B-164797, OCTOBER 3, 1968, 48 COMP. GEN. 171

B-164797: Oct 3, 1968

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CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - INVITATION TO BID PROVISIONS WHERE A LOW BID IS PROPERLY HELD NONRESPONSIVE BECAUSE THE BIDDER FAILED TO RETURN SEVERAL PAGES OF THE SOLICITATION FOR BIDS WHICH CONTAINED MATERIAL AND SUBSTANTIVE PROVISIONS THAT AFFECTED THE RIGHTS AND OBLIGATIONS OF THE PARTIES. - A DOCTRINE TO THE EFFECT THAT CONTRACT CLAUSES REQUIRED BY STATUTORY REGULATIONS ARE INCORPORATED BY LAW IN A CONTRACT. - IS NOT FOR APPLICATION. THE ISSUE OF BID RESPONSIVENESS IS FOR DETERMINATION PRIOR TO AWARD AND. THE MATTER IS FOR RESOLUTION UNDER THE RULE THAT IN THE CASE OF MISSING PAPERS THE INTENTION OF THE BIDDER IS TO BE DETERMINED FROM THE BID AS SUBMITTED.

B-164797, OCTOBER 3, 1968, 48 COMP. GEN. 171

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - INVITATION TO BID PROVISIONS WHERE A LOW BID IS PROPERLY HELD NONRESPONSIVE BECAUSE THE BIDDER FAILED TO RETURN SEVERAL PAGES OF THE SOLICITATION FOR BIDS WHICH CONTAINED MATERIAL AND SUBSTANTIVE PROVISIONS THAT AFFECTED THE RIGHTS AND OBLIGATIONS OF THE PARTIES, THE SO-CALLED "CHRISTIAN DOCTRINE" ENUNCIATED IN 160 CT. CL. 1, 58, 312 F.2D 418--- A DOCTRINE TO THE EFFECT THAT CONTRACT CLAUSES REQUIRED BY STATUTORY REGULATIONS ARE INCORPORATED BY LAW IN A CONTRACT--- IS NOT FOR APPLICATION. THE ISSUE OF BID RESPONSIVENESS IS FOR DETERMINATION PRIOR TO AWARD AND, THEREFORE, THE "CHRISTIAN DOCTRINE" RELATING TO THE CONSTRUCTION OF AN EXECUTED CONTRACT MAY NOT BE INVOKED TO INSERT CONDITIONS IN THE BID AFTER BID OPENING AND BEFORE AWARD, AND THE MATTER IS FOR RESOLUTION UNDER THE RULE THAT IN THE CASE OF MISSING PAPERS THE INTENTION OF THE BIDDER IS TO BE DETERMINED FROM THE BID AS SUBMITTED.

TO E. K. GUBIN, OCTOBER 3, 1968:

WE REFER TO YOUR PROTEST BY LETTER OF JULY 8, 1968, AS SUPPLEMENTED BY SUBSEQUENT CORRESPONDENCE, ON BEHALF OF BENNER BOX DIVISION OF SIMKINS INDUSTRIES, INC. (BENNER), AGAINST THE REJECTION OF BENNER'S LOW BID UNDER SOLICITATION NO. FPNSP-F1-10147-A, ISSUED MARCH 25, 1968, BY THE GENERAL SERVICES ADMINISTRATION (GSA), FEDERAL SUPPLY SERVICE, OFFICE SUPPLIES AND PAPER PRODUCTS BRANCH, NEW YORK, NEW YORK.

THE SOLICITATION REQUESTED BIDS TO FURNISH THE NORMAL SUPPLY REQUIREMENTS OF SEVERAL DESIGNATED GSA SUPPLY DEPOTS FOR FOLDING PAPER BOARD BOXES, FSC CLASS 8115, FOR THE PERIOD AUGUST 1, 1968, THROUGH JULY 31, 1969. THE FACE SHEET OF THE SOLICITATION BORE A NOTATION THAT ALL OFFERS WOULD BE SUBJECT TO THE FOLLOWING:

1. THE ATTACHED SOLICITATION INSTRUCTIONS AND CONDITIONS, SF 33A.

2. THE GENERAL PROVISIONS, SF 32 JUNE 1964 EDITION, WHICH IS ATTACHED OR INCORPORATED HEREIN BY REFERENCE.

3. THE SCHEDULE INCLUDED BELOW AND/OR ATTACHED HERETO.

4. SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED HEREIN BY REFERENCE. (ATTACHMENTS ARE LISTED IN THE SCHEDULE.)

PAGES 3 AND 4 OF THE SOLICITATION CONSTITUTED THE TWO PAGES OF STANDARD FORM 33A, JULY 1966, ENTITLED "SOLICITATION INSTRUCTIONS AND CONDITIONS.'

PAGE 5 INCORPORATED BY REFERENCE INTO THE SOLICITATION GSA FORM 1126, SUPPLY DEPOTS AND CONSIGNMENT INSTRUCTIONS, JANUARY 1968 EDITION; GSA FORM 1424, SUPPLEMENTAL PROVISIONS (SUPPLY CONTRACT), SEPTEMBER 1964 EDITION; GSA FORM 1790, SUBCONTRACTING PROGRAMS, NOVEMBER 1964 EDITION, WITH A REVISION TO PARAGRAPH (B); AND GSA FORM 2313, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT, MARCH 1967 EDITION (APPLICABLE TO ALL CONTRACTS $100,000 OR OVER), WITH A SPECIAL CLAUSE FOR ALL CONTRACTS LESS THAN $100,000. IN ADDITION, PAGE 5 INCLUDED NOTATION AS TO CERTAIN AMENDMENTS TO THE QUALITY ASSURANCE AGREEMENT PROVISIONS AND THE MARKING PROVISIONS OF GSA FORM 1424.

