B-173764, DEC 7, 1971, 51 COMP GEN 360

B-173764: Dec 7, 1971

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CONTRACTS - SPECIFICATIONS - AMBIGUOUS - CONSTRUCTION OF AMBIGUITY THE CONTRACT AWARDED THE LOW BIDDER UNDER AN INVITATION FOR BIDS SOLICITING SERVICES TO CLEAN EXHAUST DUCTS FOR 1 YEAR THAT WAS INCONSISTENT AS THE SPECIFICATIONS REQUIRED TWO CLEANINGS AND THE BID SCHEDULE FOUR IS NOT A BINDING CONTRACT. NOTWITHSTANDING THE "ORDER OF PRECEDENCE" CLAUSE PRESCRIBED THE SCHEDULE WOULD PREVAIL IN CASE OF AN INCONSISTENCY SINCE BEFORE NOTICE OF AWARD WAS MAILED THE INCONSISTENCY WAS DISCOVERED AND THE BIDDER ALLEGED ITS BID WAS BASED ON TWO SERVICES PER YEAR. AS THE BIDDER WAS NOT AFFORDED AN OPPORTUNITY TO PROVE ITS ALLEGED ERROR. THE CONTRACT IS FOR CLEANING EXHAUST DUCTS FOR 1 YEAR. THE IFB WAS INCONSISTENT AS TO HOW OFTEN THE SERVICES WERE TO BE PERFORMED.

B-173764, DEC 7, 1971, 51 COMP GEN 360

CONTRACTS - SPECIFICATIONS - AMBIGUOUS - CONSTRUCTION OF AMBIGUITY THE CONTRACT AWARDED THE LOW BIDDER UNDER AN INVITATION FOR BIDS SOLICITING SERVICES TO CLEAN EXHAUST DUCTS FOR 1 YEAR THAT WAS INCONSISTENT AS THE SPECIFICATIONS REQUIRED TWO CLEANINGS AND THE BID SCHEDULE FOUR IS NOT A BINDING CONTRACT, NOTWITHSTANDING THE "ORDER OF PRECEDENCE" CLAUSE PRESCRIBED THE SCHEDULE WOULD PREVAIL IN CASE OF AN INCONSISTENCY SINCE BEFORE NOTICE OF AWARD WAS MAILED THE INCONSISTENCY WAS DISCOVERED AND THE BIDDER ALLEGED ITS BID WAS BASED ON TWO SERVICES PER YEAR. HAD THE DISCREPANCY BEEN DISCOVERED AFTER A VALID AWARD HAD BEEN CONSUMMATED OR HAD THE CONTRACTING OFFICER HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE ERROR, FOUR CLEANINGS WOULD BE REQUIRED, BUT AS THE BIDDER WAS NOT AFFORDED AN OPPORTUNITY TO PROVE ITS ALLEGED ERROR, NO VALID CONTRACT CAME INTO BEING WITH THE MAILING OF THE NOTICE AND THE PURPORTED CONTRACT SHOULD BE RESCINDED.

TO THE SECRETARY OF THE AIR FORCE, DECEMBER 7, 1971:

WE REFER TO A LETTER OF SEPTEMBER 3, 1971, FILE SPPM, FROM THE DEPUTY CHIEF, CONTRACT MANAGEMENT DIVISION, DIRECTORATE OF PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, TRANSMITTING THE ADMINISTRATIVE REPORT ON THE REQUEST OF VENTILATION CLEANING ENGINEERS, INC. (VENTILATION CLEANING), THAT THE CONTRACT AWARDED UNDER INVITATION FOR BIDS NO. F20603-71-B-0055, ISSUED APRIL 23, 1971, BY THE PROCUREMENT DIVISION OF WURTSMITH AIR FORCE BASE, MICHIGAN, BE REFORMED OR RESCINDED. THE CONTRACT IS FOR CLEANING EXHAUST DUCTS FOR 1 YEAR.

THE IFB WAS INCONSISTENT AS TO HOW OFTEN THE SERVICES WERE TO BE PERFORMED. THE FOLLOWING STATEMENT WAS MADE IN THE BID SCHEDULE:

TO FURNISH ALL PLANT, LABOR, EQUIPMENT, MATERIAL, APPLIANCES, TRANSPORTATION AND SUPERVISION NECESSARY TO CLEAN KITCHEN EXHAUST DUCTS 4 TIMES IN STRICT ACCORDANCE WITH THE PLANS, SPECIFICATIONS AND SUBJECT TO THE TERMS AND CONDITIONS OF THE CONTRACT.

