B-158013, FEB. 9, 1966

B-158013: Feb 9, 1966

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THE PERTINENT PARTS OF THE INVITATION WHICH WERE CHANGED BY AMENDMENT NO. 2 ORIGINALLY HAD PROVIDED FOR THE SUBMISSION OF BIDS ON THE FOLLOWING BASIS: "BIDDING SCHEDULE "NON-PERSONAL SERVICES "CONTRACTOR TO PROVIDE BUILDING FACILITIES FOR BILLETING UP TO TWO HUNDRED AND SEVENTY-FIVE (275) SINGLE MILITARY PERSONNEL OR UNACCOMPANIED MARRIED PERSONNEL ON TEMPORARY DUTY AT POPE AFB. QUANTITY: THE GOVERNMENT ESTIMATE FOR ITS REQUIREMENT IS SET FORTH IN ITEMS NUMBERED 1 THRU 3 BELOW: (NOTE SPECIAL PROVISIONS. QUANTITY RATE PER DAY PER DAY NOTE: THE CONTRACTOR WILL BE REQUIRED TO HOUSE 40 PERSONNEL ON A RECURRING BASIS AND FURNISH HOUSING FOR UP TO 55 PERSONNEL OR UP TO THE AMOUNT SPECIFIED IN THE CONTRACT (WHICHEVER IS LESS) WITHIN THREE (3) DAYS AFTER RECEIPT OF WRITTEN NOTIFICATION OF THE GOVERNMENT'S CURRENT REQUIREMENT. 2.

B-158013, FEB. 9, 1966

TO HARRY B. STEIN:

IN YOUR LETTER OF NOVEMBER 5, 1965, YOU PROTESTED ON BEHALF OF CHASON AND ALBRIGHT INVESTMENTS, INC., OWNERS OF THE PRINCE CHARLES MOTOR HOTEL, THE AWARD OF CONTRACTS PURSUANT TO INVITATION FOR BIDS 31 601-66-22, ISSUED BY POPE AIR FORCE BASE, FOR HOUSING QUARTERS, OR "BILLETS," FOR MILITARY PERSONNEL ON TEMPORARY DUTY AT THE BASE. THE GRAVAMEN OF YOUR PROTEST CONCERNS THE PROCURING ACTIVITY'S FAILURE TO EXTEND THE BID OPENING DATE OF SEPTEMBER 30, 1965, WHEN ON SEPTEMBER 24, IT ISSUED AMENDMENT NO. 2 TO THE INVITATION FOR BIDS. THE PERTINENT PARTS OF THE INVITATION WHICH WERE CHANGED BY AMENDMENT NO. 2 ORIGINALLY HAD PROVIDED FOR THE SUBMISSION OF BIDS ON THE FOLLOWING BASIS:

"BIDDING SCHEDULE

"NON-PERSONAL SERVICES

"CONTRACTOR TO PROVIDE BUILDING FACILITIES FOR BILLETING UP TO TWO HUNDRED AND SEVENTY-FIVE (275) SINGLE MILITARY PERSONNEL OR UNACCOMPANIED MARRIED PERSONNEL ON TEMPORARY DUTY AT POPE AFB, NORTH CAROLINA FOR THE PERIOD OF 7 OCTOBER 1965 THROUGH 30 JUNE 1966 IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE CONTRACT. * * *.

QUANTITY:

THE GOVERNMENT ESTIMATE FOR ITS REQUIREMENT IS SET FORTH IN ITEMS NUMBERED 1 THRU 3 BELOW: (NOTE SPECIAL PROVISIONS, PARAGRAPH 1C BELOW)

1. FACILITIES FOR HOUSING AT LEAST 40 BUT NOT MORE THAN 55 TDY MILITARY PERSONNEL.

QUANTITY RATE

PER DAY PER DAY

NOTE: THE CONTRACTOR WILL BE REQUIRED TO HOUSE 40 PERSONNEL ON A RECURRING BASIS AND FURNISH HOUSING FOR UP TO 55 PERSONNEL OR UP TO THE AMOUNT SPECIFIED IN THE CONTRACT (WHICHEVER IS LESS) WITHIN THREE (3) DAYS AFTER RECEIPT OF WRITTEN NOTIFICATION OF THE GOVERNMENT'S CURRENT REQUIREMENT.

