B-154728, SEP. 28, 1964

B-154728: Sep 28, 1964

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DSA 9-64-724 WAS ISSUED ON JANUARY 16. INVITATION FOR BIDS NO. 9-64-705 WAS ISSUED FOR TWO ITEMS OF WAVEGUIDE. INVITATION NO. 9-64-705 WAS AMENDED ON JANUARY 21. BOTH INVITATIONS CONTAINED THE FOLLOWING LANGUAGE ON THE COVER PAGE: "NOTE: BIDS SPECIFYING LESS THAN 60 DAYS ACCEPTANCE TIME WILL BE REJECTED. TO FURNISH ANY OR ALL OF THE ITEMS UPON WHICH PRICES ARE QUOTED. DSA 9-64-724 WERE OPENED ON FEBRUARY 7. DSA 964-705 WERE OPENED ON FEBRUARY 20. YOUR COMPANY WAS LOW BIDDER AS TO ALL ITEMS ON BOTH INVITATIONS. A STATEMENT APPEARING ON THE FRONT SIDE READ AS FOLLOWS: "THE TERMS AND CONDITIONS APPEARING ON THE REVERSE SIDE ARE A PART OF THIS QUOTATION.'. THERE WERE TWO FURTHER ENTRIES PLACED ON THE QUOTATION SHEETS WHICH WERE IDENTICAL.

B-154728, SEP. 28, 1964

TO AIRTRON DIVISION, LITTON PRECISION PRODUCTS, INC.:

YOUR LETTER DATED MAY 13, 1964, PROTESTING THE REJECTION AS NONRESPONSIVE OF YOUR BIDS UNDER INVITATIONS FOR BIDS NOS. DSA 9-64 705 AND DSA 9-64- 724, HAS BEEN FORWARDED TO THIS OFFICE BY HEADQUARTERS, DEFENSE SUPPLY AGENCY, ALEXANDRIA, VIRGINIA.

INVITATION FOR BIDS NO. DSA 9-64-724 WAS ISSUED ON JANUARY 16, 1964, BY DEFENSE ELECTRONICS SUPPLY CENTER, DAYTON, OHIO, FOR ONE ITEM OF WAVEGUIDE AND ON JANUARY 20, 1964, INVITATION FOR BIDS NO. 9-64-705 WAS ISSUED FOR TWO ITEMS OF WAVEGUIDE. AS TO BOTH INVITATIONS, THE LANGUAGE INCLUDED THE NECESSARY DESCRIPTION AS TO TYPE AND APPLICABLE SPECIFICATION. INVITATION NO. 9-64-705 WAS AMENDED ON JANUARY 21, 1964, BY THE ADDITION OF VERY MINOR MODIFICATIONS TO THE DESCRIPTION OF BOTH ITEMS CONTAINED THEREON. BOTH INVITATIONS CONTAINED THE FOLLOWING LANGUAGE ON THE COVER PAGE:

"NOTE: BIDS SPECIFYING LESS THAN 60 DAYS ACCEPTANCE TIME WILL BE REJECTED.

"IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF THIS BID BE ACCEPTED WITHIN -------- CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD BE INSERTED BY THE BIDDER) FROM THE DATE OF OPENING, TO FURNISH ANY OR ALL OF THE ITEMS UPON WHICH PRICES ARE QUOTED, AT THE PRICE SET OPPOSITE EACH ITEM, DELIVERED AT THE DESIGNATED POINTS WITHIN THE TIME SPECIFIED IN THE ATTACHED SCHEDULE.'

THE BIDS ON INVITATION NO. DSA 9-64-724 WERE OPENED ON FEBRUARY 7, 1964, AND THOSE IN INVITATION NO. DSA 964-705 WERE OPENED ON FEBRUARY 20, 1964. FOUR FIRMS SUBMITTED BIDS UNDER THE FORMER AND SEVEN UNDER THE LATTER. YOUR COMPANY WAS LOW BIDDER AS TO ALL ITEMS ON BOTH INVITATIONS.

