B-147711, JAN. 4, 1962

B-147711, JAN. 4, 1962

TO MR. CONRAD L. TRAHERN, POST OFFICE DEPARTMENT:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 30, 1961, WHEREIN YOU REQUEST OUR OPINION AS TO THE ACCEPTABILITY OF BIDS BY THE SOUTHLAND METALS CORPORATION ON INVITATIONS FOR BID NOS. 1595 AND 1596.

YOU ADVISE THAT THE CORPORATION, A SMALL BUSINESS CONCERN IN A LABOR DISTRESSED AREA, IN BOTH INSTANCES SUBMITTED THE LOW BID BUT WITHDREW PAGE 2 OF THE INVITATION AND SUBSTITUTED THEREFOR ITS OWN LETTERHEAD CONTAINING ITS BID QUOTATIONS, AND STATING THAT THIS WAS TO BE CONSIDERED AS PAGE 2 OF ITS BID. IN SO DOING, THESE SUBSTITUTED PAGES MADE NO REFERENCE TO THE FEDERAL STANDARD FOR COLOR AND THE FEDERAL SPECIFICATIONS APPLICABLE TO EACH OF THE INVITATIONS AS INCLUDED ON PAGE 2 OF THE INVITATION. NOTWITHSTANDING THESE OMISSIONS, HOWEVER, YOU ADVISE THAT THE BIDDER SUBSEQUENTLY ADVISED THAT IT INTENDED TO COMPLY WITH ALL OF THE CONDITIONS CONTAINED ON PAGE 2 OF THE INVITATION; AND, ACCORDINGLY, YOU REQUEST OUR OPINION WHETHER AWARDS MAY BE MADE TO THE SOUTHLAND METALS CORPORATION AND, IF SO, WHETHER YOU MAY INCORPORATE BY REFERENCE THE FEDERAL STANDARD AND SPECIFICATIONS IN THE AWARD DOCUMENTS.

YOU FURTHER POINT OUT THAT FEDERAL PROCUREMENT REGULATIONS 1-2.301 (C) STATES THAT IF A BIDDER USES ITS OWN BID FORM OR A LETTER TO SUBMIT A BID, THE BID MAY BE CONSIDERED ONLY IF (1) THE BIDDER ACCEPTS ALL TERMS AND CONDITIONS OF THE INVITATION, AND (2) AWARD ON THE BID WOULD RESULT IN A BINDING CONTRACT, THE TERMS AND CONDITIONS OF WHICH DO NOT VARY FROM THE TERMS AND CONDITIONS OF THE INVITATION. HENCE, YOU EXPRESS DOUBT WHETHER THE CONDITIONS OF THE ABOVE REGULATIONS WOULD BE TECHNICALLY SATISFIED WITHOUT INCORPORATING BY REFERENCE, AT LEAST, THE FEDERAL STANDARD AND SPECIFICATIONS IN THE CONTRACT DOCUMENTS.

IN ITS LETTER DATED DECEMBER 5, 1961, ADDRESSED TO THIS OFFICE, THE SOUTHLAND METALS CORPORATION ADVISED THAT THE OZARK METAL PRODUCTS OF OZARK, ALABAMA, THE MANUFACTURER OF THE PRODUCT, RECEIVED THE ABOVE INVITATIONS TO BID, BUT FORWARDED ONLY ONE COPY OF PAGES ONE AND TWO TO THE SOUTHLAND METALS CORPORATION. FURTHERMORE, UPON RECEIVING THE RESPECTIVE PAGES TWO OF THE INVITATION FORMS IT WAS FOUND THAT THE COST PRICES HAD BEEN INSERTED BY THE MANUFACTURER IN SUCH A MANNER THAT IT WAS IMPOSSIBLE FOR THE BIDDER TO USE THEM IN SUBMITTING ITS BID TO THE POST OFFICE DEPARTMENT. IN VIEW THEREOF, THE BIDDER COPIED THE ITEM NUMBERS, QUANTITIES, DESCRIPTION, ETC., FILLED IN THE UNIT PRICES AND EXTENDED THE AMOUNTS ON ITS LETTERHEAD, AND ALSO INDICATED THEREON THAT THIS WAS TO "BE CONSIDERED AS PAGE 2" OF ITS BID, WHICH THE COMPANY ALLEGES WAS FOR THE PURPOSE OF INDICATING THAT IT WAS INTENDED TO BE BOUND BY ALL OF THE PROVISIONS LISTED ON PAGE 2 OF THE INVITATION FORM. IN OTHER WORDS, IT OFFERED NO QUALIFICATION NOR DEVIATION FROM ANY OF THE PROVISIONS SPECIFIED ON PAGE 2 OF THE INVITATION, AND IT CONSIDERED THAT IT HAD FULLY OBLIGATED ITSELF TO COMPLY IN EVERY PARTICULAR WITH THE PROVISIONS, SPECIFICATIONS AND INSTRUCTIONS OUTLINED ON PAGE 2 OF THE INVITATION FORM.

WHILE IT IS CONTEMPLATED--- AND IT IS PREFERABLE--- THAT BIDDERS USE THE INVITATION FORM FURNISHED BY THE GOVERNMENT IN SUBMITTING BIDS, THERE IS NO PROVISION DEFINITELY REQUIRING THAT SUCH FORM BE USED. IT IS COMMON PRACTICE FOR BIDDERS TO SET FORTH PRICES OR OTHER INFORMATION IN AN ACCOMPANYING LETTER AND SUCH BIDS HAVE ALWAYS BEEN CONSIDERED PROPER. THE QUESTION FOR DETERMINATION IN SUCH CASES, HOWEVER, IS WHETHER THE ACCEPTANCE OF THE BID AS SUBMITTED WILL CONSUMMATE A CONTRACT BINDING ON THE BIDDER REQUIRING PERFORMANCE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE PARTICULAR INVITATION.

IN THE INSTANT CASE IT WILL BE NOTED THAT SOUTHLAND IN ITS SUBSTITUTED PAGE 2 MADE THE SPECIFIC STATEMENT THAT IT WOULD COMPLY WITH THE DELIVERY SCHEDULE OUTLINED ON THE ORIGINAL PAGE 2. IT MAY THUS REASONABLY BE CONCLUDED THAT IT AGREED TO DELIVER LOCKERS CONFORMING TO THE DESCRIPTION THEREOF GIVEN ON THE ORIGINAL PAGE 2, AND THE DESCRIPTION INCLUDED THE FEDERAL STANDARD COLOR AND THE FEDERAL SPECIFICATION. ALSO, PAGE 3 OF EACH INVITATION STATES THAT COPIES OF THE APPLICABLE FEDERAL SPECIFICATION ARE AVAILABLE FROM GSA. CONSIDERING THE VARIOUS PROVISIONS OF THE INVITATION AS A WHOLE, IT IS BELIEVED THAT SOUTHLAND WOULD BE ESTOPPED FROM CLAIMING THAT ITS BID DID NOT INCLUDE ADHERENCE TO THE COLOR STANDARD AND FEDERAL SPECIFICATION.

YOU ARE THEREFORE, ADVISED THAT THE SOUTHLAND BIDS MAY BE CONSIDERED FOR AWARDS, WHICH IF MADE SHOULD INCORPORATE BY REFERENCE THE FEDERAL STANDARD AND SPECIFICATION.