B-155906, MAR. 18, 1965

B-155906, MAR. 18, 1965

TO WOLF, BLOCK, SCHORR AND SOLIS-COHEN:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 7 AND FEBRUARY 17, 1965, WITH ENCLOSURES, PROTESTING ON BEHALF OF ACE ENGINEERING AND MACHINE COMPANY, INCORPORATED, AGAINST THE REJECTION OF ITS BID SUBMITTED UNDER INVITATION FOR BIDS NO. AMC (A/-18-035-65-327, ISSUED AT EDGEWOOD ARSENAL, MARYLAND.

THE INVITATION WAS ISSUED AS THE SECOND STEP OF A TWO-STEP FORMALLY ADVERTISED PROCUREMENT FOR ONE TRAILER, SEMI-VAN IF SHIELDED. THE INVITATION PROVIDED FOR DELIVERY F.O.B. EDGEWOOD ARSENAL, MARYLAND, AND IN PARAGRAPH 16, ADDITIONAL TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, IT IS SPECIFICALLY PROVIDED:

"16. TERMS PERTAINING TO F.O.B. POINT: BIDS SPECIFYING F.O.B. POINTS OTHER THAN THOSE SPECIFIED IN THIS INVITATION WILL BE CONSIDERED AS NON- RESPONSIVE. (ASPR 1-1305.3 AND 4)"

BIDS WERE OPENED AS SCHEDULED AND ACE ENGINEERING AND MACHINE COMPANY SUBMITTED THE LOWEST BID. HOWEVER, THERE WAS ATTACHED TO AND MADE A PART OF ITS BID A LETTER READING IN PART AS FOLLOWS:

"IN ACCORDANCE WITH YOUR INVITATION AMC (A/-18-035-65-327, PURCHASE REQUEST NO. 14213 DATED 13 APRIL 1964, PURCHASE DESCRIPTION DATED 10 APRIL 1964, REVISION DATED 29 SEPTEMBER 1964, AND ACE ENGINEERING AND MACHINE COMPANY, INC. TECHNICAL PROPOSAL DATED 14 MAY 1964, WE ARE PLEASED TO SUBMIT QUOTATION NO. 2819-R1.

"ACE ENGINEERING AND MACHINE COMPANY, INC. PROPOSES TO FURNISHA SHIELDED MOBILE FACILITY FOR COMPUTER APPLICATION. THE FACILITY WILL BE COMPLETE AND WITH SELF-CONTAINED COMPUTER AREA, AIR CONDITIONING, POWER LINE REGULATION AND DISTRIBUTION EQUIPMENT.

"THE FACILITY AS DESCRIBED WILL COST FIFTY-FIVE THOUSAND FIVE HUNDRED FORTY-ONE . . . . . 03/100 DOLLARS ($55,541.03) F.O.B. HUNTINGDON VALLEY, PENNSYLVANIA.'

IT IS ADMINISTRATIVELY REPORTED THAT:

"THE CONTRACTING OFFICER WAS ADVISED BY COUNSEL THAT THE INCLUSION BY THE BIDDER OF THE F.O.B. POINT, HUNTINGDON VALLEY, PENNSYLVANIA, CONSTITUTED A DEVIATION FROM A MATERIAL PROVISION OF THE INVITATION AND RECOMMENDED REJECTION OF THE BID PURSUANT TO ASPR 2-404.2. COUNSEL ALSO INDICATED THE POSSIBILITY OF VARIANCE OF THE TECHNICAL MATERIALSIN THE LETTER WITH THE PURCHASE DESCRIPTION OF THE INVITATION * * *. UPON RECEIPT OF COUNSEL'S COMMENTS, THE CONTRACTING OFFICER, BY DF, DATED 6 NOVEMBER 1964, REQUESTED A TECHNICAL REVIEW OF ACE'S BID FOR COMPLIANCE WITH SPECIFICATIONS. * * * TECHNICAL REVIEWERS INDICATED THAT ACE'S BID WAS NONRESPONSIVE TO THE SPECIFICATIONS OF THE INVITATION IN A NUMBER OF RESPECTS * * *. SOME OF THE DEVIATIONS INDICATED WERE, WHEREAS THE SHIELDING REQUIREMENTS CALLED FOR A COMPUTER AREA OF 33 FEET 8 INCHES LONG BY 9 FEET 6 INCHES WIDE BY 7 FEET AND 9 INCHES HIGH, ACE ENGINEERING AND MACHINE COMPANY, INC. PROPOSED A COMPUTER AREA OF 30 FEET 6 INCHES LONG BY 9 FEET 2 INCHES WIDE BY 7 FEET 9 INCHES HIGH. THE HEATING AND AIR-CONDITIONING REQUIREMENTS OF THE SPECIFICATIONS CALLED FOR A TEMPERATURE RANGE OF MINUS 35 DEGREES TO PLUS 120 DEGREES F. ACE OFFERED A RANGE OF PLUS 35 DEGREES TO PLUS 120 DEGREES F.