FOLLOWING THE ABOVE STATEMENT WAS A LIST OF BUILDINGS IDENTIFIED BY NUMBER WHERE THE CONTRACT SERVICES WERE TO BE PERFORMED. AFTER EACH NUMBER THE NUMERAL "4" WAS LISTED TO INDICATE THE QUANTITY OF JOB UNITS. HOWEVER, THE TECHNICAL PROVISIONS OF THE SPECIFICATIONS OF THE IFB CONTAINED THE FOLLOWING CONTRADICTORY STATEMENT IN PARAGRAPH TP1 01:

FURNISH ALL PLANT, LABOR, EQUIPMENT, TOOLS, APPLIANCES AND MATERIALS NECESSARY FOR CLEANING KITCHEN EXHAUSTS DUCTS AS LISTED BELOW IN THESE SPECIFICATIONS.

A. CLEANING OF KITCHEN DUCTS WILL BE ACCOMPLISHED TWO (2) TIMES. STARTING DATE OF EACH VISIT SHALL BE APPROXIMATELY 16 NOVEMBER 71, AND MAY 72. WORK WILL BE CARRIED TO COMPLETION AS SOON AS POSSIBLE THEREAFTER.

FURTHERMORE, PARAGRAPH 19, "ORDER OF PRECEDENCE," IN THE SOLICITATION INSTRUCTIONS AND CONDITIONS IN THE IFB PROVIDED:

IN THE EVENT OF AN INCONSISTENCY BETWEEN PROVISIONS OF THIS SOLICITATION, THE INCONSISTENCY SHALL BE RESOLVED BY GIVING PRECEDENCE IN THE FOLLOWING ORDER: (A) THE SCHEDULE; (B) SOLICITATION INSTRUCTIONS AND CONDITIONS; (C) GENERAL PROVISIONS; (D) OTHER PROVISIONS OF THE CONTRACT, WHETHER INCORPORATED BY REFERENCE OR OTHERWISE; AND (E) THE SPECIFICATIONS.

THE LOWEST OF FOUR BIDS OPENED MAY 24, 1971, WAS SUBMITTED BY VENTILATION CLEANING AT $2,816. IT WAS ACCEPTED BY THE CONTRACTING OFFICER ON FRIDAY, JUNE 4, 1971. HOWEVER, ON ACCOUNT OF UNEXPLAINED ADMINISTRATIVE DELAYS, IT WAS NOT MAILED UNTIL TUESDAY, JUNE 8. IN THIS REGARD, PARAGRAPH 10(D) OF THE SOLICITATION INSTRUCTIONS STATES IN EFFECT THAT A BINDING CONTRACT DOES NOT COME INTO EXISTENCE UNTIL WRITTEN AWARD IS MAILED OR OTHERWISE FURNISHED TO THE SUCCESSFUL OFFEROR. ON JUNE 7, BEFORE THE NOTICE OF AWARD WAS MAILED TO VENTILATION CLEANING, THE CONTRACT ADMINISTRATOR DISCOVERED THE INCONSISTENCY IN THE IFB AS TO THE NUMBER OF TIMES THE WORK WAS TO BE PERFORMED AND DISCUSSED IT BY TELEPHONE WITH THE PRESIDENT OF VENTILATION CLEANING. THE FOLLOWING MEMORANDUM OF THAT CALL WAS WRITTEN BY THE CONTRACT ADMINISTRATOR:

CALL PLACED TO MR. WILLIAMS TO DISCUSS INCONSISTENCIES IN BID SCHEDULE AND JOB SPECIFICATIONS.

IN THE TELECON, MR. WILLIAMS STATED THAT HE HAD NOTED THE INCONSISTENCY IN THE BID SCHEDULE AND THE SPECIFICATIONS AND ALSO STATED THAT HE FELT THAT 2 SERVICES PER YEAR WOULD MEET THE NECESSARY CLEANING REQUIREMENTS. IT WAS THEN ASKED AT WHAT FREQUENCY WAS HIS BID ACTUALLY MADE. MR. WILLIAMS SAID THAT HIS BID WAS BASED ON 2 SERVICES PER YEAR. IT WAS THEN ASKED THAT IF HIS BID WAS BASED AS HE STATED THEN WHY DID HE SHOW 4 JOB PRICES THAT WERE PROPERLY EXTENDED. HE ANSWERED THAT HE THOUGHT THIS WAS HOW WE WANTED THE SERVICES BID. I STATED THAT IAW PARAGRAPH 19 OF SF33A THAT THE SCHEDULE HAD PRECEDENCE OVER THE SPECIFICATION IN THE IFB. MR. WILLIAMS SAID THAT IF FOUR SERVICES WERE REQUIRED HIS PRICE WOULD BE HIGHER BUT IF TWO SERVICES IS WHAT IS NEEDED HE WOULD OFFER A PRICE REDUCTION. I REQUESTED HE SUBMIT A LETTER WITH HIS PROPOSAL FOR PRICE REDUCTION.

