B-146114, AUG. 21, 1961

B-146114, AUG. 21, 1961

TO OTIS ELEVATOR COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 13, 1961, AND TO LETTER OF JUNE 14, PROTESTING AGAINST THE AWARD OF A CONTRACT TO J. B. EHRSAM AND SONS MANUFACTURING COMPANY UNDER INVITATION FOR BIDS NO. ENG-04 548-61-36, FOR FURNISHING AND INSTALLING ELEVATORS FOR FOUR TITAN II MISSILE LAUNCH FACILITIES. YOU CONTEND THAT YOUR BID WAS RESPONSIVE, AND SINCE IT WAS THE LOWEST OFFER RECEIVED, AWARD OF THE CONTRACT SHOULD HAVE BEEN MADE TO YOUR FIRM. THE SEVERAL GROUNDS UPON WHICH YOU PREDICATE YOUR CONTENTION THAT YOUR OFFER WAS RESPONSIVE WILL BE CONSIDERED IN THE ORDER PRESENTED IN YOUR ABOVE LETTER.

THE SUBJECT INVITATION SOUGHT BIDS TO FURNISH AND INSTALL THE REQUIRED ELEVATORS IN STRICT ACCORDANCE WITH THE DRAWINGS AND SPECIFICATIONS MADE A PART THEREOF. THE TWO LOWEST BIDS RECEIVED WERE $2,088,664, FROM YOUR FIRM, AND $2,310,672.57, FROM THE EHRSAM COMPANY. HOWEVER, YOUR PROPOSAL WAS ACCOMPANIED BY A LETTER DATED MAY 31, 1961, WHICH CONTAINED MATERIAL DEVIATIONS FROM THE TERMS AND SPECIFICATIONS OF THE INVITATION RESULTING IN THE REJECTION OF YOUR BID AS BEING NONRESPONSIVE BY THE CORPS OF ENGINEERS. YOU CONTEND, IN SUBSTANCE, THAT NOTHING IN THE SAID LETTER EXPRESSLY, OR BY IMPLICATION, ABROGATED THE COVENANT IN THE PRINTED FORM OF THE SIGNED INVITATION WHICH REQUIRED COMPLIANCE IN STRICT ACCORDANCE WITH THE CONDITIONS AND SPECIFICATIONS AND, THEREFORE YOU CONCLUDE THE PROCUREMENT AUTHORITIES ERRED IN CONSIDERING THE STIPULATIONS OF THE LETTER AS MODIFYING THE INVITATION TERMS.

WE CANNOT AGREE THAT THE SIGNING OF THE BID INVITATION CONSTITUTES AN UNEQUIVOCAL OVERALL AGREEMENT TO BE BOUND BY THE PROVISIONS THEREOF REGARDLESS OF THE SPECIFIC REPRESENTATIONS MADE WITH YOUR OFFER. IN A DECISION REPORTED IN 30 COMP. GEN. 179, THIS OFFICE CONSIDERED A CASE WHEN, AS HERE, DEVIATIONS WERE SET FORTH IN AN ACCOMPANYING LETTER, AND IT WAS CONCLUDED THAT SUCH BID SHOULD NOT HAVE BEEN ACCEPTED. LATER, WE HELD THAT A LOW BID ACCOMPANIED BY THE BIDDER'S OWN QUOTATION FORM CONTAINING PROVISIONS WHICH, CONTRARY TO THE STANDARD GOVERNMENT CONTRACT FORM, LIMIT THE BIDDER'S LIABILITY IN A MANNER SIMILAR TO YOUR LETTER IN QUESTION, SHOULD BE REJECTED AS NONRESPONSIVE REGARDLESS OF THE BIDDER'S INTENT TO COMPLY WITH THE ADVERTISED CONDITIONS AND SPECIFICATIONS. 36 COMP. GEN. 535. IN VIEW THEREOF, AND SINCE YOUR MR. CONNELLY INFORMED THE CONTRACTING OFFICE THAT YOUR BID WOULD BE ACCOMPANIED BY A QUALIFYING LETTER, THE AGENCY HAD NO ALTERNATIVE BUT TO CONSIDER IT AS PART OF THE BID DOCUMENTS.

