B-163647, MAY 15, 1968

B-163647, MAY 15, 1968

TO COBURN, CROFT, KOHN AND HERZOG:

YOUR LETTER DATED FEBRUARY 20, 1968, ON BEHALF OF EAGLE RANGE AND MANUFACTURING COMPANY (EAGLE), PROTESTS THE REJECTION OF THAT COMPANY'S BID UNDER SOLICITATION NO. FPNME-F-56402-9-18-67, ISSUED BY THE GENERAL SERVICES ADMINISTRATION.

THE SUBJECT SOLICITATION CONTEMPLATED A REQUIREMENTS CONTRACT FOR ELECTRIC RANGES AND WAS ISSUED ON JUNE 19, 1967. BY AMENDMENT DATED JULY 6, 1967, THE ORIGINALLY SCHEDULED BID OPENING DATE OF JULY 10, 1967, WAS INDEFINITELY POSTPONED AND BIDDERS WERE ADVISED THAT THEIR BIDS WOULD BE RETURNED ON REQUEST. IN ACCORDANCE WITH THE AMENDMENT, EAGLE REQUESTED AND RECEIVED ITS UNOPENED BID. SUBSEQUENTLY, ANOTHER AMENDMENT (AMENDMENT NO. 3) WAS ISSUED RESCHEDULING THE BID OPENING FOR SEPTEMBER 18, 1967, AND MAKING OTHER CHANGES IN THE SOLICITATION NOT RELEVANT HERE. THE LATER AMENDMENT WAS SIGNED BY AN AUTHORIZED OFFICIAL OF EAGLE AND TWO COPIES WERE RETURNED TO THE PLACE SET FOR BID OPENING BEFORE THE RESCHEDULED OPENING DATE IN ACCORDANCE WITH INSTRUCTIONS CONTAINED THEREIN. THE ORIGINAL SOLICITATION, HOWEVER, WAS NOT RETURNED WITH THE RESULT THAT THE EAGLE BID WHEN OPENED CONSISTED SOLELY OF AMENDMENT NO. 3 AND A COVER LETTER WHICH TOOK EXCEPTION TO SEVERAL ASPECTS OF THE SPECIFICATIONS. THE EAGLE BID WAS REJECTED AS NONRESPONSIVE BECAUSE OF ITS FAILURE TO AGREE TO BE BOUND BY SUBSTANTIVE CONDITIONS OF THE SOLICITATION, EVEN THOUGH IT WAS LOW ON 3 OF THE LISTED ITEMS. AWARD WAS MADE PURSUANT TO THE SOLICITATION IN NOVEMBER 1967.

IT IS YOUR CONTENTION THAT EAGLE WAS UNAWARE THAT IT WAS NECESSARY TO RETURN THE ORIGINAL SOLICITATION AS THE AMENDMENT MERELY REQUIRED THAT TWO COPIES THEREOF BE SIGNED AND RETURNED BEFORE THE TIME SET FOR BID OPENING, AND EAGLE COMPLIED WITH THIS REQUIREMENT. YOU ALSO CONTEND THAT EAGLE AGREED TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE SOLICITATION BECAUSE THE LETTER STATES EXCEPTIONS TO CERTAIN ITEMS CONTAINED IN THE ORIGINAL SOLICITATION AND THEREFORE BY IMPLICATION AGREES TO BE BOUND BY ALL PROVISIONS OF THE INVITATION TO WHICH DELIBERATE EXCEPTION IS NOT TAKEN. FINALLY, YOU MAINTAIN THAT ANY DOUBTS AS TO EAGLE'S INTENTION TO BE BOUND BY ALL OF THE TERMS OF THE INVITATION SHOULD HAVE BEEN RESOLVED BY THE CONTRACTING OFFICER BY COMMUNICATING WITH EAGLE AFTER BIDS WERE OPENED BUT BEFORE AWARD WAS MADE.

THE MISSING PORTIONS OF THE EAGLE BID INCLUDED STANDARD FORM (SF) 33, SOLICITATION, OFFER AND AWARD; SF 33A, SOLICITATION INSTRUCTIONS AND CONDITIONS, ATTACHED TO THE SOLICITATION, SF 32, 6-64 EDITION, GENERAL PROVISIONS, INCORPORATED IN THE SOLICITATION BY REFERENCE, AND THE SPECIAL PROVISIONS, WHICH WERE ALSO ATTACHED TO THE SOLICITATION.

