD RECEIVE ANY OPTION OR OTHER UNDUE ADVANTAGE; NOR CAN IT BE SAID THAT NASA WOULD UNDER THE CONTRACT BE REQUIRED TO ACCEPT SOMETHING OTHER THAN IT INTENDED TO OBTAIN UNDER THE INVITATION AND SPECIFICATIONS. ACCORDINGLY, AWARD MAY BE MADE TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER UNDER THE INVITATION AND THE INGALLS BID SHOULD NOT BE REGARDED AS UNRESPONSIVE BECAUSE OF THE INCLUSIVE OF THE 250,000-POUND FIGURE IN ITEM NO. 13.