B-161336, JUN. 23, 1967

B-161336, JUN. 23, 1967

TO INDUSTRIAL MAINTENANCE SERVICES, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 21, 1967, PROTESTING AGAINST THE AWARD OF A REQUIREMENTS CONTRACT FOR THE MOWING OF AIRFIELDS AND AIRSTRIPS AT FORT RUCKER, ALABAMA, TO THE KIZER ENGINEERING COMPANY UNDER IFB NO. DABCO1-67-B-0056 ISSUED BY THE DEPARTMENT OF THE ARMY ON MARCH 20, 1967, AND OPENED ON APRIL 19, 1967.

THE IFB PROVIDED THAT "BIDS MUST BE SUBMITTED IN ORIGINAL AND 2 COPIES.' ALL BIDS WERE SUBJECT TO BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS (SUPPLY CONTRACT), STANDARD FORM 33-A, CLAUSE 7 (A) OF WHICH PROVIDED AS FOLLOWS:

"NOTWITHSTANDING THE FACT THAT A BLANK IS PROVIDED FOR A TEN (10) DAY DISCOUNT, PROMPT PAYMENT DISCOUNTS OFFERED FOR PAYMENT WITHIN LESS THAN TWENTY (20) CALENDAR DAYS WILL NOT BE CONSIDERED IN EVALUATING BIDS FOR AWARD, UNLESS OTHERWISE SPECIFIED IN THE INVITATION FOR BIDS. HOWEVER, OFFERED DISCOUNTS OF LESS THAN 20 DAYS WILL BE TAKEN, IF PAYMENT IS MADE WITHIN THE DISCOUNT PERIOD, EVEN THOUGH NOT CONSIDERED IN THE BID EVALUATION.' THE IFB PROVIDED NO EXCEPTION TO SUCH CLAUSE 7 (A).

THE "ORIGINAL" OF KIZER'S BID SPECIFIED A 1/2 PERCENT, 10-DAY PROMPT PAYMENT DISCOUNT, BUT THE SPACES PROVIDED FOR DISCOUNTS FOR 20 AND 30 DAYS WERE BLANK. THE 2 CARBON COPIES OF THAT BID CONTAINED, IN ADDITION TO THE 1/2 PERCENT 10-DAY DISCOUNT, A FIGURE OF 5 PERCENT FOR PAYMENT IN 20 DAYS. ALL 3 COPIES OF THE BID CONTAINED THE SIGNATURE OF PERRY W. KIZER, JR., PRESIDENT OF KIZER ENGINEERING DATED APRIL 19, 1967, AND ON THE CARBON COPIES HE HAD INITIALED THE 5 PERCENT 20-DAY DISCOUNT PROVISION. KIZER WOULD BE THE LOW BIDDER AT $2 PER ACRE LESS 5 PERCENT, OR $1.90, IN THE EVENT ITS 5 PERCENT 20-DAY DISCOUNT WERE TO BE CONSIDERED IN THE EVALUATION OF BIDS. IF IT WERE NOT SO EVALUATED, INDUSTRIAL MAINTENANCE WOULD BE THE LOW BIDDER ON ITS BID OF $2.20 PER ACRE LESS 10 PERCENT DISCOUNT FOR PAYMENT IN 20 DAYS.

BY LETTER DATED APRIL 24, 1967, ADDRESSED TO THE PROCURING ACTIVITY MR. KIZER EXPLAINED THE INCONSISTENCY BETWEEN THE ORIGINAL OF HIS BID AND THE CARBON COPIES AS FOLLOWS:

"ON 19 APRIL 1967 I SUBMITTED A QUOTATION ON INVITATION NO. DABC01 67-B- 0056. JUST PRIOR TO LEAVING MY MOTEL I WAS GOING OVER MY BID AND REALIZED A DISCOUNT WOULD NOT BE CONSIDERED IN THE AWARD OF THE CONTRACT UNLESS IT WAS OFFERED FOR 20 CALENDAR DAYS. UPON REALIZING THIS I HURRIEDLY ADDED A 5 PERCENT, 20 DAY DISCOUNT. AT THE BID OPENING I WAS BUSILY WRITING DOWN ALL QUOTATION AND DID NOT REALIZE UNTIL I RETURNED TO MY MOTEL THAT MY DISCOUNT WAS NOT READ AS I HAD INTENDED. UPON REALIZING THIS I CALLED MRS. MORROW WHO STATED I HAD LEFT THE 5 PERCENT DISCOUNT OFF THE ORIGINAL AND HAD ONLY PUT IT ON THE TWO CARBON COPIES.

