B-170635, OCT 19, 1970, 50 COMP GEN 302

B-170635, OCT 19, 1970, 50 COMP GEN 302

BIDS - MODIFICATION - AMBIGUOUS A TELEGRAPHIC MODIFICATION OF A BID ON GOVERNMENT SURPLUS PROPERTY, WHICH READ "INCREASE ITEM 13 BID $8,900," IS AN AMBIGUOUS MODIFICATION, AS IT CAN BE INTERPRETED TO INCREASE THE ORIGINAL BID "BY" $8,900 OR "TO" $8,900; AND THE TELEGRAM, THEREFORE, SHOULD BE DISREGARDED IN DETERMINING THE HIGHEST BIDDER ON THE ITEM. THE TELEGRAPHIC BID MODIFICATION REASONABLY SUSCEPTIBLE OF TWO VARYING INTERPRETATIONS, ONE ONLY MAKING THE BID PRICE HIGH, IT WOULD BE PREJUDICIAL TO OTHER BIDDERS TO PERMIT THE BIDDER WHO CREATED THE AMBIGUITY TO SELECT AFTER BID OPENING THE INTERPRETATION TO BE ADOPTED.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, OCTOBER 19, 1970:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 10, 1970, WITH ENCLOSES, FROM YOUR GENERAL COUNSEL, FURNISHING A REPORT ON THE PROTEST OF GREENSTEIN AND SOLOTKE, ATTORNEYS AT LAW, ON BEHALF OF LANG AND EPSTEIN, AGAINST THE PROPOSED CONSIDERATION BY THE GENERAL SERVICES ADMINISTRATION (GSA), REGION 5, OF A TELEGRAPHIC MODIFICATION TO A BID SUBMITTED BY THE AMERICAN WASTE & WIPER COMPANY IN RESPONSE TO SALES INVITATION NO. 5DPS-71 -4, ISSUED BY THE SALES BRANCH, PERSONAL PROPERTY DIVISION, CHICAGO, ILLINOIS.

THE SALES INVITATION REQUESTED BIDS - TO BE OPENED AT 10:30 A.M. (LOCAL TIME), ON JULY 8, 1970 - FOR THE PURCHASE FROM THE GOVERNMENT OF, AMONG OTHER ITEMS, 1,988 COILS OF STEEL STRAPPING 1/2-INCH WIDE, ITEM 13. THE SCHEDULED BID OPENING TIME, 18 BIDS ON ITEM 13 WERE OPENED IN THE BUSINESS SERVICE CENTER; AND IN ATTENDANCE, AMONG OTHERS, WERE REPRESENTATIVES OF EPSTEIN AND THE AMERICAN WASTE & WIPER COMPANY. IT IS REPORTED THAT AMERICAN WASTE & WIPER SUBMITTED A BID OF $6,161.61 FOR ITEM 13 WHICH WAS MODIFIED BY A TELETYPE MESSAGE RECEIVED AT 8:31 A.M. ON JULY 8, 1970, AND READ "INCREASE ITEM 13 BID $8,900"; AND THAT A HAND-CARRIED LETTER MARKED "ADDENDUM TO SALE NO. 5DPS-71-4" WAS RECEIVED BY THE BUSINESS SERVICE CENTER AT 10:18 A.M. ON JULY 8, 1970, WHICH CONFIRMED THE TELETYPE MESSAGE STATING "INCREASE ITEM 13 BID $8,900." IT ALSO IS REPORTED THAT THE SALES SPECIALIST PRIOR TO READING OF THE BIDS ASSEMBLED ALL OF THE PAPERS PERTAINING TO THE AMERICAN WASTE & WIPER BID AND ANNOUNCED THAT ITS ORIGINAL BID OF $6,161.61 ON ITEM 13 HAD BEEN TIMELY MODIFIED BY TELETYPE AND LETTER TO A BID OF $8,900. THE FOREGOING WAS THE SALES SPECIALIST'S IMMEDIATE IMPRESSION AND INTERPRETATION OF THE MODIFICATION MADE BY AMERICAN WASTE & WIPER, AND NO OBJECTION TO THE $8,900 ANNOUNCED BID WAS MADE BY THE REPRESENTATIVE FOR AMERICAN WASTE & WIPER WHO WAS PRESENT AT THE BID OPENING. THEREAFTER, THE BID OF EPSTEIN WAS READ AND ANNOUNCED AS $15,010 FOR ITEM 13.

