B-166872, JUN. 25, 1969

B-166872: Jun 25, 1969

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TO PARMATIC FILTER CORPORATION: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 6. FOUR BIDS WERE RECEIVED AND OPENED. NO OTHER INDICATIONS WERE MADE IN YOUR BID CONCERNING YOUR F.O.B. IT WAS DETERMINED THAT YOUR LOW BID SHOULD BE REJECTED AS NONRESPONSIVE AND THE AWARD MADE TO THE NEXT LOWEST BIDDER. WAS A TYPOGRAPHICAL ERROR THAT MAY BE CORRECTED BY THE CONTRACTING OFFICER UNDER THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION. YOU CONTEND THAT YOU ARE WILLING TO HAVE THE ITEMS SHIPPED F.O.B. DESTINATION BECAUSE EVEN IF THE TRANSPORTATION COSTS ARE ADDED. YOUR BID PRICE WILL STILL BE LOW. IN OUR OPINION THE ABOVE-CITED REGULATION IS NOT FOR APPLICATION IN THIS CASE. SINCE THE ERROR COMMITTED HERE IS NEITHER APPARENT ON THE FACE OF THE BID FORM AND ACCOMPANYING PAPERS.

B-166872, JUN. 25, 1969

TO PARMATIC FILTER CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 6, 1969, PROTESTING AGAINST THE REJECTION OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS NO. DSA 700-69-B-2657, ISSUED MARCH 7, 1969, BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO.

THE INVITATION REQUIRED A QUANTITY OF 331 UNITS, FILTER ELEMENTS, FLUID PRESSURE, FSN 4330-702-2283, FOR SHIPMENT IN SPECIFIED QUANTITIES TO VARIOUS SUPPLY DEPOTS DESIGNATED BY CODE. FOUR BIDS WERE RECEIVED AND OPENED, AS SCHEDULED, ON APRIL 8, 1969. ON PAGE 3 OF THE SOLICITATION, IMMEDIATELY AFTER THE ITEM DESCRIPTION, APPEARED THE HEADING,"F.O.B. DESTINATION - FOR SHIPMENT TO:". THEREUNDER, YOU LISTED THE UNIT AND TOTAL BID PRICES IN THE PROPER PLACES. HOWEVER, ON PAGE 1 OF THE SOLICITATION, YOU FILLED IN THE ITEM NUMBER, NOMENCLATURE, QUANTITY, UNIT PRICE, AND TOTAL PRICE AND BELOW THIS, ADDED THE FOLLOWING PHRASE,"F.O.B. LIVINGSTON, N.J.'. NO OTHER INDICATIONS WERE MADE IN YOUR BID CONCERNING YOUR F.O.B. POINT.

THE CONTRACTING OFFICER CONSIDERED THE WORDS "F.O.B. LIVINGSTON, N.J.' AS SPECIFYING DELIVERY ON AN F.O.B. ORIGIN BASIS RATHER THAN F.O.B. DESTINATION AS REQUIRED BY THE SOLICITATION. THEREFORE, IT WAS DETERMINED THAT YOUR LOW BID SHOULD BE REJECTED AS NONRESPONSIVE AND THE AWARD MADE TO THE NEXT LOWEST BIDDER, AIRCRAFT POROUS MEDIA, AS THE RESPONSIVE AND RESPONSIBLE BIDDER.

IN YOUR TELEGRAMS OF APRIL 24, 1969, AND MAY 6, 1969, YOU CONTEND THAT THE INSERTION OF THE PHRASE "F.O.B. LIVINGSTON, N.J.' WAS A TYPOGRAPHICAL ERROR THAT MAY BE CORRECTED BY THE CONTRACTING OFFICER UNDER THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION. FURTHER, YOU CONTEND THAT YOU ARE WILLING TO HAVE THE ITEMS SHIPPED F.O.B. DESTINATION BECAUSE EVEN IF THE TRANSPORTATION COSTS ARE ADDED, YOUR BID PRICE WILL STILL BE LOW.

PARAGRAPH 2-406.2 OF ASPR, IN PERTINENT PART, PROVIDES: "APPARENT CLERICAL MISTAKES. ANY CLERICAL MISTAKE APPARENT ON THE FACE OF A BID MAY BE CORRECTED BY THE CONTRACTING OFFICER PRIOR TO AWARD, IF THE CONTRACTING OFFICER HAS FIRST OBTAINED FROM THE BIDDER WRITTEN OR TELEGRAPHIC VERIFICATION OF THE BID ACTUALLY INTENDED. * * *.'

IN OUR OPINION THE ABOVE-CITED REGULATION IS NOT FOR APPLICATION IN THIS CASE, SINCE THE ERROR COMMITTED HERE IS NEITHER APPARENT ON THE FACE OF THE BID FORM AND ACCOMPANYING PAPERS, NOR IS IT AN OBVIOUS CLERICAL ERROR. BIDDERS NOT INFREQUENTLY INSERT CONDITIONS IN THEIR BID FORMS AND SUCH STATEMENTS MUST BE RECOGNIZED AS A PART OF THE BID. TYPEWRITTEN PROVISIONS INSERTED BY A BIDDER MUST BE GIVEN PRECEDENCE OVER PRINTED CONDITIONS IN THE GOVERNMENT BID FORM. IN THIS INSTANCE, REGARDLESS OF WHAT MAY HAVE BEEN INTENDED, THE INSERTION OF THE PHRASE "F.O.B. LIVINGSTON, N.J.' RENDERED THE BID AT LEAST SUSCEPTIBLE TO AN INTERPRETATION WHICH WOULD HAVE THE EFFECT OF VARYING THE BIDDER'S OBLIGATION FROM THAT CONTEMPLATED BY THE INVITATION WITH RESPECT TO THE DELIVERY OF THE ITEMS, ALL TRANSPORTATION CHARGES PAID, TO THE VARIOUS DEPOTS. IN SUCH CASES, THE EXCEPTIONS OR DEVIATIONS FROM THE REQUIREMENTS OF THE INVITATION ARE MATERIAL AND THE BID MUST BE CONSIDERED NONRESPONSIVE AS A COUNTEROFFER. SEE 40 COMP. GEN. 432; B 146170, SEPTEMBER 15, 1961.

IT IS AN ESTABLISHED PRINCIPLE OF GOVERNMENTAL FORMAL COMPETITIVE PROCUREMENT THAT A CONTRACT OFFERED TO A SUCCESSFUL BIDDER MUST BE THE CONTRACT OFFERED TO ALL BIDDERS. THAT PRINCIPLE COULD NOT BE MAINTAINED IF THE GOVERNMENT, IN ORDER TO OBTAIN A PECUNIARY ADVANTAGE IN PURCHASING ITEMS, PERMITTED MATERIAL CHANGES IN BIDS AFTER OPENING OR ALLOWED ANY BIDDER AN OPPORTUNITY BEFORE AWARD TO CLARIFY AN APPARENT QUALIFICATION IN A BID WHICH MIGHT BE CONSIDERED AS AFFECTING THE SUBSTANCE OF THE BID EITHER AS TO PRICE, QUALITY OR QUANTITY OF THE ITEMS OFFERED. SEE 31 COMP. GEN. 179; 34 ID. 24; 35 ID. 33; AND 36 ID. 535.