PAGE 6 INCLUDED REVISIONS TO THE PROVISIONS OF STANDARD FORM 32 RELATING TO EQUAL OPPORTUNITY AND TO UTILIZATION OF CONCERNS IN LABOR SURPLUS AREAS.

PAGE 7 SUBSTITUTED FOR ARTICLE 27 OF GSA FORM 1424 THE "ALL OR NONE" BID CLAUSE PRESCRIBED IN 41 CFR 5A-2.201-73 FOR FEDERAL SUPPLY SCHEDULE CONTRACTS; SET FORTH UNDER "SCOPE OF CONTRACT" THE CONTRACT PERIOD SPECIFIED ON THE FACE SHEET OF THE SOLICITATION, THE OBLIGATIONS OF GSA TO MAKE CERTAIN PURCHASES UNDER THE CONTRACT, AND THE OBLIGATIONS OF THE CONTRACTOR TO DELIVER THE QUANTITIES ORDERED IN ACCORDANCE WITH THE CONTRACT TERMS; AND INCLUDED IN A MINIMUM ORDER LIMITATION WHEREBY THE CONTRACTOR COULD ELECT NOT TO FILL ORDERS FOR 50 CARTONS OR LESS.

PAGE 8 INCLUDED PROVISIONS FOR A MAXIMUM ORDER LIMITATION PROHIBITING PLACEMENT (BY THE GOVERNMENT) OF ORDERS WITH A TOTAL DOLLAR VALUE IN EXCESS OF $10,000 AND STATING THE CONTRACTOR'S AGREEMENT NOT TO ACCEPT OR FULFILL SUCH ORDERS; INSTRUCTIONS REGARDING PRIORITY ORDERS AND THE FULFILLMENT OF ORDERS NOT PRIORITY RATED; AND PROVISIONS RELATING TO DELIVERY PRICES READING AS FOLLOWS: DELIVERY PRICES--- F.O.B. DESTINATION PRICES ARE REQUESTED F.O.B. DESTINATION TO THE GSA DEPOTS AND ANNEXES SPECIFIED HEREIN. CONSIGNMENT INSTRUCTIONS FOR THESE DESTINATIONS ARE INDICATED ON GSA FORM 1126. "GENERAL SERVICES ADMINISTRATION SUPPLY DEPOTS AND CONSIGNMENT INSTRUCTIONS," DATED JANUARY 1968 AND AS PROVIDED BELOW:

A. DELIVERY TO THE DOOR OF THE SPECIFIED GOVERNMENT ACTIVITY BY FREIGHT OR EXPRESS COMMON CARRIERS ON ARTICLES FOR WHICH STORE DOOR DELIVERY IS PROVIDED PURSUANT TO REGULARLY PUBLISHED TARIFFS OR SCHEDULES DULY FILED WITH THE FEDERAL AND/OR STATE REGULATORY BODIES GOVERNING SUCH CARRIERS OR, AT THE OPTION OF THE CONTRACTOR, BY PARCEL POST ON MAILABLE ARTICLES; BY CONTRACT CARRIER; OR BY CONTRACTOR'S VEHICLE.

B. DELIVERY OF SIDING AT DESTINATION WHEN SPECIFIED BY THE ORDERING OFFICE IF NOT RECOVERED UNDER PARAGRAPH A, ABOVE.

C. DELIVERY TO THE FREIGHT STATION NEAREST DESTINATION WHEN DELIVERY IS NOT COVERED UNDER PARAGRAPHS A OR B ABOVE.

PAGE 15 LISTED 13 DIFFERENT DESTINATIONS FOR THE SHIPMENTS AND SPECIFIED ESTIMATED MONTHLY PEAK REQUIREMENTS AND ESTIMATED QUANTITIES FOR 12 MONTHS FOR EACH DESTINATION AS WELL AS TO ALL MONTHLY PEAK REQUIREMENTS AND TOTAL ESTIMATED QUANTITY FOR 12 MONTHS FOR ALL 13 DESTINATIONS. IN ADDITION, SPACE WAS PROVIDED ON PAGE 15 FOR THE BIDDER TO INDICATE THE POUND WEIGHT PER SHIPPING CONTAINER.

ON APRIL 15, 1968, BIDS WERE OPENED. BENNER, WHO HAD SUBMITTED A BID IN DUPLICATE, WAS LOW ON ALL 13 LINE ITEMS. HOWEVER, BOTH COPIES OF BENNER'S BID DID NOT INCLUDE PAGES 3 THROUGH 8 OF THE SOLICITATION. ACCORDINGLY, THE CONTRACTING OFFICER, IN A FINDINGS AND DETERMINATION ISSUED ON JUNE 4, 1968, RULED THAT THE BID SHOULD BE REJECTED PURSUANT TO FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.404-2 (B) (5) ON THE BASIS THAT IT WAS NONRESPONSIVE BECAUSE VARIOUS PROVISIONS INCORPORATED IN THE SOLICITATION ONLY ON THE MISSING PAGES WERE MATERIAL AND SUBSTANTIVE PARTS OF THE SOLICITATION. ON JUNE 28, CONTRACTS WERE AWARDED TO THREE OTHER BIDDERS, AND BY LETTER DATED JULY 1, THE CONTRACTING OFFICER NOTIFIED BENNER OF THE REJECTION OF ITS BID SETTING FORTH SUBSTANTIALLY THE SAME INFORMATION AS WAS REFLECTED IN THE FINDINGS AND DETERMINATION OF JUNE 4.

