B-129251, SEP. 25, 1956

B-129251, SEP. 25, 1956

TO THE SECRETARY OF THE AIR FORCE:

A LETTER OF SEPTEMBER 14, 1956, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE REQUESTS OUR ADVICE AS TO THE VALIDITY OF A BID SUBMITTED BY THE CRANE HOIST ENGINEERING COMPANY PURSUANT TO INVITATION FOR BIDS 04 606-56- 744.

PARAGRAPH 20 OF THE SPECIAL PROVISIONS TO THE INVITATION PROVIDES:

"REQUEST DESCRIPTIVE DATA IN ACCORDANCE WITH PARAGRAPH 3.1.2.1. ATTACHED SPECIFICATIONS BE SUBMITTED WITH BID AT NO ADDITIONAL COST TO THE GOVERNMENT. BIDS NOT ACCOMPANIED BY DESCRIPTIVE LITERATURE MAY BE REJECTED AT THE OPTION OF THE CONTRACTING OFFICER.'

PARAGRAPH 3.1.2.1. OF THE SPECIFICATIONS PROVIDES:

"AT TIME BID IS SUBMITTED, A COMPLETE SCHEDULE OF MATERIALS AND EQUIPMENT PROPOSED FOR DELIVERY AND INSTALLATION UNDER THIS SPECIFICATION SHALL BE FURNISHED FOR THE APPROVAL OF THE CONTRACTING OFFICER. THIS SCHEDULE SHALL INCLUDE CATALOGUES, CUTS, A SCHEMATIC DRAWING SHOWING CLEARANCES REQUIRED AND SUCH OTHER DESCRIPTIVE INFORMATION AS NECESSARY TO SHOW COMPLIANCE WITH THE SPECIFICATION.'

IN COMPLIANCE WITH THIS PROVISION, THE CRANE HOIST ENGINEERING COMPANY SUBMITTED WITH ITS BID EXECUTED ON STANDARD FORM 33 A PRINTED BROCHURE WHICH PROVIDES THE INFORMATION CALLED FOR BY THE PARAGRAPH CITED ABOVE. IN ADDITION, THE BROCHURE CONTAINS THE BID FORM USED BY THE CRANE HOIST ENGINEERING COMPANY WHICH WAS FULLY COMPLETED. THE LATTER BID FORM OFFERS THE EQUIPMENT CALLED FOR BY THE INVITATION AT THE SAME PRICE STATED ON THE STANDARD FORM 33, BUT "SUBJECT TO THE TERMS AND CONDITIONS SET FORTH ON THE REVERSE SIDE OF THIS SHEET.' THE REVERSE SIDE CONTAINS, AMONG OTHERS, THE FOLLOWING TERMS WHICH ARE AT VARIANCE WITH THE REQUIREMENTS STATED IN THE INVITATION:

1.SHIPMENT IS TO BE MADE IN "APPROXIMATELY" 160-180 DAYS RATHER THAN THE DEFINITE DAY PERIOD INCLUDED ON THE STANDARD FORM,"WITHIN 180 DAYS.' THE USE OF THE TERM "APPROXIMATELY" WOULD APPEAR TO PROVIDE ADDITIONAL LEEWAY IN DELIVERY TIME.

2. PRICES ARE MADE SUBJECT TO CHANGE WITHOUT NOTICE, WHEREAS THE INVITATION MAKES NO PROVISION FOR CHANGES IN THE BID PRICE.

3. THE EQUIPMENT IS GUARANTEED FOR ONLY SIX MONTHS WHEREAS PARAGRAPH 21 OF THE SPECIAL PROVISIONS TO THE INVITATION REQUIRES A ONE-YEAR GUARANTEE.

