B-159051, JUN. 16, 1966, 45 COMP. GEN. 800

B-159051: Jun 16, 1966

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THE BIDDER CONFIRMING THAT THERE WAS NO INTENT TO MAKE DELIVERY FREE OF EXPENSE TO THE GOVERNMENT. TO THE PORT WAS A MISTAKE. THE RULE PROHIBITING BIDDERS "TWO BITES AT THE APPLE" IS APPLICABLE. 1966: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 26. SECTION 4.2 OF THE SCHEDULE ENTITLED "PLACE OF DELIVERY" WAS COMPLETED AS FOLLOWS IN YOUR BID: 4.2 PLACE OF DELIVERY: (A) THE ARTICLES TO BE FURNISHED HEREUNDER SHALL BE DELIVERED. (III) PLACED ON WHARF OF WATER CARRIER (WHERE MATERIAL WILL ORIGINATE WITHIN OR ADJACENT TO PORT AREA AND IS ADAPTABLE TO WATER MOVEMENT). AT OR NEAR CONTRACTOR'S PLANT AT (1) NORFOLK VA (BIDDER INSERT CITY OR TOWN IN WHICH PLANT IS LOCATED) (2) . - (BIDDER INSERT EXACT LOCATION OF PRIVATE SIDING OR NEAREST RAIL TERMINAL FROM WHICH RAIL SHIPMENTS WILL BE MADE.

B-159051, JUN. 16, 1966, 45 COMP. GEN. 800

BIDS - DELIVERY PROVISIONS - INCONSISTENT BID INFORMATION THE SHOWING OF A PLACE OF MANUFACTURE OTHER THAN THE F.O.B. TRANSSHIPMENT PORT DESIGNATED, INFORMATION REQUESTED UNDER TWO SECTIONS, IDENTIFIED AS PLACE OF DELIVERY AND PLACE FOR INSPECTION AND ACCEPTANCE, OF AN INVITATION REQUIRING DELIVERY TO A PORT FREE OF EXPENSE TO THE GOVERNMENT DOES NOT CREATE AN AMBIGUITY--- AND NEITHER DOES THE INVITATION--- BUT AN INCONSISTENCY, AND FREIGHT COSTS ESSENTIAL TO THE EVALUATION OF THE BID, THE INCONSISTENCY MAY NOT BE EXPLAINED TO THE PREJUDICE OF OTHER BIDDERS OR TO EFFECT THE RESPONSIVENESS OF THE BID; THEREFORE, THE BIDDER CONFIRMING THAT THERE WAS NO INTENT TO MAKE DELIVERY FREE OF EXPENSE TO THE GOVERNMENT, THE DESIGNATION OF DELIVERY F.O.B. TO THE PORT WAS A MISTAKE, AND THE RULE PROHIBITING BIDDERS "TWO BITES AT THE APPLE" IS APPLICABLE, FOR TO PERMIT THE BIDDER TO EXPLAIN THE INFORMATION, PROPER WHEN NOT INCONSISTENT WITH A REASONABLE INTERPRETATION OF THE BID, WOULD SERVE TO UNDERMINE THE INTEGRITY AND HARM THE COMPETITIVE BIDDING SYSTEM, DESPITE THE POSSIBILITY OF AN IMMEDIATE LOWER PRICE ADVANTAGE.

TO HERCULES FENCE DIVISION, ALUMINUM SPECIALITIES COMPANY, JUNE 16, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 26, 1966, PROTESTING ALLEGED IRREGULARITIES IN BID INTERPRETATIONS UNDER INVITATION NO. IFB 189 -361-66, ISSUED BY THE UNITED STATES NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA.

THE INVITATION REQUESTED BIDS ON NINE ITEMS OF CHAIN LINK FENCING ACCESSORIES. SECTION 4.2 OF THE SCHEDULE ENTITLED "PLACE OF DELIVERY" WAS COMPLETED AS FOLLOWS IN YOUR BID:

4.2 PLACE OF DELIVERY:

(A) THE ARTICLES TO BE FURNISHED HEREUNDER SHALL BE DELIVERED, FREE OF EXPENSE TO THE GOVERNMENT AND AT THE GOVERNMENT'S OPTION, (I) LOADED, BLOCKED, AND BRACED, ON BOARD CARRIER'S EQUIPMENT, (II) AT THE FREIGHT STATION, (III) PLACED ON WHARF OF WATER CARRIER (WHERE MATERIAL WILL ORIGINATE WITHIN OR ADJACENT TO PORT AREA AND IS ADAPTABLE TO WATER MOVEMENT), AT OR NEAR CONTRACTOR'S PLANT AT