2. FACILITIES FOR HOUSING AT LEAST 56 BUT NOT MORE THAN 110 TDY MILITARY PERSONNEL.

QUANTITY RATE

PER DAY PER DAY

NOTE: THE CONTRACTOR WILL BE REQUIRED TO HOUSE 56 PERSONNEL ON A RECURRING BASIS AND FURNISH HOUSING FOR UP TO 110 PERSONNEL OR UP TO THE AMOUNT SPECIFIED IN THE CONTRACT (WHICHEVER IS LESS) WITHIN THREE (3) DAYS AFTER RECEIPT OF WRITTEN NOTIFICATION OF THE GOVERNMENT'S CURRENT REQUIREMENT.

3. FACILITIES FOR HOUSING AT LEAST 111 BUT NOT MORE THAN 275 TDY MILITARY PERSONNEL.

QUANTITY RATE

PER DAY PER DAY

NOTE: THE CONTRACTOR WILL BE REQUIRED TO HOUSE 111 PERSONNEL ON A RECURRING BASIS AND FURNISH HOUSING FOR UP TO 275 PERSONNEL OR UP TO THE AMOUNT SPECIFIED IN THE CONTRACT (WHICHEVER IS LESS) WITHIN THREE (3) DAYS AFTER RECEIPT OF WRITTEN NOTIFICATION OF THE GOVERNMENT'S CURRENT REQUIREMENT.

"SPECIAL PROVISIONS

"/NON-PERSONAL SERVICES)

"1. EVALUATION OF BIDS:

"B. AWARD WILL BE MADE ON THE BASIS OF COST PER MAN DAY. IN THE EVENT THE LOW BIDDER CANNOT FURNISH THE ENTIRE MAXIMUM GOVERNMENT REQUIREMENT (275 MILITARY PERSONNEL), AWARD/S) WILL BE MADE TO THE NEXT LOWEST BIDDER/S) UNTIL THE MAXIMUM GOVERNMENT REQUIREMENT IS FILLED * * *.

"C.A BID MAY BE SUBMITTED ON THE BASIS OF THE MAXIMUM GOVERNMENT REQUIREMENT (275 MILITARY PERSONNEL) OR MAY BE SUBMITTED BASED ON A PORTION THEREOF. IF A BID IS SUBMITTED ON A PORTION OF THE MAXIMUM GOVERNMENT REQUIREMENT, ONE OR ALL OF THE FOLLOWING CRITERIA SHALL BE MET (NOTE ,BIDDING SCHEDULE" OF THIS IFB):

(1) A SINGLE BID MAY BE SUBMITTED ON THE BASIS OF FURNISHING HOUSING FOR AT LEAST 40 BUT NOT MORE THAN 55 MILITARY PERSONNEL;

(2) OR A SINGLE BID MAY BE SUBMITTED ON THE BASIS OF FURNISHING HOUSING FOR AT LEAST 56 BUT NOT MORE THAN 110 MILITARY PERSONNEL;

(3) OR A SINGLE BID MAY BE SUBMITTED ON THE BASIS OF FURNISHING HOUSING FOR AT LEAST 111 BUT NOT MORE THAN 275 MILITARY PERSONNEL.'

AMENDMENT NO. 2 PROVIDED FOR THE FOLLOWING RELEVANT CHANGES:

"1. THE CONTENTS OF THE "BIDDING SCHEDULE" ARE DELETED AND REPLACED BY:

"NON-PERSONAL SERVICES

CONTRACTOR TO PROVIDE BUILDING FACILITIES FOR BILLETING UP TO TWO HUNDRED AND SEVENTY-FIVE (275) SINGLE MILITARY PERSONNEL OR UNACCOMPANIED MARRIED PERSONNEL ON TEMPORARY DUTY AT POPE AFB, NORTH CAROLINA FOR THE PERIOD OF 7 OCTOBER 1965 THROUGH 30 SEPTEMBER 1966 IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE CONTRACT. * * *.