IN YOUR LETTER OF JULY 8, YOU PROTESTED AGAINST AWARD TO ANY BIDDER OTHER THAN BENNER. YOU STATED THAT BENNER, AFTER EXTENDING ITS BID ACCEPTANCE PERIOD TO JUNE 28 AT THE REQUEST OF THE GOVERNMENT, HAD BEEN VERBALLY ADVISED BY GSA ON JULY 2 THAT IN ACCORDANCE WITH 42 COMP. GEN. 502, MARCH 21, 1963, THE DEFICIENCY IN ITS BID WAS A FATAL DEFECT. YOU ASSERTED, HOWEVER, THAT THE MATTER IS GOVERNED BY 44 COMP. GEN. 774, JUNE 2, 1965, IN WHICH WE HELD THAT THE ABSENCE OF CERTAIN PAGES FROM A BID DID NOT RENDER IT NONRESPONSIVE WHERE THE PAGES WHICH WERE RETURNED WITH THE BID INCORPORATED SOME OF THE PROVISIONS ON THE MISSING PAGES AND WHERE THE REMAINING PROVISIONS RELATED SOLELY TO BID PREPARATION, THE BASES FOR ACCEPTANCE, AND OTHER DIRECTORY INFORMATION NOT AFFECTING THE RIGHTS AND LIABILITIES OF THE PARTIES.

IN A REPORT DATED AUGUST 7, 1968, WHICH HAS BEEN MADE AVAILABLE TO YOU, GSA CONCEDES THAT THE ABSENCE OF PAGES 3 AND 4, WHICH CONTAIN ONLY SOLICITATION INSTRUCTIONS AND CONDITIONS WOULD PROBABLY NOT RENDER THE BID NONRESPONSIVE SINCE SUCH PROVISIONS, AS WAS THE CASE WITH A SIMILAR FORM CONSIDERED IN 44 COMP. GEN. 774, RELATE SOLELY TO THE MANNER IN WHICH BIDS ARE TO BE PREPARED AND SUBMITTED, THE BASES OF ACCEPTANCE, AND OTHER DIRECTORY INFORMATION. WITH RESPECT TO THE REMAINING PAGES, GSA MAKES THE FOLLOWING STATEMENTS:

HOWEVER, THE OMITTED PAGES 5 THROUGH 8 CONTAIN SEVERAL CLAUSES OF A SUBSTANTIVE NATURE CLEARLY AFFECTING THE RIGHTS AND OBLIGATIONS OF THE PARTIES. PAGE 5 INCORPORATES BY REFERENCE, INTER ALIA, GSA FORM 1126, SUPPLY DEPOTS AND CONSIGNMENT INSTRUCTIONS, JANUARY 1968 EDITION (ENCLOSURE 5); GSA FORM 1424, SUPPLEMENTAL PROVISIONS (SUPPLY CONTRACT), SEPTEMBER 1964 EDITION (ENCLOSURE (; AND GSA FORM 2313, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT, MARCH 1967, EDITION (ENCLOSURE 7). GSA FORM 1424 MODIFIES STANDARD FORM 32 IN SEVERAL RESPECTS AND CONTAINS CLAUSES DEALING WITH CHANGES, VARIATION IN QUANTITY, INSPECTION, RESPONSIBILITY FOR SUPPLIES, ASSIGNMENT OF CLAIMS, EXAMINATION OF RECORDS, NOTICE OF SHIPMENT, PACKING, PACKAGING, AND MARKING PROVISIONS, DELIVERIES BEYOND THE CONTRACTUAL PERIOD, PRICE REDUCTIONS, FEDERAL, STATE AND LOCAL TAXES, GRATUITIES, PATENT INDEMNITY, AND RENEGOTIATION. SINCE THE BID IS BY ITS TERMS SUBJECT ONLY TO PROVISIONS ATTACHED OR INCORPORATED BY REFERENCE, IT IS DIFFICULT TO PERCEIVE HOW A BIDDER COULD BE OBLIGATED TO COMPLY WITH ANY OF THE PROVISIONS OF GSA FORM 1424 WHEN THE ONLY PAGE OF THE SOLICITATION INCORPORATING THAT FORM BY REFERENCE (PAGE 5) WAS NOT ATTACHED TO THE BID ACTUALLY SUBMITTED. 42 COM. GEN. 502.

IN ADDITION TO THE ABOVE, THE MISSING PAGES 6 THROUGH 8 OF BENNER'S BID CONTAIN MODIFICATIONS TO SUBSTANTIVE PROVISIONS OF STANDARD FORM 32 AND GSA FORM 1424 AS WELL AS CLAUSES DEALING WITH MINIMUM AND MAXIMUM ORDER LIMITATIONS, SCOPE OF THE CONTRACT, AND DELIVERY PRICES.

