B-156700, JUN. 2, 1965, 44 COMP. GEN. 774

B-156700, JUN. 2, 1965, 44 COMP. GEN. 774

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - INFORMATION - INVITATION TO BID ATTACHMENTS A LOW BID WHICH DID NOT INCLUDE THE GENERAL PROVISIONS FOR SUPPLY CONTRACTS AND THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, ATTACHMENTS TO THE INVITATION, BUT DID RETURN A PAGE OF THE INVITATION SCHEDULE INCORPORATING BY REFERENCE THE GENERAL PROVISIONS OF THE INVITATION MAY BE CONSIDERED RESPONSIVE, THE ACCEPTANCE OF WHICH WOULD CONSUMMATE A VALID AND BINDING CONTRACT, THE RETURN OF THE PAGE OF THE INVITATION SCHEDULE INCORPORATING THE GENERAL PROVISIONS EVIDENCING THE INTENT OF THE BIDDER TO BE BOUND BY THE PROVISIONS, AND THE "TERMS AND CONDITIONS OF THE INVITATION FOR BIDS" PAGE OF THE INVITATION RELATING SOLELY TO BID PREPARATION, THE BASES FOR ACCEPTANCE, AND OTHER DIRECTORY INFORMATION, THE RIGHTS AND OBLIGATIONS OF THE CONTRACTING PARTIES ARE NOT AFFECTED, AND THE OMISSION OF THE PAGE FROM THE BID MAY BE WAIVED AS AN INFORMALITY UNDER PARAGRAPH 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION AND, THEREFORE, THE LOW BID HAVING INCORPORATED BY REFERENCE THE GENERAL PROVISIONS OF THE INVITATIONS, IT MAY BE CONSIDERED FOR AWARD.

TO THE UNITED STATES UNDERSEAS CABLE CORPORATION, JUNE 2, 1965:

BY LETTERS DATED MAY 3 AND 4, 1965, WITH ENCLOSURES, YOU PROTESTED AGAINST ANY AWARD TO THE FEDERAL ELECTRIC CORPORATION UNDER TWO-STEP INVITATION FOR BIDS NO. 08-606-65-106, ISSUED BY THE AIR FORCE EASTERN TEST RANGE, PATRICK AIR FORCE BASE, FLORIDA, FOR THE DESIGN, FABRICATION AND INSTALLATION OF A SUBMARINE CABLE SYSTEM BETWEEN CAPE KENNEDY AND GRAND TURK ISLAND.

THE SECOND STEP OF THIS PROCUREMENT WAS ISSUED ON FEBRUARY 27, 1965, TO THREE FIRMS WHICH HAD SUBMITTED ACCEPTABLE TECHNICAL PROPOSALS, THAT IS, YOUR COMPANY, FEDERAL ELECTRIC AND THE WESTERN ELECTRIC COMPANY. TWO BIDS WERE RECEIVED AND OPENED ON MARCH 18, 1965, AND IT APPEARED THAT FEDERAL ELECTRIC SUBMITTED THE LOWEST BID. UPON APPLICATION OF THE BID EVALUATION FACTORS, FEDERAL ELECTRIC'S BID REMAINED LOW. HOWEVER, FEDERAL ELECTRIC'S BID AS SUBMITTED DID NOT INCLUDE THE GENERAL PROVISIONS FOR SUPPLY CONTRACTS (STANDARD FORM 32, SEPTEMBER 1961 EDITION) OR THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PRINTED ON THE REVERSE SIDE OF STANDARD FORM 30 (INVITATION AND BID (SUPPLY CONTRACT) ( EVEN THOUGH SUCH GENERAL PROVISIONS AND TERMS HAD BEEN ATTACHED TO THE INVITATION MAILED TO FEDERAL ELECTRIC. YOUR FIRM PROTESTS AGAINST ANY AWARD TO FEDERAL ELECTRIC ON THE BASIS THAT ITS BID AS SUBMITTED WAS NONRESPONSIVE AND EVIDENCED AN INTENTION NOT TO BE BOUND BY THE GENERAL PROVISIONS APPLICABLE TO SUPPLY CONTRACTS.