"BASED ON THE INFORMATION AND ADVICE RECEIVED FROM COUNSEL AND FROM TECHNICAL ADVISERS, THE CONTRACTING OFFICER DETERMINED THAT THE BID WAS NONRESPONSIVE TO THE INVITATION AND REJECTED THE BID PURSUANT TO ASPR 2- 404.2 (A) AND (B). AWARD WAS MADE TO THE NEXT LOW BIDDER, SHIELDING DIVISION OF SHIELDTRON, INC. ON 21 DECEMBER 1964 * * *.'

IT IS CONTENDED IN BEHALF OF ACE ENGINEERING AND MACHINE COMPANY, INC., THAT THERE HAS BEEN NO ATTEMPT TO CHANGE IN ANY RESPECT THE TERMS OF THE BID, AND THERE CAN BE NO EFFECT ON ANY OTHER BIDDER BY PERMITTING THE LOW BIDDER TO CLARIFY AN OBVIOUS AMBIGUITY BY SHOWING WHAT WAS IN FACT INTENDED.

REGARDLESS OF WHAT MAY HAVE BEEN INTENDED BY THE BIDDER, THE LETTER MUST BE REGARDED AS HAVING RENDERED THE BID AT LEAST SUSCEPTIBLE TO AN INTERPRETATION WHICH WOULD HAVE HAD THE EFFECT OF VARYING THE BIDDER'S OBLIGATION FROM THAT CONTEMPLATED BY THE INVITATION WITH RESPECT TO DELIVERY OF THE TRAILER F.O.B. EDGEWOOD ARSENAL, MARYLAND.

IF AN AWARD WERE MADE TO ACE ENGINEERING AND MACHINE COMPANY, INCORPORATED, WITHOUT VERIFICATION OF ITS BID PRICE, IT IS APPARENT THAT THE BIDDER COULD HAVE REASONABLY MAINTAINED THAT ITS BID PRICE DID NOT INCLUDE ALL TRANSPORTATION CHARGES AND CLAIMED ADJUSTMENTS IN ITS ACCEPTED BID PRICE. AND, IF A CLARIFICATION OF THE BID WAS REQUESTED PRIOR TO AWARD, THE BIDDER MIGHT WELL INSIST THAT IT INTENDED TO BID OTHER THAN ON AN F.O.B. DESTINATION BASIS SO AS TO REQUIRE REJECTION OF ITS BID OR CONTEND THAT IT INTENDED TO BID ON AN F.O.B. DESTINATION BASIS IF IT DESIRED AWARD OF THE CONTRACT. TO PERMIT THE BIDDER SUCH A CHOICE OF INTERPRETATION AFTER BIDS WERE OPENED WOULD HAVE AN ADVERSE EFFECT ON THE RIGHTS OF OTHER BIDDERS WHOSE BIDS APPARENTLY WERE RESPONSIVE TO THE INVITATION. WHETHER AMBIGUOUS OR INCONSISTENT TERMS IN A BID MAY BE CLARIFIED BY A BIDDER AFTER BID OPENING WAS DISCUSSED IN OUR DECISION AT 40 COMP. GEN. 393. THERE WE CONCLUDED (PAGE 397) THAT "WHERE EACH OF TWO POSSIBLE MEANINGS CAN BE REACHED FROM THE TERMS OF A BID, THE BIDDER SHOULD NOT BE ALLOWED TO EXPLAIN HIS MEANING WHEN HE IS IN A POSITION THEREBY TO PREJUDICE OTHER BIDDERS OR TO AFFECT THE RESPONSIVENESS OF HIS BID.'

IN ADDITION TO THE ABOVE, IT APPEARS THAT ACE ENGINEERING AND MACHINE COMPANY, INCORPORATED'S BID OFFERED A PRODUCT THAT DID NOT COMPLY WITH THE SPECIFICATIONS SET FORTH IN THE INVITATION FOR BIDS.

WE, THEREFORE, ARE OF THE OPINION THAT THE BID OF ACE ENGINEERING AND MACHINE COMPANY, INCORPORATED, MUST BE CONSIDERED AS NONRESPONSIVE TO THE INVITATION AND THE PROTEST MADE IN ITS BEHALF MUST BE DENIED.