B-143079, AUG. 9, 1960

B-143079, AUG. 9, 1960

TO BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY:

YOUR LETTER OF JUNE 20, 1960, YOUR FILE R11.1, FURNISHED A REPORT BY THE CONTRACTING OFFICER REGARDING THE PROTEST OF THE NEEDHAM MANUFACTURING COMPANY, INC., UNDER INVITATION FOR BIDS IFB 104-657-60, SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA.

A COPY OF OUR DECISION IN THE MATTER IS ENCLOSED. ENCLOSURE (3) FURNISHED WITH THE CONTRACTING OFFICER'S REPORT IS RETURNED, AS REQUESTED.

WE NOTICE THE CONTRACTING OFFICER STATES IN PARAGRAPH 5 OF HIS REPORT THAT HE CONSIDERED THE BID BY NEEDHAM TO BE AMBIGUOUS, IN VIEW OF WHICH HE RELIED ON THE RULE IN B-141786, JANUARY 28, 1960, 39 COMP. GEN.546, THAT AN AMBIGUITY IN A BID SHOULD BE CONSTRUED AGAINST THE PARTY WHO CREATED THE AMBIGUITY. IN THE CIRCUMSTANCES OF THIS CASE, AS SET OUT IN OUR DECISION TO NEEDHAM, WE DOUBT THAT THE NEEDHAM BID STANDING ALONE SHOULD BE CONSIDERED AMBIGUOUS. HOWEVER, IF THE ABOVE STATED RULE IN CASES OF AMBIGUITY IN BID WERE TO BE APPLIED TO NEEDHAM'S BID, THE CONTRACTING OFFICER'S INTERPRETATION OF THE RULE IS NOT CORRECT. IN THE USUAL CASE OF AN AMBIGUOUS BID, AS IN B-141786, THE QUESTION IS WHETHER THE BID MAY BE CONSIDERED OR WHETHER IT MUST BE REJECTED. IF THE BIDDER HAS THE OPTION TO CHOOSE WHICH OF TWO OR MORE MEANINGS SHALL BE GIVEN HIS BID, IT IS APPARENT THAT HE HAS AN ADVANTAGE WHICH CONFLICTS WITH THE BASIC PRINCIPLES OF COMPETITIVE SEALED BIDDING. IF, ON THE OTHER HAND, BECAUSE OF THE AMBIGUITY IN HIS BID, THE GOVERNMENT HAS THE RIGHT TO HOLD HIM TO THE MEANING MOST FAVORABLE TO THE GOVERNMENT, HE HAS NO ADVANTAGE, AND HIS BID MAY BE ACCEPTED ON THAT BASIS WITHOUT PREJUDICE TO THE PRINCIPLES OF SEALED BIDDING. IF APPLIED TO THE INSTANT CASE, THIS WOULD RESULT IN ACCEPTANCE OF NEEDHAM'S BID AT THE LOWER OF THE TWO POSSIBLE PRICES INTENDED, RATHER THAN IN ITS REJECTION AS INDICATED BY THE CONTRACTING OFFICER.