B-164053, MAY 24, 1968, 47 COMP. GEN. 680

B-164053, MAY 24, 1968, 47 COMP. GEN. 680

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - INFORMATION - INVITATION TO BID ATTACHMENTS THE FAILURE TO RETURN SEVERAL PAGES CONTAINING MATERIAL AND SUBSTANTIVE PROVISIONS OF AN INVITATION FOR THE INSTALLATION OF ROOF VENTILATORS WITH THE LOW BID, WHICH ON ITS FACE STATED THE INTENT TO COMPLY WITH THE TERMS OF THE INVITATION AND WHICH ACKNOWLEDGED AMENDMENTS TO THE INVITATION ON A BID FORM INCLUDED IN THE INVITATION DOES NOT REQUIRE REJECTION OF THE BID AS NONRESPONSIVE WHERE THE RETURN OF THE INVITATION WAS NOT REQUESTED, AND THE LOW BIDDER IN ITS PROPOSAL TO PERFORM THE CONTRACT IN STRICT ACCORDANCE WITH STANDARD FORMS 23-A AND 19-A, AND THE SPECIFICATIONS, SCHEDULES, DRAWINGS, AND CONDITIONS OF THE INVITATION OFFERED TOTAL COMPLIANCE AND, THEREFORE, THE LOW BID SHOULD BE CONSIDERED FOR AWARD.

TO THE SECRETARY OF THE ARMY, MAY 24, 1968:

REFERENCE IS MADE TO LETTER OF MAY 13, 1968, FROM THE ACTING DEPUTY DIRECTOR OF PROCUREMENT AND PRODUCTION, HEADQUARTERS UNITED STATES ARMY MATERIEL COMMAND, REPORTING ON THE PROTEST OF S.KANE AND SON, INC., AGAINST THE REJECTION OF ITS LOW BID SUBMITTED UNDER INVITATION FOR BIDS DAAA25-68-B-0493 FOR FURNISHING LABOR, MATERIAL AND EQUIPMENT IN CONNECTION WITH THE INSTALLATION OF EIGHT ROOF VENTILATORS AT FRANKFORD ARSENAL.

THE BIDS RECEIVED UNDER THE INVITATION WERE AS FOLLOWS: S.KANE AND SON, INC --------------------------------------------- $29,844 LAM BUILDING CORPORATION ---------------------------------------- 31,838 HAVERSTICK BORTHWICK CO ----------------------------------------- 34,319

S.KANE AND SON, INC., SUBMITTED ITS BID ON STANDARD FORM 21,"BID FORM (CONSTRUCTION CONTRACT)," CONSISTING OF PAGES 3 AND 4 OF THE INVITATION FOR BIDS. THE BID AS SUBMITTED ON THE BID FORM READS: IN COMPLIANCE WITH THE ABOVE-DATED INVITATION FOR BIDS, THE UNDERSIGNED HEREBY PROPOSES TO PERFORM ALL WORK FOR INSTALLATION OF EIGHT (8) ROOF VENTILATORS, BLDG 48, FRANKFORD ARSENAL, PHILADELPHIA, PA. 19137 IN STRICT ACCORDANCE WITH THE GENERAL PROVISIONS (STANDARD FORM 23-A), LABOR STANDARDS PROVISIONS APPLICABLE TO CONTRACTS IN EXCESS OF $2,000 (STANDARD FORM 19-A3, SPECIFICATIONS, SCHEDULES, DRAWINGS, AND CONDITIONS, FOR THE FOLLOWING AMOUNT/S) $29,844.00. RECEIPT OF AMENDMENTS 1 AND 2, WHICH EXTENDED THE BID OPENING DATE AND SUBSTITUTED A WAGE DETERMINATION, RESPECTIVELY, IS ACKNOWLEDGED ON THE BID FORM IN THE PLACE PROVIDED. THE NAME OF THE BIDDER AND THE SIGNATURE OF ITS PRESIDENT APPEAR IN THE SPACE PROVIDED. ACCOMPANYING THE BID IS A COMPLETED STANDARD FORM 19-B,"REPRESENTATIONS AND CERTIFICATIONS, AND AN EXECUTED STANDARD FORM 24,"BID BOND.'

THE CONTRACTING OFFICER, ON THE ADVICE OF COUNSEL, PROPOSES TO REJECT THE LOW BID ON THE BASIS THAT IT IS NOT RESPONSIVE BECAUSE IT DID NOT CONTAIN ALL THE PAGES OF THE INVITATION, PARTICULARLY THE PAGES CONTAINING MATERIAL AND SUBSTANTIVE PROVISIONS.

HOWEVER, AS OBSERVED ABOVE, THE FACE OF THE BID STATES THAT IT IS "IN COMPLIANCE WITH THE ABOVE-DATED INVITATION FOR BIDS.' AT THE TOP OF THE BID FORM THERE APPEARS "DATE OF INVITATION 1 MARCH 1968" AND "REFERENCE DAAA25 68 B 0493.' THUS, THE KANE BID IDENTIFIES WITH PARTICULARITY THE INVITATION TO WHICH IT RESPONDED. THE "INVITATION FOR BIDS (CONSTRUCTION CONTRACT)," STANDARD FORM 20, AT THE TOP OF THE FACESHEET REFERS TO "PAGE NO. 1 OF 12 PAGES" AND TO "REFERENCE DAAA25 68 B 0493" AND "DATE 1 MARCH 1968.' THEREFORE, IT IS CLEAR THAT THIS INVITATION CONSISTING OF 12 PAGES IS THE INVITATION REFERRED TO IN THE KANE BID. PROVISIONS HAVING A BEARING UPON THE WORK, MATERIAL AND CONTRACT PERFORMANCE GENERALLY ARE EITHER SET FORTH IN FULL IN THE INVITATION OR ARE INCORPORATED INTO THE INVITATION BY SPECIFIC REFERENCE. IN THE CIRCUMSTANCES, THE BIDDER'S PROPOSAL TO PERFORM THE WORK IN STRICT ACCORDANCE WITH STANDARD FORMS 23-A AND 19-A AND SPECIFICATIONS, SCHEDULES, DRAWINGS AND CONDITIONS IN COMPLIANCE WITH THE INVITATION FOR BIDS IS, IN OUR OPINION, AN ABVIOUS OFFER OF TOTAL COMPLIANCE.

