B-160252, NOVEMBER 18, 1966, 46 COMP. GEN. 418

B-160252: Nov 18, 1966

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BIDS - ACCEPTANCE TIME LIMITATION - FAILURE TO COMPLY AN INVITATION FOR BIDS PROVIDING THAT FAILURE TO READ INSTRUCTIONS WILL BE AT THE RISK OF THE BIDDER. IS NOT AN AMBIGUOUS INVITATION. A BID OFFERING A 30 DAY ACCEPTANCE PERIOD IS A NONRESPONSIVE BID THAT MAY NOT BE CORRECTED. 1966: REFERENCE IS MADE TO YOUR PROTEST. THE PROCUREMENT WAS RESTRICTED TO SMALL BUSINESS CONCERNS. BIDDERS WERE ADVISED THAT BIDS WERE SUBJECT TO VARIOUS PROVISIONS AND INSTRUCTIONS. WHICH WERE EITHER ATTACHED TO THE IFB OR INCORPORATED BY REFERENCE IN THE SCHEDULE. CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE BIDDER) FROM THE DATE OF OPENING. TO FURNISH ANY OR ALL OF THE ITEMS UPON WHICH PRICES ARE QUOTED * * *.

B-160252, NOVEMBER 18, 1966, 46 COMP. GEN. 418

BIDS - ACCEPTANCE TIME LIMITATION - FAILURE TO COMPLY AN INVITATION FOR BIDS PROVIDING THAT FAILURE TO READ INSTRUCTIONS WILL BE AT THE RISK OF THE BIDDER, AND PRESCRIBING A 60-DAY BID ACCEPTANCE PERIOD UNLESS OTHERWISE INDICATED, WHERE THE REFERENCE TO CLAUSE 712 OF THE BID SCHEDULE--- A MANDATORY 60-DAY BID ACCEPTANCE PROVISION--- DID NOT CITE PAGE NUMBER, AND THE BID SCHEDULE FAILED TO LIST CLAUSES NUMERICALLY AND CONTAINED A CLAUSE REQUIRING THE OFFER OF A DEFINITE ACCEPTANCE PERIOD, IS NOT AN AMBIGUOUS INVITATION, THE BIDDER HAVING THE RESPONSIBILITY TO REQUEST A PREBID INTERPRETATION OF THE INVITATION. THEREFORE, THE OFFER OF A 30-DAY BID ACCEPTANCE PERIOD FOR THE REQUIRED DEFINITE PERIOD OF 60 OR MORE DAYS HAVING BEEN NONRESPONSIVE TO THE INVITATION, THE BID MAY NOT BE CONSIDERED FOR AWARD. BIDS - ACCEPTANCE TIME LIMITATION - EXTENSION - RESPONSIVENESS OF BID UNDER AN INVITATION FOR BIDS REQUIRING A BID TO REMAIN AVAILABLE FOR ACCEPTANCE BY THE GOVERNMENT FOR AT LEAST 60 DAYS, A BID OFFERING A 30 DAY ACCEPTANCE PERIOD IS A NONRESPONSIVE BID THAT MAY NOT BE CORRECTED. PERMIT A BIDDER TO CHANGE, ADD TO, OR DELETE A MATERIAL PROVISION AFTER BID OPENING WOULD BE TANTAMOUNT TO THE SUBMISSION OF A NEW BID AND, THEREFORE, ONLY A BID MISTAKE IN A RESPONSIVE BID MAY BE CORRECTED. THE EXTENSION OF THE BID ACCEPTANCE TIME PROVIDED UNDER PARAGRAPH 2-404.1 (C) OF THE ARMED SERVICES PROCUREMENT REGULATION FOR DELAYS ARISING DUE TO ADMINISTRATIVE DIFFICULTIES EXPERIENCED AFTER BID OPENING, OR ALLOWED INCIDENT TO A BID PROTEST, MAY NOT BE EMPLOYED TO DEFEAT THE REQUIREMENT THAT A BID IN ORDER TO BE CONSIDERED FOR AWARD MUST COMPLY WITH THE TERMS OF THE INVITATION.

