B-170635(1), DEC. 16, 1970

B-170635(1): Dec 16, 1970

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IS REASONABLY SUSCEPTIBLE OF TWO VARYING INTERPRETATIONS AND THE BID PRICE WOULD BE HIGH UNDER ONE. NOTHWITHSTANDING SUCH MODIFICATIONS HAVE BEEN ACCEPTED IN THE PAST. TO AMERICAN WASTE & WIPER COMPANY: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR ATTORNEY'S LETTER OF NOVEMBER 6. 900 IS INCORRECT. YOU ALLEGE THAT YOUR TELETYPE BID MODIFICATION WAS FIRST READ AND THEN YOUR BID WAS OPENED AND READ BY THE SALES SPECIALIST WITHOUT OBJECTION BY YOUR REPRESENTATIVE SINCE THERE WAS NO BASIS ON WHICH TO OBJECT. YOU STATE THAT OUR STATEMENT APPEARING IN PARAGRAPH 3 ON PAGE 1 OF OUR DECISION TO THE EFFECT THAT AT THE TIME OF THE BID OPENING A REPRESENTATIVE OF YOUR FIRM ASKED THAT THE BID OF YOUR COMPANY BE CORRECTED IS INCORRECT.

B-170635(1), DEC. 16, 1970

BID PROTEST - AMBIGUOUS BID MODIFICATION AFFIRMING PRIOR DECISION HOLDING THAT PROTESTANT'S TELEGRAPHIC BID MODIFICATION SHOULD BE DISREGARDED DUE TO ITS AMBIGUOUS CHARACTER. WHERE A TELEGRAPHIC BID MODIFICATION, TIMELY RECEIVED, IS REASONABLY SUSCEPTIBLE OF TWO VARYING INTERPRETATIONS AND THE BID PRICE WOULD BE HIGH UNDER ONE, 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. NOTHWITHSTANDING SUCH MODIFICATIONS HAVE BEEN ACCEPTED IN THE PAST, THE PROPRIETY OF EACH SALES AWARD MUST BE DECIDED SOLELY ON THE BASIS OF THE PARTICULAR FACTS APPLICABLE TO EACH CASE.

TO AMERICAN WASTE & WIPER COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28, 1970, REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 19, 1970, 50 COMP. GEN.---, TO THE ADMINISTRATOR OF GENERAL SERVICES, WHEREIN WE HELD THAT A TELETYPE MODIFICATION TO A BID SUBMITTED BY YOUR FIRM IN RESPONSE TO SALES INVITATION NO. 5DPS-71-4, ISSUED BY THE SALES BRANCH, PERSONAL PROPERTY DIVISION, GENERAL SERVICES ADMINISTRATION, CHICAGO, ILLINOIS, SHOULD BE DISREGARDED BY THE SALES ACTIVITY IN DETERMINING THE HIGHEST BIDDER ON ITEM 13 OF THE SUBJECT SALES INVITATION. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR ATTORNEY'S LETTER OF NOVEMBER 6, 1970.

IN YOUR LETTER OF OCTOBER 28, 1970, YOU REFER TO THE SECOND PARAGRAPH ON PAGE 1 OF OUR DECISION AND STATE THAT OUR STATEMENT TO THE EFFECT THAT AT THE TIME OF THE BID OPENING THE SALES SPECIALIST ANNOUNCED THE BID OF YOUR FIRM AS BEING MODIFIED TO $8,900 IS INCORRECT. YOU ALLEGE THAT YOUR TELETYPE BID MODIFICATION WAS FIRST READ AND THEN YOUR BID WAS OPENED AND READ BY THE SALES SPECIALIST WITHOUT OBJECTION BY YOUR REPRESENTATIVE SINCE THERE WAS NO BASIS ON WHICH TO OBJECT. ALSO, YOU STATE THAT OUR STATEMENT APPEARING IN PARAGRAPH 3 ON PAGE 1 OF OUR DECISION TO THE EFFECT THAT AT THE TIME OF THE BID OPENING A REPRESENTATIVE OF YOUR FIRM ASKED THAT THE BID OF YOUR COMPANY BE CORRECTED IS INCORRECT. INSTEAD, YOU SAY THAT THERE WAS A QUESTION AS TO THE ACTUAL HIGH BID ON ITEM 13 BECAUSE THE BID OF YOUR FIRM AND THAT OF ANOTHER BIDDER WERE SO CLOSE THAT YOUR REPRESENTATIVE ASKED THAT YOUR BID BE READ AGAIN. THE STATEMENTS CHALLENGED BY YOU WERE BASED ON A REPORT TO US FROM THE CHIEF, SALES BRANCH, PERSONAL PROPERTY DIVISION, PROPERTY MANAGEMENT AND DISPOSAL SERVICE, GENERAL SERVICES ADMINISTRATION (GSA).