"A. BILLETING FACILITIES

"GOVERNMENT ESTIMATES MINIMUM UNIT RATE

QUANTITY PER DAY

275 BILLETS --------- ---------- "

"2. PARAGRAPH 1C OF THE SPECIAL PROVISIONS IS DELETED ENTIRELY AND REPLACED BY: "IN ACCORDANCE WITH PARAGRAPH 8C ON THE REVERSE OF THE STANDARD FORM 33, BIDS MAY BE FOR ANY QUANTITY UP TO AND INCLUDING 275. BIDS FOR A QUANTITY OF LESS THAN 40, HOWEVER, WILL BE CONSIDERED NON- RESPONSIVE.'"

PARAGRAPH 8 (C) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDED:

"THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY BID, UNLESS THE BIDDER QUALIFIES HIS BID BY SPECIFIC LIMITATIONS. UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, BIDS MAY BE SUBMITTED FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED; AND THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY BID UPON AT THE UNIT PRICES OFFERED UNLESS THE BIDDER SPECIFIES OTHERWISE IN HIS BID.'

BIDS WERE SUBMITTED AS FOLLOWS:

CHART

MINIMUM UNIT RATE

NAME OF BIDDER QUANTITY PER DAY COACHMAN'S LODGE

60 $2.90 HORNE'S MOTOR LODGE 100 5.00 DOUBLE

100 4.00 TRIPLE PRINCE CHARLES MOTOR HOTEL

275 3.50

ON OCTOBER 29, 1965, CONTRACTS FOR 60 AND 215 BILLETS WERE AWARDED TO COACHMAN'S LODGE AND TO PRINCE CHARLES MOTOR HOTEL, RESPECTIVELY. YOUR CLIENT ESTIMATES FROM PAST EXPERIENCE THAT THE PORTION OF THE PROCUREMENT AWARDED TO ITS HOTEL MAY REPRESENT ONLY ABOUT 20 PERCENT OF THE MONEY EXPENDED UNDER THE TWO CONTRACTS. ON THE OTHER HAND, THE AWARDED CONTRACTS INDICATE THAT THE AMOUNT ESTIMATED TO BE EXPENDED UNDER THE HOTEL'S CONTRACT IS ABOUT FOUR TIMES THE AMOUNT ESTIMATED TO BE EXPENDED UNDER THE CONTRACT WITH COACHMAN'S LODGE. THE REMEDY YOU REQUEST IS THAT THE "BID" BE REJECTED AND RE-LET. ALTHOUGH IT IS NOT ENTIRELY CLEAR FROM YOUR PROTEST, WE ASSUME THAT YOUR CLIENT DOES NOT SEEK TO HAVE US VOID THE CONTRACT AWARDED TO THE PRINCE CHARLES MOTOR HOTEL UNLESS WE ALSO VOID THE CONTRACT AWARDED TO COACHMAN'S LODGE, AND DIRECT THAT THE ENTIRE PROCUREMENT BE READVERTISED.

THE RECORD DOES NOT CLEARLY ESTABLISH EXACTLY WHEN AMENDMENT NO. 2 WAS MAILED FROM POPE AIR FORCE BASE AND WHEN IT WAS RECEIVED BY THE PRINCE CHARLES MOTOR HOTEL. YOU MAINTAIN THAT AMENDMENT NO. 2, ALTHOUGH DATED SEPTEMBER 24, WAS POSTMARKED AND MAILED ON SEPTEMBER 28, AND WAS NOT RECEIVED BY THE HOTEL UNTIL SEPTEMBER 29, 1965, JUST OVER ONE FULL DAY BEFORE BID OPENING. HOWEVER, YOU DO NOT APPEAR TO HAVE SUBMITTED THE ENVELOPE FROM POPE AIR FORCE BASE, IN WHICH THE AMENDMENT WAS ENCLOSED, AND WHICH ALLEGEDLY WAS POSTMARKED SEPTEMBER 28, 1965. FURTHERMORE, YOUR CLIENT REPRESENTED TO THE PROCURING ACTIVITY IN A LETTER DATED OCTOBER 12, 1965, THAT THE HOTEL HAD RECEIVED THE AMENDMENT ON SEPTEMBER 28, 1965.