TO SILVERSTEIN AND REMICK, NOVEMBER 18, 1966:

REFERENCE IS MADE TO YOUR PROTEST, BY LETTER DATED SEPTEMBER 27, 1966,ON BEHALF OF POLYPHASE INSTRUMENT COMPANY (POLYPHASE), AGAINST AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. N0038367 75, ISSUED AUGUST 1, 1966, BY THE UNITED STATES NAVY AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA.

THE IFB, ON STANDARD FORM 33, INVITATION, BID, AND AWARD (SUPPLY CONTRACT), SOLICITED BIDS, ON AN F.O.B. DESTINATION BASIS ONLY, TO FURNISH 1,399 OUTPUT NETWORKS FOR USE IN THE KY81C/APA89 VIDEO CODER IN VARIOUS AIRCRAFT, DELIVERY TO BE MADE IN VARYING QUANTITIES TO NINE DESIGNATED DESTINATIONS. THE PROCUREMENT WAS RESTRICTED TO SMALL BUSINESS CONCERNS.

ON THE FACE SHEET OF THE IFB, BIDDERS WERE ADVISED THAT BIDS WERE SUBJECT TO VARIOUS PROVISIONS AND INSTRUCTIONS, INCLUDING BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS, STANDARD FORM 33-A, WHICH WERE EITHER ATTACHED TO THE IFB OR INCORPORATED BY REFERENCE IN THE SCHEDULE. IN ADDITION, THE FACE SHEET CARRIED STANDARD PRINTED LANGUAGE RELATIVE TO THE PERIOD DURING WHICH BIDS COULD BE ACCEPTED READING, IN PART, AS FOLLOWS: 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 IS INSERTED BY THE BIDDER) FROM THE DATE OF OPENING, TO FURNISH ANY OR ALL OF THE ITEMS UPON WHICH PRICES ARE QUOTED * * *. ABOVE SUCH LANGUAGE APPEARED THE TYPEWRITTEN NOTATION,"SEE CLAUSE 712;,

PARAGRAPH 1 (A), STANDARD FORM 33-A, RELATING TO PREPARATION OF BIDS, CAUTIONED BIDDERS TO EXAMINE THE DRAWINGS, SPECIFICATIONS, SCHEDULE, AND ALL INSTRUCTIONS AND STATED THAT FAILURE TO DO SO WOULD BE AT THE BIDDER'S RISK. PARAGRAPH 2, RELATING TO EXPLANATIONS TO BIDDERS, STATED THAT ANY EXPLANATION DESIRED REGARDING THE MEANING OR INTERPRETATION OF THE IFB, DRAWINGS, SPECIFICATIONS, ETC; SHOULD BE REQUESTED IN WRITING IN SUFFICIENT TIME TO PERMIT A REPLY TO REACH BIDDERS BEFORE SUBMISSION OF THEIR BIDS.

PAGE 5 OF THE BID SCHEDULE, STANDARD FORM 36, ADVISED BIDDERS, WITH RESPECT TO THE CLAUSES SET FORTH IN THE SCHEDULE, THAT THOSE CLAUSES WHICH WERE MARKED WITH AN "X" WERE PART OF THE CONTRACT. AMONG THE CLAUSES SO MARKED WERE NOS. 701 ON PAGE 20 AND 712 ON PAGE 24, READING AS FOLLOWS:

(X) 701 DEFINITE ACCEPTANCE PERIOD:ANY BID WHICH DOES NOT PROVIDE FOR A DEFINITE PERIOD OF TIME AFTER THE DATE OF BID OPENING WITHIN WHICH THE GOVERNMENT MAY ACCEPT THE BID WILL NOT BE CONSIDERED. BIDS PROVIDING FOR "IMMEDIATE ACCEPTANCE","ACCEPTANCE AT ONCE", OR OTHER INDEFINITE PERIOD FOR ACCEPTANCE WILL NOT BE CONSIDERED.

(X) 712 BID ACCEPTANCE PERIOD: BIDS OFFERING LESS THAN 60 DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE SET FOR OPENING OF BIDS WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.

