B-181812, SEP 24, 1974

B-181812: Sep 24, 1974

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ONE OF WHICH WAS TYPEWRITTEN 1-PERCENT DISCOUNT AND OTHER OF WHICH WAS HANDWRITTEN AND INITIALED 6-PERCENT DISCOUNT WRITTEN ABOVE ANOTHER TYPEWRITTEN 1-PERCENT DISCOUNT THAT WAS CROSSED-OUT. IS FOR CONSIDERATION ON BASIS OF 6-PERCENT DISCOUNT. SINCE MANUAL CHANGE MANIFESTED INTENT TO AMEND 1-PERCENT DISCOUNT TO 6-PERCENT AND IT IS RULE OF CONSTRUCTION THAT HANDWRITTEN TERMS PREVAIL OVER INCONSISTENT TYPEWRITTEN TERMS. 2. POST-BID OPENING EXPLANATION BY BIDDER OF INTENT TO OFFER 6 PERCENT PROMPT PAYMENT DISCOUNT HANDWRITTEN AND INITIALED ON BID ABOVE TYPEWRITTEN 1-PERCENT PROMPT PAYMENT DISCOUNT IS OF NO LEGAL SIGNIFICANCE IN REACHING DECISION THAT 6-PERCENT DISCOUNT WAS INTENDED. LAWN GROWTH & MAINTENANCE CO.: INVITATION FOR BIDS (IFB) N62474-74-B-0574 WAS ISSUED BY THE PUGET SOUND NAVAL SHIPYARD FOR GROUNDS MAINTENANCE SERVICES TO BE PERFORMED AT THE SHIPYARD.

B-181812, SEP 24, 1974

1. BID CONTAINING TWO CONFLICTING PROMPT PAYMENT DISCOUNTS, ONE OF WHICH WAS TYPEWRITTEN 1-PERCENT DISCOUNT AND OTHER OF WHICH WAS HANDWRITTEN AND INITIALED 6-PERCENT DISCOUNT WRITTEN ABOVE ANOTHER TYPEWRITTEN 1-PERCENT DISCOUNT THAT WAS CROSSED-OUT, IS FOR CONSIDERATION ON BASIS OF 6-PERCENT DISCOUNT, SINCE MANUAL CHANGE MANIFESTED INTENT TO AMEND 1-PERCENT DISCOUNT TO 6-PERCENT AND IT IS RULE OF CONSTRUCTION THAT HANDWRITTEN TERMS PREVAIL OVER INCONSISTENT TYPEWRITTEN TERMS. 2. POST-BID OPENING EXPLANATION BY BIDDER OF INTENT TO OFFER 6 PERCENT PROMPT PAYMENT DISCOUNT HANDWRITTEN AND INITIALED ON BID ABOVE TYPEWRITTEN 1-PERCENT PROMPT PAYMENT DISCOUNT IS OF NO LEGAL SIGNIFICANCE IN REACHING DECISION THAT 6-PERCENT DISCOUNT WAS INTENDED, SINCE EXPLANATION AFTER BID OPENING VIOLATES RULE THAT RESPONSIVENESS MUST BE ASCERTAINED FROM BID ITSELF.

LASHLEY'S LANDSCAPING, LAWN GROWTH & MAINTENANCE CO.:

INVITATION FOR BIDS (IFB) N62474-74-B-0574 WAS ISSUED BY THE PUGET SOUND NAVAL SHIPYARD FOR GROUNDS MAINTENANCE SERVICES TO BE PERFORMED AT THE SHIPYARD, IVY GREEN CEMETERY AND THE JACKSON PARK HOUSING PROJECT FOR A PERIOD OF ONE YEAR.