NOWHERE IN THE INVITATION FOR BIDS IS THERE PROVIDED A REQUIREMENT THAT THE BIDDER RETURN THE INVITATION WITH ITS BID. THE STATEMENT IN PARAGRAPH 5 OF THE "INSTRUCTIONS TO BIDDERS (CONSTRUCTION CONTRACT)," STANDARD FORM 22, THAT "BIDS SHALL BE SUBMITTED ON THE FORMS FURNISHED,OR COPIES THEREOF," IS NOT A REQUIREMENT FOR THE RETURN OF THE INVITATION WITH THE BID. SINCE THE INVITATION FURNISHED A BID FORM FOR COMPLETION BY BIDDERS, SUCH FORM WOULD APPEAR TO BE THE TYPE OF FORM TO WHICH PARAGRAPH 5 HAS REFERENCE.

IN DECISIONS 42 COMP. GEN. 502, B-159360, JUNE 14, 1966, AND B 154626, JULY 17, 1964, OUR OFFICE HAS HELD THAT SPECIAL PROVISIONS CONTAINING SUBSTANTIVE PROVISIONS ATTACHED TO THE INVITATION FOR BIDS FOR SUPPLY CONTRACTS WOULD NOT BE BINDING UNLESS SUBMITTED WITH THE BID AND THAT THE FAILURE TO RETURN THE ATTACHMENTS WITH THE BID RENDERED THE BID NONRESPONSIVE. THAT HOLDING WAS BASED ON THE FACT THAT THE LANGUAGE OF THE EXECUTED BID FORM BOUND THE BIDDER ONLY TO THOSE SCHEDULES AND PROVISIONS "ATTACHED" TO THE BID WHEN SUBMITTED.

THE DECISION OF JUNE 2, 1965, 44 COMP. GEN. 774, INVOLVED A SITUATION WHERE SUPPLY CONTRACT PROVISIONS ON CERTAIN PAGES WHICH WERE NOT RETURNED WITH THE BID WERE OTHERWISE INCORPORATED BY REFERENCE IN PAGES THAT WERE RETURNED. IT WAS HELD THAT THE OMISSION IN THAT SITUATION DID NOT RENDER THE BID NONRESPONSIVE. IT WAS SAID:

* * * IN ARRIVING AT THIS CONCLUSION, WE HAVE CONSIDERED OUR PREVIOUS DECISION AT 42 COMP. GEN. 502 WHEREIN WE HELD A BID WAS NONRESPONSIVE BECAUSE A BIDDER FAILED TO ATTACH CERTAIN PROVISIONS TO ITS BID UNDER AN INVITATION WHICH "ATTACHED" THOSE PROVISIONS TO THE INVITATION WITHOUT ANY INCORPORATION BY REFERENCE OF THOSE PROVISIONS. THE SITUATION CONSIDERED HERE IS CLEARLY DISTINGUISHABLE.

THE DECISION IN B-154802, AUGUST 14, 1964, WHICH INVOLVED A CONSTRUCTION CONTRACT, CONSIDERED A SITUATION WHERE THE BIDDER RETURNED A BID PRICE SCHEDULE COMPLETE WITH PRICES AND A BID BOND, BUT FAILED TO SUBMIT THE "BID FORM," STANDARD FORM 21, OR ANY OTHER PAPERS. IN HOLDING THAT THE BID WAS NONRESPONSIVE AND PROPERLY FOR REJECTION, WE STATED:

* * * BY INADVERTENTLY FAILING TO SUBMIT ITS BID FORM, SCHMIDT (THE BIDDER) WOULD NOT BE OBLIGATED TO PERFORM IN STRICT ACCORDANCE WITH THE INVITATION FOR BIDS ANY OF THE SPECIFICATIONS, SCHEDULES, DRAWINGS AND CONDITIONS FOR THE AMOUNTS SET FORTH IN THE BID PRICE SCHEDULE IT HAD ORIGINALLY SUBMITTED. IN OTHER WORDS, A BID SUBMITTED WITHOUT THE BID FORM WHICH CONTAINED SUBSTANTIVE PROVISIONS CONCERNING THE SPECIFICATIONS AND CONTRACTOR OBLIGATIONS IS A NONRESPONSIVE BID PROPERLY FOR REJECTION.

HERE, KANE RETURNED A COMPLETED, EXECUTED BID FORM. THE BID FORM IN THE LAST-CITED DECISION CONTAINS THE SAME PROVISION, QUOTED ABOVE, WHICH APPEARS IN THE BID FORM EXECUTED BY KANE.

THE BIDDER HAS ACKNOWLEDGED IN THE BID FORM RECEIPT OF THE SUBSTITUTED WAGE DETERMINATION SO THERE IS NO QUESTION AS TO ITS OFFER TO COMPLY WITH THE WAGE RATES. IN VIEW THEREOF, AND ITS OFFER OF COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE INVITATION, THE BID OF S.KANE AND SON, INC., SHOULD BE CONSIDERED FOR AWARD, IF OTHERWISE PROPER.