B-154755, SEP. 23, 1964

B-154755: Sep 23, 1964

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ALTHOUGH YOUR FIRM SUBMITTED THE LOWEST BID THE BID WAS CONSIDERED NONRESPONSIVE ON THE GROUND THAT IT WAS CONDITIONED UPON THE RECEIPT OF PROGRESS PAYMENTS CONTRARY TO THE TERMS OF THE SUBJECT INVITATION. SEPTEMBER 1961 EDITION) WHICH WAS INCORPORATED BY REFERENCE INTO THE INVITATION PROVIDES: "THE CONTRACTOR SHALL BE PAID. PAYMENT WILL BE MADE ON PARTIAL DELIVERIES ACCEPTED BY THE GOVERNMENT WHEN THE AMOUNT DUE ON SUCH DELIVERIES SO WARRANTS. THE CONTRACTING OFFICER REPORTS THAT PROVISIONS FOR PROGRESS PAYMENTS WERE INTENTIONALLY OMITTED. BECAUSE IT WAS NOT BELIEVED THAT THERE WOULD BE ANY SUBSTANTIAL PRE-DELIVERY COSTS. WHICH WAS MADE A PART OF YOUR BID. WHILE WE WOULD AGREE THAT IN THE ORDINARY SENSE THE WORD "REQUEST" IS PRECATORY IN NATURE.

B-154755, SEP. 23, 1964

TO SPACE DYNAMICS CORPORATION:

WE REFER TO YOUR TELEGRAM OF JULY 17 AND LETTERS DATED JULY 20 AND 31, 1964, PROTESTING REJECTION OF YOUR BID AND AWARD OF A CONTRACT TO SPACE SYSTEMS LABORATORY, INC., UNDER NATIONAL AERONAUTICS AND SPACE ADMINISTRATION INVITATION FOR BIDS L-4570.

THE ABOVE INVITATION CALLED FOR THE MANUFACTURE, TEST AND DELIVERY OF SIX LIQUID EJECTION PAYLOAD ASSEMBLIES FOR USE WITH THE NIKE-CAJUN CHEMILUMINESCENT VEHICLES. ALTHOUGH YOUR FIRM SUBMITTED THE LOWEST BID THE BID WAS CONSIDERED NONRESPONSIVE ON THE GROUND THAT IT WAS CONDITIONED UPON THE RECEIPT OF PROGRESS PAYMENTS CONTRARY TO THE TERMS OF THE SUBJECT INVITATION. ARTICLE 7 OF THE GENERAL PROVISIONS (STANDARD FORM 32, SEPTEMBER 1961 EDITION) WHICH WAS INCORPORATED BY REFERENCE INTO THE INVITATION PROVIDES:

"THE CONTRACTOR SHALL BE PAID, UPON THE SUBMISSION OF PROPER INVOICES OR VOUCHERS, THE PRICES STIPULATED HEREIN FOR SUPPLIES DELIVERED AND ACCEPTED OR SERVICES RENDERED AND ACCEPTED, LESS DEDUCTIONS, IF ANY, AS HEREIN PROVIDED. UNLESS OTHERWISE SPECIFIED, PAYMENT WILL BE MADE ON PARTIAL DELIVERIES ACCEPTED BY THE GOVERNMENT WHEN THE AMOUNT DUE ON SUCH DELIVERIES SO WARRANTS; OR, WHEN REQUESTED BY THE CONTRACTOR, PAYMENT FOR ACCEPTED PARTIAL DELIVERIES SHALL BE MADE WHENEVER SUCH PAYMENT WOULD EQUAL OR EXCEED EITHER $1,000 OR 50 PERCENT OF THE TOTAL AMOUNT OF THIS CONTRACT.'

THE CONTRACTING OFFICER REPORTS THAT PROVISIONS FOR PROGRESS PAYMENTS WERE INTENTIONALLY OMITTED, INTER ALIA, BECAUSE IT WAS NOT BELIEVED THAT THERE WOULD BE ANY SUBSTANTIAL PRE-DELIVERY COSTS. IN YOUR TRANSMITTAL LETTER OF JUNE 15, 1964, WHICH WAS MADE A PART OF YOUR BID, YOU MADE THE FOLLOWING REQUEST,"AS A "SMALL BUSINESS," SPACE DYNAMICS CORP. REQUESTS MONTHLY PROGRESS PAYMENTS UP TO 90 PERCENT.' YOU CONTEND THAT THIS REQUEST CANNOT BE CONSTRUED AS A DEMAND SO AS TO QUALIFY YOUR BID.

WHILE WE WOULD AGREE THAT IN THE ORDINARY SENSE THE WORD "REQUEST" IS PRECATORY IN NATURE, ITS PRECISE MEANING MUST DEPEND UPON THE EXISTING CIRCUMSTANCES. AS STATED BY JUDGE LEARNED HAND IN CENTRAL HANOVER BANK AND TRUST COMPANY V. COMMISSIONER OF INTERNAL REVENUE, 159 F.2D 167, 9,"THERE IS NO MORE LIKELY WAY TO MISAPPREHEND THE MEANING OF LANGUAGE--- BE IT IN A CONSTITUTION, A STATUTE, A WILL OR A CONTRACT--- THAN TO READ WORDS LITERALLY, FORGETTING THE OBJECT WHICH THE DOCUMENT AS A WHOLE IS MEANT TO SECURE.' SINCE THE INVITATION PROVIDED FOR A METHOD OF PAYMENT WE THINK IT NOT UNREASONABLE TO VIEW YOUR REQUEST AS SOMETHING MORE THAN A MERE WISH OR DESIRE. HAD YOUR BID BEEN ACCEPTED IT COULD HAVE BEEN ARGUED THAT THE GOVERNMENT ACCEPTED YOUR REQUEST FOR PROGRESS PAYMENTS AND WAS BOUND TO MAKE PAYMENT IN ACCORDANCE THEREWITH. IF, AS SUGGESTED, YOUR REQUEST WAS IN THE NATURE OF MERE HOPE OR WISH AND YOU INTENDED TO ACCEPT A CONTRACT SUBJECT TO THE "PAYMENTS" ARTICLE, IT WAS INCUMBENT UPON YOU TO CLEARLY EXPRESS SUCH INTENTION. SEE B-124572, JANUARY 11, 1956, AND B- 150313, DECEMBER 5, 1962. IT IS A RULE OF LONG STANDING THAT WHERE TWO POSSIBLE MEANINGS CAN BE REACHED FROM THE TERMS OF A BID A BIDDER MAY NOT BE PERMITTED TO EXPLAIN WHAT HE INTENDED SINCE HE WOULD THEN BE IN A POSITION TO AFFECT THE RESPONSIVENESS OF HIS BID. 36 COMP. GEN. 705; 40 ID. 393.

IN VIEW THEREOF, WE FIND NO BASIS FOR OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN IN THIS MATTER.