SIX BIDS WERE RECEIVED AS FOLLOWS:

TOTAL BID

LASHLEY'S LANDSCAPING, LAWN GROWTH &

MAINTENANCE CO. $71,945.73

LANDSCAPE ARCHITECTS SERVICE 74,970.53

M. & M. LANDSCAPERS 75,921.06

DIAMOND MAINTENANCE SERVICE 81,454.86

UNITED LANDSCAPE MAINT. GROUP, INC. 88,141.03

LANDSCAPING BY GEORGE YAMAMOTO 97,188.56

THE IFB SOLICITED A PROMPT PAYMENT DISCOUNT IN TWO PLACES ON THE BID FORM. ONE SOLICITATION WAS TYPED ON THE FRONT OF THE BID FORM. THE OTHER WAS PRINTED ON THE SECOND PAGE AS PART OF THE STANDARD FORM. IN EACH PLACE, LASHLEY'S LANDSCAPING OFFERED A DISCOUNT OF 1/2 OF 1 PERCENT FOR PAYMENT WITHIN 20 DAYS. IN THE SPACE PROVIDED ON THE FRONT OF THE BID FORM, LANDSCAPE ARCHITECTS PROPOSED A DISCOUNT OF 1 PERCENT FOR PAYMENT WITHIN 20 DAYS. THE "1" IS TYPEWRITTEN. IN THE SPACE PROVIDED ON THE SECOND PAGE, LANDSCAPE ARCHITECTS OFFERED A DISCOUNT OF 6 PERCENT, 20 DAYS, BY STRIKING OUT A TYPEWRITTEN ENTRY OF 1 PERCENT AND WRITING 6 PERCENT ABOVE IT AND INITIALING THE CHANGE. LANDSCAPE ARCHITECTS DID NOT CHANGE THE TYPEWRITTEN DISCOUNT ON THE FACE OF THE FORM.

AT BID OPENING, LOOKING ONLY AT THE FIRST PAGE OF THE BID, THE LANDSCAPE ARCHITECTS BID WAS READ AS OFFERING A 1-PERCENT DISCOUNT. HOWEVER, APPROXIMATELY 15 MINUTES AFTER BID OPENING, THE PRESIDENT OF LANDSCAPE ARCHITECTS TELEPHONED THE ASSISTANT OICC, TO POINT OUT THAT A 6-PERCENT DISCOUNT HAD BEEN INSERTED ON THE SECOND PAGE OF THE BID AND THAT INADVERTENTLY THE DISCOUNT HAD NOT BEEN CHANGED ON THE FIRST PAGE. THIS EXPLANATION WAS CONFIRMED BY A LETTER AS FOLLOWS:

"WHEN THE BID WAS BEING EXECUTED BY THE UNDERSIGNED A DETERMINATION WAS MADE TO REDUCE OUR OFFER. WE ELECTED TO CHANGE OUR PROMPT PAYMENT DISCOUNT RATHER THAN EACH OF THE UNIT PRICES IN SCHEDULE 'A'. THEREFORE TURNED TO PARAGRAPH 5, WHERE THE STANDARD DISCOUNT PROVISION IS CONTAINED AND CHANGED OUR DISCOUNT TO READ 6-1/8% - 10 CALENDAR DAYS, 6% - 20 CALENDAR DAYS, NET 30 CALENDAR DAYS. THE ORIGINAL DISCOUNT WAS CROSSED OUT IN INK, THE REVISED DISCOUNT INSERTED AND EACH CHANGE WAS INITIALED BY THE UNDERSIGNED. IN THE HASTE OF DISPATCHING OUR BID THE DISCOUNT PROVISION, AS APPEARS ON THE FACE SHEET OF FORM 4330 WAS NOT CHANGED."

THE LETTER FURTHER ASSERTED THAT NOTWITHSTANDING THE OVERSIGHT, "OUR INTENDED DISCOUNT OFFER IS CLEAR AND THAT IN ANY EVENT THE LARGER DISCOUNT SHOULD APPLY."