IN A LETTER OF JUNE 7, 1971, TO THE CONTRACTS ADMINISTRATOR, VENTILATION CLEANING CONFIRMED THE CONVERSATION AND PROPOSED TO PERFORM TWO CLEANINGS DURING THE YEAR FOR $2,080. IN A LETTER OF JUNE 29, 1971, TO THE CONTRACTING OFFICER, VENTILATION CLEANING REPEATED ITS PROPOSAL THAT ITS ORIGINAL BID WAS BASED UPON PERFORMING TWO CLEANINGS. IN A LETTER OF JULY 20, 1971, THE CONTRACTING OFFICER RULED THAT A CONTRACT UNDER WHICH VENTILATION CLEANING WAS LIABLE TO PERFORM THE CLEANING SERVICES FOUR TIMES DURING THE YEAR RESULTED FROM THE ORIGINAL BID. THE DECISION WAS BASED ON THE ORDER OF PRECEDENCE CLAUSE, QUOTED ABOVE, UNDER WHICH THE BID SCHEDULE IS GIVEN PRECEDENCE OVER THE SPECIFICATIONS WHERE THERE ARE INCONSISTENCIES BETWEEN THE TWO.

IN A LETTER OF JULY 30, 1971, VENTILATION CLEANING REQUESTED THAT OUR OFFICE RESCIND OR REFORM THE CONTRACT ON THE GROUND THAT, NOTWITHSTANDING THE CONTRACTING OFFICER'S DETERMINATION THAT FOUR CLEANINGS WERE REQUIRED, THE PROPER INTERPRETATION OF THE IFB AND THE BASIS ON WHICH ITS BID WAS BASED WAS TO REQUIRE ONLY TWO CLEANINGS. FOR REASONS SET OUT BELOW, WE THINK THAT NO VALID CONTRACT RESULTED FROM THE ACTIONS TAKEN IN THIS PROCUREMENT.

IN OUR OPINION THE ORDER OF PRECEDENCE CLAUSE MENTIONED ABOVE REQUIRES THE CONCLUSION THAT THE BID SCHEDULE REQUIREMENT FOR FOUR CLEANINGS TAKES PRECEDENCE OVER THE SPECIFICATION REQUIREMENT FOR ONLY TWO CLEANINGS. THUS, IF THE DISCREPANCY HAD NOT BEEN DISCOVERED UNTIL AFTER A VALID AWARD HAD BEEN CONSUMMATED, THE CONTRACTING OFFICER NOT BEING ON ACTUAL OR CONSTRUCTIVE NOTICE OF ERROR, VENTILATION CLEANING WOULD CLEARLY BE BOUND TO THE BID SCHEDULE REQUIREMENT FOR FOUR CLEANINGS. HOWEVER, THE DISCREPANCY WAS BROUGHT TO THE ATTENTION OF VENTILATION CLEANING BEFORE ANY CONTRACT HAD BEEN CONSUMMATED AND AT THAT TIME THE PRESIDENT OF THE COMPANY ALLEGED THAT THE BID HAD BEEN PREDICATED ON THE BASIS OF TWO RATHER THAN FOUR CLEANINGS. THIS ALLEGATION, IN OUR OPINION, CONSTITUTED AN ALLEGATION OF ERROR, BEFORE AWARD, THE RESOLUTION OF WHICH BY REFERENCE TO BIDDER'S WORK PAPERS, ETC., WAS REQUIRED UNDER THE TERMS OF ARMED SERVICES PROCUREMENT REGULATION 2-406 BEFORE ANY VALID AWARD COULD BE MADE. SINCE VENTILATION CLEANING WAS NEVER AFFORDED THE OPPORTUNITY TO PROVE ITS ALLEGED ERROR, WE CONCLUDE THAT NO VALID CONTRACT CAME INTO BEING WITH THE MAILING OF THE NOTICE OF AWARD AND THAT THE PURPORTED CONTRACT WHICH HAS NOT BEEN PERFORMED SHOULD THEREFORE BE RESCINDED.