B-164490, OCT. 10, 1968

B-164490: Oct 10, 1968

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FRODGE INC.: REFERENCE IS MADE TO YOUR LETTER OF JULY 29. IN YOUR CURRENT LETTER YOU CONTEND THAT BIDS WERE BASED UPON COMPLETE ITEMS AND YOU DID NOT QUOTE APPROXIMATE PRICES FOR COMPLETE ITEMS BUT. YOU CONTEND THAT YOUR USE OF THE TERM "APPROXIMATE" SHOULD NOT HAVE LEFT ANY DOUBT AS TO THE INTENT OF YOUR ACTUAL BID. A BID SO QUALIFIED IS NOT DEFINITE AND CERTAIN SO AS TO PERMIT A DETERMINATION OF THE PRICE TO BE PAID. TO PERMIT A CLARIFICATION OR EXPLANATION OF YOUR BID AFTER OPENING WOULD HAVE BEEN TANTAMOUNT TO AFFORDING YOU ANOTHER OPPORTUNITY TO BID IN DEROGATION OF THE RIGHTS OF OTHER BIDDERS. A BIDDER MIGHT BE ABLE TO DETERMINE HIS OWN COMPETITIVE STANDING AFTER THE BIDS ARE EXPOSED BY CLARIFICATION OF HIS BID.

B-164490, OCT. 10, 1968

TO R. FRODGE INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 29, 1968, IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION OF JULY 25, 1968, B-164490, WHEREIN WE UPHELD THE ADMINISTRATIVE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 1225, ISSUED BY THE POST OFFICE DEPARTMENT, BUREAU OF FACILITIES.

WE HELD IN OUR JULY 25 DECISION THAT THE QUALIFICATION OF YOUR BID PRICES, BY YOUR INSERTION OF THE TYPEWRITTEN WORD "APPROXIM., " RENDERED YOUR BID NONRESPONSIVE AND INELIGIBLE FOR AWARD. IN YOUR CURRENT LETTER YOU CONTEND THAT BIDS WERE BASED UPON COMPLETE ITEMS AND YOU DID NOT QUOTE APPROXIMATE PRICES FOR COMPLETE ITEMS BUT, RATHER, YOU QUOTED FIRM PRICES. MOREOVER, YOU QUESTION WHETHER OTHER BIDDERS QUOTED FIRM PRICES FOR THIS PROCUREMENT. ADDITIONALLY, YOU CONTEND THAT YOUR USE OF THE TERM "APPROXIMATE" SHOULD NOT HAVE LEFT ANY DOUBT AS TO THE INTENT OF YOUR ACTUAL BID.

AS WE POINTED OUT IN OUR JULY 25 DECISION, AN "APPROXIMATE" PRICE CONTEMPLATES A VARIATION EITHER UPWARDS OR DOWNWARDS IN THE SPECIFIED PRICE, AND A BID SO QUALIFIED IS NOT DEFINITE AND CERTAIN SO AS TO PERMIT A DETERMINATION OF THE PRICE TO BE PAID. SEE 37 COMP. GEN. 780, 781. NEITHER CONVEYOR SYSTEMS, INC., NOR THE OTHER BIDDERS QUALIFIED THEIR BID PRICES IN THIS PROCUREMENT, AND SINCE YOUR BID CREATED AN UNCERTAINTY AS TO THE INTENDED PRICE, THE CONTRACTING OFFICER PROPERLY REJECTED IT AS NONRESPONSIVE.

THE COMPETITIVE BIDDING STATUTE CONTEMPLATES THE SUBMISSION OF FIRM BIDS NOT SUBJECT TO CHANGE OR AS REQUIRING EXPLANATION WITH RESPECT TO THEIR TERMS. TO PERMIT A CLARIFICATION OR EXPLANATION OF YOUR BID AFTER OPENING WOULD HAVE BEEN TANTAMOUNT TO AFFORDING YOU ANOTHER OPPORTUNITY TO BID IN DEROGATION OF THE RIGHTS OF OTHER BIDDERS. SEE 36 COMP. GEN. 705; 37 ID. 780; 40 ID. 393. IN THIS CONNECTION, WE HELD IN 40 COMP. GEN. 393, 396, THAT:

"WE RECOGNIZE THAT IN THE COURSE OF NEGOTIATIONS LEADING TO A CONTRACT BETWEEN PRIVATE PARTIES, ONE PARTY MAY FREELY SEEK CLARIFICATION OF AMBIGUOUS OR INCONSISTENT TERMS OFFERED BY THE OTHER PARTY. HOWEVER, IN THE CASE OF COMPETITIVE BIDDING ON GOVERNMENT CONTRACTS, AS YOU POINT OUT, A BIDDER MIGHT BE ABLE TO DETERMINE HIS OWN COMPETITIVE STANDING AFTER THE BIDS ARE EXPOSED BY CLARIFICATION OF HIS BID. IT HAS CONSISTENTLY BEEN STATED BY THIS OFFICE THAT IT IS IMPROPER TO ALLOW A PARTICULAR BIDDER TO CHANGE HIS BID AFTER THE PUBLIC OPENING TO THE PREJUDICE OF OTHER BIDDERS. WE HAVE GENERALLY TAKEN THE POSITION THAT AN AMBIGUOUS BID MAY NOT BE EXPLAINED AFTER OPENING SINCE THE BIDDER WOULD, IN EFFECT, HAVE AN ELECTION AS TO WHETHER OR NOT HE WISHED TO HAVE HIS BID CONSIDERED. * * *" THEREFORE, WHILE YOU MAY NOT HAVE INTENDED TO QUALIFY YOUR BID, YOUR USE OF THE TERM "APPROXIMATE" IN RELATION TO YOUR BID PRICE COULD AFFORD YOU THE OPPORTUNITY AFTER AWARD OF CONTRACT TO INCREASE YOUR PRICES AT YOUR OPTION. IF THE USE OF THE TERM "APPROXIMATE" WAS INAPPROPRIATE TO YOUR DECLARED INTENTION, IT DID CREATE AN AMBIGUITY, AND THE CONSEQUENCES MUST REST UPON YOU, THE AUTHOR OF THE LANGUAGE. SEE B-154357, SEPTEMBER 15, 1964.