THE RECORD INDICATES THAT AT THE TERMINATION OF THE READING OF ALL THE BIDS A REPRESENTATIVE OF AMERICAN WASTE & WIPER ASKED THAT HIS COMPANY'S BID ON ITEM 13 BE CORRECTED AND ANNOUNCED AS $15,061.61 FOR THAT ITEM. THIS REQUEST WAS IMMEDIATELY PROTESTED BY EPSTEIN'S REPRESENTATIVE, WHO ASKED THAT A LEGAL INTERPRETATION OF THE MODIFICATION BE MADE BY THE GSA REGIONAL COUNSEL.

THE TELETYPE MODIFICATION WAS SUBMITTED TO THE REGIONAL COUNSEL FOR HIS INTERPRETATION AND IT WAS HIS OPINION THAT THE TELETYPE MODIFICATION DID INCREASE THE BID OF AMERICAN WASTE & WIPER ON ITEM 13 TO $15,061.61 AND THAT IT WAS, THEREFORE, PROPER TO MAKE AN AWARD ON THAT ITEM IN THAT AMOUNT. IT IS REPORTED THAT COUNSEL'S OPINION WAS BASED ON A LONGSTANDING INTERPRETATION OF THIS TYPE OF WORDING IN GOVERNMENT CONTRACTING AND THAT NO OTHER CONCLUSION COULD BE REACHED. UPON BEING INFORMED OF THE REGIONAL COUNSEL'S INTERPRETATION, EPSTEIN VERBALLY AND IN WRITING PROTESTED THE DECISION OF THE REGIONAL COUNSEL. IT IS REPORTED THAT AN AWARD ON ITEM 13 IS BEING HELD IN ABEYANCE PENDING A DECISION BY OUR OFFICE ON EPSTEIN'S PROTEST.

IN THEIR LETTER OF AUGUST 17, 1970, THE ATTORNEYS FOR LANG AND EPSTEIN CONTEND THAT THE BID OF AMERICAN WASTE & WIPER, AS MODIFIED BY ITS TELETYPE OF JULY 8, 1970, CONSTITUTED A MULTIBID AND, THEREFORE, WAS NOT RESPONSIVE TO THE SALES INVITATION. WE DO NOT AGREE WITH THIS CONTENTION BECAUSE PARAGRAPH 10 OF THE SPECIAL INSTRUCTIONS TO BIDDERS PROVIDES THAT BIDS MAY BE MODIFIED BY WRITTEN OR TELEGRAPHIC NOTICE PRIOR TO THE TIME SET FOR OPENING.

THE QUESTION FOR CONSIDERATION HERE IS WHETHER THE TELETYPE MODIFICATION WAS COMPLETELY CLEAR AS TO THE INTENDED REVISED AMOUNT OF THE BID OF AMERICAN WASTE & WIPER ON ITEM 13. IN HIS REPORT, THE CHIEF, SALES BRANCH, PERSONAL PROPERTY DIVISION, STATES THAT THE CLEAR WORDING OF THE MODIFYING WIRE "INCREASE ITEM 13 BID 8,900" SHOWS NOT A BID OF $8,900, BUT AN INCREASE IN THAT AMOUNT, AND THAT ANY OTHER INTERPRETATION WOULD IN EFFECT ADD THE WORD "TO" BEFORE THE DOLLAR AMOUNT. IT ALSO IS STATED THAT THIS FORM OF MODIFICATION EITHER INCREASING OR DECREASING BIDS IS FREQUENTLY USED IN PROCUREMENT SITUATIONS AND THAT IT IS A MANNER OF MODIFICATION PROTECTING THE SEALED BID PRINCIPLE, ALTHOUGH THE USE OF THE WORD "BY" BEFORE THE DOLLAR AMOUNT WOULD BE PREFERRED.

IN HIS LETTER OF SEPTEMBER 10, 1970, THE GENERAL COUNSEL STATES THAT WEBSTER'S NEW INTERNATIONAL DICTIONARY (SECOND EDITION) DEFINES "INCREASE," THE TRANSITIVE VERB, AS FOLLOWS:

"TO AUGMENT, OR MAKE GREATER IN BULK, QUANTITY, EXTENT, VALUE, OR AMOUNT, ETC.; TO ADD TO; TO ENHANCE, *** "

IT IS THEREFORE CONCLUDED BY THE GENERAL COUNSEL THAT THE TELETYPE MODIFICATION SHOULD BE INTERPRETED AS ADDING $8,900 TO THE ORIGINAL BID, AND NOT AS INCREASING THE BID TO $8,900.