IT IS IMPLICIT IN FORMALLY ADVERTISED PROCUREMENT THAT BIDS MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS SO THAT ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE COMPETITIVE SYSTEM MAY BE MAINTAINED. THIS IS A MANDATORY REQUIREMENT OF THE PROCUREMENT STATUTES AND ITS IMPLEMENTING REGULATIONS. SEE 10 U.S.C. 2305 (C); ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-301; UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461.

THE FACESHEET OF THE INVITATION IN THIS CASE PROVIDED:

"SEALED BIDS IN TRIPLICATE, SUBJECT TO (1) THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, (2) THE ATTACHED SCHEDULE, (3) GENERAL PROVISIONS (STANDARD FORM 32, SEPTEMBER 1961 EDITION), WHICH ARE INCORPORATED HEREIN BY REFERENCE, AND (4) SUCH OTHER CONTRACT PROVISIONS AND SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED BY REFERENCE IN THE SCHEDULE, WILL BE RECEIVED AT THE ABOVE OFFICE UNTIL 10 O-CLOCK A.M., EASTERN STANDARD TIME, 18 MARCH 1965 (DATE) AND AT THAT TIME PUBLICLY OPENED, FOR FURNISHING THE SUPPLIES OR SERVICES DESCRIBED IN THE ATTACHED SCHEDULE.'

WHETHER FEDERAL ELECTRIC BY ITS BID INTENDED TO BE BOUND BY THE TERMS AND CONDITIONS OF THE INVITATION, NOTWITHSTANDING ITS FAILURE TO INCLUDE THESE PROVISIONS AND TERMS WITH ITS BID, IS TO BE DETERMINED FROM THE BID ITSELF. THE BASIC QUESTION INVOLVED IS WHETHER ACCEPTANCE OF FEDERAL ELECTRIC'S BID AS SUBMITTED WOULD CONSUMMATE A VALID AND BINDING CONTRACT REQUIRING IT TO PERFORM IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS OF THE INVITATION.

IN OUR OPINION, THERE IS NOT DOUBT THAT THE FAILURE OF FEDERAL ELECTRIC TO RETURN WITH ITS BID THE INVITATION PAGE ENTITLED "TERMS AND CONDITIONS OF THE INVITATION FOR BIDS" DID NOT RENDER THE BID NONRESPONSIVE. THIS PAGE RELATES SOLELY TO THE MANNER IN WHICH BIDS ARE TO BE PREPARED AND SUBMITTED, THE BASES FOR ACCEPTANCE, AND OTHER DIRECTORY INFORMATION. THESE TERMS AND CONDITIONS DO NOT GO TO THE PERFORMANCE OF ANY RESULTING CONTRACT OR AFFECT THE RIGHTS AND OBLIGATIONS OF THE CONTRACTING PARTIES. HENCE, THIS OMISSION IS IMMATERIAL AND MAY BE WAIVED AS AN INFORMALITY UNDER ASPR 2-405.

RESPECTING THE OMISSION OF THE GENERAL PROVISIONS, WE NOTE THAT FEDERAL ELECTRIC ACKNOWLEDGED AMENDMENT NO. 1 TO THE INVITATION WHICH DELETED CLAUSE 69 OF THE GENERAL PROVISIONS BUT PROVIDED THAT ALL OTHER TERMS AND CONDITIONS REMAINED UNCHANGED. FURTHER, FEDERAL ELECTRIC INCLUDED IN ITS BID PAGE 39 OF THE INVITATION SCHEDULE WHERE IT WAS PROVIDED UNDER PART XXI--- GENERAL PROVISIONS--- THAT "CLAUSES 1 THROUGH 69 ATTACHED HERETO AND MADE A PART HEREOF ARE THE GENERAL PROVISIONS OF THIS INVITATION FOR BIDS AND ANY RESULTANT CONTRACT.' THESE FACTS WOULD SEEM TO LEND CONSIDERABLE SUPPORT TO THE VIEW THAT THE BIDDER INTENDED TO BE BOUND BY THE TERMS REFERRED TO AND THAT ITS BID WAS RESPONSIVE. MOREOVER, THERE WOULD APPEAR TO BE FOR APPLICATION HERE THE RULE OF LAW THAT WHERE A WRITING REFERS TO ANOTHER DOCUMENT, THAT OTHER DOCUMENT, OR SO MUCH OF IT AS IS REFERRED TO, IS TO BE INTERPRETED AS PART OF THE WRITING. WILLISTON ON CONTRACTS, 3RD EDITION, SECTION 628. IN THE CASE OF RAY V. WILLIAM G. EURICE AND BROS., 93 A.2D 272 (1952), THE COURT HELD AT PAGE 279:

"THE LOWER COURT SEEMINGLY ATTACHED SIGNIFICANCE TO THE FACT THAT THE PLANS AND SPECIFICATIONS WERE NOT PHYSICALLY FASTENED TO THE CONTRACT DOCUMENT WHICH WAS EXECUTED, ALTHOUGH IT SPECIFICALLY AND EXPLICITLY REFERRED TO BOTH. IN THIS SITUATION PHYSICAL ATTACHMENT HAS NOT THE SIGNIFICANCE SO ATTRIBUTED TO IT. IT IS SETTLED THAT WHERE A WRITING REFERS TO ANOTHER DOCUMENT THAT OTHER DOCUMENT, OR SO MUCH OF IT AS IS REFERRED TO, IS TO BE INTERPRETED AS PART OF THE WRITING.' (NUMEROUS AUTHORITIES CITED.)

THE COURT FURTHER STATED:

"* * * IN NEW ENGLAND IRON CO. V. GILBERT ELEVATED R.CO., 91 N.Y. 153, THE CONTRACT REQUIRED THAT THE WORK TO BE DONE SHOULD CONFORM "IN ALL PARTICULARS TO THE PLANS AND SPECIFICATIONS APPROVED BY (E.H.T.) AND (H.A.S.) A COPY OF WHICH SPECIFICATIONS IS DECLARED TO BE ANNEXED TO AND TO FORM A PART OF THE CONTRACT.' IN ANSWER TO THE ARGUMENT THAT THE SPECIFICATIONS HAD NOT BEEN ATTACHED AND SO HAD NO FORCE, THE COURT SAID: "THE ANNEXATION OF THE COPY (OF THE) SPECIFICATIONS WAS NOT A CONDITION ON WHICH THE VALIDITY OF THE AGREEMENT DEPENDED. IF ANNEXED THE IDENTIFICATION MIGHT HAVE BEEN MORE SATISFACTORY, BUT WITHOUT THAT, THE CONTENTS OF THE PLANS AND SPECIFICATIONS, SO FAR AS REFERRED TO IN THE AGREEMENT EXECUTED, BECAME CONSTRUCTIVELY A PART OF IT, AND IN THAT RESPECT MADE ONE INSTRUMENT.'"

SEE, ALSO, UNITED STATES FIDELITY AND GUARANTY COMPANY V. LONG, 214 F.SUPP. 307 (1963).

ON THE RECORD BEFORE US, WE FIND THAT GENERAL PROVISIONS OF THE INVITATION WERE INCORPORATED INTO, AND MADE A PART OF, THE BID OF FEDERAL ELECTRIC. ACCORDINGLY, WE WOULD NOT OBJECT TO AN AWARD TO THAT BIDDER IF PROPER IN OTHER RESPECTS. IN ARRIVING AT THIS CONCLUSION, WE HAVE CONSIDERED OUR PREVIOUS DECISION AT 42 COMP. GEN. 502 WHEREIN WE HELD A BID WAS NONRESPONSIVE BECAUSE A BIDDER FAILED TO ATTACH CERTAIN PROVISIONS TO ITS BID UNDER AN INVITATION WHICH ,ATTACHED" THOSE PROVISIONS TO THE INVITATION WITHOUT ANY INCORPORATION BY REFERENCE BY THOSE PROVISIONS. THE SITUATION CONSIDERED HERE IS CLEARLY DISTINGUISHABLE.