"I SINCERELY INTENDED TO GIVE A 5 PERCENT, 20 DAYS DISCOUNT. WOULD YOU PLEASE LET ME KNOW, AT YOUR EARLIEST CONVENIENCE IF MY BID IS BEING FAVORABLY CONSIDERED.'

YOU BASE YOUR PROTEST ON TWO CONTENTIONS: (1 THAT THE PROVISIONS OF THE IFB REQUIRE THAT ALL COPIES (ORIGINAL AND CARBONS) OF A BID BE IDENTICAL AND (2) THAT IN THE EVENT OF A DISCREPANCY BETWEEN SUCH COPIES, THE TERMS OF THE ORIGINAL COPY PREVAIL. YOU URGE, ON THE BASIS OF YOUR FIRST CONTENTION THAT UNDER THE CIRCUMSTANCES OF THIS CASE THE BID OF KIZER IS NONRESPONSIVE AND AS SUCH MAY NOT BE CONSIDERED FOR AWARD, AND ON THE BASIS OF THE SECOND CONTENTION THAT UNDER THE TERMS OF THE IFB KIZER'S 5 PERCENT 20-DAY DISCOUNT OFFER MAY NOT BE CONSIDERED IN THE EVALUATION OF BIDS, WHICH WOULD MAKE YOUR FIRM THE LOW BIDDER.

WE DO NOT VIEW THE TERMS OF THE IFB AS REQUIRING THE REJECTION OF KIZER'S BID AS NONRESPONSIVE OR AS PRECLUDING THE CONSIDERATION OF KIZER'S 20-DAY DISCOUNT OFFER IN THE EVALUATION OF BIDS. IN SIMILAR CASE DECIDED JUNE 22, 1961, B-145731, THE BIDDER, AS HERE, SUBMITTED AN ORIGINAL AND TWO CARBON COPIES OF HIS BID. THE OFFER OF A PROMPT PAYMENT DISCOUNT, WHICH WOULD MAKE HIS BID LOWEST, WAS INSERTED IN ONE OF THE CARBON COPIES AND DID NOT APPEAR ON THE ORIGINAL COPY. WE CONCLUDED THAT AN AWARD TO THAT BIDDER WAS NOT SUBJECT TO LEGAL OBJECTION STATING AS FOLLOWS:

"WHILE IT MIGHT BE ARGUED THAT THERE WAS SOME AMBIGUITY IN THE HOUSE-O- LITE BID AS SUBMITTED, THE CONTRACTING OFFICER INTERPRETED THE DISCOUNT NOTED ON ONE COPY AS BEING APPLICABLE TO ALL COPIES. UNDER THE PRINCIPLE THAT AN AMBIGUOUS BID IS TO BE CONSTRUED AGAINST THE BIDDER, WE FEEL THAT THIS INTERPRETATION WAS PROPER. 39 COMP. GEN. 546; ID. 653.' ADDITIONALLY, IN THE INSTANT CASE THERE IS NO QUESTION AS TO KIZER'S INTENT TO OFFER A 5 PERCENT DISCOUNT, SINCE THE ADDITIONS TO THE COPIES WERE INITIALED BY KIZER'S PRESIDENT, WHO SIGNED BOTH THE ORIGINAL AND THE COPIES.

FOR THE REASONS STATED WE MUST CONCLUDE THAT AN AWARD TO KIZER WOULD RESULT IN A VALID AND ENFORCEABLE CONTRACT AND YOUR PROTEST IS, THEREFORE DENIED.