(1) NORFOLK VA (BIDDER INSERT CITY OR TOWN IN WHICH PLANT IS LOCATED)

(2) --------------- (BIDDER INSERT EXACT LOCATION OF PRIVATE SIDING OR NEAREST RAIL TERMINAL FROM WHICH RAIL SHIPMENTS WILL BE MADE, TOGETHER WITH THE NAME OF SERVING RAILROAD/S)

(3) 3355 LYONS AVE NORFOLK (BIDDER INSERT EXACT LOCATION FROM WHICH TRUCK SHIPMENTS WILL BE MADE, INCLUDING NAME OF STREET OR HIGHWAY), AND

(4) NORFOLK (BIDDER INSERT THE PORT, OR THE SPECIFIC AREA WITHIN SUCH PORT, TO WHICH SUPPLIES WILL BE DELIVERED), FOR SHIPMENT AT GOVERNMENT EXPENSE (NORMALLY ON GOVERNMENT BILL OF LADING) DESTINATION TO BE SPECIFIED AT A LATER DATE FOR TRANSSHIPMENT TO:

SUPPLY OFFICER, ATLANTIC UNDERSEA TEST AND EVALUATION CENTER, ANDROSTOWN, BAHAMAS

(B) THE METHOD OF SHIPMENT SHALL BE SPECIFIED BY THE GOVERNMENT WHEN MATERIAL IS READY FOR SHIPMENT.

(C) THE GOVERNMENT SHALL HAVE THE RIGHT TO CHANGE THE DESTINATION/S) SPECIFIED HEREIN. ANY ADJUSTMENT IN CONTRACT PRICE OR TIME OF DELIVERY DUE TO RESULTING CHANGES IN PACKING OR MARKING SHALL BE SUBJECT TO THE CLAUSE OF THIS CONTRACT ENTITLED "CHANGES.' BIDS SUBMITTED ON A BASIS OTHER THAN FOB ORIGIN WILL BE REJECTED AS NON RESPONSIVE

SECTION 5.1 OF THE SCHEDULE WAS COMPLETED AS FOLLOWS:

5.1 INSPECTION AND ACCEPTANCE:

(A) INSPECTION OF THE SUPPLIES OR SERVICES TO BE FURNISHED HEREUNDER SHALL BE MADE BY REPRESENTATIVE OF THE MATERIAL INSPECTION SERVICE, USN, AT THE CONTRACTOR'S OR SUBCONTRACTOR'S PLANT. ACCEPTANCE OF SUCH SUPPLIES OR SERVICES SHALL BE MADE BY REPRESENTATIVE OF THE GOVERNMENT AND AT THE PLACE SPECIFIED IN THE NOTICE OF AWARD.

(B) THE BIDDER SHALL FURNISH THE FOLLOWING INFORMATION: (1) ARE THE SUPPLIES TO BE FURNISHED FROM STOCK? YES FROM GOVERNMENT SURPLUS MATERIAL? NO (2) NAME OF PRINCIPAL MANUFACTURER (NOT DEALER) OF THE SUPPLIES

NATIONAL FENCE. MFG. CO. ------------------------- --------------------- ------------------------ (3) PLACE OF PRINCIPAL MANUFACTURE OF SUPPLIES OR PERFORMANCE OF SERVICES

4301 46 ST. -------------------- ----------------------------------------

(STREET ADDRESS)

BLADENSBURG, MARYLAND --------------------------------- -----------------

(CITY ZONE STATE) (4) LOCATION WHERE SUPPLIES WILL BE INSPECTED ON DELIVERY ------------------------------------------------ ----------------

(CITY ZONE STATE)

YOU HAVE INDICATED UNDER SECTION 4.2 THAT DELIVERY WILL BE MADE F.O.B. NORFOLK, VIRGINIA. UNDER SECTION 5.1, SUBPARAGRAPH (B) (3), THE PLACE OF MANUFACTURE OF THE ITEMS BID UPON IS SHOWN AS BLADENSBURG, MARYLAND. UNDER SECTION 5.1, SUBPARAGRAPH (B) (4), THE PLACE OF INSPECTION IS SHOWN AS "ON DELIVERY.'

