B-180784, JUN 4, 1974

B-180784: Jun 4, 1974

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

BID WHICH DID NOT STATE MINIMUM BID ACCEPTANCE PERIOD WAS PROPERLY ACCEPTED DESPITE PROVISION IN SOLICITATION ESTABLISHING MINIMUM BID ACCEPTANCE PERIOD OF 60 DAYS AND CAUTIONING BIDDERS TO ENTER THE SPECIFIED PERIOD IN THE SPACE PROVIDED ON SF 33. SINCE THE PROVISION ON PAGE 1 CROSS-REFERENCED THE OTHER PROVISION AND PROVIDED FOR A 60-DAY BID ACCEPTANCE PERIOD UNLESS A DIFFERENT PERIOD WAS SPECIFIED BY THE BIDDER IN THE BLANK SPACE PROVIDED ON THE BID FORM AND NO SUCH PERIOD WAS INSERTED BY THE BIDDER. GAO RECOMMENDS THAT IN FUTURE SOLICITATIONS WHERE PROVISIONS ARE INCLUDED ESTABLISHING MINIMUM BID ACCEPTANCE PERIODS OF 60 DAYS. APPROPRIATE LANGUAGE BE INCLUDED IN SUCH PROVISIONS TO MAKE IT CLEAR TO BIDDERS THAT AN INSERTION ON SF 33 WILL BE REQUIRED ONLY IN THE EVENT THE BIDDER INTENDS TO OFFER A BID ACCEPTANCE PERIOD OTHER THAN THE SPECIFIED 60-DAY PERIOD. 52 COMP.

B-180784, JUN 4, 1974

BID WHICH DID NOT STATE MINIMUM BID ACCEPTANCE PERIOD WAS PROPERLY ACCEPTED DESPITE PROVISION IN SOLICITATION ESTABLISHING MINIMUM BID ACCEPTANCE PERIOD OF 60 DAYS AND CAUTIONING BIDDERS TO ENTER THE SPECIFIED PERIOD IN THE SPACE PROVIDED ON SF 33, PAGE 1 OF THE SOLICITATION, SINCE THE PROVISION ON PAGE 1 CROSS-REFERENCED THE OTHER PROVISION AND PROVIDED FOR A 60-DAY BID ACCEPTANCE PERIOD UNLESS A DIFFERENT PERIOD WAS SPECIFIED BY THE BIDDER IN THE BLANK SPACE PROVIDED ON THE BID FORM AND NO SUCH PERIOD WAS INSERTED BY THE BIDDER. HOWEVER, GAO RECOMMENDS THAT IN FUTURE SOLICITATIONS WHERE PROVISIONS ARE INCLUDED ESTABLISHING MINIMUM BID ACCEPTANCE PERIODS OF 60 DAYS, APPROPRIATE LANGUAGE BE INCLUDED IN SUCH PROVISIONS TO MAKE IT CLEAR TO BIDDERS THAT AN INSERTION ON SF 33 WILL BE REQUIRED ONLY IN THE EVENT THE BIDDER INTENDS TO OFFER A BID ACCEPTANCE PERIOD OTHER THAN THE SPECIFIED 60-DAY PERIOD. 52 COMP. GEN. 842 (1973).

TO INTERCONTINENTAL MANUFACTURING CO., INC.:

INVITATION FOR BIDS (IFB) NO. DAAH01-74-B-0095, WAS ISSUED BY THE UNITED STATES ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA, FOR THE PROCUREMENT OF IMPROVED HAWK ROCKET MOTOR METAL PARTS.

THE INVITATION CONTAINED STANDARD FORM 33 (NOVEMBER 1969), ENTITLED "SOLICITATION OFFER AND AWARD." THE "OFFER" PORTION OF THAT FORM PROVIDES AS FOLLOWS:

"IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF THIS OFFER IS ACCEPTED WITHIN

CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE OFFEROR) FROM THE DATE FOR RECEIPT OF OFFERS SPECIFIED ABOVE, TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED, AT THE PRICE SET OPPOSITE EACH ITEM, DELIVERED AT THE DESIGNATED POINTS), WITHIN THE TIME SPECIFIED IN THE SCHEDULE."

IMMEDIATELY FOLLOWING SUCH LANGUAGE APPEARED THE TYPEWRITTEN NOTATION, "NOTE: SEE SECTION C-31." THE CROSS REFERENCED PARAGRAPH C 31 IMPOSED THE FOLLOWING CONDITION:

"BIDS-ACCEPTANCE PERIOD (1960 APR) BIDS OFFERING LESS THAN 60 DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE SET FOR OPENING OF BIDS WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.

NOTE: BIDDERS ARE CAUTIONED THAT THE PERIOD SPECIFIED ABOVE MUST BE ENTERED IN THE APPROPRIATE SPACE UNDER OFFER ON THE 'SOLICITATION, OFFER AND AWARD' FORM SF 33, PAGE 1."

INTERCONTINENTAL MANUFACTURING COMPANY, INCORPORATED (INTERCONTINENTAL), THE SECOND LOW BIDDER, ALLEGES THAT THE LOW BIDDER WILPAC MANUFACTURING COMPANY (WILPAC), WAS NONRESPONSIVE SINCE IT DID NOT ENTER IN THE SPACE ON SF 33, PAGE 1, A BID ACCEPTANCE PERIOD OF AT LEAST 60 DAYS. THE PROTESTER CONTENDS THAT SUCH AN ENTRY WAS REQUIRED BY SECTION C-31 OF THE SOLICITATION. THE CONTRACTING OFFICER CONCLUDED ON THE OTHER HAND THAT WILPAC WAS NOT REQUIRED TO INSERT A BID ACCEPTANCE PERIOD IN THE APPROPRIATE SPACE UNLESS WILPAC'S PERIOD FOR ACCEPTANCE WAS SOMETHING OTHER THAN 60 DAYS.

