B-154337, AUG. 4, 1964

B-154337, AUG. 4, 1964

TO R. P. CLARKE COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 1, 1964, PROTESTING AWARD BY THE GENERAL SERVICES ADMINISTRATION (GSA) OF A CONTRACT TO THE HAZEL-ATLAS GLASS DIVISION OF THE CONTINENTAL CAN COMPANY, INC., FOR VARIOUS ITEMS UNDER INVITATION FOR BIDS NO. FPNGF-F-54911-A-4-29-64.

THE INVITATION, WHICH WAS ISSUED ON APRIL 7, 1964, SOLICITED BIDS TO FURNISH GSA REQUIREMENTS FOR GLASS ASH TRAYS DURING THE FISCAL YEAR 1965. PACKING INSTRUCTIONS ON PAGE 18 OF THE INVITATION REQUIRED LEVEL B PACKING FOR ALL ITEMS. IN ADDITION, PARAGRAPH 15 OF THE SPECIAL PROVISIONS OF THE INVITATION READS AS FOLLOWS:

"15. STANDARD PACK ITEMS: (APPLICABLE TO ALL ITEMS.) TO FACILITATE THE DISTRIBUTION AND HANDLING OF CERTAIN ITEMS OF STORES STOCK, THE GENERAL SERVICES ADMINISTRATION HAS ESTABLISHED STANDARD PACKS OF A SPECIFIED NUMBER OF UNITS PER ISSUE CONTAINER. WHERE STANDARD UNIT PACKING HAS BEEN CITED FOR AN ITEM IN THE SCHEDULE OR THE REFERENCED SPECIFICATION,SUCH PACKING IS OF THE ESSENCE. BIDS OFFERING TO FURNISH AN ITEM IN OTHER THAN THE PACK SPECIFIED SHALL BE CONSIDERED NONRESPONSIVE WITH RESPECT TO THAT PARTICULAR ITEM.'

BIDS WERE OPENED ON APRIL 29, 1964. YOUR BID, WHICH WAS LOW ON GROUPS 1 THROUGH 5 (ITEMS NO. 1 THROUGH NO. 32) AND GROUPS 10 THROUGH 12 (ITEMS NO. 55 THROUGH 72), CONTAINED THE FOLLOWING STATEMENT:

"ALL ITEMS OFFERED THIS INVITATION PACKED STANDARD FACTORY CARTONS ONLY (LEVEL C). PACKING MEETS ALL REQUIREMENTS UNIFORM FREIGHT CLASSIFICATION 6, RULE 41, SEC. 5, PARA. A.'

THE BID OF HAZEL-ATLAS, WHICH COVERED GROUPS 1 THROUGH 6 (ITEMS NO. 1 THROUGH NO. 36), BORE A NOTATION, AFTER EACH ITEM DESCRIPTION, OF HAZEL- ATLAS' CATALOG NUMBER AND THE WORDS "NOW BEING SUPPLIED.'

SINCE THE REFERENCE TO LEVEL C PACKING IN YOUR BID NOTATION WAS A DEVIATION FROM THE INVITATION REQUIREMENT FOR LEVEL B PACKING, YOUR BID WAS PROPERLY REJECTED AS NONRESPONSIVE. THE LANGUAGE IN THE HAZEL ATLAS BID NOTATION, HOWEVER, WAS REGARDED AS MERELY DESCRIPTIVE OF THE PRODUCT OFFERED, AND SINCE THE ARTICLES "NOW BEING SUPPLIED" MET THE SPECIFICATIONS, THOSE WORDS WERE NOT CONSIDERED TO MAKE THE BID NONRESPONSIVE. ACCORDINGLY, AWARD WAS MADE ON MAY 25, 1964, TO HAZEL ATLAS FOR THE 36 ITEMS IN GROUPS 1 THROUGH 6 AS THE APPARENT LOW, RESPONSIVE BIDDER.

IT IS YOUR CONTENTION THAT SINCE HAZEL-ATLAS, CONTRACT, CURRENT AT BOTH THE TIME OF BID SUBMISSION AND THE TIME OF AWARD, DID NOT REQUIRE LEVEL B PACKING, THE WORDS "NOW BEING SUPPLIED" SHOULD BE CONSTRUED AS SHOWING AN INTENT TO USE THE SAME PACKING, LEVEL C, AS WAS BEING FURNISHED UNDER SUCH CONTRACT. ACCORDINGLY, YOU CONTEND, THE HAZEL ATLAS BID WAS QUALIFIED TO THE SAME EXTENT AS YOUR BID, AND THEREFORE THE AWARD WAS IMPROPER.

IT IS THE POSITION OF GSA, HOWEVER, THAT SINCE THE NOTATION IN THE HAZEL- ATLAS BID WAS SUBJECT TO VARIOUS INTERPRETATIONS, IT CREATED AN AMBIGUITY THAT MAY BE CONSTRUED AGAINST ITS CREATOR. THEREFORE, IT IS ASSERTED, THE AWARD SHOULD BE PERMITTED TO STAND ON THE GROUNDS THAT IT OBTAINS FOR THE GOVERNMENT THE MOST FAVORABLE CONSTRUCTION OF THE HAZEL-ATLAS BID.

WHILE HAZEL-ATLAS STATED THAT IT WOULD FURNISH ITEMS "NOW BEING SUPPLIED," WE DO NOT THINK THAT THIS ALONE EVIDENCES AN EXCEPTION TO THE PACKING REQUIREMENTS OF THE INVITATION, SINCE WE BELIEVE THAT THERE IS ORDINARILY A PRESUMPTION THAT A BID SUBMITTED IN RESPONSE TO AN INVITATION IS INTENDED TO BE RESPONSIVE, AND ANY CONTRARY INTENT SHOULD BE CLEARLY STATED. IN THE CIRCUMSTANCES, WE MUST CONCLUDE THAT GSA'S CONSTRUCTION OF THE HAZEL-ATLAS BID AS OFFERING TO COMPLY FULLY WITH THE REQUIREMENTS OF THE INVITATION WAS JUSTIFIED AND, THEREFORE, THE AWARD TO HAZEL-ATLAS WAS PROPER. MOREOVER, WE ARE ASSURED THAT GSA WILL REQUIRE HAZEL-ATLAS TO FURNISH LEVEL B PACKING ON THE CONTRACT ITEMS, AND WE BELIEVE SUCH REQUIREMENT WILL BE LEGALLY ENFORCEABLE UNDER THE TERMS OF THE CONTRACT AWARDED TO HAZEL-ATLAS.