B-140552, SEPTEMBER 3, 1959, 39 COMP. GEN. 163

B-140552, SEPTEMBER 3, 1959, 39 COMP. GEN. 163

BIDS - MODIFICATION - TELEGRAPHIC ITEMS NOT BID UPON IN BID SUBMISSION A TELEGRAM FROM A BIDDER, RECEIVED IN A CONTRACTING OFFICER PRIOR TO THE TIME SCHEDULED FOR OPENING OF BIDS, WHICH QUOTES PRICES ON ITEMS IN ADDITION TO THOSE BID UPON IN THE FORMAL BID SUBMISSION IS NOT A NEW OR ADDITIONAL BID UNAUTHORIZED UNDER THE INVITATION BUT IS A MODIFICATION OF THE DETAILS OF THE FORMAL BID DOCUMENT UNDER THE INVITATION WHICH PERMITS MODIFICATION OF BIDS BY TELEGRAPHIC NOTICE AND, THEREFORE, THE BID AND MODIFICATION MAY BE CONSIDERED FOR AWARD.

TO FOREST V. THOMPSON, DEPARTMENT OF THE NAVY, SEPTEMBER 3, 1959:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 20, 1959, WITH ENCLOSURES, REQUESTING OUR DECISION AS TO THE ACTION WHICH SHOULD BE TAKEN CONCERNING THE BID OF THE PETROLEUM TRADING AND TRANSPORT COMPANY SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 59-164 ISSUED ON JUNE 18, 1959.

THE INVITATION, WHICH WAS OPENED ON JULY 15, 1959, REQUESTED BIDS FOR FURNISHING VARIOUS ESTIMATED QUANTITIES OF GRADE JP-4 JET FUEL TO CERTAIN MILITARY INSTALLATIONS, A PORTION OF WHICH IS RESERVED AS A SET ASIDE FOR SMALL BUSINESS. PETROLEUM TRADING SUBMITTED BIDS UNDER ITEMS NOS. 129, 136, 142, 144, AND 147. HOWEVER, BY TELEGRAM DATED JULY 15, 1959, AND RECEIVED IN THE PROCUREMENT OFFICE PRIOR TO THE TIME SET FOR THE OPENING OF BIDS, PETROLEUM TRADING SUBMITTED BIDS ON ITEMS NOS. 133, 143, AND 145, AND ADVISED THAT "ALL OTHER ITEMS IN BID REMAIN THE SAME.' OF THE THREE ITEMS BID UPON BY TELEGRAM, PETROLEUM TRADING IS LOW ONLY ON ITEM NO. 143 AS TO THE FIRST 5,000,000 GALLON INCREMENT. THE SECOND LOW BIDDER ON THIS INCREMENT IS CACTUS PETROLEUM, INC., WHICH IS CONTENDING, IN EFFECT, THAT THE TELEGRAM FROM PETROLEUM TRADING IS AN ADDITIONAL BID, NOT AN AMENDMENT OF THE ORIGINAL BID AND, AS SUCH, MAY NOT BE CONSIDERED IN THE ABSENCE OF A PROVISION IN THE INVITATION AUTHORIZING TELEGRAPHIC BIDS. IN VIEW THEREOF, YOU PRESENT TWO QUESTIONS FOR OUR CONSIDERATION.

A. IS THE TELEGRAM A MODIFICATION OF THE BID RECEIVED ON THE STANDARD BID FORM FROM PETROLEUM TRADING AND TRANSPORT COMPANY OR IS IT AN ADDITIONAL BID?

B. IF IT IS AN ADDITIONAL BID AND NOT A BID MODIFICATION, CAN THE CONTRACTING OFFICER IN THIS CASE WAIVE THE PROVISION OF THE IFB THAT TELEGRAPHIC BIDS WILL NOT BE CONSIDERED?

THE BASIS OF CACTUS' CONTENTION IS THAT THE TELEGRAM WAS NOT A MODIFICATION "AS A MODIFICATION WOULD HAVE TO BE A CHANGE IN PRICE OR QUANTITY ON THE ITEMS ALREADY BID ON.'

PARAGRAPH 2 (A) OF THE TERMS AND CONDITIONS OF THE INVITATION PROVIDES IN PART THAT:

* * * TELEGRAPHIC BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION; HOWEVER, BIDS MAY BE MODIFIED BY TELEGRAPHIC NOTICE PROVIDED SUCH NOTICE IS RECEIVED PRIOR TO THE SAME SET FOR THE OPENING OF THE BIDS. ( ITALICS SUPPLIED)

WE CANNOT AGREE THAT THE TELEGRAM OF JULY 15, 1959, QUOTING PRICES ON ITEMS IN ADDITION TO THOSE ALREADY BID UPON IN THE FORMAL BID SUBMISSION, REPRESENTED A NEW OR ADDITIONAL BID RATHER THAN A MODIFICATION PERMITTED BY PARAGRAPH 2 (A), QUOTED ABOVE. IT IS OUR VIEW THAT THE FORMAL BID SUBMITTED BY PETROLEUM TRADING CONSISTED NOT ONLY OF THE PRICES AND QUANTITIES OFFERED BUT ALSO OF THE BIDDER'S BINDING COMMITMENT TO ADHERE TO ALL THE TERMS AND CONDITIONS OF THE INVITATION. WE, THEREFORE, REGARD THE WORD "BID" AS USED IN PARAGRAPH 2 (A) AS HAVING REFERENCE TO THE BID DOCUMENT ITSELF AS DISTINGUISHED FROM THE BID DETAILS (PRICE, QUANTITY, DISCOUNT, DELIVERY TERMS, ETC.) INCLUDED THEREIN. HENCE, WE BELIEVE THAT THE FORMAL BID DOCUMENT MAY BE MODIFIED PRIOR TO OPENING BY TELEGRAPHIC NOTICE IN ANY PARTICULAR EVEN THOUGH IT MAY REPRESENT QUOTATIONS ON ITEMS NOT THERETOFORE BID UPON, PROVIDED SUCH MODIFICATION IS OTHERWISE RESPONSIVE TO THE INVITATION. FURTHERMORE, IT IS CLEAR THAT OTHER BIDDERS WOULD NOT BE PREJUDICED IF THE BID OF PETROLEUM TRADING AS MODIFIED BE CONSIDERED IN MAKING AN AWARD. WE FURTHER BELIEVE THAT THE BEST INTERESTS OF THE GOVERNMENT REQUIRE THAT TELEGRAPHIC BID MODIFICATIONS, SUCH AS HERE INVOLVED, BE CONSIDERED IN DETERMINING THE LOWEST RESPONSIBLE BIDDER ENTITLED TO AWARD.

ACCORDINGLY, YOU ARE ADVISED IN ANSWER TO QUESTION "A" THAT THE TELEGRAM FROM PETROLEUM TRADING SHOULD BE REGARDED AS A MODIFICATION OF ITS BID AND, AS SUCH, PROPERLY SHOULD BE CONSIDERED IN MAKING AWARDS UNDER THE SUBJECT INVITATION. HENCE, NO ANSWER TO QUESTION "B" IS REQUIRED.