YOU HAVE CONSISTENTLY HELD THAT A BID FROM WHICH PAGES OF THE SOLICITATION CONTAINING SUBSTANTIVE CONDITIONS AND PROVISIONS CONCERNING CONTRACTOR OBLIGATIONS ARE MISSING IS NONRESPONSIVE AND SHOULD BE REJECTED, SINCE THE BIDDER OTHERWISE COULD ELECT TO BE BOUND ONLY BY THE PROVISIONS ATTACHED TO HIS BID. B-163647, MAY 15, 1968; B 159360, JUNE 14, 1966; B-154802, AUGUST 14, 1964; B-154626, JULY 17, 1964; 42 COMP. GEN. 502. MOREOVER, THE INTENTION OF THE BIDDER IS NOT MATERIAL IF IT IS NOT APPARENT FROM THE BID AS SUBMITTED. B-160479, APRIL 5, 1967; 45 COMP. GEN. 221; 42 COMP. GEN. 502.

BENNER'S BID WAS SUBMITTED IN DUPLICATE AND THE SAME PAGES WERE MISSING IN BOTH COPIES. IN HIS LETTER OF JULY 8, 1968, COUNSEL FOR BENNER STATES THAT EMPLOYEES OF THAT COMPANY ARE " . . . PRESENTLY PREPARING AFFIDAVITS TO PROVE THAT ALL FORMS WERE PROPERLY FILLED OUTAND MAILED TO GSA, AND THAT NO PAGES WERE OMITTED FROM THE MAILING.' IN DEALING WITH A SIMILAR CONTENTION YOU HAVE STATED:

"MR. GASPARIK'S AFFIDAVIT STATES THAT TO THE BEST OF HIS KNOWLEDGE THE BID WAS COMPLETE WHEN SUBMITTED BY GENERAL ELECTRONICS. HOWEVER, THE GENERAL SERVICES ADMINISTRATION REPORTS THAT THREE COPIES OF THE BID WERE SUBMITTED BY GENERAL ELECTRONICS AND THAT AS TO EACH COPY, PAGES 3, 4, 7, 8 AND 9 WERE MISSING WHEN THE BID WAS RECEIVED. SINCE THERE WOULD BE NO REASON TO REMOVE PARTS OF A BID AFTER RECEIPT AND SINCE IT IS HIGHLY UNLIKELY THAT THE SAME PAGES COULD BECOME SEPARATED INADVERTENTLY FROM THREE DIFFERENT COPIES, THE CONCLUSION SEEMS JUSTIFIED THAT THESE PAGES WERE, IN FACT, MISSING.' 42 COMP. GEN. 502 AT 503.

THE CASE CITED BY COUNSEL FOR BENNER, B-156700, JUNE 2, 1965, IS CLEARLY DISTINGUISHABLE AND NOT FOR APPLICATION TO THE FACTS OBTAINING HERE. THAT CASE, THE OMITTED PORTIONS OF THE SOLICITATION WERE EITHER INCORPORATED BY REFERENCE IN THE PAGES CONTAINED IN THE BID AS SUBMITTED (GENERAL PROVISIONS, STANDARD FORM 32), OR DID NOT RELATE TO MATTERS OF SUBSTANCE AFFECTING THE CONTRACTUAL OBLIGATIONS OF THE BIDDER (CONTRACT TERMS AND CONDITIONS, STANDARD FORM 30). SUCH IS CLEARLY NOT THE CASE HERE.

GSA FURTHER REPORTS THAT THE JUNE 28, 1968, AWARDS UNDER THE SOLICITATION WERE MADE PRIOR TO THE RECEIPT OF YOUR PROTEST.

IN A REBUTTAL DATED SEPTEMBER 4, 1968, TO THE GSA REPORT, YOU MAKE THREE BASIC CONTENTIONS TO SUPPORT YOUR POSITION THAT THE CONTRACTS SHOULD BE CANCELED OR TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT AND AWARD MADE TO BENNER. FIRST, YOU CONTEND THAT THE MISSING PAGES WERE LOST AFTER RECEIPT OF BENNER'S BID BY GSA. SECOND, YOU MAINTAIN THAT SUCH PAGES CONTAIN NO MATTERS OF MATERIAL SUBSTANCE WHICH ARE NOT REFERENCED ELSEWHERE IN THE SOLICITATION. THIRD, YOU ASSERT THAT THE ABSENCE OF ANY PARTICULAR CLAUSE OR CLAUSES IN THE BID IS CURED BY THE SO-CALLED "CHRISTIAN DOCTRINE" ENUNCIATED IN G.L. CHRISTIAN AND ASSOCIATES V UNITED STATES, 160 CT. CL. 1, 58, 312 F.2D 418; MOTION FOR REHEARING AND REARGUMENT DENIED 320 F.2D 325 (1963); CERTIORARI DENIED 375 U.S. 954 (1963); PETITION FOR REHEARING DENIED 376 U.S. 929 (1964). BRIEFLY, THE DOCTRINE IS TO THE EFFECT THAT CONTRACT CLAUSES REQUIRED BY STATUTORY REGULATIONS ARE INCORPORATED BY LAW IN A CONTRACT.

