B-147671, FEB. 2, 1962

B-147671, FEB. 2, 1962

TO OCTAGON PROCESS INC.:

WE REFER TO A LETTER OF NOVEMBER 21, 1961, FROM DIMOND AND THORMAN, PROTESTING IN YOUR BEHALF AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. CML-30-070-62-4.

THE RECORD SHOWS THAT THE INVITATION WAS ISSUED ON JULY 14, 1961, UNDER A TOTAL SET ASIDE FOR SMALL BUSINESS CONCERNS, AND CALLING FOR 3 NUMBERED ITEMS OF INSECTICIDE. BID OPENING WAS SCHEDULED FOR JULY 31, 1961. REQUIREMENTS TYPE CONTRACT WAS CONTEMPLATED, COVERING A PERIOD 1 YEAR FROM DATE OF AWARD. BIDDERS WERE INFORMED ON PAGE 8 OF THE INVITATION AS FOLLOWS:

"SCHEDULE

"5. QUANTITY: A. THE UNCERTAIN AND VARIED NEEDS OF THE GOVERNMENT MAKE IT IMPOSSIBLE TO DETERMINE IN ADVANCE THE QUANTITY OF THE ITEM THAT MAY BE REQUIRED DURING THE PERIOD OF THIS CONTRACT, AND NO REPRESENTATION IS MADE ON THE PART OF THE GOVERNMENT TO ORDER ANY STATED AMOUNT. CONSIDERATION OF THE MANDATORY CLAUSE HEREIN, THE CONTRACTOR AGREES TO SUPPLY THE GOVERNMENT WITH ANY QUANTITY IN ACCORDANCE WITH THE TERMS SPECIFIED IN THE SCHEDULE HEREOF, AND AS CALLED FOR BY ALL DELIVERY ORDERS ISSUED DURING THE TERM OF THIS CONTRACT, UP TO THE MAXIMUM QUANTITY FOR EACH MONTH AS STATED IN THE CLAUSE HEREIN ENTITLED "ABNORMAL REQUIREMENT," UNLESS DELIVERIES ARE EXCUSED ELSEWHERE IN THIS INSTRUMENT.

"B. FOR INFORMATION PURPOSES ONLY, THE FOLLOWING IS THE GOVERNMENT'S BEST ESTIMATE, BASED UPON AVAILABLE DATA, OF THE PROBABLE QUANTITIES THAT MAY BE REQUIRED DURING THE TERM OF THIS CONTRACT.

CHART

ITEM NO. 1 ITEM NO. 2 ITEM NO. 3: "BID A: 500 GALLON 280 GALLON 1,500 GALLON

BID B: 600 GALLON 300 GALLON 2,000 GALLON

BID C: 200 GALLON 50 GALLON 250 GALLON

BID D: 1,000 GALLON 50 GALLON 250 GALLON

BID E: 200 GALLON 50 GALLON1,500 GALLON

BID F: 2,500 GALLON 670 GALLON 500 GALLON "

BIDS A THROUGH F ON EACH OF THE ITEMS REPRESENT INSTALLATIONS LOCATED IN VARIOUS ARMY AREAS IN THE UNITED STATES AND OVERSEAS. IT IS PROVIDED THAT THE CONTRACTOR IS AUTHORIZED TO REJECT ORDERS REQUIRING LESS THAN 6 GALLONS ON ITEM NOS. 1 AND 2, AND 20 GALLONS ON ITEM NO. 3.

AMENDMENT NO. 2 TO THE INVITATION WAS ISSUED ON JULY 31, 1961, EXTENDING THE BID OPENING DATE TO AUGUST 10, 1961, AND REVISING THE LABEL REQUIREMENT. IT WAS STATED THAT IN THE EVENT THE LABEL REQUIREMENT CHANGE AFFECTED BID PRICES ALREADY SUBMITTED, BIDDERS WERE REQUESTED TO RESTATE THEIR PRICES IN THE APPROPRIATE SPACES PROVIDED BELOW. ATTACHED PAGE NOS. 2 AND 3 TO THE AMENDMENT CONTAINED THE SAME ARRANGEMENT FOR BID PRICE INSERTION AS IS FOUND IN THE ORIGINAL INVITATION.