WITH YOUR BID ON EACH INVITATION YOUR COMPANY FURNISHED A QUOTATION SHEET (NO. L-448 (6787) DATED FEBRUARY 4, 1964, IN CONJUNCTION WITH DSA 9-64-724 AND NO. L-453 (6824) DATED FEBRUARY 18, 1964, REFERENCING DSA 9-64-705). BOTH QUOTATION SHEETS CONTAINED IDENTICAL PREPRINTED LANGUAGE ON THE FRONT AND REVERSE SIDES. A STATEMENT APPEARING ON THE FRONT SIDE READ AS FOLLOWS: "THE TERMS AND CONDITIONS APPEARING ON THE REVERSE SIDE ARE A PART OF THIS QUOTATION.' IN ADDITION TO THE PREPRINTED TERMS, YOUR COMPANY HAD INSERTED TYPEWRITTEN LANGUAGE ON THE QUOTATION SHEET INCLUDING A DESCRIPTION OF THE ITEM, QUANTITIES, UNIT AND EXTENDED PRICES, AND DELIVERY AND PACKAGING PROVISIONS. THERE WERE TWO FURTHER ENTRIES PLACED ON THE QUOTATION SHEETS WHICH WERE IDENTICAL. A LEGEND READING " "PREPRINTED TERMS AND CONDITIONS ON THIS QUOTATION THAT CONFLICT WITH THE GOVERNMENT BID OR THE ARMED SERVICES PROCUREMENT REGULATIONS ARE WAIVED" " WAS STAMPED ON EACH ONE. ALSO WITHIN THE PROVISION ON THE FACE OF THE SHEET WHICH READ "PRICES ARE CONSIDERED FIRM FOR A PERIOD OF 45 DAYS AFTER THE DATE THIS QUOTATION WAS ISSUED," THE FIGURE "45" HAD BEEN STRUCK OUT AND THE TYPED FIGURE "60" PLACED THEREIN. IN ADDITION TO THE QUOTATION SHEETS YOUR COMPANY FURNISHED EXECUTED COPIES OF BOTH INVITATIONS WITH PRICES INSERTED THEREIN, REPRESENTATIONS MADE THEREON AND A REFERENCE MADE TO THE APPLICABLE QUOTATION SHEET. IN THE CASE OF INVITATION NO. DSA 9-64 -705, YOU ACKNOWLEDGED THE AMENDMENT. YOU DID NOT INSERT ANY FIGURE INTO THE ACCEPTANCE TIME PROVISION ON THE STANDARD FORM 30 COVER PAGE OF EITHER BID DOCUMENT.

AFTER BID OPENING, THE CONTRACTING OFFICER ON INVITATION NO. DSA 9 64-724 REQUESTED YOUR COMPANY TO CLARIFY ITS INTENT AS TO THE SUBMISSION OF THE QUOTATION SHEET WITH ITS BID. ON MARCH 20, 1964, YOU SENT A TELEGRAM TO THE CONTRACTING OFFICER STATING THAT YOU WAIVED THE PREPRINTED TERMS AND CONDITIONS OF YOUR QUOTATION FORM AND ACCEPTED ALL THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS. THE CONTRACTING OFFICER ON INVITATION NO. DSA 9-64-705 DID NOT CONTACT YOUR COMPANY AFTER BID OPENING. HOWEVER, BOTH CONTRACTING OFFICERS WERE SUFFICIENTLY DOUBTFUL AS TO THE LEGAL VALIDITY OF YOUR BIDS TO REQUEST AN OPINION FROM THE COUNSEL, DEFENSE ELECTRONICS SUPPLY CENTER, PRIOR TO AWARD. AN OPINION WAS GIVEN THAT YOUR BIDS WERE, IN EACH CASE, NOT RESPONSIVE TO THE TERMS OF THE INVITATION AND COULD NOT BE ACCEPTED FOR AWARD. CONSEQUENTLY, AWARD WAS MADE ON APRIL 17, 1964, TO NEW HAMPSHIRE MICROWAVE, DIV. OF D. D. BEAN AND SONS, INC., THE LOW RESPONSIVE AND RESPONSIBLE BIDDER ON INVITATION NO. DSA 9-64-705 AND ON APRIL 21, 1964, THAT SAME COMPANY WAS GIVEN AWARD ON INVITATIONS NO. DSA 9-64-724 ON WHICH IT WAS ALSO THE LOW, RESPONSIVE AND RESPONSIBLE BIDDER.

IT IS A CARDINAL RULE THAT A CONTRACT AWARDED TO A SUCCESSFUL BIDDER MUST BE THE CONTRACT OFFERED TO ALL BIDDERS. WHERE ONE BIDDER RESERVES RIGHTS AND IMMUNITIES FROM RESPONSIBILITY NOT EXTENDED TO ALL BIDDERS BY THE ADVERTISED CONDITIONS AND SPECIFICATIONS, IT SEEMS MANIFEST THAT A CONTRACT AWARDED UPON THE BASIS OF THE CONDITIONAL BID WOULD NOT BE THE CONTRACT OFFERED TO ALL PROSPECTIVE BIDDERS. SEE UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461-463 AND 36 COMP. GEN. 535.

