B-163934, MAY 17, 1968

B-163934: May 17, 1968

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TO OLD DOMINION IRON AND STEEL CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 3. THE ABSTRACT OF BIDS SHOWS THAT FIVE BIDS WERE RECEIVED AND THAT YOUR COMPANY SUBMITTED THE LOWEST BID AS TO PRICE. WAS ACCOMPANIED BY A LETTER WRITTEN ON YOUR COMPANY'S PRINTED FORM ENTITLED "QUOTATION. " WHICH WAS ATTACHED TO THE BID FORM. WAS SIGNED BY THE SAME INDIVIDUAL AS WAS THE BID. SALES AND DELIVERIES ARE SUBJECT TO FIRES. YOUR BID WAS NONRESPONSIVE BECAUSE OF THE ABOVE PRINTED MATERIAL ON THE QUOTATION FORM. AN AWARD WAS MADE ON APRIL 2. HETTRICH AND BRYANT OF YOUR FIRM STATED THERE WAS NO INTENT TO QUALIFY THE BID AND THEY OFFERED TO SEND A TELEGRAM OR LETTER WITHDRAWING ALL OF THE QUOTED CONDITIONS.

B-163934, MAY 17, 1968

TO OLD DOMINION IRON AND STEEL CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 3, 1968, PROTESTING THE REJECTION OF THE BID OF YOUR COMPANY AS BEING CONDITIONED BY CERTAIN LANGUAGE PRINTED ON YOUR FIRM'S STATIONERY INCLUDED WITH YOUR BID AND THEREFORE AS BEING NONRESPONSIVE TO INVITATION FOR BIDS NO. DACW 45-68 B- 0101 ISSUED MARCH 19, 1968, BY THE UNITED STATES ARMY, OFFICE OF THE CHIEF OF ENGINEERS, OMAHA DISTRICT, TO PROCURE 23 HEAT EXCHANGERS AND RELATED SPARE PARTS FOR USE AT OAHE DAM, PIERRE, SOUTH DAKOTA.

THE ABSTRACT OF BIDS SHOWS THAT FIVE BIDS WERE RECEIVED AND THAT YOUR COMPANY SUBMITTED THE LOWEST BID AS TO PRICE. THAT BID, HOWEVER, WAS ACCOMPANIED BY A LETTER WRITTEN ON YOUR COMPANY'S PRINTED FORM ENTITLED "QUOTATION," WHICH WAS ATTACHED TO THE BID FORM, BORE THE SAME DATE, AND WAS SIGNED BY THE SAME INDIVIDUAL AS WAS THE BID. THIS COMMUNICATION INCLUDED THE FOLLOWING PRINTED PROVISIONS ACROSS THE BOTTOM OF THE PAGE, IMMEDIATELY ABOVE THE SIGNATURE: "PRESENT MARKET CONDITIONS MAKE IT NECESSARY THIS QUOTATION BE MADE FOR IMMEDIATE ACCEPTANCE AND SUBJECT TO PRICE AND DELIVERY CHANGE WITHOUT NOTICE; HEREAFTER SUBJECT TO ANY INCREASE OR DECREASE IN FREIGHT RATE OR TAX WHICH MAY BECOME EFFECTIVE AND SUBJECT TO INCREASE WITHOUT NOTICE BY THE AMOUNT OF ANY SALES OR EXCISE TAX LEVIED OR CHARGED BY ANY FEDERAL, STATE, OR OTHER GOVERNMENTAL AGENCY. SALES AND DELIVERIES ARE SUBJECT TO FIRES, STRIKES, SHORTAGE OF MATERIAL OR LABOR AND TO ANY OTHER CAUSES BEYOND REASONABLE CONTROL OF THE MANUFACTURER OR SELLER. TYPOGRAPHICAL ERRORS AND OMISSIONS SUBJECT TO CORRECTION. "TERMS NET 30 DAYS FROM DATE OF INVOICE F.O.B. RICHMOND, VIRGINIA SHIPPING POINT RICHMOND, VIRGINIA FRT. ALLOWANCE --" THE REVERSE SIDE OF THE SHEET CONTAINED SIX PARAGRAPHS UNDER THE HEADING "GENERAL CONDITIONS," STATING TERMS AS TO DELIVERY, TAXES, WARRANTY, LIABILITY, CORRECTIONS, AND CANCELLATION, ALL DIFFERING FROM THE PROVISIONS INCORPORATED IN THE INVITATION.

THE CONTRACTING OFFICER DETERMINED THAT WHILE THE PRODUCT OFFERED BY YOU APPEARED TO COMPLY WITH THE TECHNICAL REQUIREMENTS OF THE INVITATION, YOUR BID WAS NONRESPONSIVE BECAUSE OF THE ABOVE PRINTED MATERIAL ON THE QUOTATION FORM. AN AWARD WAS MADE ON APRIL 2, 1968, TO THE NEXT LOWEST RESPONSIVE BIDDER.