WITH RESPECT TO THE FIRST ISSUE, YOU PRESENT AFFIDAVITS FROM ONE OFFICIAL AND TWO EMPLOYEES OF BENNER, THE SUBSTANCE OF WHICH IS THAT AFTER BENNER DISASSAMBLED THE BID SETS TO INSERT THE REQUIRED BID INFORMATION, THE PAPERS WERE SUBSEQUENTLY REASSEMBLED AND COMPLETE SETS WERE MAILED TO GSA; THAT NONE OF THE MISSING PAGES WAS FOUND IN BENNER'S FILES WHEREAS BENNER'S OWN COPY OF THE BID INCLUDES ALL OF THE SOLICITATION SHEETS; THAT ALTHOUGH BENNER REPRESENTATIVES CONTACTED GSA BY TELEPHONE SEVERAL TIMES DURING THE BID EVALUATION PERIOD TO ASCERTAIN WHETHER ANY ADDITIONAL INFORMATION WAS REQUIRED BY THE GOVERNMENT, NO MENTION WAS MADE OF THE MISSING PAGES; AND THAT BENNER FIRST LEARNED OF THE BID DEFECT IN A TELEPHONE CONVERSATION OF JULY 2 WITH THE PROCURING ACTIVITY. TWO OF THE AFFIDAVITS ALSO MAKE MENTION OF TELEPHONE CALLS TO THE PROCURING ACTIVITY DURING THE LATTER PART OF JUNE 1968, IN WHICH IT IS STATED THAT A GSA REPRESENTATIVE ADVISED BENNER REPRESENTATIVES THAT THE PROCURING ACTIVITY WAS IN THE PROCESS OF MOVING AND ADMINISTRATIVE PROCEDURES WERE CHAOTIC. FURTHER, YOU URGE THAT THE FACT THAT GSA HAD POSSESSION OF BENNER'S BID FOR 75 DAYS AFTER BID OPENING WITHOUT ADVISING BENNER OF THE MISSING PAGES RAISES A STRONG PRESUMPTION THAT IF THE PAGES WERE DETACHED FROM THE BID, SUCH DETACHMENT OCCURRED AFTER THE BID WAS IN THE HANDS OF GSA. ADDITION TO THE FOREGOING, YOU CLAIM THAT THE ABSENCE OF SIX PAGES FROM BENNER'S BID WOULD HAVE AFFECTED ITS WEIGHT AND THEREFORE SHOULD HAVE BEEN NOTED WHEN THE BIDS WERE OPENED. CITING A NOTATION ON AN ABSTRACT OF BIDS PREPARED BY A COMMERCIAL BIDDERS SERVICE REGARDING INFORMATION MISSING FROM ONE OTHER BID, YOU STATE THAT SINCE THAT PARTICULAR BID WAS OBVIOUSLY CAREFULLY EXAMINED, THE BENNER BID MUST ALSO HAVE BEEN SO EXAMINED AT THE BID OPENING; THEREFORE, YOU DEDUCE THAT THE BEST ANSWER TO THE ABSENCE OF ANY MENTION OF PAGES MISSING FROM THE BENNER BID IS THAT POSSIBLY THE PAGES WERE NOT MISSING AT THAT TIME. FURTHER, YOU SUGGEST THAT THE PAGES WERE LOST DURING THE MOVING OF THE PROCUREMENT ACTIVITY OFFICES AND THAT THE REQUEST BY GSA FOR EXTENSION BY BENNER OF THE BID ACCEPTANCE TIME HAD AS ITS PURPOSE PROVIDING GSA ADDITIONAL TIME TO SEARCH FOR THE PAPERS IN ITS OWN OFFICES. MOREOVER, YOU ASK WHY, IF THE CONTRACTING OFFICER HAD ALREADY DETERMINED ON JUNE 4 THAT THE BENNER BID WAS TO BE REJECTED, DID THE PROCURING ACTIVITY ISSUE A REQUEST TO BENNER ON JUNE 5 TO EXTEND ITS BID ACCEPTANCE PERIOD.

GSA HAS ADVISED OUR OFFICE THAT THE CONTRACTING OFFICER'S FINDINGS AND DETERMINATION OF JUNE 4 WAS SUBJECT TO REVIEW BY HIGHER AUTHORITY AND THAT APPROVAL THEREOF WAS NOT ISSUED UNTIL JUNE 20. IN THE CIRCUMSTANCES, THE ISSUANCE ON JUNE 5 OF THE REQUEST FOR EXTENSION OF THE BID ACCEPTANCE PERIOD IN BENNER'S BID MUST BE VIEWED AS A PROPER PROCUREMENT ACTION UNDER THE PROVISIONS OF THE GSA REGULATIONS PERTAINING TO FEDERAL SUPPLY SERVICE CONTRACTS. 41 CFR5A-2.407-72.

AS TO THE WEIGHT OF THE MISSING PAGES, IT SHOULD BE NOTED THAT SINCE THE SHEETS IN QUESTION BORE PRINTING ON BOTH SIDES ONLY THREE OF THE TEN SHEETS WHICH COMPRISED EACH BID SET WERE INVOLVED. FURTHER, THERE IS FOR CONSIDERATION THE FACT THAT NONE OF THE MISSING SHEETS REQUIRED THE FURNISHING OF ANY INFORMATION BY THE BIDDERS. IN THE LIGHT OF SUCH FACTORS, IT IS REASONABLE TO ASSUME THAT THE ABSENCE OF THE THREE SHEETS COULD EASILY HAVE GONE UNNOTICED BOTH AT THE TIME THE BID PAPERS WERE ASSEMBLED BY BENNER PRIOR TO MAILING AND AT THE TIME THE BIDS WERE OPENED, CHECKING FOR PRICE AND OTHER INFORMATION REQUIRED TO BE FURNISHED BY THE BIDDERS BEING POSSIBLE WITHOUT THE MISSING PAGES.