IT IS ADMINISTRATIVELY REPORTED THAT YOUR COMPANY WAS REQUESTED BY THE CONTRACTING OFFICER TO CONFIRM ITS BID PRICES AND TO VERIFY DETAILS OF ITS BID CONCERNING DELIVERIES, INSPECTION AND ACCEPTANCE. APPARENTLY THIS WAS CONSIDERED TO BE THE DUTY OF THE CONTRACTING OFFICER UNDER PROVISIONS OF PARAGRAPH 2-406.3 (E) (1) OF THE ARMED SERVICES PROCUREMENT REGULATION REGARDING MISTAKES IN BID, BECAUSE OF THE AMBIGUITIES PRESENTED BY YOUR BID. IT IS REPORTED THAT WHEN INQUIRY WAS MADE AS TO INTENT OF THE PHRASE "ON DELIVERY" CONTAINED IN YOUR BID THE CONTRACTING OFFICER WAS INFORMED THAT YOUR INTENT WAS TO MAKE DELIVERY TO THE NAVAL SUPPLY CENTER (NSC), NORFOLK, VIRGINIA, WITH SUBSEQUENT INSPECTION. WHILE IT IS FURTHER REPORTED THAT YOUR COMPANY HAS DECLINED THE CONTRACTING OFFICER'S REQUEST FOR INFORMATION CONCERNING VERIFICATION OF YOUR BID, IT IS A MATTER OF RECORD THAT YOU HAVE SUBMITTED TO NSC BY LETTER DATED MAY 18, 1966, A COPY OF THE WORK SHEET USED IN COMPUTING THE COST OF MATERIAL OUTLINED IN YOUR BID LETTER AND ENCLOSURE ADEQUATELY SET FORTH YOUR EXPLANATION AS TO WHAT WAS INTENDED BY THE PARTS OF YOUR BID NOW IN CONTROVERSY, AND, TOGETHER WITH YOUR LETTER OF APRIL 26, 1966, THE BASIS OF YOUR PROTEST.

YOU STATE IN YOUR PROTEST LETTER, IN PERTINENT PART, AS FOLLOWS:

MY BID FOR INVITATION 189-361-66 IS BASED ON PRICE BEING F.O.B. ORIGIN AS STIPULATED IN SEC. 4.2 OF STANDARD FORM 36. UNDER THIS CLAUSE I WAS ASKED TO FILL IN SPACES PERTAINING TO "AT OR NEAR CONTRACTOR'S PLANT.' I AM THE CONTRACTOR SO I FILLED IN LOCAL INFORMATION. IT ALSO ASKED WHAT PORT I WAS NEAR AND I ANSWERED NORFOLK, VA.

SEC. 5.1 INSPECTION AND ACCEPTANCE IS CLEAR WHEN IT STATES "PRINCIPAL MANUFACTURER (NOT EALER)" BUT SINCE THE CLAUSE GIVES THE GOVERNMENT OPTION FOR INSPECTION AT "CONTRACTOR'S OR SUB-CONTRACTOR'S PLANT" AND ACCEPTANCE ON NOTIFICATION AFTER AWARD, I FILLED IN QUESTION (4) OF THE CLAUSE "ON DELIVERY" TO ALLOW THE GOVERNMENT TO TAKE THEIR CHOICE.

MY CONTENTION IS THAT CLAUSE 4.2 PLACE OF DELIVERY SHOULD STATE "AT OR NEAR PRINCIPAL MANUFACTURER'S PLANT" (NOT DEALER) TO BE CLEAR. "THE REAL QUESTION HERE IS DO YOU MEAN IN THE PLACE OF DELIVERY CLAUSE 4.2

(1) FOB CONTRACTORS/DEALERS PLANT OR

(2) FOB ORIGIN AT DEALERS SOURCE WHICH IS THE MANUFACTURER.

I BID THIS INVITATION IN ACCORDANCE WITH SEC. 4.2 (C) BIDS SUBMITTED ON A BASIS OTHER THAN FOB ORIGIN WILL BE REJECTED AS NON RESPONSIVE. TO ME THIS MEANS BLADENSBURG, MARYLAND WHERE THE MATERIAL IS MANUFACTURED AND ITS POINT OF ORIGIN.