THE CONTRACTING OFFICER STATES THAT HE CANNOT EXPLAIN WHY AMENDMENT NO. 2 WAS NOT RECEIVED BY THE HOTEL UNTIL SEPTEMBER 28, 1965, IN VIEW OF THE FACT THAT UNDER CUSTOMARY PROCEDURES AMENDMENT NO. 2 SHOULD HAVE BEEN DELIVERED FROM THE PROCUREMENT OFFICE TO THE POST OFFICE ON SEPTEMBER 24, AND RECEIVED BY YOUR CLIENT ON SATURDAY, SEPTEMBER 25. HOWEVER, THE RECORD DOES NOT INDICATE WHETHER CUSTOMARY PROCEDURES WERE IN FACT FOLLOWED IN THIS CASE, NOR WHETHER MAIL TO THE TOWN IN WHICH THE HOTEL IS LOCATED WAS DELIVERED ON SATURDAY, SEPTEMBER 25.

YOUR PROTEST REFERS TO A LETTER FROM YOUR CLIENT IN WHICH IT ALLEGES THAT, PRIOR TO RECEIPT OF THE AMENDMENT, IT HAD PREPARED A BID OF $2.75 PER PERSON FOR ONE TO 55 BILLETS (WHICH IS LOWER THAN THE $2.90 FIGURE AT WHICH THE CONTRACT FOR THE FIRST 60 BILLETS WAS AWARDED TO COACHMAN'S LODGE), AND $3.50 PER PERSON FOR 56 TO 275 BILLETS. CHASON AND ALBRIGHT INVESTMENTS STATES THAT THE AMENDED INVITATION MAY HAVE BEEN INCORRECT IN ASKING FOR A "MINIMUM QUANTITY" INSTEAD OF A ,MAXIMUM QUANTITY," IF THE SPACE PROVIDED UNDER THAT HEADING REFERRED TO ONE PERSON UP TO 275 PERSONS. YOUR CLIENT ALSO SAYS THAT THE MANAGER OF THE HOTEL WAS CONFUSED BY THE ABSENCE OF A QUANTITY BREAKDOWN FOR RATES, WHICH HAD BEEN ELIMINATED FROM THE ORIGINAL INVITATION BY AMENDMENT NO. 2 AND THAT IT HAS BEEN INJURED BY HAVING ONLY A NOMINAL SIX DAY PERIOD BETWEEN THE ISSUANCE OF AMENDMENT NO. 2 AND BID OPENING, BECAUSE ITS OFFICERS WERE OUT OF TOWN WHEN THE AMENDMENT WAS RECEIVED BY THE HOTEL, AND WERE NOT AVAILABLE TO BE NOTIFIED PRIOR TO BID OPENING ON SEPTEMBER 30, 1965. THEREFORE, THE MANAGER OF THE PRINCE CHARLES MOTOR HOTEL HAD TO SUBMIT A RESPONSE TO THE INVITATION WITHOUT FIRST DETERMINING HOW YOUR CLIENT WISHED TO CHANGE THE BID IT SAYS IT HAD ORIGINALLY PREPARED.

THE PROPOSITIONS WHICH YOU ADVANCE ON BEHALF OF YOUR CLIENT ARE THAT (1) UNDER THE CIRCUMSTANCES RELATED ABOVE, SUFFICIENT TIME WAS NOT ALLOWED FOR SUBMITTING BIDS, AND THEREFORE THE "AWARD OF BID" IS DETRIMENTAL TO THE BEST INTERESTS OF THE AIR FORCE; AND (2) THAT THE CONTRACTING OFFICER DID NOT COMPLY WITH SECTION 16-101.2 (3) (B), OF THE AIR FORCE PROCUREMENT INSTRUCTIONS (AFPI), WHICH PROVIDES:

"/3) IN EACH CASE WHERE AN AMENDMENT IS NECESSARY, CONSIDERATION MUST BE GIVEN TO THE PERIOD OF TIME REMAINING UNTIL BID OPENING AND THE NEED FOR EXTENSION OF TIME. AN AMENDMENT WILL NOT BE ISSUED WHEN LESS THAN 10 DAYS REMAIN WITHOUT EXTENDING THE PERIOD TO AT LEAST 10 DAYS, EXCEPT IN CASE OF EMERGENCY.

