B-134580, MAR. 5, 1958

B-134580, MAR. 5, 1958

TO REILLY, WELLS AND RHODES:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 14, 1958, REQUESTING RECONSIDERATION OF OUR DECISION OF JANUARY 10, 1958 (B-134580), IN WHICH WE HELD THAT FAILURE OF ROBERTS E. LATIMER, JR., INC., TO REQUEST A WRITTEN INTERPRETATION FROM THE CONTRACTING OFFICER WITH RESPECT TO THE SPECIFICATION REQUIREMENTS ON BORROW MATERIAL, DID NOT REQUIRE REJECTION OF A LOW BID, SUBMITTED BY THAT COMPANY, WHICH EXCLUDED THE BIDDER FROM LIABILITY FOR BORROWED MATERIAL.

YOUR ORIGINAL PROTEST WAS BASED UPON A PROVISION IN THE INVITATION FOR BIDS ON DISTRICT OF COLUMBIA PROJECT NO. C12-C-56A WHICH READS AS FOLLOWS:

"REQUESTS FOR INTERPRETATIONS OF SPECIFICATIONS, RECEIVED IN WRITING BY THE OFFICE OF DESIGN AND ENGINEERING NOT LATER THAN FIVE (5) DAYS PRIOR TO THE DATE OF OPENING OF BIDS WILL BE ANSWERED IN THE FORM OF ADDENDA TO THE SPECIFICATIONS, COPIES OF WHICH WILL BE MAILED TO ALL BIDDERS NOT LATER THAN THREE (3) DAYS BEFORE DATE OF OPENING OF BIDS.

"VERBAL REQUEST FOR INTERPRETATIONS CANNOT BE ANSWERED.'

YOUR PRESENT REQUEST, IN EFFECT, REITERATES YOUR ORIGINAL CONTENTION THAT SUCH PROVISION REQUIRED EACH BIDDER TO EITHER SUBMIT A WRITTEN REQUEST FOR INTERPRETATIONS OR TO SUBMIT A BID WHICH WAS FREE OF ANY INTERPRETATION OF THE SPECIFICATIONS. ADDITIONALLY, YOU CONTEND THAT AGREEMENT BY THE CONTRACTING OFFICER, AND BY THIS OFFICE, WITH THE BIDDER'S INTERPRETATION IS IMMATERIAL, AND THAT THE CONCEPT OF COMPETITIVE BIDDING, WHICH IS BASED UPON UNIFORMITY IN BIDS, WILL BE DESTROYED BY PERMITTING SUCH INTERPRETATIONS SINCE BIDDERS WOULD BE ENTITLED TOBE RELEASED FROM THEIR BIDS IN THE EVENT THE CONTRACTING OFFICER DOES NOT AGREE WITH THE BIDDER'S INTERPRETATION.

A LITERAL INTERPRETATION OF THE ABOVE-QUOTED PROVISION OF THE INVITATION DOES NO MORE THAN TO ESTABLISH A PROCEDURE WHICH A BIDDER MUST FOLLOW IN THE EVENT HE DESIRES CLARIFICATION OF THE EXTENT OF PERFORMANCE WHICH THE CONTRACTING OFFICER INTENDS TO REQUIRE UNDER THE SPECIFICATIONS. WHILE COMPLIANCE WITH SUCH PROCEDURE MAY WELL BE DESIRABLE, WE ARE UNABLE TO AGREE WITH YOUR CONTENTION THAT THE PROVISION PLACES AN OBLIGATION UPON A BIDDER TO EITHER REQUEST AN INTERPRETATION OR TO FORFEIT ALL RIGHT TO CONSIDERATION OF A BID WHICH IS SUBJECT TO AN INTERPRETATION OF THE SPECIFICATIONS.

THE CONCEPT OF COMPETITIVE BIDDING REQUIRES THAT ALL BIDDERS BE GIVEN AN OPPORTUNITY TO COMPETE ON AN EQUAL BASIS, AND THE RULE IS SETTLED THAT A BID IS NOT COMPETITIVE, AND THUS CANNOT BE CONSIDERED FOR AWARD, WHEN IT IS SUBJECT TO QUALIFICATIONS WHICH REDUCE THE BIDDER'S OFFER OF PERFORMANCE TO LESS THAN THAT REQUESTED IN THE INVITATION. HOWEVER, THE QUESTION OF WHETHER BIDS ARE COMPETITIVE DEPENDS UPON WHETHER THE BIDDERS ARE OFFERING TO ENTER INTO IDENTICAL LEGAL OBLIGATIONS WITH THE UNITED STATES. THUS, IN THE INSTANT CASE, THE QUESTION OF WHETHER THE BID SUBMITTED BY ROBERTS E. LATIMER, JR., INC., WAS COMPETITIVE DEPENDED UPON WHETHER THE INTERPRETATION TO WHICH THE BID WAS SUBJECT WOULD LIMIT THE PERFORMANCE OBLIGATION OF THE BIDDER TO LESS THAN THAT WHICH WOULD BE REQUIRED OF A BIDDER WHO SUBMITTED A BID NOT CONTAINING SUCH INTERPRETATION. SEE 36 COMP. GEN. 725; 16 ID. 824; 15 ID. 201. AS STATED IN OUR DECISION OF JANUARY 10, 1958, THE INVITATION MADE NO REFERENCE TO BORROW MATERIAL AND WE ARE OF THE OPINION THAT THE LEGAL OBLIGATIONS CREATED BY THE ACCEPTANCE OF ANY OTHER BID SUBMITTED BY ROBERTS E. LATIMER, JR., INC., OR BY THE ACCEPTANCE OF ANY OTHER BID WHICH DID NOT SPECIFICALLY EXCLUDE LIABILITY FOR BORROW MATERIAL, WOULD HAVE BEEN IDENTICAL. THE DISTRICT OF COLUMBIA THEREFORE WOULD NOT HAVE BEEN JUSTIFIED, UNDER THE COMPETITIVE BIDDING STATUTES, IN REJECTING THE LOW BID ON THE GROUND THAT IT WAS NOT COMPETITIVE. B-100576, MARCH 20, 1951.

WHILE WE APPRECIATE THE FORCE OF YOUR ARGUMENT THAT THE BENEFITS TO BE DERIVED FROM UNIFORMITY IN THE BASES UPON WHICH BIDS ARE SUBMITTED PRECLUDE DETERMINATIONS OF THIS NATURE PREDICATED SOLELY UPON THE INTERPRETATION INTENDED BY THE CONTRACTING OFFICER, WE BELIEVE THE INTERESTS OF BOTH THE BIDDERS AND THE UNITED STATES WILL BE ADEQUATELY PROTECTED BY DETERMINATIONS OF THIS OFFICE RELATIVE TO THE EXTENT OF PERFORMANCE WHICH MAY LEGALLY BE REQUIRED UNDER BOTH THE INVITATION AND THE BIDS SUBMITTED THEREUNDER.