WHEN NOTIFIED BY TELEPHONE ON APRIL 3, 1968, OF THE DECISION OF THE CONTRACTING OFFICER, MESSRS. HETTRICH AND BRYANT OF YOUR FIRM STATED THERE WAS NO INTENT TO QUALIFY THE BID AND THEY OFFERED TO SEND A TELEGRAM OR LETTER WITHDRAWING ALL OF THE QUOTED CONDITIONS. YOUR REPRESENTATIVES ALSO CONTENDED THAT YOUR BID WAS BEING REJECTED ON A "TECHNICALITY.' MUCH THE SAME MANNER YOUR WIRE TO THIS OFFICE STATED INTER ALIA, "* * * NO EXCEPTIONS TAKEN IN BASE BID, ACCOMPANYING EXPLANATION CONTAINED NO PRICING AND WAS INTENDED AS DESCRIPTIVE INFORMATION ONLY TERMS AND CONDITIONS ON FORM DO NOT APPLY * * *.'

BIDDERS WERE ADVISED IN PARAGRAPH 10 OF THE "SOLICITATION INSTRUCTIONS AND CONDITIONS" OF THE INVITATION FOR BIDS THAT THE CONTRACT WOULD BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. THEY WERE ALSO ADVISED THAT THE GOVERNMENT RESERVED THE RIGHT TO REJECT ANY OR ALL BIDS AND TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN THE BIDS RECEIVED.

IN AT LEAST THE FOLLOWING PARTICULARS THE PRINTED MATERIAL ON YOUR QUOTATION FORM -- WHICH FROM ITS POSITION ABOVE THE SIGNATURE CANNOT BE READ AS OTHER THAN A PART OF THE BODY OF YOUR LETTER -- VARIED FROM THE REQUIREMENTS OF THE INVITATION: PRICE AND DELIVERY

(A) THE LANGUAGE AT THE BOTTOM OF THE FIRST PAGE OF YOUR FORM "PRESENT MARKET CONDITIONS MADE IT NECESSARY THIS QUOTATION BE MADE FOR IMMEDIATE ACCEPTANCE AND SUBJECT TO PRICE AND DELIVERY CHANGE WITHOUT NOTICE," WAS CONTRARY TO THE REQUIREMENT OF THE INVITATION THAT THE GOVERNMENT SHOULD HAVE THE RIGHT TO ACCEPT THE OFFER WITHIN A STATED NUMBER OF DAYS FROM THE DATE OF BID OPENING -- 60 IF NOT OTHERWISE SPECIFIED BY THE OFFEROR -- SINCE THE EFFECT OF YOUR LANGUAGE WAS TO DENY THE GOVERNMENT THE RIGHT TO BIND YOU IN ANY WAY OTHER THAN BY IMMEDIATE ACCEPTANCE.

(B) PRICE WAS TO BE "SUBJECT TO ANY INCREASE OR DECREASE IN FREIGHT RATES," FOR WHICH THERE IS NO PROVISION IN THE INVITATION, THE INTENT OF SECTION 1-02 OF THE GENERAL CONDITIONS CALLING FOR DELIVERY TO THE JOB SITE AT THE CONTRACTOR'S EXPENSE BEING TO IMPOSE UPON THE CONTRACTOR THE ENTIRE RESPONSIBILITY FOR FREIGHT CHARGES.

(C) DELIVERIES WERE STATED TO BE MADE "SUBJECT TO FIRES, STRIKES, SHORTAGE OF MATERIAL OR LABOR AND TO ANY OTHER CAUSES BEYOND REASONABLE CONTROL OF THE MANUFACTURER.' THESE CONDITIONS MANIFESTLY DEPARTED FROM THE EXCUSABLE DELAY PROVISIONS SET FORTH IN PARAGRAPH 11,"DEFAULT," OF THE GENERAL PROVISIONS (SUPPLY CONTRACT) STANDARD FORM 32, WHICH REQUIRES EXCUSABLE DELAYS TO BE BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR.

(D) YOUR FORM CALLS FOR DELIVERY F.O.B. RICHMOND, VIRGINIA, WHEREAS THE INVITATION REQUIRES DELIVERY TO BE MADE TO THE OAHE DAM, NEAR PIERRE, SOUTH DAKOTA. (SPECIFICATION PART I, GENERAL CONDITIONS, SECTION 1-102.) FAILURE BY YOU TO INSERT ANY AMOUNT IN THE NEXT LINE "FRT. LLOWANCE" UNEQUIVOCALLY MADE ALL FREIGHT COSTS FOR THE ACCOUNT OF THE GOVERNMENT.

(E) THE STIPULATION FOR PRICE INCREASE ON ACCOUNT OF VARIATION IN FEDERAL, STATE, OR OTHER GOVERNMENT TAXES IS IN DIRECT CONFLICT WITH GENERAL PROVISION 23,"FEDERAL STATE AND LOCAL TAXES" WHICH ALLOWS PRICE CHANGE VARIATION ONLY IN CASE OF CHANGES IN APPLICABLE FEDERAL EXCISE TAXES OR DUTIES, AND PERMITS NO ADJUSTMENT FOR CHANGES IN STATE OR LOCAL TAXES.

