B-164846, SEPT. 3, 1968

B-164846: Sep 3, 1968

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TO RICHMOND PLASTICS INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF JULY 11. 880 WAS THE LOWEST RECEIVED UNDER THE INVITATION. THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE BECAUSE YOU HAD CONDITIONED ITS ACCEPTANCE UPON APPROVAL OF ADVANCE PAYMENTS WHICH ARE NOT CONTEMPLATED BY THE PAYMENT PROVISIONS OF THE INVITATION. THIS DETERMINATION WAS BASED UPON THE INTERPRETATION OF A STATEMENT CONTAINED IN A LETTER DATED MAY 24. WHICH READ AS FOLLOWS: "THE FOLLOWING REQUEST IS IN ADDITION TO THE SECTION REGARDING PROGRESS PAYMENTS. 000.00 ON APPROVAL OF PRODUCTION SAMPLES. * * *" WE ARE ADVISED THAT THE CONTRACTING OFFICER INTERPRETED THE PHRASE . HE CONCLUDED THAT YOUR STATMENT WAS A REQUEST FOR ADVANCE PAYMENTS.

B-164846, SEPT. 3, 1968

TO RICHMOND PLASTICS INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF JULY 11, 1968, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS 1269, ISSUED BY THE POST OFFICE DEPARTMENT. THE INVITATION, ISSUED APRIL 29, 1968, SOLICITED BIDS FOR THE PURCHASE OF 500,000 THREE-SIDED PLASTIC LETTER TRAYS, P.O. ITEM 1252, TO BE MANUFACTURED IN ACCORDANCE WITH THE DRAWINGS AND SPECIFICATIONS LISTED AND ATTACHED THERETO. THE INVITATION ADVISED PROSPECTIVE BIDDERS THAT IN ACCORDANCE WITH THE PROVISIONS OF PART 1-30 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), PROGRESS PAYMENTS WOULD BE ALLOWED PER THE ATTACHED PROGRESS PAYMENTS TOTAL COSTS CLAUSE, TO THOSE RESPONDING BIDDERS WHO SO DESIGNATED IN THEIR BIDS THAT THEY DESIRED SUCH PAYMENTS.

IT APPEARS THAT YOUR TOTAL BID OF $465,880 WAS THE LOWEST RECEIVED UNDER THE INVITATION. HOWEVER, THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE BECAUSE YOU HAD CONDITIONED ITS ACCEPTANCE UPON APPROVAL OF ADVANCE PAYMENTS WHICH ARE NOT CONTEMPLATED BY THE PAYMENT PROVISIONS OF THE INVITATION. THIS DETERMINATION WAS BASED UPON THE INTERPRETATION OF A STATEMENT CONTAINED IN A LETTER DATED MAY 24, 1968, ACCOMPANYING YOUR BID, WHICH READ AS FOLLOWS:

"THE FOLLOWING REQUEST IS IN ADDITION TO THE SECTION REGARDING PROGRESS PAYMENTS. WE WOULD REQUEST PROGRESS PAYMENTS OF $15,000.00 AT THE TIME OF ORDER AND $40,000.00 ON APPROVAL OF PRODUCTION SAMPLES. * * *" WE ARE ADVISED THAT THE CONTRACTING OFFICER INTERPRETED THE PHRASE ,TIME OF ORDER" AS HAVING THE SAME MEANING AS "TIME OF AWARD," AND SINCE THE REFERENCED PROGRESS PAYMENTS CLAUSE SPECIFICALLY PRECLUDED PAYMENTS AT TIME OF AWARD, HE CONCLUDED THAT YOUR STATMENT WAS A REQUEST FOR ADVANCE PAYMENTS, WHICH, IN ACCORDANCE WITH PAST DECISIONS OF OUR OFFICE RENDERED THE BID NONRESPONSIVE. IT IS NOTED, IN THIS RESPECT, THAT YOUR REQUEST WAS STATED TO BE ,IN ADDITION TO THE SECTION REGARDING PROGRESS PAYMENTS.' THEREAFTER, ON JUNE 29, 1968, THE CONTRACT WAS AWARDED TO THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER, IN THE TOTAL AMOUNT OF $469,800.

IN YOUR LETTER OF JULY 11, PROTESTING THE REJECTION OF YOUR BID, YOU CONTEND THAT THE QUESTIONED STATEMENT WAS NOT A DEMAND OR CONDITION, BUT ONLY AN EXERCISE OF THE NORMAL INDUSTRY PRACTICE TO EXPLAIN PAYMENT TIMING, AND WAS FULLY IN ACCORD WITH THE PROGRESS PAYMENT PROVISIONS OF THE INVITATION. YOU ALSO CONTEND THAT THE PHRASE "TIME OF ORDER" CLEARLY MEANT TIME OF ORDER OF THE MOLD REQUIRED UNDER THE INVITATION, AND SHOULD NOT HAVE BEEN INTERPRETED TO MEAN "TIME OF AWARD.' HOWEVER, YOU POINT OUT THAT EVEN IF THE PHRASE DID MEAN "TIME OF AWARD," THEREBY INDICATING A REQUEST FOR ADVANCE PAYMENTS, FPR 1-30.407 (B) PROVIDES THAT BIDS SHALL NOT BE TREATED AS NONRESPONSIVE MERELY BECAUSE OF THE PRESENCE OF SUCH A REQUEST SO LONG AS THE REQUEST IS NOT A "CONDITION, QUALIFICATION OR LIMITATION OF THE BID.'