WITHIN THAT DEFINITION OF THE WORD "INCREASE," IT MAY ALSO BE VALIDLY SAID THAT THE BIDDER MEANT "TO ADD TO" THE ORIGINAL BID ON ITEM 13 AN AMOUNT SUFFICIENT TO MAKE THE REVISED BID TOTAL $8,900. WE DO NOT AGREE WITH THE ADMINISTRATIVE POSITION THAT THE ONLY CONCLUSION WHICH MAY BE REACHED IS THAT THE ORIGINAL BID OF AMERICAN WASTE & WIPER WAS TO BE INCREASED "BY" $8,900. SINCE ITS ORIGINAL BID ON ITEM 13 WAS IN THE AMOUNT OF $6,161.61, WE ARE OF THE OPINION THAT THE TELETYPE MODIFICATION COULD REASONABLY BE INTERPRETED ALSO AS AN INSTRUCTION TO INCREASE ITS ORIGINAL BID TO $8,900. IN THIS CONNECTION, AMERICAN WASTE & WIPER STATES IN ITS LETTER OF SEPTEMBER 18, 1970, TO OUR OFFICE, THAT IT WOULD HAVE BEEN ILLOGICAL FOR THE FIRM TO HAVE REVEALED ITS REVISED TOTAL BID PRICE FOR ITEM 13 PRIOR TO THE TIME SET FOR OPENING OF BIDS. WHILE IT MIGHT HAVE BEEN ILLOGICAL FOR THE BIDDER TO HAVE REVEALED ITS REVISED BID PRICE FOR ITEM 13 IN ITS TELETYPE MODIFICATION, WE CANNOT SAY THAT THE MODIFICATION HAS ONLY ONE LOGICAL MEANING.

IT IS OUR OPINION THAT, AT THE VERY LEAST, AMERICAN WASTE & WIPER SUBMITTED AN AMBIGUOUS TELETYPE MODIFICATION. WE BELIEVE THAT WHERE A TELEGRAPHIC BID MODIFICATION IS REASONABLY SUSCEPTIBLE OF TWO VARYING INTERPRETATIONS AND THE BID PRICE WOULD BE HIGH UNDER ONE INTERPRETATION BUT NOT UNDER THE OTHER, IT WOULD BE PREJUDICIAL TO OTHER BIDDERS TO PERMIT THE BIDDER WHO CREATED THE AMBIGUITY TO SELECT AFTER BID OPENING THE INTERPRETATION TO BE ADOPTED. SEE 40 COMP. GEN. 393 (1961). AS WE HELD IN B-167584, OCTOBER 3, 1969:

*** ANY CLARIFICATION OR EXPLANATION OF THE BIDDER'S INTENTION BY EXTRANEOUS INFORMATION AFTER BID OPENING WOULD VIOLATE THE RULE THAT RESPONSIVENESS MUST BE ASCERTAINED FROM THE BID ITSELF. TO GIVE THE BIDDER AN OPTION AFTER BID OPENING TO BECOME ELIGIBLE FOR AWARD BY AGREEING TO ABIDE BY THE INVITATION OR TO PRECLUDE AWARD BY INSISTING ON ADHERENCE TO ITS OFFER, PROVIDES AN UNFAIR ADVANTAGE OVER THOSE BIDDERS WHOSE BIDS CONFORMED IN EVERY WAY TO THE INVITATION AND WERE LEFT WITHOUT OPTIONS. SUCH AN ADVANTAGE IS CONTRARY TO THE PURPOSE OF THE STATUTES GOVERNING PUBLIC PROCUREMENT. 38 COMP. GEN. 819.

ACCORDINGLY, SINCE THE TELETYPE BID MODIFICATION IS AMBIGUOUS, IT SHOULD BE DISREGARDED BY THE SALES ACTIVITY IN DETERMINING THE HIGHEST BIDDER ON ITEM 13 OF THE SUBJECT SALES INVITATION.