B-169594(2), OCT. 27, 1970

B-169594(2): Oct 27, 1970

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THEREFORE THE DELETION OF BIDDER'S AGREEMENT FROM FUTURE SOLICITATIONS IS RECOMMENDED AND CONSIDERATION SHOULD BE GIVEN THE USE OF A PROPERLY REFERENCED TABLE OF CONTENTS. SECRETARY: ENCLOSED HEREWITH IS A COPY OF OUR DECISION OF TODAY TO AMERICAN AIR FILTER COMPANY. REPORTS AND SUPPLEMENTAL INFORMATION REGARDING THIS PROTEST WERE PROVIDED OUR OFFICE BY THE GENERAL COUNSEL. THE FOLLOWING IFB PROVISION WAS BROUGHT TO OUR ATTENTION BY THE CONTRACTING OFFICER AS JUSTIFICATION FOR HIS DETERMINATION THAT YORK RESEARCH CORPORATION'S FAILURE TO RETURN ALL PAGES OF THE IFB DID NOT RENDER ITS BID NONRESPONSIVE: "12. CONDITION OR CLAUSE IS OR IS NOT RETURNED BY THE BIDDER.". THE FACT THAT THE PROVISION HAS SUCH AN EFFECT WOULD PERHAPS BE A SMALL MATTER IF THE PROVISION DID WHAT IT OBVIOUSLY WAS INTENDED TO DO.

B-169594(2), OCT. 27, 1970

BID PROTEST - BIDDER RESPONSIVENESS - AMBIGUITY LETTER ADVISING THAT OFFEROR SHOULD NOT BE ENCOURAGED TO OMIT PAGES OF THE SOLICITATION WHEN PRESENTING HIS BID. THEREFORE THE DELETION OF BIDDER'S AGREEMENT FROM FUTURE SOLICITATIONS IS RECOMMENDED AND CONSIDERATION SHOULD BE GIVEN THE USE OF A PROPERLY REFERENCED TABLE OF CONTENTS.

TO MR. SECRETARY:

ENCLOSED HEREWITH IS A COPY OF OUR DECISION OF TODAY TO AMERICAN AIR FILTER COMPANY, INC., DENYING ITS PROTEST AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) DACA87-70-B-0002. REPORTS AND SUPPLEMENTAL INFORMATION REGARDING THIS PROTEST WERE PROVIDED OUR OFFICE BY THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, ON MAY 20, JUNE 2, AND SEPTEMBER 19, 1970.

DURING OUR REVIEW OF THE PROTEST, THE FOLLOWING IFB PROVISION WAS BROUGHT TO OUR ATTENTION BY THE CONTRACTING OFFICER AS JUSTIFICATION FOR HIS DETERMINATION THAT YORK RESEARCH CORPORATION'S FAILURE TO RETURN ALL PAGES OF THE IFB DID NOT RENDER ITS BID NONRESPONSIVE:

"12. BIDDER'S AGREEMENT:

"BY SIGNING AND RETURNING A BID, THE BIDDER AGREES TO BE BOUND BY ALL THE TERMS, CONDITIONS AND CLAUSES WHICH CONSTITUTE THE INVITATION, INCLUDING AMENDMENTS TO THE INVITATION THAT MAY BE ISSUED AND ACKNOWLEDGED, REGARDLESS OF WHETHER THE PAGE CONTAINING ANY SUCH TERM, CONDITION OR CLAUSE IS OR IS NOT RETURNED BY THE BIDDER."

THE OPTIMUM SITUATION WITH RESPECT TO WHETHER A BIDDER AGREES TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF A SOLICITATION EXISTS WHEN A BIDDER RETURNS EACH AND EVERY PAGE OF THE SOLICITATION WITH HIS BID. ANYTHING LESS THAN THE RETURN OF ALL PAGES CREATES OBVIOUS PROBLEMS, AND WHILE RECOGNIZING THAT SUCH SITUATIONS DO OCCUR, WE DO NOT FEEL THAT AN OFFEROR SHOULD BE ENCOURAGED NOT TO RETURN IFB PAGES BY A PROVISION SUCH AS QUOTED ABOVE.

MOREOVER, THE FACT THAT THE PROVISION HAS SUCH AN EFFECT WOULD PERHAPS BE A SMALL MATTER IF THE PROVISION DID WHAT IT OBVIOUSLY WAS INTENDED TO DO, I.E., BIND A BIDDER TO THE TERMS, ETC., OF THE SOLICITATION WHEN THE PAGES CONTAINING THOSE TERMS ARE NOT RETURNED WITH THE BID. WE BELIEVE, HOWEVER, THE PROVISION DOES NOT ACCOMPLISH THIS PURPOSE IN ALL CASES. FOR EXAMPLE, IF A BIDDER DOES NOT RECEIVE THE LAST OF SEVERAL PAGES OR PROVISIONS OF A SOLICITATION AND BECAUSE OF THE WAY THE SOLICITATION IS STRUCTURED IS NOT ON NOTICE OF THEIR OMISSION, WE WOULD HAVE NO HESITANCY IN HOLDING THAT THE QUOTED BIDDER'S AGREEMENT DID NOT BIND THE BIDDER TO THE CONTENTS OF THOSE MISSING PAGES.

THE QUOTED PROVISION, IN OUR VIEW, WILL CREATE MORE PROBLEMS THAN SOLUTIONS TO THIS AREA OF MISSING BID PAGES. AT ITS BEST, IT IS SUPERFLUOUS SINCE THE RESULT IT INTENDS CAN BE ACCOMPLISHED BY A TABLE OF CONTENTS FOR THE SOLICITATION AND THE NOTING OF SAME ON THE FACESHEET OF STANDARD FORM 33, TOGETHER WITH THE TOTAL NUMBER OF PAGES OF THE SOLICITATION. THE TABLE OF CONTENTS THUS REFERENCED SHOULD CONTAIN INFORMATION SIMILAR TO THAT CONTAINED IN THE "COMPOSITION" SECTION OF THE SOLICITATION CONSIDERED IN 49 COMP. GEN. 289 (1969).

IN VIEW OF THE FOREGOING, WE RECOMMEND THE DELETION OF THE BIDDER'S AGREEMENT PROVISION FROM FURTHER SOLICITATIONS AND THAT CONSIDERATION BE GIVEN TO THE USE OF A TABLE OF CONTENTS PROPERLY REFERENCED IN THE SOLICITATION.