AS FOR YOUR SUGGESTION THAT THE PAGES WERE LOST DURING THE MOVING OF THE PROCURING ACTIVITY OFFICES, IN OUR VIEW THE STATEMENTS IN THE AFFIDAVITS OF THE BENNER REPRESENTATIVES TO THE EFFECT THAT SUCH MOVE TOOK PLACE IN THE LATTER PART OF JUNE 1968, WHICH WAS AT LEAST SEVERAL DAYS AFTER THE CONTRACTING OFFICER HAD CONSIDERED THE MATTER PRIOR TO RENDERING HIS ADVERSE FINDINGS AND DETERMINATION OF JUNE 4 AND AFTER THE JUNE 5 REQUEST FOR EXTENSION OF THE BID ACCEPTANCE PERIOD, EFFECTIVELY REFUTE SUCH ARGUMENT.

WITH RESPECT TO THE FAILURE OF GSA TO NOTIFY BENNER OF THE BID DEFICIENCY FOR A PERIOD OF 75 DAYS AFTER BID OPENING, YOUR ATTENTION IS DIRECTED TO THE FACT THAT FPR 1-2.408, RELATING TO THE FURNISHING OF INFORMATION TO UNSUCCESSFUL LOW BIDDERS, CONTEMPLATES NOTICE OF BID REJECTION IN CONJUNCTION WITH THE AWARD. ACCORDINGLY, AND SINCE THE CONTRACTING OFFICER'S DECISION OF JUNE 4 REGARDING THE EFFECT OF THE MISSING PAGES ON THE RESPONSIVENESS OF BENNER'S BID WAS NOT DETERMINATIVE OF THE MATTER UNTIL IT WAS APPROVED BY HIGHER AUTHORITY ON JUNE 20, WE ARE UNABLE TO CONCLUDE THAT THE WITHHOLDING OF NOTICE OF BID REJECTION TO BENNER UNTIL JULY 1, 1968, WAS NOT IN ACCORD WITH THE REGULATION. IT IS OUR VIEW, THEREFORE, THAT NO SIGNIFICANCE SHOULD BE ATTACHED TO SUCH FACTOR. THIS POINT IT MAY BE STATED THAT IN THE CASE CONSIDERED IN 42 COMP. GEN. 502 THERE WAS A LAPSE OF 5 MONTHS BETWEEN BID OPENING AND NOTICE OF BID REJECTION TO THE LOW BIDDER. SINCE THERE WAS NO INDICATION OF ANY IRREGULARITY IN THE CONDUCT OF THE PROCUREMENT, HOWEVER, THAT FACTOR, WHICH IS NOT REFLECTED IN OUR DECISION, WAS NOT REGARDED AS JUSTIFICATION FOR CONSIDERATION OF THE NONRESPONSIVE BID.

IN THE LIGHT OF THE FOREGOING, IT IS OUR VIEW THAT THE RECORD DOES NOT SUBSTANTIATE YOUR CONTENTION THAT THE MISSING BID PAGES WERE LOST AFTER RECEIPT OF THE BID BY GSA. ACCORDINGLY, AND IN LINE WITH THE EXCERPT FROM 42 COMP. GEN. 502 WHICH IS QUOTED IN THE GSA REPORT, WE MUST ACCEPT GSA'S STATEMENT THAT THE PAGES IN QUESTION WERE MISSING FROM BOTH COPIES OF THE BENNER BID AT THE TIME IT WAS RECEIVED BY GSA.

WITH RESPECT TO THE ISSUE OF THE MATERIALITY OF THE MATTER CONTAINED IN THE MISSING PAGES, WE CONCUR WITH YOUR VIEW THAT THE BIDDING INSTRUCTIONS AND CONDITIONS, STANDARD FORM 33A, WHICH COMPRISE PAGES 3 AND 4 OF THE SOLICITATION, ARE CONCERNED WITH PROCEDURAL INFORMATION AND UNDER THE REASONING APPLIED IN 44 COMP. GEN. 774 WITH RESPECT TO A SIMILAR STANDARD BID FORM THE ABSENCE OF SUCH PAGES FROM BENNER'S BID DOES NOT CONSTITUTE A FATAL DEFECT.

AS FOR PAGES 5 THROUGH 8, HOWEVER, WE ARE UNABLE TO ACCEPT YOUR THEORY THAT THERE ARE NO MATTERS OF SUBSTANCE ON SUCH PAGES WHICH ARE NOT MENTIONED ELSEWHERE IN THE SOLICITATION; THAT THE INCORPORATION BY REFERENCE ON THE FACE SHEET OF THE SOLICITATION OF STANDARD FORM 32, GENERAL PROVISIONS (SUPPLY CONTRACT), AUTOMATICALLY INCORPORATES THE PROVISIONS OF GSA FORM 1424 AMENDING AND SUPPLEMENTING STANDARD FORM 32; AND THAT VARIOUS REFERENCES TO METHOD OF SHIPMENT, POINT OF ACCEPTANCE, AND THE LISTING OF DIFFERENT PRICES FOR THE SEVERAL DESTINATION POINTS SHOWN ON PAGE 15 OF THE SOLICITATION INDICATING THAT TRANSPORTATION CHARGES ARE INCLUDED IN THE BID PRICES COVER THE SAME MATTERS AS THE DELIVERY PROVISIONS ON PAGE 8.