ON AUGUST 22, THE FOUR BIDS WHICH HAD BEEN RECEIVED WERE OPENED AS SCHEDULED. POLYPHASE, WITH A UNIT PRICE OF $14.29, WAS LOW; HOWEVER, ON THE FACE OF ITS BID, POLYPHASE HAD INSERTED A 30-DAY PERIOD FOR BID ACCEPTANCE. IN A LETTER DATED AUGUST 29, TO THE PROCURING ACTIVITY, POLYPHASE EXPLAINED THAT THE 30-DAY BID ACCEPTANCE PERIOD WAS ITS STANDARD ACCEPTANCE PERIOD AND HAD BEEN USED IN THE BID THROUGH A CLERICAL MISTAKE. THE PROCURING ACTIVITY CONSIDERED THE BID NONRESPONSIVE, NEVERTHELESS, AND YOU WERE SO ADVISED IN A TELEPHONE CONVERSATION OF SEPTEMBER 2.

IN A LETTER DATED SEPTEMBER 7, TO THE CONTRACTING OFFICER, YOU MADE THE FOLLOWING PERTINENT STATEMENTS:

ON PAGE 1 OF THE I.F.B. IS TYPED "SEE CLAUSE 712;" THIS ADDITION DOES NOT SPECIFY ON WHICH OF THE 29 PAGES CLAUSE 712 WILL BE FOUND,NOR DOES IT STATE THAT IT REFERS TO OR MODIFIES THE NORMAL I.F.B. PROVISION OF 60 DAY ACCEPTANCE UNLESS A DIFFERENT PERIOD IS INSERTED BY THE BIDDER.

FURTHER, WHEN CLAUSE 712 IS FINALLY LOCATED IT IS FOUND NOT IN NUMERICAL ORDER BUT POSITIONED BETWEEN CLAUSE 7031 AND CLAUSE 741. CLAUSE 701, WHICH IS ALSO CHECKED OFF AND MADE APPLICABLE TO THIS I.F.B; STATES,"ANY BID WHICH DOES NOT PROVIDE FOR A DEFINITE PERIOD OF TIME AFTER THE DATE OF BID OPENING WITHIN WHICH THE GOVERNMENT MAY ACCEPT THE BID WILL NOT BE CONSIDERED;,

IF THE GOVERNMENT IS GOING TO DECLARE ALL BIDS OTHER THAN 60 DAYS AS NONRESPONSIVE, WHY WOULD 701 BE INCLUDED? DOESN-T THIS IN EFFECT CREATE AN AMBIGUITY?

IN THIS SITUATION ASPR 2-404.2 (D) PROVIDES "A LOW BIDDER MAY BE REQUESTED TO DELETE OBJECTIONABLE CONDITIONS FROM HIS BID PROVIDED THESE CONDITIONS DO NOT GO TO THE SUBSTANCE, AS DISTINGUISHED FROM THE FORM OF THE BID, OR WORK AN INJUSTICE ON OTHER BIDDERS. A CONDITION GOES TO THE SUBSTANCE OF THE BID WHERE IT AFFECTS PRICE, QUANTITY, QUALITY OR DELIVERY OF THE ITEMS OFFERED;,

ASPR 2-403 PROVIDES FOR THE BEST PROTECTION OF THE GOVERNMENT BY ALLOWING SUCH DEFECTS TO BE WAIVED AND CERTAINLY AN EXTENSION OF TIME OF ACCEPTANCE WILL NOT AFFECT PRICE, QUALITY, QUANTITY, DELIVERY OR PERFORMANCE, AND WILL NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO BIDDERS SINCE POLYPHASE IS THE LOW BIDDER.

THE BID ACCEPTANCE PERIOD IS OFTEN SUBJECT TO EXTENSION OF TIME. FOR EXAMPLE ASPRZ-404.1 (C) PROVIDES FOR EXTENSION OF BID ACCEPTANCE PERIOD BY THE SEVERAL LOWEST BIDDERS WHEN ADMINISTRATIVE DIFFICULTIES ARE ENCOUNTERED.