IT IS FURTHER ARGUED THAT EVEN IF THE LETTER BE CONSIDERED AS PART OF YOUR PROPOSAL IT DID NOT MAKE THE BID UNRESPONSIVE SINCE THE CONTENTS THEREOF WERE ONLY INTENDED TO BE EXPLANATIONS OR CLARIFICATIONS OF YOUR OFFER. BRIEFLY, THE LETTER, AMONG OTHER ASSERTIONS, APPRISED THE PURCHASING OFFICER THAT THE QUOTED PRICES DID NOT INCLUDE APPLICABLE TAXES; THAT STANDARD COMMERCIAL MATERIALS WERE TO BE FURNISHED, AND, THAT IN CASE OF INTERRUPTION OF ELEVATOR CONSTRUCTION BY GOVERNMENT EMPLOYEES OR OTHER CONTRACTORS, THE EXCESS COST SHOULD BE TABULATED AND SUBMITTED FOR PAYMENT TO THE PROPER AUTHORITIES. THE CORRESPONDING CONDITIONS OF THE INVITATION WITH WHICH THOSE STIPULATIONS CONFLICT PROVIDE THAT THE BID PRICE SHALL INCLUDE THOSE TAXES ITEMIZED IN THE LETTER (PARAGRAPH 30, GENERAL PROVISIONS); THAT THE MATERIALS USED SHALL CONFORM TO FEDERAL SPECIFICATIONS (PARAGRAPH 1-04); AND, THAT THE UNDERTAKING CONTEMPLATES JOINT CONSTRUCTION USE OR OCCUPANCY OF THE EXISTING FACILITIES AND CONSTRUCTION AREA, WITH APPROPRIATE EXTENSION OF TIME IN THE EVENT OF EXCUSABLE DELAYS INCURRED (PARAGRAPH 1C AND 1D OF THE SPECIAL CONDITIONS). FREQUENTLY BIDDERS SUBMIT EXTRANEOUS DOCUMENTS, OR INSERT CONDITIONS IN THE BID FORM, WHEN THEY ARE OFFERING A COMMERCIAL PRODUCT OR PROPOSE TO FOLLOW A COMMERCIAL PRACTICE. CLEARLY, THOSE DOCUMENTS OR STIPULATIONS MUST BE CONSIDERED MATERIAL AS AFFECTING QUALITY OR PRICE AND THEREFORE CONSTITUTE AN UNRESPONSIVE COUNTER-OFFER. TO CONCLUDE OTHERWISE WOULD COMPLETELY DISREGARD THE PRINCIPLE THAT TYPEWRITTEN PROVISIONS INSERTED BY A BIDDER MUST BE GIVEN PRECEDENCE OVER PRINTED CONDITIONS IN A GOVERNMENT BID FORM. SUCH RULE APPEARS TO BE PARTICULARLY FOR APPLICATION TO THIS CASE SINCE YOUR MR. CONNELLY, ALTHOUGH WARNED OF THE CONSEQUENCES, NEVERTHELESS ADVISED THAT YOUR BID WOULD BE SUBMITTED WITH A QUALIFYING LETTER.

YOUR FINAL CONTENTION IS THAT THE LACK OF SUFFICIENT TIME TO THOROUGHLY CONSIDER THE PROVISIONS OF ADDENDUM NO. 1, RELEASED MAY 23, 1961, NECESSITATED THE SUBMISSION OF THE SUBJECT LETTER AND, THAT PERMISSION FOR THE WITHDRAWAL THEREOF SHOULD HAVE BEEN GRANTED PURSUANT TO YOUR WRITTEN REQUEST DATED JUNE 7, 1961, WHICH WAS PRESENTED AFTER THE SCHEDULED OPENING DATE OF BIDS AND WHILE THE PROPOSALS RECEIVED WERE BEING EVALUATED. WITH RESPECT TO THE TIME ELEMENT, THE PROCUREMENT OFFICIALS FELT THAT THE CONTENTS OF THE AMENDMENT SHOULD NOT HAVE SERIOUSLY COMPLICATED THE RECOMPUTATION OF A PROPOSED BID, AND THAT THE ESTABLISHED CONSTRUCTION PROGRAM SHOULD NOT BE DISTURBED. SUCH DETERMINATION DOES NOT APPEAR TO BE ARBITRARY OR UNREASONABLE AS EVIDENCED BY THE FACT THAT NO OTHER BIDDER REGISTERED A COMPLAINT, OR REQUESTED AN EXTENSION OF THE BIDDING PERIOD. AS TO YOUR REQUEST TO WITHDRAW THE LETTER AFTER THE BIDS WERE OPENED, IT IS APPARENT THAT ITS CONTENTS, AS PREVIOUSLY STATED, WERE MATERIAL AND AFFECTED BOTH THE PRICE AND QUALITY OF YOUR OFFER. WHILE THE GOVERNMENT RESERVES THE RIGHT IN THE INVITATION TO WAIVE ANY INFORMALITY IN THE BIDS RECEIVED, THOSE DEFECTS MUST BE INFORMAL OR INCONSEQUENTIAL VARIATIONS OF THE BID, AND NOT PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. IN THE CASE OF CITY OF CHICAGO V. MOHR, 74 N.E. 1056, THE COURT SAID THAT "WHERE A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--- A DIRECT VIOLATION OF LAW--- AND CANNOT BE TOO STRONGLY CONDEMNED.' FURTHERMORE, THE ULTIMATE EFFECT OF SUCH A PRACTICE WOULD AFFORD A BIDDER AN ELECTION AS TO WHETHER OR NOT HE WISHED TO HAVE THE DEVIATIONS CONSIDERED AS PART OF HIS PROPOSAL WHICH VIOLATES THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM.

ACCORDINGLY, THE ACTION TAKEN BY THE ADMINISTRATIVE OFFICE IN REJECTING YOUR BID AS BEING NONRESPONSIVE, AND THE AWARD OF THE CONTRACT TO THE EHRSAM COMPANY, APPEARS PROPER ON THE BASIS OF THE FACTS OF RECORD, AND WILL NOT BE DISTURBED.