THE SCOPE OF THE CONTRACT, AS REFLECTED ON THE FACE SHEET OF THE SOLICITATION, IDENTIFIES THE PROCUREMENT AS A REQUIREMENTS CONTRACT, DESCRIBES THE PROCUREMENT ITEM, AND SPECIFIES THE CONTRACT PERIOD. PAGE 7, HOWEVER, THE SCOPE OF CONTRACT PROVISIONS SET FORTH, AMONG OTHER THINGS, THE CLEAR OBLIGATION OF THE CONTRACTOR TO DELIVER ITEMS FROM TIME TO TIME AS ORDERED IN ACCORDANCE WITH THE CONTRACT TERMS. CERTAINLY, THIS MUST BE REGARDED AS A SUBSTANTIVE PROVISION; OTHERWISE, THE CONTRACTOR COULD CONTROL THE QUANTITIES TO BE DELIVERED WITHOUT REGARD TO THE NEEDS OF THE ORDERING ACTIVITY.

WHILE THE MAXIMUM ORDER PROVISION ON PAGE 8 IS A LIMITATION ON THE GOVERNMENT, AS YOU POINT OUT, IT ALSO BINDS THE CONTRACTOR TO AN AGREEMENT NOT TO ACCEPT OR FULFILL ANY ORDERS IN EXCESS OF THE LIMITATION AND AUTHORIZES TERMINATION FOR DEFAULT IN THE EVENT OF ANY SUCH VIOLATION. ACCORDINGLY, THE REFERENCE TO THE MAXIMUM ORDER LIMITATION ON PAGE 13 OF THE SOLICITATION, WHICH CONCERNS ONLY THE GOVERNMENT'S LIABILITY, DOES NOT CURE THE ABSENCE OF THE LANGUAGE GOVERNING THE CONTRACTOR'S OBLIGATIONS, AND BARRING ANY SIMILAR LANGUAGE ELSEWHERE IN THE BENNER BID PAPERS THE BIDDER COULD ELECT NOT TO BE BOUND BY SUCH PROVISION. TO SUCH EXTENT, THEREFORE, THE PROVISION MUST BE REGARDED AS SUBSTANTIVE.

ALTHOUGH THE PARAGRAPHS WHICH YOU CITE CONCERNING METHOD OF SHIPMENT AND POINT OF ACCEPTANCE AND THE FACT THAT BENNER'S BID SHOWS DIFFERENT PRICES FOR THE SAME ITEM FOR EACH OF SEVERAL DESTINATIONS LISTED ON PAGE 15 OF THE SOLICITATION MAY BE INDICATIVE OF THE INCLUSION OF SHIPPING COSTS IN SUCH PRICES, ONLY IN THE LANGUAGE QUOTED ABOVE FROM PAGE 8 OF THE SOLICITATION IS THE BIDDER SPECIFICALLY BOUND TO INCLUDE INITS BID PRICES THE COST OF TRANSPORTATION TO DESTINATION. ABSENT SUCH REQUIREMENT IN THE PAGES WHICH WERE INCLUDED IN BENNER'S BID, WE QUESTION WHETHER BENNER COULD BE HELD TO PAY THE TRANSPORTATION CHARGES.

REGARDING YOUR ASSERTION THAT THE INCORPORATION BY REFERENCE OF STANDARD FORM 32 ON THE FACE SHEET OF THE SOLICITATION COVERS THE SUPPLEMENTAL PARAGRAPHS AND MODIFICATIONS REFLECTED IN GSA FORM 1424, AN EXAMINATION OF THE FILE ON 44 COMP. GEN. 774 (B-156700), WHICH YOU CITE AS SUPPORT FOR THIS POINT, SHOWS THAT INCORPORATION OF SUPPLEMENTAL CLAUSES TO THE GENERAL PROVISIONS IN STANDARD FORM 32 IN THAT CASE WAS SPECIFICALLY NOTED ON ONE OF THE BID SHEETS RETURNED TO THE CONTRACTING AGENCY BY THE LAW BIDDER. SUCH NOTATION, WHICH MADE REFERENCE TO CLAUSES 1 THROUGH 69 OF THE GENERAL PROVISIONS, WAS IN ADDITION TO A NOTATION ON THE FACE OF THE INVITATION FOR BID, INCORPORATING THE GENERAL PROVISIONS IN STANDARD FORM 32, WHICH AT THAT TIME INCLUDED 44 CLAUSES. IN THIS CASE, THE STANDARD FORM 32 REFERENCED ON THE FACE SHEET OF THE SOLICITATION INCLUDES ONLY 22 CLAUSES, AND THE GSA FORM 1424, WHICH MODIFIES SEVERAL OF THOSE CLAUSES AND ADDS 19 OTHER CLAUSES COVERING SUBSTANTIVE MATTERS SUCH AS TAXES THAT WERE NOT COVERED BY THE STANDARD FORM 32 PROVISIONS, IS NOT MENTIONED ON ANY OF THE PAGES INCLUDED IN BENNER'S BID, NOR ARE THE ADDITIONAL CLAUSES REFERENCED THEREIN. ACCORDINGLY, IT IS OUR VIEW THAT THE INCORPORATION OF STANDARD FORM 32 COVERS ONLY THE PROVISIONS PRINTED THEREIN AND THAT IN THE ABSENCE OF A NOTATION IN THE PAPERS BENNER SUBMITTED, SUCH AS APPEARED IN THE BID PAPERS INVOLVED IN 44 COMP. GEN. 774, BENNER COULD ELECT NOT TO BE BOUND BY THE MODIFIED AND ADDITIONAL CLAUSES SET FORTH IN GSA FORM 1424.