OUR DECISION WAS NOT BASED ON THE ABOVE STATEMENTS WHICH WE RESTATED AS BACKGROUND INFORMATION. RATHER, THE SOLE QUESTION FOR RESOLUTION WAS WHETHER THE TELETYPE BID MODIFICATION AS SUBMITTED BY YOUR FIRM WAS COMPLETELY CLEAR AS TO THE INTENDED REVISED AMOUNT OF THE BID OF YOUR COMPANY ON ITEM 13. THE TELETYPE BID MODIFICATION IN QUESTION READS AS FOLLOWS:

"INCREASE ITEM 13 BID $8,900." WE CONCLUDED THAT THIS LANGUAGE WAS AMBIGUOUS BECAUSE IT WAS SUSCEPTIBLE OF TWO VARYING INTERPRETATIONS, NAMELY, (1) TO INCREASE THE AMOUNT OF YOUR ORIGINAL BID ON ITEM 13 TO $8,900 OR (2) TO INCREASE THE AMOUNT OF YOUR ORIGINAL BID ON ITEM 13 BY $8,900. WE STATED IN OUR DECISION THAT SINCE THE BID PRICE ON ITEM 13 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 HAVE THE OPPORTUNITY TO SELECT AFTER BID OPENING THE INTERPRETATION IN ITS BEST INTEREST. IN OUR DECISION WE QUOTED THE FOLLOWING PARAGRAPH FROM OUR DECISION OF OCTOBER 3, 1969, B-167584:

" *** 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."

IN YOUR LETTER YOU REFER TO THE FOLLOWING STATEMENT FROM THE ABOVE QUOTED PARAGRAPH, "TO GIVE THE BIDDER AN OPTION AFTER BID OPENING *** PROVIDES AN UNFAIR ADVANTAGE." YOU CONTEND THAT THE ABOVE PRINCIPLE DOES NOT APPLY TO YOUR CASE BECAUSE (1) "NO OPTION HAD BEEN GIVEN, OR TAKEN" AND (2) "THE EXACT SAME WORDING FOR TELEGRAPHIC MODIFICATIONS HAS ALWAYS BEEN USED BY THIS BIDDER, AND HAS ALWAYS BEEN ACCEPTABLE WITHOUT QUESTION." YOU STATE THAT YOU CAN SEE NO REASON, WHATSOEVER, TO REFER TO YOUR TELEGRAPHIC BID MODIFICATION AS "AMBIGUOUS" SINCE IT HAS ALWAYS BEEN USED AND ACCEPTED BEFORE.

UPON REVIEW, WE REMAIN OF THE VIEW THAT THE TELETYPE BID MODIFICATION IN QUESTION IS AMBIGUOUS IN THAT IT IS REASONABLY SUSCEPTIBLE OF TWO VARYING INTERPRETATIONS. ALSO, WE BELIEVE THAT IN VIEW OF THE AMBIGUITY, YOUR FIRM DID HAVE AN OPTION OF DECIDING WHETHER YOU WANTED TO BE AWARDED ITEM 13 AT A PRICE OF $15,061.61 OR OF DECIDING THAT YOUR TELETYPE BID MODIFICATION INCREASED THE AMOUNT OF YOUR BID ON ITEM 13 FROM $6,161.61 TO $8,900. IN THIS REGARD, WE NOTE THAT THE BID OF EPSTEIN WAS IN THE AMOUNT OF $15,010. THE FACT THAT THE EXACT SAME WORDING FOR TELEGRAPHIC MODIFICATIONS MAY HAVE BEEN PREVIOUSLY USED BY YOUR FIRM UNDER PREVIOUS SALES INVITATIONS AND ACCEPTED BY GSA AS INCREASING THE AMOUNT OF THE ORIGINAL BID "BY" A CERTAIN AMOUNT IS NOT CONTROLLING HERE SINCE THE PROPRIETY OF EACH SALES AWARD MUST BE DECIDED SOLELY ON THE BASIS OF THE PARTICULAR FACTS APPLICABLE TO EACH CASE. IT IS PERTINENT TO OBSERVE THAT NO QUESTION WOULD HAVE BEEN RAISED BY OUR OFFICE AS TO THE INTENT OF YOUR TELETYPE BID MODIFICATION HAD THE AMOUNT SHOWN THEREIN BEEN LESS THAN THE AMOUNT OF YOUR ORIGINAL BID ON ITEM 13.

ACCORDINGLY, WE FIND NO BASIS TO MODIFY THE CONCLUSION REACHED IN OUR DECISION OF OCTOBER 19, 1970.