B-127372, NOV. 15, 1956

B-127372, NOV. 15, 1956

TO SCHUTTE AND KOERTING COMPANY:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 15, 1956, WITH FURTHER REFERENCE TO YOUR PROTEST AGAINST THE ACTION OF THE DEPARTMENT OF THE NAVY IN AWARDING TO GIMPEL MACHINE WORKS, INC., A CONTRACT FOR FURNISHING DESUPERHEATERS, REPAIR PARTS, ENGINEERING DRAWINGS, AND TYPE B TECHNICAL MANUALS UNDER INVITATION FOR BIDS NO. 600-719-56-S, ISSUED JANUARY 5, 1956, BY THE BUREAU OF SHIPS.

BY OUR DECISION DATED OCTOBER 1, 1956, YOU WERE ADVISED THAT FOR THE REASONS SET OUT THEREIN THERE APPEARED NO PROPER BASIS FOR OBJECTION BY THIS OFFICE TO THE ADMINISTRATIVE ACTION TAKEN IN REJECTING YOUR BID.

IN YOUR LETTER YOU EXPRESS DOUBT AS TO WHETHER THE TYPE B TECHNICAL MANUALS RATHER THAN TYPE C TECHNICAL MANUALS WERE IN FACT NECESSARY UNDER THE TERMS OF THE INVITATION FOR BIDS AND THE SPECIFICATIONS AND WHETHER THE TWO TYPES OF MANUALS DIFFER TO THE EXTENT STATED BY THE NAVY DEPARTMENT. WE HAVE NO FIRST-HAND INFORMATION WHICH WOULD BE OF ASSISTANCE TO YOU IN THESE MATTERS AND, AS YOU SUGGEST, YOUR DOUBTS PROBABLY COULD BEST BE RESOLVED BY COMPARING THE TWO TYPES OF MANUALS AT THE DEPARTMENT OF THE NAVY. IT IS SUGGESTED, THEREFORE, THAT YOU CONTACT THAT DEPARTMENT WITH RESPECT TO THESE MATTERS.

WITH RESPECT TO THE CONFLICT BETWEEN THE "TERMS OF SALE" INCLUDED WITH YOUR BID AND THE TERMS PRESCRIBED BY THE INVITATION, THE DEPARTMENT OF THE NAVY HAS STATED:

"IN ADDITION TO FILLING IN THE PRICES AND OTHER INFORMATION REQUESTED ON THE BID FORM THE SCHUTTE AND KOERTING COMPANY INSERTED THE FOLLOWING LANGUAGE ON THE INVITATION SCHEDULE: "NOTE: PLEASE REFER TO ATTACHED LETTER AND QUOTATION ITEM 1-A (ALTERNATE).'

"THE ATTACHED LETTER AND QUOTATION WERE PHYSICALLY ATTACHED TO THE GOVERNMENT INVITATION AND BID FORM AND WERE TYPED ON SCHUTTE AND KOERTING COMPANY LETTERHEAD AND QUOTATION FORMS. THE LETTER STATED, AMONG OTHER THINGS,: "WE ARE PLEASED TO ATTACH YOUR BID FORM 30 WITH TWO SIGNED COPIES OF IFB-600-710-56'S (SPF) DATED 13 JANUARY 1956, AND OUR FORMAL QUOTATION IN DUPLICATE SHOWING BREAKDOWN, DESCRIPTION AND PRICES OF ALL ITEMS,...'"

"THE SCHUTTE AND KOERTING FORMAL QUOTATION AND LETTERHEAD EACH CONTAINED BOLD RED TYPE AT THE BOTTOM IF EACH PAGE AS FOLLOWS: "SEE REVERSE SIDE FOR "TERMS OF SALE.' THE TERMS OF SALE ON THE REVERSE SIDE CONFLICTED WITH THE TERMS AND CONDITIONS REQUIRED BY THE INVITATION IN THAT THE GUARANTY PERIOD WAS ONLY FOR SIX MONTHS WHEREAS THE GOVERNMENT'S GUARANTY WAS FOR TWELVE MONTHS. MOREOVER, THE SCHUTTE AND KOERTING GUARANTY PROVIDED FOR REPLACEMENT ONLY WHEREAS THE INVITATION GUARANTY CLAUSE PROVIDED FOR CORRECTION, REPLACEMENT OR ADJUSTMENT OF PRICE AT THE OPTION OF THE GOVERNMENT. SIMILARLY THE CONTRACTOR'S LIABILITIES AS TO DELIVERIES AND TAXES WERE DIFFERENT FROM THOSE REQUIRED BY THE INVITATION.'