SIMILARLY UPON A FORMAL PROTEST BIDS ARE ONCE AGAIN EXTENDED EVEN WITHOUT NOTICE TO THE OFFICE OF THE CONTRACTING OFFICER CGB-154236 (JUNE 26, 1964.)

OUR FIRM HAS BEEN AUTHORIZED TO EXPLAIN THAT THE BID ACCEPTANCE PERIOD WAS INCONSEQUENTIAL TO THE COMPANY AND WAS ONLY INSERTED BY MISTAKE OF A SECRETARY WHO WAS UNFAMILIAR WITH THE INTRICACIES OF A GOVERNMENT CONTRACT. (SEE EXHIBIT B SIGNED BY THE INTERESTED PARTY.) IN FACT, THE POLYPHASE COMPANY IN WRITING HAS AUTHORIZED ME TO EXTEND THE BID ACCEPTANCE PERIOD TO 1 NOVEMBER 1966.

IT SHOULD CERTAINLY BE CLEAR THAT THE COMPANY WOULD NOT GO TO THE TROUBLE AND EXPENSE OF PREPARING AN I.F.B. WHICH IS NON-RESPONSIVE AND THE PRESUMPTION SHOULD BE WE INTENDED TO SUBMIT A VALID BID.

IT SHOULD BE NOTED THAT THIS SUBMISSION IS STILL WITHIN THE PERIOD OF THE OFFER FROM THE DATE OF OPENING OF THE BID AND IT IS CLEAR WE ARE NOT PUTTING INTO QUESTION THE INTEGRITY OF THE BIDDING SYSTEM, BUT RATHER ARE OFFERING THE LOWEST PRICE FOR A PROVEN RESPONSIVE PRODUCER OF THE ITEM IN QUESTION.

IN A REPLY BY LETTER DATED SEPTEMBER 13, THE CONTRACTING OFFICER ADVISED YOU THAT AWARD COULD NOT BE MADE TO POLYPHASE BECAUSE ITS BID WAS NOT RESPONSIVE TO THE INVITATION AND, THEREFORE, AWARD WOULD BE MADE TO THE NEXT LOW RESPONSIVE, RESPONSIBLE BIDDER. IN A WRITTEN DETERMINATION ISSUED THE SAME DATE, PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-407.9/B) (3) RELATING TO AWARDS PRIOR TO DECISION BY OUR OFFICE ON PREAWARD BID PROTESTS, THE CONTRACTING OFFICER STATED THAT THE URGENCY OF THE PROCUREMENT NECESSITATED AWARD WITHOUT FURTHER DELAY. THE FACTORS CONTRIBUTING TO THE URGENCY WERE STATED TO BE THE DEPLETION OF STOCK ON HAND, THE 12 MONTHS' LEAD-TIME FOR ACTIVITY ADMINISTRATION AND PRODUCTION, THE AVERAGE MONTHLY DEMAND FOR 65 UNITS, THE EXISTING EMERGENCY REQUIREMENT FOR 97 UNITS, AND THE DETERMINATION BY STOCK CONTROL THAT A LACK OF THE EQUIPMENT WOULD PRECLUDE THE AIRCRAFT IN QUESTION FROM PERFORMING ITS ASSIGNED MISSION. ACCORDINGLY, ON SEPTEMBER 14, AWARD WAS MADE TO THE SECOND LOW BIDDER AT A UNIT PRICE OF $15.26.