AS TO THE APPLICABILITY OF THE "CHRISTIAN DOCTRINE" TO THIS CASE, WE DIRECT YOUR ATTENTION TO THE FACT THAT THERE WAS NO ELEMENT OF NON RESPONSIVENESS OF THE CONTRACTOR'S BID TO THE SOLICITATION IN THE CHRISTIAN CASE; RATHER, THE SOLICITATION FAILED TO INCLUDE A CLAUSE WHICH WAS REQUIRED BY THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) TO BE INCLUDED IN THE SOLICITATION AND RESULTING CONTRACT. SINCE ASPR IS A STATUTORY REGULATION WITH THE FORCE AND EFFECT OF LAW, THE COURT HELD THAT THE MISSING CLAUSE WAS INCORPORATED IN THE CONTRACT AS A MATTER OF LAW. IN THE INSTANT CASE THE SOLICITATION INCLUDES THE CLAUSES REQUIRED BY THE FEDERAL PROCUREMENT REGULATION, BUT THE PAGES INCORPORATING SEVERAL OF THOSE CLAUSES AND OTHER SUBSTANTIVE PROVISIONS OF THE SOLICITATION ARE MISSING FROM THE BID SUBMITTED. THE ISSUE, THEREFORE, IS ONE OF RESPONSIVENESS OF THE BID TO THE SOLICITATION, A MATTER WHICH IS FOR DETERMINATION PRIOR TO AWARD. ACCORDINGLY, WE DO NOT BELIEVE THAT THE "CHRISTIAN DOCTRINE," RELATING AS IT DOES TO THE CONSTRUCTION OF THE CONTRACT ACTUALLY EXECUTED BY THE BIDDER AND THE GOVERNMENT, MAY BE INVOKED TO INSERT CONDITIONS IN A BID, AFTER BID OPENING AND BEFORE AWARD, WHICH THE BIDDER, EITHER BY ACCIDENT OR DESIGN, MAY HAVE FAILED TO INCLUDE. RATHER, WE BELIEVE THAT THE MATTER IS FOR RESOUTION UNDER THE RULE LONG FOLLOWED BY OUR OFFICE THAT IN THE CASE OF MISSING BID PAPERS THE INTENT OF A BIDDER IS TO BE DETERMINED FROM THE BID AS SUBMITTED. LINE WITH SUCH DECISIONS, WHICH INCLUDE OUR DECISIONS CITED IN THE GSA REPORT QUOTED ABOVE, IT IS OUR VIEW THAT SINCE THE BENNER BID DOES NOT EVIDENCE A SPECIFIC AND UNEQUIVOCAL INTENT ON THE PART OF BENNER TO BE BOUND BY ALL OF THE PROVISIONS WHICH WERE SET FORTH ON THE MISSING PAGES, THE REJECTION OF THE BID WAS REQUIRED BY FPR 1-2.404-2 (B).

FINALLY, WE DO NOT VIEW THIS CASE AS A PROPER VEHICLE FOR THE REVIEW WHICH YOU REQUEST OF OUR DECISION OF MAY 28, 1968, 47 COMP. GEN. 682. THAT DECISION CONCERNED A SOLICITATION IN WHICH GSA INADVERTENTLY FAILED TO INCLUDE AN "ALL OR NONE BID" CLAUSE REQUIRED BY THE FEDERAL PROCUREMENT REGULATIONS AFTER SPECIFICALLY DELETING THE "ALL OR NONE BID" CLAUSE WHICH WAS ALREADY INCORPORATED IN THE SOLICITATION ON GSA FORM 1424, AND THE ISSUE WAS WHETHER THE "CHRISTIAN DOCTRINE" COULD BE INVOKED TO READ THE MISSING CLAUSE INTO THE SOLICITATION. IN THIS CASE, THERE IS NO DEFECT IN THE SOLICITATION; RATHER, THE ISSUE, AS NOTED ABOVE, IS THE RESPONSIVENESS OF ONE PARTICULAR BID. OUR RULING IN 47 COMP. GEN. 682 IS THEREFORE NOT DECISIVE OF THIS CASE. SIMILARLY, OUR DECISION IN THIS CASE DOES NOT ENCOMPASS THE FACTS OF THAT CASE.

FOR THE REASONS STATED, WE SEE NO LEGAL BASIS TO OBJECT TO THE REJECTION OF BENNER'S BID AND TO THE AWARDS WHICH GSA HAS MADE UNDER THE SOLICITATION. YOUR PROTEST IS THEREFORE DENIED.