THE BID ACCEPTANCE PROVISION IN SF 33, ON PAGE 1 OF THE INVITATION, STANDING ALONE, IS SELF-EXECUTING AND REQUIRES NO INSERTION BY A BIDDER IN THE BLANK SPACE ON THE BID FORM TO INDICATE THE BIDDER'S ACCEPTANCE OF THE 60-DAY PERIOD. 47 COMP. GEN. 769, 771 (1968). IN 52 COMP. GEN. 842 (1973), WE RECOMMENDED THAT WHEN AN AGENCY PROPOSES TO REQUIRE A MINIMUM BID ACCEPTANCE PERIOD FOR A PARTICULAR PROCUREMENT, THE SOLICITATION SHOULD CONTAIN A CROSS-REFERENCE BETWEEN THE STANDARD PROVISION IN SF 33 AND ANY PROVISION LOCATED ELSEWHERE IN THE SOLICITATION SETTING FORTH A MINIMUM BID ACCEPTANCE PERIOD, SO THAT BIDDERS WOULD NOT BE CONFUSED AS TO THE REQUIRED BID ACCEPTANCE PERIOD. AS EXPLAINED BY THE AGENCY, THE CROSS -REFERENCE BETWEEN SF 33 AND PARAGRAPH 31 IN THIS CASE WAS INTENDED TO IMPLEMENT OUR RECOMMENDATION. IN OTHER WORDS, THE AGENCY'S PURPOSE IN CROSS REFERENCING THE PROVISIONS WAS TO MAKE IT CLEAR TO BIDDERS THAT THEY WERE NOT FREE TO INSERT A BID ACCEPTANCE PERIOD OF LESS THAN 60 DAYS IN THE BLANK SPACE ON SF 33 AND BE RESPONSIVE TO THE SOLICITATION. SEE 49 COMP. GEN. 649 (1970).

IN ADDITION TO PROVIDING FOR A MINIMUM BID ACCEPTANCE PERIOD OF 60 DAYS, PARAGRAPH C-31 CAUTIONED BIDDERS TO INSERT THE SPECIFIED PERIOD IN THE APPROPRIATE SPACE ON SF 33, PAGE 1 OF THE SOLICITATION. IT IS CONTENDED THAT THE EFFECT OF THIS LANGUAGE IN PARAGRAPH C-31 WAS TO MODIFY SF 33 TO THE EXTENT THAT THE PROVISION WAS NO LONGER SELF EXECUTING, AND THEREFORE AN INSERTION WAS REQUIRED BY A BIDDER IN THE BLANK SPACE ON THE BID FORM (SF 33) TO INDICATE THE BIDDER'S ACCEPTANCE OF THE 60-DAY PERIOD.

WE NOTE THAT IN THE CASE CONSIDERED AT 52 COMP. GEN. 842, SUPRA, THE AGENCY ESTABLISHED A MINIMUM BID ACCEPTANCE PERIOD IN EXCESS OF 60 DAYS. IN SUCH A CASE THE BIDDER WOULD BE REQUIRED TO INSERT THE REQUIRED BID ACCEPTANCE PERIOD ON SF 33 IN ORDER TO BE RESPONSIVE TO THE SOLICITATION. WE BELIEVE THE LANGUAGE IN PARAGRAPH C-31 CAUTIONING BIDDERS TO DO SO IS APPROPRIATE UNDER A SOLICITATION WHERE THE MINIMUM BID ACCEPTANCE PERIOD EXCEEDS 60 DAYS. IN THIS CASE, WHERE THE MINIMUM BID ACCEPTANCE PERIOD DID NOT EXCEED 60 DAYS, IT WAS NOT NECESSARY TO CAUTION BIDDERS TO INSERT A 60-DAY ACCEPTANCE PERIOD ON SF 33, IN VIEW OF THE PROVISIONS OF SF 33. NEVERTHELESS, WE DO NOT BELIEVE THERE IS ANY SIGNIFICANT DOUBT THAT A BIDDER WHO LEAVES BLANK THE SPACE PROVIDED FOR AN ACCEPTANCE PERIOD IN SF 33, INTENDS TO OFFER THE 60-DAY ACCEPTANCE PERIOD OTHERWISE SPECIFIED IN THE PROVISION. IT IS EVIDENT THAT THE SOLE PURPOSE OF PARAGRAPH C-31 WAS TO ESTABLISH A MINIMUM BID ACCEPTANCE PERIOD OF 60 DAYS AND THAT A BIDDER READING THAT PARAGRAPH TOGETHER WITH SF 33 REASONABLY COULD CONCLUDE THAT AN INSERTION ON THE BID FORM WAS NOT NECESSARY IF THE BIDDER INTENDED TO OFFER A BID ACCEPTANCE PERIOD OF 60 DAYS.

ACCORDINGLY, THE PROTEST IS DENIED. HOWEVER, IN ORDER TO AVOID ANY POSSIBLE CONFUSION IN FUTURE SOLICITATIONS WHERE PROVISIONS ARE INCLUDED ESTABLISHING MINIMUM BID ACCEPTANCE PERIODS OF 60 DAYS, WE RECOMMEND THAT APPROPRIATE LANGUAGE BE INCLUDED IN SUCH PROVISIONS TO MAKE IT CLEAR TO BIDDERS THAT AN INSERTION IN THE APPROPRIATE SPACE ON SF 33 WILL BE REQUIRED ONLY IN THE EVENT THE BIDDER INTENDS TO OFFER A BID ACCEPTANCE PERIOD OTHER THAN THE SPECIFIED 60-DAY PERIOD.