IN YOUR PROTEST TO OUR OFFICE, YOU REFER TO THE STATEMENTS IN YOUR LETTER OF SEPTEMBER 7 TO THE CONTRACTING OFFICER AS JUSTIFICATION FOR THE CORRECTION AND ACCEPTANCE OF THE POLYPHASE BID. IN ADDITION, YOU MAKE THE FOLLOWING ADDITIONAL PERTINENT STATEMENTS:

THE GOVERNMENT IN THIS PARTICULAR SITUATION HAS ADDED A CLAUSE WHICH VARIES THE STANDARD PROVISION FOR BID ACCEPTANCE ON PAGE ONE OF THE I.F.B. WE DO NOT FEEL THAT THE TYPED WORDS "SEE CLAUSE 712" WERE OF SUFFICIENT NOTICE TO CAUSE US TO REALIZE THAT THEY WERE CHANGING THE DISCRETIONARY BID ACCEPTANCE TIME TO A MANDATORY SIXTY (60) DAY ACCEPTANCE. HOWEVER, THE PLACING OF CLAUSE 712 IN 29 PAGES OF SMALL PRINT WOULD BE RATHER DIFFICULT TO LOCATE SINCE IT WAS POSITIONED BETWEEN CLAUSE 7031 AND CLAUSE 741.

IT SHOULD BE NOTED THAT POLYPHASE HAD APPLIED FOR AN EXTENSION OF THIS ACCEPTANCE PERIOD UPON NOTICE OF THIS DEFECT AND THAT THE ADDITIONAL TIME AUTHORIZED BY POLYPHASE WAS WELL WITHIN THE THIRTY (30) DAY ACCEPTANCE PERIOD.

WE FEEL THAT A WAIVER OF THIS SO-CALLED DEFECT WOULD CERTAINLY NOT AFFECT PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE ITEMS OFFERED AND THAT ASPR PROVIDES FOR JUST SUCH AN OCCURRENCE.

THE TRADITIONAL ARGUMENT OF GIVING US "TWO BITES OF THE APPLE" WOULD BE NEGATED AS WAS HELD IN PETERSEN DB S.P.K. COMPANY AUTOMATIC MACHINE PRODUCTS (1954) ASBCA NO.1633. IN THAT CASE A CONTRACTOR EXTENDED AN EXPIRED BID BY LETTER AND WHEN IT WAS SUBSEQUENTLY ACCEPTED BY THE GOVERNMENT HE ARGUED THAT THE BID EXPIRED WITH ITS SELF CONTAINED LIMITATION. THIS CONTENTION WAS HELD WITHOUT MERIT SINCE EXTENSION CAN BE INTERPRETED AS A NEW OFFER INCORPORATING THE SAME TERMS AS THE OLD ONE AND HENCE BINDING ON THE CONTRACT.

IT IS THE POSITION OF THE CONTRACTING OFFICER THAT THE FAILURE OF A BIDDER TO OFFER A BID ACCEPTANCE PERIOD CONSISTENT WITH THE IFB REQUIREMENT IS NOT AN INFORMALITY OR MINOR IRREGULARITY WHICH MAY BE WAIVED, AND THAT BIDDERS SHOULD NOT BE PERMITTED TO CHANGE A BID ACCEPTANCE PERIOD AFTER BID OPENING EVEN WHEN THE FAILURE TO COMPLY WITH THE IFB REQUIREMENT WAS ATTRIBUTABLE TO INADVERTENCE OR MISTAKE. ACCORDINGLY, THE CONTRACTING OFFICER STATES, HE HAD NO ALTERNATIVE BUT TO CONSIDER THE POLYPHASE BID NONRESPONSIVE.