AN EXAMINATION OF THE INVITATION FOR BIDS SHOWS THAT THE PLACE OF DELIVERY CLAUSE CLEARLY STIPULATES THAT THE ARTICLES SHALL BE DELIVERED FREE OF EXPENSE AND BY ITS TERMS THE BIDDER BINDS HIMSELF TO DELIVER TO THE ORIGIN LOCATIONS HE INDICATES THEREIN WHILE THE GOVERNMENT SPECIFICALLY AGREES TO ASSUME THE FURTHER COST OF TRANSPORTATION TO DESTINATION. BY THESE TERMS YOU AGREED TO DELIVER THE ITEMS BID UPON, FREE OF EXPENSE TO THE GOVERNMENT AND AT ANY OF THE GOVERNMENT'S OPTIONS SET FORTH THEREIN TO NORFOLK, VIRGINIA. THE PHRASE "F.O.B.' MEANS FREE ON BOARD OF VESSEL, CAR OR OTHER CONVEYANCE WHICH IS TO TRANSPORT GOODS TO A BUYER. ROGERS V. UNION IRON AND FOUNDRY CO., 150 S.W. 100, 104. THE REFERENCE IN CLAUSES (A) AND (C) OF SECTION 4.2 TO "WHERE MATERIAL WILL ORIGINATE," AND TO THE "FOB ORIGIN" BASIS REQUIREMENT FOR BIDS, CLEARLY SHOWS F.O.B. DELIVERY IS REQUIRED AND SHOWS THAT THE PLACE OF ORIGIN IS THE SENSE OF THE FULL CONTEXT. THAT THIS WAS UNDERSTOOD BY YOU IS BORNE OUT BY YOUR STATEMENT IN YOUR PROTEST THAT "THE REAL QUESTION HERE IS DO YOU MEAN IN THE PLACE OF DELIVERY CLAUSE 4.2 (1) FOB CONTRACTORS/DEALERS PLANT OR (2) FOR ORIGIN AT DEALERS SOURCE WHICH IS THE MANUFACTURER.'

BY DESIGNATING NORFOLK AS THE F.O.B. POINT YOUR BID CARRIED THE ASSURANCE THAT THIS LOCATION WAS THE POINT OF FREE DELIVERY TO THE GOVERNMENT. HOWEVER, UNDER SECTION 5.1 OF THE SCHEDULE A QUESTION AROSE REGARDING YOUR BID WHEN YOU INDICATED THERE THAT THE PRINCIPAL MANUFACTURER (NOT DEALER) OF THE SUPPLIES WAS THE NATIONAL FENCE MFG. CO., WHOSE PLANT WAS LOCATED AT BLADENSBURG, MARYLAND, A POINT APPROXIMATELY 200 MILES DISTANT FROM NORFOLK. THE QUESTION AROSE THEREFORE AS TO WHETHER YOU INTENDED TO PROVIDE FREE DELIVERY TO NORFOLK AS STATED IN SECTION 4.2. THIS QUESTION WAS NOT CLARIFIED IN ANY DEGREE WHEN YOU INDICATED THE LOCATION WHERE SUPPLIES WILL BE INSPECTED AS "ON DELIVERY.' SINCE THE FREIGHT COSTS WHICH MUST BE PAID BY THE GOVERNMENT ON F.O.B. ORIGIN SHIPMENTS ARE ESSENTIAL TO THE DETERMINATION OF EVALUATED BID PRICES SUCH INFORMATION IS MATERIAL TO THE BID. WHEN A BIDDER HAS EXECUTED THESE PROVISIONS OF THE BID FORM SUCH EXECUTION MUST BE CONSTRUED AS EXPRESS STATEMENTS OF THE BIDDER AND AS CONDITIONS OF HIS BID. THEY MAY NOT BE CONSIDERED SUPERFLUOUS OR BE DISREGARDED SIMPLY BECAUSE THEY MAY BE INCONSISTENT OR IN CONFLICT WITH ANOTHER PORTION OF THE BID BUT REQUIRE CLARIFICATION.