THE TEST OF WHETHER A BID IS RESPONSIVE IN A SITUATION SUCH AS EXISTS HERE IS WHETHER THE BIDDER'S INTENTION TO BE BOUND BY ALL SUBSTANTIVE TERMS AND CONDITIONS OF THE SOLICITATION IN ANY RESULTING CONTRACT IS EVIDENT FROM THE TERMS OF THE BID AS SUBMITTED. CLARIFICATION OF A BID AFTER BID OPENING WITH REGARD TO A MATERIAL OR SUBSTANTIVE TERM OR CONDITION OF THE SOLICITATION IS PROHIBITED BECAUSE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRES THAT ALL BIDDERS BID ON AN EQUAL BASIS, AND THE OPPORTUNITY TO CHANGE OR CLARIFY A BID AFTER OPENING WOULD GIVE THE BIDDER INVOLVED AN UNDUE ADVANTAGE OVER OTHER BIDDERS.

IN 42 COMP. GEN. 502, IT WAS HELD THAT WHILE PROVISIONS INCORPORATED BY REFERENCE IN THE SOLICITATION WOULD BE BINDING ON BIDDERS WHO FAILED TO TAKE EXCEPTION TO THEM, SPECIAL PROVISIONS ATTACHED TO THE SOLICITATION WOULD NOT BE BINDING UNLESS SUBMITTED WITH THE BID. THE CITED DECISION FURTHER HELD THAT THE EXECUTION OF AN AMENDMENT CONTAINING A PROVISION TO THE EFFECT THAT THE TERMS AND CONDITIONS OF THE ORIGINAL SOLICITATION REMAIN UNCHANGED, AS WAS DONE IN THIS CASE, WOULD NOT SERVE TO RENDER THE BID RESPONSIVE. IN THESE RESPECTS, THE DECISION HELD: "* * * THE DETERMINING FACTOR IS NOT WHETHER THE BIDDER INTENDS TO BE BOUND, IT IS WHETHER THIS INTENTION IS APPARENT FROM THE BID AS SUBMITTED. IN THE PRESENT SITUATION, A BIDDER COULD TAKE THE POSITION THAT HE WAS BOUND ONLY BY THE SPECIAL PROVISIONS ACTUALLY ATTACHED TO THE BID -- A CONTENTION WHICH IF MADE WOULD APPEAR TO BE LEGALLY SOUND. FURTHERMORE, IT IS NOT BELIEVED THAT THE EXECUTION OF AN AMENDMENT PROVIDING THAT THE -TERMS AND CONDITIONS OF THE ORIGINAL ADVERTISEMENT REMAIN UNCHANGED- WOULD ALTER THE SITUATION, SINCE THE MISSING PAGES COULD HAVE BEEN OMITTED FROM THE INVITATION FORWARDED TO GENERAL ELECTRONICS, AND EVEN IF THERE WAS NO QUESTION ABOUT THE RECEIPT OF A COMPLETE INVITATION, THE INCLUSION IN THE AMENDMENT OF THE PROVISION LAST QUOTED WOULD NOT APPEAR TO OVERCOME THE POSITIVE ACTION OF THE BIDDER IN FAILING TO ATTACH CERTAIN PROVISIONS WHICH, TO BE BINDING, THE BID STATES MUST BE ATTACHED. AT BEST, THE BID WOULD BE AMBIGUOUS AND, AS SUCH, SUBJECT TO REJECTION.'

THE ABOVE DECISION ALSO HELD THAT THE BIDDER'S FAILURE TO TAKE EXCEPTION TO PREVIOUS INVITATIONS WAS NOT MATERIAL BECAUSE THE BIDDER'S INTENTIONS MUST BE DETERMINED BY THE BID AS SUBMITTED.

IN VIEW OF THE FACT THAT THE SPECIAL PROVISIONS, WHICH WERE ATTACHED TO THE SOLICITATION, CONTAINED MANY SUBSTANTIVE TERMS AND CONDITIONS, WE MUST CONCLUDE THAT EAGLE'S FAILURE TO ATTACH THEM TO ITS BID RENDERED THE BID NONRESPONSIVE, AND THAT IT WAS THEREFORE PROPERLY REJECTED. THE STATEMENT CONTAINED IN THE LETTER ACCOMPANYING THE EAGLE BID TAKING EXCEPTION TO AND PROVIDING ALTERNATIVES FOR CERTAIN SCHEDULE ITEMS APPEARS, WITH THE EXCEPTION OF A REFERENCE TO PREPRODUCTION SAMPLE WAIVER, TO APPLY TO SCHEDULE ITEMS LISTED IN THE SOLICITATION AS AMENDED RATHER THAN TO SCHEDULE ITEMS LISTED IN THE ORIGINAL SOLICITATION BUT DELETED BY AMENDMENT NO. 3. ALSO, A REFERENCE TO PARTICULAR ELEMENTS OF THE ORIGINAL SOLICITATION, WITHOUT A CLEAR STATEMENT OF INTENT TO BE BOUND BY ALL SUBSTANTIVE TERMS AND CONDITIONS OF THE ORIGINAL SOLICITATION, IS NOT SUFFICIENT, IN OUR OPINION, TO INCORPORATE THOSE SUBSTANTIVE TERMS AND CONDITIONS NOT SPECIFICALLY MENTIONED BY REFERENCE.