IT IS WELL ESTABLISHED THAT A PROVISION IN AN INVITATION, WHICH REQUIRES THAT A BID MUST REMAIN AVAILABLE FOR ACCEPTANCE BY THE GOVERNMENT FOR A PRESCRIBED PERIOD IN ORDER TO BE CONSIDERED FOR AWARD, IS A MATERIAL REQUIREMENT, AND THAT FAILURE TO MEET SUCH REQUIREMENT RENDERS A BID NONRESPONSIVE. 39 COMP. GEN. 779. FURTHER, THE FACT THAT SUCH FAILURE IS ALLEGED TO BE ATTRIBUTABLE TO OVERSIGHT OR ERROR DOES NOT JUSTIFY CORRECTION OF THE BID TO REMEDY THE DEFECT, SINCE THE RULES UNDER WHICH CORRECTION OF CERTAIN MISTAKES IN BID IS PERMITTED ARE APPLICABLE ONLY WHEN THE BID AS SUBMITTED IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE ACCEPTABLE. SUCH RULES MAY NOT BE INVOKED TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PROVISION AFTER THE BID OPENING, SINCE SUCH ACTION WOULD BE TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW BID. B-150611, FEBRUARY 25, 1963; B-154793, SEPTEMBER 21, 1964. SIMILARLY, WHILE ASPR 2-404.1 (C) AUTHORIZES EXTENSION OF BID ACCEPTANCE PERIODS WHEN DELAYS ARISE DUE TO ADMINISTRATIVE DIFFICULTIES ENCOUNTERED AFTER BID OPENING, AND WHILE OUR OFFICE HAS HELD (B-154236, JUNE 26, 1964) THAT THE FILING OF A PROTEST OPERATES TO EXTEND THE TIME FOR ACCEPTANCE OF THE BID PENDING RESOLUTION OF THE PROTEST, SUCH PROCEDURES MAY NOT BE EMPLOYED IN DETRIMENT OF THE RULES OF COMPETITIVE BIDDING TO DEFEAT THE REQUIREMENT THAT A BID TO BE CONSIDERED FOR AWARD MUST COMPLY WITH THE TERMS OF THE ADVERTISED INVITATION. ACCORDINGLY, SUCH EXTENSIONS ARE EFFECTIVE ONLY WHEN THE BID, IN THE FIRST INSTANCE, MEETS THE INVITATION REQUIREMENT RELATIVE TO THE PERIOD OF BID ACCEPTANCE.

IN THE LIGHT OF THE FOREGOING, IT IS APPARENT THAT A BID INVITATION MAY PROPERLY REQUIRE THAT BIDS OFFER A PRESCRIBED PERIOD DURING WHICH THE GOVERNMENT MAY MAKE ITS ACCEPTANCE, AND THAT SUCH REQUIREMENT IS MATERIAL, SO THAT FAILURE TO COMPLY THEREWITH MAY NOT BE WAIVED. ACCORDINGLY, THERE REMAINS FOR DETERMINATION WHETHER THE REQUIREMENT IN THE IFB IN THIS CASE WAS SET FORTH CLEARLY OR WHETHER, AS YOU CONTEND, THE IFB PROVISIONS WERE AMBIGUOUS.

IT IS A RULE OF CONTRACT CONSTRUCTION THAT THE INTENT AND MEANING OF A CONTRACT ARE NOT TO BE DETERMINED BY THE CONSIDERATION OF AN ISOLATED SECTION OR PROVISION THEREOF, BUT THAT THE CONTRACT IS TO BE ISOLATED SECTION OR PROVISION THEREOF, BUT THAT THE CONTRACT IS TO BE CONSIDERED IN ITS ENTIRETY AND EACH PROVISION IS TO BE CONSTRUED IN ITS RELATION TO OTHER PROVISIONS AND IN THE LIGHT OF THE GENERAL PURPOSE INTENDED TO BE ACCOMPLISHED BY THE CONTRACTING PARTIES. 13 C.J. 25; 17 C.J.S. 707, AND CASES CITED THEREIN; 30 COMP. GEN. 275; 22 ID. 250.