WE HELD IN 46 COMP. GEN. 368, THAT A COVER LETTER ENCLOSED WITH AND REFERRING TO A BID WILL BE CONSIDERED TO BE PART OF THE BID AND THAT A REQUEST IN SUCH A LETTER FOR PAYMENT PROVISIONS DIFFERING FROM THOSE SET OUT IN THE INVITATION MUST BE CONSTRUED AS CONDITIONING THE BID, NOTWITHSTANDING THE USUAL PRECATORY NATURE OF THE TERM "REQUEST.' WE HAVE ALSO HELD THAT "NO EXCEPTION DELIBERATELY TAKEN * * * CAN BE CONSTRUED TRIVIAL OR MINIMAL.' B-155827, FEBRUARY 25, 1965, AND B 159725, DECEMBER 23, 1966. IF A BIDDER'S REQUEST IS IN THE NATURE OF A MERE HOPE OR WISH COUPLED WITH AN INTENTION TO ACCEPT A CONTRACT SUBJECT TO THE INVITATION PAYMENT PROVISION, IT IS INCUMBENT UPON THE BIDDER TO CLEARLY EXPRESS SUCH INTENTION BECAUSE IT IS A RULE OF LONG STANDING THAT WHERE TWO POSSIBLE MEANINGS CAN BE REACHED FROM THE TERMS OF A BID A BIDDER MAY NOT BE PERMITTED TO EXPLAIN WHAT HE INTENDED SINCE HE WOULD THEN BE IN A POSITION TO AFFECT THE RESPONSIVENESS OF HIS BID. 36 COMP. GEN. 705; 40 ID. 393.

WE ARE OF THE OPINION THAT IN THE DESCRIBED CIRCUMSTANCES, YOUR STATEMENT INCORPORATING THE PHRASE AT "TIME OF ORDER" IS REASONABLY SUSCEPTIBLE OF BEING INTERPRETED TO MEAN "TIME OF AWARD," THEREBY CONSTITUTING A REQUEST FOR ADVANCE PAYMENTS. SINCE FPR 1-17.502, SETTING FORTH EXECUTIVE ORDER 10789 AS AMENDED BY EXECUTIVE ORDER 11051 (PROMULGATED IN ACCORDANCE WITH PUBLIC LAW 85-804, 50 U.S.C. 1431-1435), AND CITED IN FPR 1-30.407 (B), DOES NOT PROVIDE FOR THE PAYMENT OF MONIES IN ADVANCE OF CONTRACT PERFORMANCE BY THE POST OFFICE DEPARTMENT, YOUR REQUEST FOR ADVANCE PAYMENT MUST, IN ACCORDANCE WITH THE DECISIONS CITED ABOVE, BE CONSTRUED AS IMPOSING A CONDITION UPON YOUR BID, THEREBY MAKING IT INELIGIBLE FOR CONSIDERATION FOR AWARD. MOREOVER, EVEN IF YOUR STATEMENT COULD BE CONSTRUED AS A REQUEST FOR PROGRESS PAYMENTS, AS OPPOSED TO ADVANCE PAYMENTS, IT WOULD STILL BE NONRESPONSIVE SINCE THERE WOULD BE NO WAY OF KNOWING WHETHER YOUR FIRM WOULD HAVE INCURRED SUFFICIENT COSTS BY THE TIMES INDICATED IN THE REQUEST TO JUSTIFY PROGRESS PAYMENTS IN THE SPECIFIED AMOUNTS. IN OTHER WORDS, YOU, IN EFFECT, RESERVED THE RIGHT TO ACCEPT OR REJECT CONTRACT AT YOUR QUOTED PRICE, DEPENDENT UPON WHETHER OR NOT YOUR PAYMENT REQUIREMENTS WERE MET. IT IS WELL SETTLED THAT IF A BIDDER IMPOSES CONDITIONS AT VARIANCE WITH THOSE EXTENDED BY THE INVITATION TO ALL BIDDERS, HIS BID MUST BE REJECTED AS NONRESPONSIVE. 146039, JULY 20, 1961.

SINCE THE LANGUAGE USED WAS DELIBERATELY CHOSEN BY YOU AND ITS EFFECT WAS AT LEAST TO TENDER A CONDITION TO THE ADVERTISED PAYMENT TERMS, WE MUST CONCLUDE THAT THE BID WAS NONRESPONSIVE AND PROPERLY REJECTED. ACCORDINGLY, YOUR PROTEST IS DENIED.