"/B) IF CHANGES TO THE INVITATION INVOLVE ADDITIONAL WORK BY THE BIDDERS, OR DUPLICATION OF BID PREPARATION ALREADY ACCOMPLISHED, A LONGER PERIOD OF TIME SHOULD BE ALLOWED WHENEVER PRACTICABLE.'

THE ADMINISTRATIVELY RECORD NOWHERE CONTAINS AN AFFIRMATIVE STATEMENT THAT AN "EMERGENCY" EXISTED AT THE TIME THE AMENDMENT WAS ISSUED, AND YOU STATE THAT SINCE ADDITIONAL WORK AND DUPLICATION WAS REQUIRED OF THE BIDDER UNDER THE CHANGES IN THE AMENDMENT, IT WOULD HAVE BEEN CONSISTENT WITH SUBPARAGRAPH (B), QUOTED ABOVE, TO HAVE PROVIDED FOR AN EVEN LONGER PERIOD OF EXTENSION THAN 10 DAYS.

THE CONTRACTING OFFICER STATES THAT AT THE TIME AMENDMENT NO. 2 WAS ISSUED, THE GOVERNMENT WAS INTERESTED IN HAVING THE NEW CONTRACTS WRITTEN, ADMINISTRATIVELY APPROVED, AND AWARDED IN SUFFICIENT TIME TO PREVENT ANY DELAYS BETWEEN THE EXISTING AND THE NEW CONTRACTS. IN ORDER TO ACCOMPLISH THIS OBJECTIVE, AND IN VIEW OF THE CONTRACTING OFFICER'SOPINION THAT ANY NEW COMPUTATION REQUIRED BY THE AMENDMENT SHOULD INVOLVE VERY LITTLE TIME ON THE PART OF ANY BIDDER, IT WAS DECIDED TO ALLOW LESS THAN A 10 DAY PERIOD BETWEEN THE ISSUANCE OF THE AMENDMENT AND BID OPENING. THE CONTRACTING OFFICER ALSO EXPLAINS THAT THE GOVERNMENT HAD INDICATED ITS ESTIMATED REQUIREMENTS AT 275 BILLETS, WHICH WOULD REPRESENT THE MAXIMUM QUANTITY THE GOVERNMENT WOULD EXPECT TO ORDER AT ANY ONE TIME, AND THAT THE SPACE PROVIDED UNDER THE HEADING "MINIMUM ANTITY," WAS INTENDED TO PROVIDE BIDDERS AN OPPORTUNITY TO INDICATE THE MINIMUM NUMBER OF BILLETS THEY COULD GUARANTEE AT ANY ONE TIME.

SECTION 16-101.2 (3) (B) OF THE AIR FORCE PROCUREMENT INSTRUCTION, WHICH YOU CITE IN SUPPORT OF YOUR POSITION, WAS APPARENTLY ISSUED TO IMPLEMENT PARAGRAPH 2-208 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH PROVIDES:

"/B) BEFORE ISSUING AN AMENDMENT TO AN INVITATION FOR BIDS, THE PERIOD OF TIME REMAINING UNTIL BID OPENING AND THE NEED FOR EXTENDING THIS PERIOD BY POSTPONING THE TIME SET FOR OPENING MUST BE CONSIDERED. WHERE ONLY A SHORT TIME REMAINS BEFORE THE TIME SET FOR BID OPENING, CONSIDERATION SHOULD BE GIVEN TO NOTIFYING BIDDERS OF AN EXTENSION OF TIME BY TELEGRAM OR TELEPHONE. SUCH NOTIFICATION SHOULD BE CONFIRMED IN THE AMENDMENT.'