LASHLEY'S LANDSCAPING WAS ADVISED OF THE FOREGOING FACTS BY THE CONTRACTING AGENCY AND WAS GIVEN AN OPPORTUNITY TO EXAMINE THE BIDS. LASHLEY'S LANDSCAPING PROTESTED THAT BECAUSE THE LANDSCAPE ARCHITECTS BID WAS NOT COMPLETED CORRECTLY IT SHOULD BE REJECTED AS NONRESPONSIVE. THE NAVAL FACILITIES ENGINEERING COMMAND DENIED THE PROTEST ON THE GROUND THAT LANDSCAPE ARCHITECTS' ACTION IN CHANGING ONE OF THE TWO PROMPT PAYMENT DISCOUNT PROPOSALS LEGALLY BOUND IT TO A BID OFFERING A 6-PERCENT DISCOUNT WHICH WHEN TAKEN INTO ACCOUNT WOULD MAKE IT THE LOW BIDDER. THE CONTRACT WAS AWARDED TO LANDSCAPE ARCHITECTS AND LASHLEY'S LANDSCAPING PROTESTED TO OUR OFFICE.

AN AMBIGUOUS BID ORDINARILY SHOULD BE REJECTED. 50 COMP. GEN. 302 (1970). AN AMBIGUITY EXISTS WHERE THE TERMS OF A BID ARE SUBJECT TO TWO OR MORE REASONABLE INTERPRETATIONS. 51 COMP. GEN. 831 (1972). WHERE THERE IS A SINGLE REASONABLE CONSTRUCTION AS TO AN ITEM IN A BID, THE DOUBT IS RESOLVED BY THAT CONSTRUCTION AND THE BID IS FOR CONSIDERATION. IBID.

IN THE INSTANT CASE, THE LANDSCAPE ARCHITECTS BID CONTAINED TWO CONFLICTING PROMPT PAYMENT DISCOUNTS. HOWEVER, SINCE ONE OF THE TWO 1 PERCENT TYPEWRITTEN DISCOUNTS WAS CHANGED MANUALLY TO 6 PERCENT AND INITIALED, THE BID MANIFESTED AN INTENT TO AMEND THE 1-PERCENT DISCOUNT AND TO OFFER A 6-PERCENT DISCOUNT. IN THAT REGARD, IT IS A RULE OF CONSTRUCTION THAT, WHERE THERE IS A CONFLICT BETWEEN HANDWRITTEN AND TYPEWRITTEN TERMS, THE HANDWRITTEN TERMS WILL PREVAIL IN CASE OF AN IRRECONCILABLE INCONSISTENCY AND IN THE ABSENCE OF ANY MANIFESTATION OF INTENT TO THE CONTRARY. 17 AM. JUR 2D., CONTRACTS SEC. 271. THE REASON FOR THIS RULE IS THE BELIEF THAT A HANDWRITTEN PROVISION IS A MORE DELIBERATE AND IMMEDIATE EXPRESSION OF INTENTION THAN IS A TYPEWRITTEN PROVISION. IBID.

WE HAVE PREVIOUSLY HELD THAT IT IS THE BIDDER'S MANIFEST INTENT, NOT ITS SUBJECTIVE INTENT, WHICH IS CONTROLLING AND THAT THE INTENT IN OFFERING A DISCOUNT IS TO BE ASCERTAINED SOLELY FROM THE WRITTEN RESPONSE TO THE IFB. B-171396, MARCH 26, 1971. FURTHER, IN 50 COMP. GEN. 302 (1970), IT WAS STATED THAT ANY CLARIFICATION OR EXPLANATION OF A BIDDER'S INTENTION BY EXTRANEOUS INFORMATION AFTER BID OPENING WOULD VIOLATE THE RULE THAT RESPONSIVENESS MUST BE ASCERTAINED FROM THE BID ITSELF. THEREFORE, THE LANDSCAPE ARCHITECTS POST-BID OPENING TELEPHONIC AND WRITTEN COMMUNICATIONS ARE OF NO LEGAL SIGNIFICANCE AND THE DECISION BY OUR OFFICE IN THIS CASE THAT A 6-PERCENT DISCOUNT WAS INTENDED IS BASED SOLELY UPON AN INTERPRETATION OF THE BID AS SUBMITTED.

ACCORDINGLY, THE PROTEST AGAINST THE AWARD TO LANDSCAPE ARCHITECTS IS DENIED.