UPON BID OPENING IT WAS OBSERVED THAT A BID SUBMITTED BY OCTAGON PROCESS INC., CONTAINED A NOTATION INSERTED BY THE BIDDER AT THE BOTTOM OF THE BID PRICE SHEET OF ITS ORIGINAL BID, STATING AS FOLLOWS:

"NOTE: MINIMUM ACCEPTABLE AWARD ON ITEM 1, BIDS A THRU F ON ESTIMATED BASIS PAGE 8 IS 1000 GALLONS ON ITEM 2 SAME BASIS, IS 670 GALLONS, AND ITEM 3 SAME BASIS IS 1500 GALLONS.'

HOWEVER, UNDER AMENDMENT NO. 2, OCTAGON INSERTED REDUCED PRICES ON ALL THE ITEMS WITHOUT ANY SIMILAR NOTATION, OR REFERENCE TO THE NOTATION IN ITS BID ON THE ORIGINAL BID SHEET. FOR THE ITEM HERE IN DISPUTE, ITEM NO. 1, OCTAGON ORIGINALLY QUOTED UNIT (GALLON) PRICES OF ?84 ON BID A, B AND C AND ?849 ON BID D, E AND F. UNDER THE AMENDMENT, IT QUOTED A REVISED PRICE OF ?79 APPLICABLE TO ALL OF ITEM NO. 1.

THE CONTRACTING OFFICER MADE AWARDS ON ITEM NO. 1 TO BIDDERS QUOTING PRICES HIGHER THAN OCTAGON ON THE BASIS THAT OCTAGON HAS UNACCEPTABLY QUALIFIED ITS FINAL BID BY THE NOTATION APPEARING IN ITS ORIGINAL BID.

YOU PROTEST THE REJECTION OF YOUR LOW BID ON ITEM NO. 1 BY CONTENDING THAT THE NOTATION IN QUESTION DID NOT APPLY TO YOUR FINAL BID SINCE IT DID NOT APPEAR ON YOUR REVISED BID FORMS.

WE DO NOT THINK THAT YOUR BID WAS PROPERLY FOR ACCEPTANCE. IT MAY BE THAT YOU DID INTEND THE REVISED BID AS A COMPLETE SUBSTITUTION OF YOUR ORIGINAL BID, SO AS TO REMOVE THE RESTRICTION YOU PLACED ON AWARDS. THE OTHER HAND, IT COULD BE CONCLUDED THAT YOUR ORIGINAL RESTRICTION CONCERNING AWARD WAS NOT AFFECTED BY THE SUBMISSION OF REVISED PRICES. IS SUGGESTED IN YOUR BEHALF THAT THE CONTRACTING OFFICER SHOULD HAVE REQUESTED YOU TO VERIFY YOUR BID BEFORE THE AWARD. YOU MUST REALIZE THAT IS THIS WOULD HAVE PLACE YOU IN THE POSITION OF DETERMINING THE RESPONSIVENESS OF YOUR BID AFTER THE BID OPENING, IT WOULD HAVE BEEN CLEARLY VIOLATIVE OF THE RULES GOVERNING COMPETITIVE BIDDING. SEE 38 COMP. GEN. 532, 535-536. WE HAVE STATED IN THE PAST THAT WHERE EACH OF TWO POSSIBLE MEANINGS CAN BE REACHED FROM THE TERMS OF A BID, THE BIDDER SHOULD NOT BE ALLOWED TO EXPLAIN HIS MEANING WHEN HE IS IN A POSITION THEREBY TO PREJUDICE OTHER BIDDERS OR TO AFFECT THE RESPONSIVENESS OF HIS BID. 40 COMP. GEN. 393. UNDER THIS RULE WE FIND YOUR BID IS UNACCEPTABLE.