THE IFB PROVISIONS GOVERNING THE BID ACCEPTANCE PERIOD ARE STATED IN THE PRINTED LANGUAGE ON THE FACE SHEET OF STANDARD FORM 33, WHICH IS ALSO THE CONTRACT; IN CLAUSE 701; AND IN CLAUSE 712. THE LANGUAGE ON THE FACE SHEET CLEARLY STATES THAT THE BIDDER AGREES TO ALLOW A BID ACCEPTANCE PERIOD OF 60 DAYS UNLESS OTHERWISE INDICATED (BY THE BIDDER). CLAUSE 701 MAKES IT MANDATORY THAT THE BIDDER STATE A DEFINITE BID ACCEPTANCE PERIOD, AND CLAUSE 712 MAKES IT MANDATORY THAT SUCH PERIOD BE NOT LESS THAN 60 DAYS. UNDER SUCH PROVISIONS, IT IS CLAR THAT A BIDDER MUST ALLOW THE GOVERNMENT A DEFINITE PERIOD OF 60 OR MORE DAYS TO ACCEPT HIS BID; THAT IS, THE MINIMUM BID ACCEPTANCE PERIOD MUST BE 60 DAYS, BUT THE BIDDER IS FREE TO INDICATE A LONGER ACCEPTANCE PERIOD AT HIS OWN ELECTION. THERE IS NO PROVISION IN THE IFB, AS YOU CONTEND, TO THE EFFECT THAT ALL BIDS OFFERING OTHER THAN A 60-DAY BID ACCEPTANCE PERIOD WILL BE DECLARED NONRESPONSIVE. ACCORDINGLY, WE ARE UNABLE TO CONCUR WITH YOUR VIEW THAT THE INCLUSION OF CLAUSE 701 REQUIRING BIDDERS TO STATE A DEFINITE PERIOD FOR BID ACCEPTANCE CREATED AN AMBIGUITY IN THE IFB TERMS. CONCERNING THE INSERTION OF THE TYPEWRITTEN NOTATION,"SEE CLAUSE 712", ON THE FACE OF THE IFB, YOU ARE ADVISED THAT THE USE OF SUCH NOTATION IS COMPATIBLE WITH INSTRUCTIONS INCLUDED IN OUR LETTER B-154793, SEPTEMBER 21, 1964, TO THE SECRETARY OF THE AIR FORCE, IN A SOMEWHAT SIMILAR CASE, TO THE EFFECT THAT WHEN AN IFB WHICH INCLUDES THE STANDARD LANGUAGE PERTAINING TO THE BID ACCEPTANCE PERIOD SUCH AS IS PRINTED ON STANDARD FORM 33 ALSO INCLUDES A SEPARATE PROVISION ON ANOTHER PAGE SETTING FORTH A MINIMUM BID ACCEPTANCE PERIOD REQUIREMENT, A CROSS REFERENCE TO THE SECOND PROVISION SHOULD BE MADE ON THE FACE OF THE IFB. HOWEVER, WE CONCUR WITH YOUR VIEW THAT A CITATION TO THE PAGE ON WHICH SUCH PROVISION APPEARS WOULD HAVE BEEN HELPFUL AND WE ARE SO ADVISING THE SECRETARY OF THE NAVY IN OUR LETTER OF TODAY, A COPY OF WHICH IS ENCLOSED. FURTHER, WHILE WE ARE IN AGREEMENT WITH YOUR VIEW THAT THE FACT THAT THE CLAUSES IN THE SCHEDULE WERE NOT IN NUMERICAL SEQUENCE MIGHT MAKE FOR MORE DIFFICULTY IN LOCATING CLAUSE 712, YOUR ATTENTION IS INVITED TO THE PROVISIONS QUOTED ABOVE FROM STANDARD FORM 33-A PLACING ON BIDDERS THE RESPONSIBILITY FOR READING ALL OF THE BIDDING INSTRUCTIONS, THE SPECIFICATIONS, ETC; AND FOR OBTAINING CLARIFICATION THEREOF PRIOR TO SUBMISSION OF BIDS. IN VIEW THEREOF, THE BURDEN WAS ON POLYPHASE TO MAKE A PROPER REQUEST FOR A PREBID INTERPRETATION OF ANY OF THE IFB TERMS WHICH IT MIGHT HAVE FOUND CONFUSING.

IN THE CIRCUMSTANCES, SINCE THE POLYPHASE BID FAILED TO MEET THE 60 DAY BID ACCEPTANCE PERIOD REQUIREMENT IN THE IFB, IT WAS NOT RESPONSIVE. THEREFORE, WE MUST CONCLUDE THAT IT WAS PROPERLY REJECTED. FURTHER, WE FIND NO LEGAL BASIS FOR OBJECTION TO THE AWARD TO THE SECOND LOW BIDDER. ACCORDINGLY, YOUR PROTEST IS DENIED.