YOU CONTEND, IN EFFECT, THAT YOU PROPERLY COMPLETED BOTH CLAUSES 4.2 AND 5.1 WITH FACTUAL INFORMATION IN ACCORDANCE WITH THE LANGUAGE EMPLOYED THEREIN BY THE GOVERNMENT. THE ONLY BASIS YOU SUBMIT IN SUPPORT OF THIS ARGUMENT IS SIMPLY THAT REFERENCE IS MADE THEREIN TO "CONTRACTOR'S PLANT" AND NOT "MANUFACTURER'S PLANT" AND THAT SINCE YOU ARE THE CONTRACTOR (DEALER) AND YOUR OFFICE LOCATION IS IN NORFOLK, YOUR POSITION IS THAT YOU PROPERLY INDICATED THAT CITY IN CLAUSE 4.2 EVEN THOUGH THE CLAUSE IS HEADED "PLACE OF DELIVERY" AND YOUR PROTEST EFFECTIVELY CONCEDES THAT THE POINT OF ORIGIN OF THE MATERIAL IS PART OF THE SUBJECT OF THE CLAUSE. ALL PARTS OF AN INVITATION MUST BE READ TOGETHER AND CONSTRUED AS A WHOLE AND AN OVERLITERAL MEANING MAY NOT BE GIVEN TO ONE OR TWO WORDS TAKEN OUT OF CONTEXT TO DISTORT THE SENSE OF THE COMPLETE CLAUSE AND FORM.

THE CONTRACTING OFFICER EXAMINED THE BID FOR MISTAKES AS THE REGULATION DIRECTED HIM TO DO AND FOUND THAT THE BID AS TO THE INTENDED POINT OF ORIGIN AND PLACE OF DELIVERY OF THE MATERIAL WAS UNCLEAR. NO AMBIGUITY IS FOUND BETWEEN SECTIONS 4.2 AND 5.1 OF THE INVITATION FORM AND NO AMBIGUITY IS PRESENT IN YOUR BID AS SUBMITTED SINCE AS A DEALER YOU COULD HAVE HAD THE MATERIAL ON HAND IN NORFOLK OR EVEN INTENDED FREE DELIVERY TO THAT PLACE BY THE TERMS OF SECTION 4.2 AS COMPLETED BY YOU. YOUR COMPLETION OF SECTION 5.1 WAS PURELY FACTUAL. THE CONTRACTING OFFICER HAVING RAISED THE QUESTION AND YOUR CONFIRMATION HAVING ESTABLISHED THAT YOU DID NOT INTEND TO DELIVER FREE OF FURTHER CHARGES TO NORFOLK AS YOUR BID DECLARED, IT MUST BE CONSIDERED THAT YOU MADE A MISTAKE IN COMPLETING SECTION 4.2 OF THE INVITATION EVEN THOUGH THE BASIS OF YOUR ARGUMENT AS TO INTERPRETATION OF THE BID FORM MERELY SHOWS THAT YOU ARE UNDERTAKING TO PROVE A SUBJECTIVE INTENT THAT YOUR BID SHOULD BE INTERPRETED IN A CERTAIN WAY, OR THAT THE BID FORM IS WRONGLY PHRASED, RATHER THAN TO PROVE THAT WHAT WAS WRITTEN IN THE BID WAS NOT WHAT WAS INTENDED TO BE WRITTEN. WHILE NEITHER THE BID FORM NOR YOUR BID AS PRESENTED IS AMBIGUOUS YOUR BID BECOMES SO WHEN YOU ATTEMPT TO EXPLAIN HOW IT SHOULD BE INTERPRETED AND IN THE LIGHT OF THAT EXPLANATION YOUR MISTAKE BECOMES APPARENT. IN OUR DECISION AT 39 COMP. GEN. 653, WE STATED THAT A BIDDER PROPERLY MAY BE REQUESTED TO CONFIRM A BID BUT THE CONFIRMATION MAY NOT BE INCONSISTENT WITH A REASONABLE INTERPRETATION OF THE BID AS SUBMITTED. WE THINK THE RULE PROHIBITING BIDDERS "TWO BITES AT THE APPLE" (SEE 38 COMP. GEN. 532, 535, 536) IS APPLICABLE HERE. A BIDDER MAY NOT BE ALLOWED TO EXPLAIN HIS MEANING WHEN HE IS IN A POSITION THEREBY TO PREJUDICE OTHER BIDDERS OR TO EFFECT THE RESPONSIVENESS OF HIS BID. SUCH ACTION WOULD SERVE TO UNDERMINE THE INTEGRITY OF THE BIDDING SYSTEM AND CAUSE OVERALL HARM TO THE SYSTEM OF COMPETITIVE BIDDING DESPITE THE POSSIBILITY OF AN IMMEDIATE ADVANTAGE GAINED BY A LOWER PRICE IN A PARTICULAR PROCUREMENT.

THEREFORE, THE DEPARTMENT OF THE NAVY WILL BE INSTRUCTED TO DISREGARD YOUR BID IN THE CIRCUMSTANCES AND YOUR PROTEST IS DENIED. COMPARE 40 COMP. GEN. 393.