4. PRICES SUBJECT TO ADJUSTMENT IN CASE OF CHANGE OF FREIGHT RATES.

5. NON-LIABILITY FOR DEFAULT OCCASIONED BY CAUSES NOT EXCUSABLE UNDER GOVERNMENT FORM PROVISIONS.

6. INSPECTION AND FINAL ACCEPTANCE AT SELLER'S WORKS.

THE CONTRACTING OFFICER INDICATES IN HIS LETTER OF AUGUST 10, 1956, TO THE DIRECTOR OF PROCUREMENT HEADQUARTERS USAF, THAT HE REGARDS THE BID OF THE CRANE HOIST ENGINEERING COMPANY AS NONRESPONSIVE BECAUSE OF THE PROVISIONS INCLUDED IN THE BROCHURE WHICH ARE INCONSISTENT WITH THE REQUIREMENTS STATED IN THE INVITATION. THE CRANE HOIST ENGINEERING COMPANY'S ATTORNEYS, BY LETTER OF JULY 30, 1956, TO THE CONTRACTING OFFICER, CONTEND THAT THE BID SUBMITTED ON THE COMPANY'S OWN BID FORM AND INCLUDED IN THE BROCHURE SHOULD BE TREATED AS A SEPARATE BID AND NOT AS A QUALIFICATION OR MODIFICATION OF THE BID SUBMITTED ON THE STANDARD FORM. BY ITS OWN LETTER OF JULY 3, HOWEVER, THE COMPANY REQUESTED DELETION FROM ITS OWN PRINTED CONDITIONS ONLY THE CLAUSE RELATING TO PRICE CHANGES, FROM WHICH IT MAY REASONABLY BE INFERRED THAT IT REGARDED ALL THE OTHER CONDITIONS OF ITS FORM AS APPLICABLE TO ITS BID.

THE FACT THAT THE BROCHURE WAS SUBMITTED TO FULFILL THE REQUIREMENTS STATED IN THE INVITATION AND THAT THE FULLY EXECUTED BID ON THE COMPANY'S OWN FORM WAS A PART OF THE BROCHURE WOULD TEND TO ESTABLISH THE PROPOSITION THAT THE TERMS OF THE BID FORM INCLUDED IN THE BROCHURE WERE INTENDED TO QUALIFY THE BID MADE ON THE STANDARD GOVERNMENT FORM. FURTHER, THE CONTENTION OF THE CRANE COMPANY'S ATTORNEYS THAT THE BID MADE ON ITS OWN FORM SHOULD BE REGARDED AS AN ADDITIONAL OR ALTERNATE BID IS SUBJECT TO THE CRITICISM THAT AN ALTERNATE BID OFFERING THE SAME EQUIPMENT AT THE SAME PRICE BUT ON CONDITIONS LESS FAVORABLE TO THE GOVERNMENT, I.E., PERMITTING A VARIATION OF THE DELIVERY DATE AND OF THE PRICE AND REDUCING THE GUARANTEE PERIOD, WOULD APPEAR TO SERVE NO USEFUL PURPOSE SINCE IT COULD HARDLY BE ASSUMED THAT THE ALTERNATE BID WOULD BE CONSIDERED WHEN THE BID SUBMITTED ON THE STANDARD FORM IS MORE FAVORABLE TO THE GOVERNMENT.

CONCEDING FOR THE MOMENT THAT THERE IS SOME MERIT IN THE COMPANY'S INTERPRETATION, IT IS CLEAR THAT THE BID WAS NOT UNAMBIGUOUS AND THAT IT WAS REASONABLY SUBJECT TO THE INTERPRETATION PLACED UPON IT BY THE CONTRACTING OFFICER--- THAT THE CONDITIONS CONTAINED IN THE EXECUTED FORM IN THE BROCHURE WERE INTENDED TO QUALIFY THE CONDITIONS OF THE BID SUBMITTED ON THE STANDARD FORM. ACCORDINGLY, WE CANNOT CONCLUDE THAT THE COMPANY'S OWN EXECUTED BID FORM MAY PROPERLY BE IGNORED OR REGARDED AS NOT EFFECTING A MATERIAL QUALIFICATION OF THE BID.

UNDER THE CIRCUMSTANCES, WE WOULD NOT BE REQUIRED TO OBJECT TO THE AWARD OF THE CONTRACT TO THE NEXT HIGHER BIDDER.