SINCE IN OUR VIEW THESE QUALIFICATIONS APPEARING IN THE BODY OF YOUR LETTER RENDER YOUR BID NONRESPONSIVE, IT IS UNNECESSARY TO CONSIDER THE EFFECT OF THE ADDITIONAL CONDITIONS PRINTED ON THE REVERSE SIDE THEREOF.

THE RESPONSIVENESS OF BIDS IS DETERMINED ON THE BASIS OF THE INFORMATION AVAILABLE TO THE GOVERNMENT AT THE TIME OF BID OPENING, SO THAT NEW MATERIAL OR INFORMATION PROPOSED TO BE SUBMITTED AFTER THE OPENING OF BIDS CANNOT BE ACCEPTED AS MODIFYING THE BID. B-160567, FEBRUARY 8, 1967. CONSISTENTLY HAS BEEN HELD THAT A BID TO BE CONSIDERED FOR AWARD MUST COMPLY WITH THE REQUIREMENTS OF THE INVITATION AT THE TIME OF BID OPENING. A BIDDER MAY NOT BE PERMITTED TO CHANGE OR MODIFY ITS BID AFTER THE OPENING AND IT DOES NOT MATTER WHETHER THE FAILURE TO COMPLY WAS DUE TO INADVERTANCE, MISTAKE OR OTHERWISE. 38 COMP. GEN. 819, 42 ID. 725. ALLEGATION OF ERROR IS PROPERLY FOR CONSIDERATION ONLY WHEN THE BID AS SUBMITTED IS RESPONSIVE TO THE INVITATION. 40 COMP. GEN. 432, 435. SEE ALSO SECTIONS 2-404.2 AND 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION.

FOR THESE REASONS, THE PRINTED MATERIAL IN THE BODY OF YOUR QUOTATION MUST BE VIEWED AS EXPRESSING THE CONDITIONS AND LIMITATIONS THE WORDS THEMSELVES CONVEY, RATHER THAN ANY UNDISCLOSED MOTIVATIONS, OVERSIGHT OR MISTAKE ATTENDING THEIR USE. ACCORDINGLY, YOUR BID WAS NONRESPONSIVE REGARDLESS OF YOUR PRIVATE INTENTIONS REGARDING THE PRINTED PROVISIONS.

SINCE THE PRINTED CONDITIONS OF YOUR FORM WERE AN INTEGRAL PART OF THE BID, IF THE BID WERE ACCEPTED THEY WOULD TAKE PRECEDENCE OVER THE PROVISIONS PRINTED IN THE FORMAL GOVERNMENT CONTRACT AND UNDER WELL ESTABLISHED PRINCIPLES OF LAW THEY WOULD CONTROL THE GOVERNMENT'S RIGHT IN THE MATTER. 36 COMP. GEN. 535, 539. AS STATED BY OUR OFFICE IN 37 COMP. GEN. 110, 112:

"AS SET OUT IN THE DECISION, 36 COMP. GEN. 535, * * * IT IS A CARDINAL RULE THAT A CONTRACT AWARDED TO A SUCCESSFUL BIDDER MUST BE THE CONTRACT OFFERED TO ALL BIDDERS. WHERE ONE BIDDER RECEIVES RIGHTS AND IMMUNITIES FROM RESPONSIBILITY NOT EXTENDED TO ALL BIDDERS BY THE ADVERTISED CONDITIONS AND SPECIFICATIONS IT SEEMS MANIFEST THAT A CONTRACT AWARDED UPON THE BASIS OF THE CONDITIONAL BID WOULD NOT BE THE CONTRACT OFFERED TO ALL PROSPECTIVE BIDDERS. INFORMALITIES WHICH PROPERLY MAY BE WAIVED ARE THOSE THAT DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, BUT MATERIAL CONDITIONS IMPOSED BY A BIDDER MAY NOT BE WAIVED AS AN INFORMALITY OR MINOR IRREGULARITY. SEE 20 COMP. GEN. 4. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS, OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED, WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES.'

SINCE THE CONDITIONS STATED CLEARLY AFFECT PRICE AND DELIVERY, AS WELL AS THE RIGHTS AND LIABILITIES OF THE PARTIES IN THE SEVERAL CONTINGENCIES STATED, THEY CANNOT BE REGARDED AS MINOR TECHNICALITIES AS SUGGESTED EARLIER BY YOU. THESE CONDITIONS OBVIOUSLY AFFECT THE SUBSTANCE OF YOUR BID AND FULLY WARRANT THE ADMINISTRATIVE DETERMINATION THAT YOUR BID WAS NOT RESPONSIVE TO THE INVITATION.