CONTRACTING OFFICIALS OF THE GOVERNMENT ARE AUTHORIZED TO WAIVE INFORMALITIES IN BIDS WHEN IN THE INTEREST OF THE GOVERNMENT. GENERALLY, THE INFORMALITIES WHICH PROPERLY MAY BE WAIVED ARE THOSE THAT DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO AFFECT EITHER THE PRICE, QUANTITY OR QUALITY OF THE MATERIAL OFFERED AND THEREFORE ARE NOT PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. 30 COMP. GEN. 179. HOWEVER, THERE IS NO AUTHORITY FOR WAIVING AS AN INFORMALITY OR MINOR IRREGULARITY MATERIAL CONDITIONS IMPOSED BY A BIDDER.

YOUR COMPANY DID NOTHING AS REGARDS AN INSERTION OF AN ACCEPTANCE TIME FOR ITS BID ON THE APPLICABLE PORTION OF EITHER INVITATION. THUS, THE ACCEPTANCE PROVISION AS SET FORTH BY THE GOVERNMENT, THAT IS, THAT THE BIDDER AGREES TO LEAVE THE BID OPEN FOR 60 DAYS "FROM THE DATE OF OPENING" WOULD APPLY TO YOUR COMPANY IN THE ABSENCE OF ANY CONTRARY PROVISION. HOWEVER, ON THE QUOTATION SHEETS SUBMITTED WITH BOTH ITS BIDS, YOUR COMPANY PROVIDED FOR ACCEPTANCE IN 60 DAYS FROM "THE DATE THIS QUOTATION IS ISSUED.' CALCULATION SHOWS THAT AS TO INVITATION NO. DSA 9-64-724 THE PROVISION IN THE INVITATION MADE THE ACCEPTANCE EXPIRATION DATE APRIL 7, 1964, WHEREAS YOUR QUOTATION SHEET MADE THE EXPIRATION DATE APRIL 4, 1964. IN THE CASE OF INVITATION DSA 9-64-705, THE INVITATION PROVISION MADE THE ACCEPTANCE EXPIRATION DATE APRIL 20, 1964, WHILE YOUR QUOTATION SHEET HAD YOUR BID REMAINING OPEN ONLY UNTIL APRIL 18, 1964.

WITH REFERENCE TO YOUR STATEMENT THAT AWARDS HAVE BEEN MADE PREVIOUSLY TO AIRTRON UNDER THE SAME CIRCUMSTANCES, IT IS NOT SHOWN BY THE RECORD WHETHER THESE WERE MADE BY THE SAME CONTRACTING OFFICER OR WHETHER THE FACTS IN A PARTICULAR CASE JUSTIFIED THE AWARD IN SPITE OF THE QUALIFICATIONS. IN ANY EVENT, AN IMPROPER AWARD IN ONE OR MORE CASES WOULD NOT JUSTIFY A REPETITION OF THE SAME ERROR.

A BIDDER MAY NOT FORCE TERMS UPON THE GOVERNMENT BY INCLUDING WITH ITS BID CONDITIONS OF SALE WHICH ARE CONTRARY TO THOSE PROVISIONS APPEARING IN THE INVITATION. YOUR OFFER TO WAIVE BY THE DISCLAIMER NOTATION ADDED BY YOUR RUBBER STAMP WAS INEFFECTIVE SINCE ACCEPTANCE OF THE QUOTATION AS RECEIVED WOULD HAVE COMPELLED THE GOVERNMENT'S AGENTS TO RESOLVE WHETHER OR NOT SPECIFIC TERMS WERE "IN CONFLICT," TO USE YOUR OWN PHRASEOLOGY, THUS ALLOWING FOR A PROBABILITY OF CONFLICT IN INTERPRETATION. THAT IS, THE OPINION OF YOUR COMPANY AND THE GOVERNMENT AS TO WHICH TERMS ARE IN CONFLICT WELL MAY DIFFER. 37 COMP. GEN. 110. IN THE PRESENT CASE IT MAY BE ARGUED THAT AIRTRON MEANT ITS AFFIRMATIVE STATEMENT ON THE QUOTATION SHEET TO CONTROL OVER THE GOVERNMENT'S TERMS ON WHICH IT WAS SILENT. BID MAY BE CONSIDERED FOR AWARD ONLY IF IT COMPLIES IN ALL MATERIAL RESPECTS WITH THE TERMS OF THE INVITATION. A PROVISION IN AN INVITATION REQUIRING THAT A BID TO BE CONSIDERED FOR AWARD MUST REMAIN AVAILABLE FOR ACCEPTANCE FOR A DESIGNATED PERIOD IS A MATERIAL REQUIREMENT AND FAILURE TO CLEARLY CONFORM THEREWITH RENDERS THE BID NONRESPONSIVE. SEE B-140978, DATED OCTOBER 29, 1959.

ACCORDINGLY, YOUR BIDS WERE PROPERLY DEEMED CONDITIONAL AND UNRESPONSIVE AND YOUR PROTEST IS DENIED.