THE ASPR PROVISION REQUIRES THE CONTRACTING OFFICER ONLY TO CONSIDER EXTENDING THE PERIOD OF TIME REMAINING UNTIL BID OPENING WHEN HE ISSUES AN AMENDMENT. IT DOES NOT REQUIRE THE BID OPENING TO BE EXTENDED FOR ANY PERIOD OF TIME, EVEN IF THERE IS NO EMERGENCY WHICH COMPELS IMMEDIATE OPENING AND AWARD. IT SHOULD BE NOTED THAT WHILE THE ASPR PROVISION REMAINS UNCHANGED, SECTION 16-101.2 (3) (B) OF AFPI, QUOTED ABOVE, HAS BEEN DELETED BY REVISION 60 OF AFPI, DATED NOVEMBER 29, 1965. IN VIEW OF THE FACT THAT THE QUOTED INSTRUCTION WAS INTENDED TO IMPLEMENT THE REGULATION, WE THINK THAT THE WORD "EMERGENCY" IN THE INSTRUCTION MUST BE INTERPRETED WITH REFERENCE TO THE LESS STRINGENT REQUIREMENT OF THE REGULATION, AND COGNIZANCE BOTH OF THE PARTICULAR CIRCUMSTANCES WHICH ESTABLISH THE DEGREE OF THE URGENCY THOUGHT TO ACCOMPANY BID OPENING AND AWARD, AND THE COMPLEXITY OF THE AMENDMENT CHANGES WHICH DETERMINES THE DEGREE OF DIFFICULTY BIDDERS WILL ENCOUNTER IF THEY ARE NOT GIVEN ADDITIONAL TIME TO RESPOND TO THE CHANGES. IT IS A BALANCE BETWEEN THE SOMETIMES COMPETING DEMANDS FOR PROMPT BUT UNHURRIED AWARDS WHICH WE BELIEVE THE INSTRUCTION AND THE REGULATION INTENDED THE CONTRACTING OFFICER TO STRIKE IN DECIDING WHETHER TO EXTEND A BID OPENING DATE. VIEW OF THE INSTANT CONTRACTING OFFICER'S DESIRE TO PROVIDE FOR A CONTINUITY OF SERVICES UNDER LONG TERM CONTRACTS, AND MOREOVER, THE APPARENT REASONABLENESS OF HIS OPINION THAT AMENDMENT NO. 2 WOULD CAUSE VERY LITTLE EXTRA WORK ON THE PART OF BIDDERS, WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER ABUSED HIS DISCRETION IN DECIDING NOT TO EXTEND THE BID OPENING DATE.

WE RECOGNIZE THAT REGARDLESS OF WHAT MAY BE REQUIRED OR PERMITTED BY A PROCUREMENT REGULATION, THE PERIOD OF TIME BETWEEN THE ISSUANCE OF AN AMENDMENT AND THE SCHEDULED BID OPENING DATE MAY NOT PROVIDE BIDDERS WITH A SUFFICIENTLY REASONABLE AMOUNT OF TIME TO COMPUTE BIDS FOR THE SUBMISSION OF COMPETITIVE OFFERS ON A COMMON BASIS. HOWEVER, IN SUCH A CASE, WE THINK IT WOULD BE INCUMBENT UPON THE BIDDER WHO DID NOT FEEL HE HAD SUFFICIENT TIME FOR COMPUTING HIS BID, EITHER TO SO ADVISE THE PROCURING ACTIVITY PRIOR TO THE SCHEDULED BID OPENING, OR TO SHOW SOUND REASON WHY SUCH ACTION WAS NOT FEASIBLE. SEE B-156025, DATED MAY 4, 1965, WITH RESPECT TO THE WEIGHT GIVEN ALLEGATIONS OF AMBIGUOUS SPECIFICATIONS, WHERE SUCH ALLEGATIONS ARE NOT MADE PRIOR TO BID OPENING.