IN VIEW OF THE FACTS AS REPORTED, THERE APPEARS TO HAVE BEEN A REASONABLE BASIS FOR THE VIEW THAT THE TERMS OF SALE PRINTED ON YOUR QUOTATION AND LETTERHEAD WERE INTENDED TO BE CONTROLLING. IN ORDER TO INSURE CLARITY IN THAT RESPECT, SUCH PROVISIONS SHOULD BE DELETED IF STATIONERY BEARING SUCH PROVISIONS IS USED IN CONNECTION WITH FUTURE BIDS.

YOU PRESENT A QUESTION, IN SUBSTANCE, AS TO WHY YOUR SIGNING THE SCHEDULE WAS NOT ACCEPTED AS TAKING PRECEDENCE OVER THE TERMS OF SALE PRINTED ON YOUR LETTERHEAD, SINCE PARAGRAPH 39 OF THE GENERAL PROVISIONS PROVIDES THAT THE SCHEDULE ALWAYS CONTROLS IN THE EVENT OF INCONSISTENCY BETWEEN THE SCHEDULE AND SPECIFICATIONS. BOTH THE SCHEDULE AND THE SPECIFICATIONS ARE PREPARED BY THE PROCURING AGENCY. PARAGRAPH 39 OF THE GENERAL PROVISIONS APPARENTLY IS INTENDED TO REMOVE ANY UNCERTAINTY AS TO WHICH PROVISIONS SHALL GOVERN IF THE PROCURING AGENCY INSERTS CONFLICTING PROVISIONS IN THE SCHEDULE AND SPECIFICATIONS. CLEARLY, THAT PARAGRAPH CANNOT BE REGARDED AS CONTROLLING IN THE SITUATION IN WHICH INCONSISTENT TERMS OR CONDITIONS ARE PROPOSED BY A BIDDER. THE PREPARATION OF A BID IS THE SOLE RESPONSIBILITY OF THE BIDDER AND THE GOVERNMENT CANNOT BY UNILATERAL ACTION DICTATE WHICH OF THE INCONSISTENT PROPOSALS WAS INTENDED AS CONTROLLING BY THE BIDDER.

YOUR REQUEST FOR CLARIFICATION OF THE STATEMENT MADE IN OUR EARLIER DECISION TO YOU THAT THE GENERAL PROVISIONS ATTACHED TO THE BID INVITATION DO NOT BECOME EFFECTIVE UNLESS AND UNTIL AN AWARD IS MADE APPARENTLY STEMS FROM YOUR VIEW THAT IF SUCH STATEMENT BE CORRECT THEN YOUR BID SHOULD NOT HAVE BEEN REJECTED FOR FAILURE TO CONFORM TO THE GENERAL PROVISIONS. THE STATEMENT TO WHICH YOU REFER WAS DIRECTED SOLELY TO THE MATTER OF THE ENFORCEABILITY, AS BETWEEN THE INTERESTED PARTIES, OF THE RIGHTS AND OBLIGATIONS SET OUT IN THE GENERAL PROVISIONS. IT DID NOT, AND COULD NOT, REFER TO THE RELEVANCY OF THE GENERAL PROVISIONS TO THE SUBJECT MATTER OF THE CONTRACT. WHILE SUCH PROVISIONS CONFER NO ACTIONABLE RIGHT UPON EITHER PARTY PRIOR TO AWARD, THEY DO, AS EXPLAINED IN OUR EARLIER DECISION, APPRISE THE PARTIES OF THEIR MUTUAL RIGHTS AND OBLIGATIONS IF AN AWARD IS MADE. OBVIOUSLY, A BID CONTAINING COUNTER PROPOSALS INCONSISTENT WITH THE RIGHTS AND OBLIGATIONS AS PRESCRIBED BY THE GENERAL PROVISIONS--- AS WAS THE EFFECT OF YOUR BID--- IS AN UNRESPONSIVE BID AND PROPERLY MAY BE REJECTED.