B-180362, FEB 14, 1974

B-180362, FEB 14, 1974

TIMELY TELEGRAPHIC BID MODIFICATION WHICH STATED BID IS BASED ON BEING ABLE TO GET FUEL AND MATERIAL TO COMPLETE JOB IN SPECIFIED TIME QUALIFIED AND RENDERED BID NONRESPONSIVE, SINCE IT RESTRICTED GOVERNMENT'S RIGHTS AND LIMITED BIDDER'S LIABILITY UNDER CONTRACT DEFAULTS CLAUSE.

TO E. M. GOSTOVICH CONSTRUCTION CO.:

THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE, ISSUED INVITATION FOR BIDS NO. R6-74-25 FOR THE CONSTRUCTION OF A SEWAGE COLLECTION AND TREATMENT SYSTEM FOR THE TIETON RANGER STATION AND HAUSE CREEK CAMPGROUND. THE BID OPENING DATE WAS DECEMBER 10, 1973, AT 2:00 P.M. THE LOW BID RECEIVED WAS FROM E. M. GOSTOVICH CONSTRUCTION COMPANY (GOSTOVICH).

AT APPROXIMATELY 12:56 P.M. ON THE DAY OF BID OPENING, THE PROCURING ACTIVITY RECEIVED A TELEPHONE CALL FROM WESTERN UNION RELAYING THE FOLLOWING TELEGRAM FROM GOSTOVICH:

"MY BID IS BASED ON BEING ABLE TO GET FUEL AND MATERIAL TO COMPLETE THE JOB IN THE SPECIFIED TIME."

A WRITTEN CONFIRMATION OF THE TELEGRAM WAS RECEIVED BY THE PROCURING ACTIVITY THE FOLLOWING MORNING, DECEMBER 11, 1973, AT 8:58 A.M.

THE FOREST SERVICE HAS REQUESTED DECISION AS TO THE RESPONSIVENESS OF THE LOW BID DUE TO THE SUBMISSION OF THE TELEGRAM QUALIFYING THE BID.

THE DELAYS CLAUSE, PARAGRAPH 5 OF STANDARD FORM 23A, PROVIDES FOR AN EXTENSION OF THE COMPLETION SCHEDULE IF THE DELAY WAS UNFORESEEABLE. THE BIDDER HAS STATED THAT THE CURRENT ENERGY CRISIS MAKES THE POSSIBILITY OF BEING UNABLE TO OBTAIN FUEL "FORESEEABLE" AND THAT IT WOULD NOT BE ENTITLED UNDER THE DELAYS CLAUSE TO AN EXTENSION OF TIME TO COMPLETE THE JOB IF IT COULD NOT OBTAIN FUEL. THE BIDDER HAS STATED THAT THE TELEGRAM WAS SENT TO PROTECT THE COMPANY'S INTEREST UNDER THE DELAYS CLAUSE.

IN A CASE INVOLVING SIMILAR FACTS, B-160698, FEBRUARY 28, 1967, THE BIDDER INCLUDED WITH THE BID A STATEMENT THAT IT MIGHT BE UNABLE TO MEET THE DELIVERY SCHEDULE BECAUSE OF AN INABILITY TO OBTAIN CERTAIN SUPPLIES. OUR OFFICE, IN HOLDING THAT THIS CONSTITUTED A QUALIFICATION OF THE BID, STATED:

"YOUR CONTENTION TO THE CONTRARY NOTWITHSTANDING, IT SEEMS CLEAR TO US THAT GARDNER-ZEMKE'S LETTER OF DECEMBER 12, 1966, MUST BE CONSTRUED AS A QUALIFICATION OF ITS BID. THE WHOLE LETTER, WITH THE EXCEPTION OF THE FIRST SENTENCE, WHICH MUST BE HELD TO 'BEG' THE QUESTION AT ISSUE, CONSTITUTED NOTICE TO THE GOVERNMENT THAT GARDNER-ZEMKE MIGHT NOT BE ABLE TO PERFORM THE CONTRACT WITHIN THE TIME REQUIRED BECAUSE OF POSSIBLE, OR PROBABLE, INABILITY TO OBTAIN TIMELY DELIVERY OF THE 'INSULATORS' REFERRED TO THEREIN, AND IN THE EVENT OF SUCH INABILITY EXPECTED TO BE GRANTED AN EXTENSION OF TIME OR WAIVER OF LIQUIDATED DAMAGES. HOWEVER, BIDS HAD BEEN SOLICITED ON THE BASIS OF A FIRM DELIVERY DATE, AND THERE WAS NO PROVISION FOR RELIEF OF THE CONTRACTOR FROM LIABILITY TO THE GOVERNMENT FOR ANY DELAY ENCOUNTERED UNLESS IT WAS DETERMINED BY THE CONTRACTING OFFICER TO HAVE BEEN DUE TO 'UNFORESEEABLE CAUSES.' MANIFESTLY, A DELAY WHICH WAS PREDICTABLE AND HAD BEEN PROVIDED AGAINST BEFORE THE CONTRACT WAS ENTERED INTO COULD NOT BE CONSIDERED UNFORESEEABLE WITHIN THE MEANING OF CLAUSE 5 OF THE GENERAL PROVISIONS OF THE INVITATION, SUPRA. YET, IF THE GOVERNMENT HAD ACCEPTED GARDNER-ZEMKE'S BID, WHICH MAY NOT BE DISASSOCIATED FROM THE ACCOMPANYING LETTER, IT WOULD HAVE BEEN PLACED IN THE POSITION OF HAVING TACITLY AGREED IN ADVANCE THAT ANY DELAY IN DELIVERY ATTRIBUTABLE TO THE CAUSE MENTIONED WOULD BE EXCUSED. THE GOVERNMENT CLEARLY WOULD NOT HAVE BEEN IN A POSITION TO ENFORCE ITS RIGHTS UNDER CLAUSE 5 OF THE GENERAL CONDITIONS TO THE SAME EXTENT AS WOULD HAVE PREVAILED HAD THE BID NOT BEEN QUALIFIED BY THE LETTER. SINCE THE CONTRACT AWARDED IN SUCH CASE WOULD NOT HAVE BEEN THE SAME CONTRACT OFFERED TO OTHER BIDDERS, THE CONTRACTING OFFICER WAS PROHIBITED FROM MAKING THE AWARD BY SECTIONS 1-2.301 AND 1- 2.404-2 OF THE FEDERAL PROCUREMENT REGULATIONS, 41 CFR 1-2.301 AND 1-2.404 -2 ***"

THE FOREGOING STATEMENT HAS EQUAL APPLICATION TO THE IMMEDIATE SITUATION. AS THE TELEGRAM FROM GOSTOVICH ATTEMPTED TO RESTRICT THE GOVERNMENT'S RIGHTS AND LIMIT THE BIDDER'S LIABILITY IN THE EVENT OF A DELAY DUE TO THE INABILITY TO OBTAIN FUEL OR MATERIAL, THE BID IS NONRESPONSIVE AND MAY NOT BE CONSIDERED FOR AWARD.