B-165584, JAN. 3, 1969

B-165584, JAN. 3, 1969

TO HAWK TOOL AND ENGINEERING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 4, 1968, PROTESTING AGAINST AN AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. FPNTN-E5-06583-A-8-6-68, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA) ON JULY 5, 1968.

THE SUBJECT INVITATION WAS FOR A DEFINITE QUANTITY CONTRACT FOR FS CLASS 5120, TRACK CONNECTING FIXTURES. WHEN THE BIDS WERE OPENED ON AUGUST 6, 1968, THE LOW BIDDER WAS DETERMINED TO BE NONRESPONSIVE. YOUR BID WAS THE NEXT LOWEST SUBMITTED, BUT YOUR BID WAS DISREGARDED BECAUSE IT RECITED AT PAGE 15 OF THE INVITATION "WE REQUEST THE INCLUSION OF THE PROGRESS PAYMENT CLAUSE" AND THERE WAS NO PROVISION IN THE INVITATION FOR MAKING PROGRESS PAYMENTS.

IT IS YOUR CONTENTION THAT EVEN THOUGH THE INVITATION DID NOT SPECIFICALLY PROVIDE FOR PROGRESS PAYMENTS, NEITHER DID IT EXPRESSLY EXCLUDE THEM. BY LETTER DATED OCTOBER 7, 1968, YOUR FIRM REQUESTED GSA TO REMOVE YOUR REQUEST FOR INCLUSION OF THE PROGRESS PAYMENT CLAUSE FROM YOUR BID.

THE QUESTION OF THE EFFECT OF A BID CONDITIONED UPON RECEIVING PROGRESS PAYMENTS WHERE THE INVITATION CONTAINS NO PROVISION FOR SUCH PAYMENTS AND SPECIFIES A PARTICULAR METHOD OF PAYMENT HAS BEEN BEFORE OUR OFFICE ON SEVERAL OCCASIONS. WE HAVE CONSISTENTLY HELD THAT A BID SO QUALIFIED IS NONRESPONSIVE IN A MATERIAL RESPECT AND SUCH DEVIATION CANNOT BE WAIVED, UNLESS THE INVITATION EXPLICITLY CONTEMPLATES THE INCLUSION OF PROGRESS PAYMENTS AND PERMITS AND SOLICITS BIDS ON SUCH BASIS. 38 COMP. GEN. 131, 45 COMP. GEN. 809, 46 COMP. GEN. 368. IN THE CITED CASES, AS WELL AS IN OTHER DECISIONS OF OUR OFFICE WE RECOGNIZE THAT WHILE IN THE ORDINARY SENSE THE WORD "REQUEST" IS PRECATORY IN NATURE, ITS PRECISE MEANING MUST DEPEND UPON THE EXISTING CIRCUMSTANCES. YOU ARGUE IN YOUR LETTER OF OCTOBER 11, 1968, TO GSA THAT "SINCE OUR PROGRESS PAYMENT REQUEST WAS IN THE FORM OF A REQUEST AND NOT A CONTINGENT PART OF THE BID, WE DO NOT FEEL THIS SHOULD BE CAUSE FOR REJECTION OF OUR BID.' CONCERNING SUCH AN ARGUMENT WE HAVE HAD OCCASION IN THE PAST TO OBSERVE THAT 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 PROVISIONS, IT IS INCUMBENT ON 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. 251, 36 ID. 705, 40 ID. 393, B-164401, JULY 22, 1968.

THUS IN B-154755, SEPTEMBER 23, 1964, WE SAID THAT THE QUESTION IS NOT WHETHER THE INVITATION MAKES ANY MENTION OF PROGRESS PAYMENTS BUT RATHER WHETHER THERE IS A PAYMENTS CLAUSE IN THE INVITATION WHICH PRESCRIBES A PARTICULAR MODE OF PAYMENT AND WHICH DOES NOT CONTEMPLATE THE ALLOWABILITY OF PROGRESS PAYMENTS. THE PRESENT INVITATION INCORPORATED BY REFERENCE, AS THE SOLE STATEMENT ON THE SUBJECT OF CONTRACT PAYMENTS, ARTICLE 7 OF STANDARD FORM 32, JUNE 1964 EDITION, WHICH PROVIDES FOR PAYMENTS ONLY FOR ITEMS WHICH HAVE BEEN DELIVERED TO AND ACCEPTED BY THE GOVERNMENT.

SINCE THE LANGUAGE YOU USED WAS THAT OF YOUR CHOICE AND ITS EFFECT WAS AT LEAST TO TENDER A CONDITION TO THE PAYMENT TERMS ADVERTISED TO OTHER BIDDERS, WE MUST CONCLUDE THAT THE BID, THOUGH REASONABLY SUBJECT TO MORE THAN ONE INTELLIGENT MEANING, WAS PROPERLY CONSIDERED NONRESPONSIVE AND REJECTED. 47 COMP. GEN. 496.

SINCE YOU ALLEGE IN YOUR PROTEST LETTER THAT YOU WERE "TOLD BY THE SMALL BUSINESS ADMINISTRATION, IF A BID DOES NOT EXCLUDE THE USE OF PROGRESS PAYMENTS WE COULD REQUEST THEM WITHOUT JEOPARDIZING OUR BID," IT IS SUGGESTED THAT IN FUTURE PROCUREMENT, SHOULD YOU HAVE ANY QUESTION CONCERNING PROGRESS PAYMENTS, YOU ADDRESS THEM TO THE PROPER OFFICER OF THE PROCUREMENT ACTIVITY.