WHILE YOUR CLIENT HAS ALLEGED INSUFFICIENT TIME TO PROPERLY PREPARE A BID BECAUSE IT WAS OUT OF TOWN AND COULD NOT BE REACHED, THE BID IN QUESTION WAS SUBMITTED IN THE NAME OF THE PRINCE CHARLES MOTOR HOTEL, AND THERE IS NO CLEAR EVIDENCE IN THE RECORD THAT THE HOTEL IS NOT A SEPARATE LEGAL ENTITY. FURTHER, IT APPEARS THAT THE MANAGER OF THE HOTEL, WHO IS EITHER YOUR CLIENT'S AGENT OR THE HOTEL'S AGENT, DID HAVE TIME TO CHANGE, AND IN FACT DID CHANGE, THE ORIGINAL BID IN RESPONSE TO AMENDMENT NO. 2.

CONCERNING YOUR CLIENT'S CONTENTION THAT THE HEADING "MINIMUM QUANTITY" IN THE AMENDMENT SHOULD HAVE READ "MAXIMUM QUANTITY" IF IT "REFERRED TO ONE PERSON UP TO 275 PERSONS," WE MUST AGREE THAT THE HEADING "MAXIMUM QUANTITY" MAY HAVE MORE ACCURATELY REFLECTED THE INTENT AND PURPOSE OF THE SOLICITATION. HOWEVER, AS INDICATED ABOVE, AMENDMENT NO. 2 ALSO AMENDED PARAGRAPH 1C OF THE SPECIAL PROVISIONS TO SPECIFICALLY ADVISE BIDDERS THAT BIDS COULD BE SUBMITTED, IN ACCORDANCE WITH PARAGRAPH 8C OF STANDARD FORM 33, ON ANY QUANTITY UP TO AND INCLUDING 275, BUT THAT BIDS FOR A QUANTITY OF LESS THAN 40 WOULD BE CONSIDERED NONRESPONSIVE. PARAGRAPH 8C OF STANDARD FORM 33 PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"/C) * * * UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, BIDS MAY BE SUBMITTED FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED; AND THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY BID UPON AT THE UNIT PRICES OFFERED UNLESS THE BIDDER SPECIFIES OTHERWISE IN HIS BID.'

ADDITIONALLY, PARAGRAPH 1B OF THE SPECIAL PROVISIONS, WHICH WAS NOT AFFECTED BY THE AMENDMENT, CONTINUED TO ADVISE BIDDERS THAT "IN THE EVENT THE LOW BIDDER CANNOT FURNISH THE ENTIRE MAXIMUM GOVERNMENT REQUIREMENT (275 MILITARY PERSONNEL), AWARD/S) WILL BE MADE TO THE NEXT LOWEST BIDDER/S) UNTIL THE MAXIMUM GOVERNMENT REQUIREMENT IS FILLED.'

IN VIEW OF THE FOREGOING IT IS OUR OPINION THAT THE PROVISIONS OF THE INVITATION, OTHER THAN THE HEADING "MINIMUM QUANTITY," SET OUT THE BASIS ON WHICH BIDS WERE SOLICITED AND THE BASIS ON WHICH THEY WERE TO BE EVALUATED FOR AWARD WITH SUFFICIENT CLARITY SO THAT NO BIDDER SHOULD HAVE BEEN MISLED. FURTHER, IN VIEW OF THE AMENDED PROVISIONS OF THE INVITATION, WE ARE UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER'S EXPLANATION OF HIS REASON FOR ADOPTING THE HEADING ,MINIMUM QUANTITY" IS COMPLETELY WITHOUT LOGIC. WHILE WE ARE RECOMMENDING TO THE SECRETARY OF THE AIR FORCE THAT FURTHER CONSIDERATION BE GIVEN TO THE ADVISABILITY OF USING SUCH HEADING IN FUTURE PROCUREMENTS, WE SEE NO SUCH AMBIGUITY IN THE OVERALL PROVISIONS OF THE INSTANT INVITATION AS WOULD EITHER REQUIRE OR JUSTIFY A CONCLUSION THAT THE CONTRACT AWARDED TO COACHMAN'S LODGE IS INVALID OR SHOULD BE CANCELLED.