B-158639, APR. 20, 1966
Highlights
THE INVITATION WAS ISSUED ON FEBRUARY 2. YOUR BID WAS SUBMITTED FEBRUARY 16. "IF THIS AMENDMENT IS TO INDICATE THAT THERE IS NO CONCRETE ENCASED 4 INCH-FIBER DUCT IN THE JOB. AWARD WAS MADE TO A. IT IS YOUR CONTENTION THAT YOUR DEDUCTION REDUCED YOUR BID TO $30. WHICH WAS LOW. THAT THESE DUCTS ARE TO BE CONSTRUCTED PURSUANT TO FEDERAL SPECIFICATIONS W-C-0581A (GSA-FSS). PARAGRAPH TP 5-07B PROVIDED THAT THE DUCTS WERE TO BE ENCASED IN AT LEAST 3 INCHES OF CONCRETE. THE LANGUAGE YOU CHOSE IN ACKNOWLEDGING THE AMENDMENT IS AMBIGUOUS IN THAT IT IS NOT CLEAR IF YOU INTENDED TO REDUCE YOUR BID ONLY IF NO DUCT WAS REQUIRED OR MERELY IF NO CONCRETE ENCASEMENT WAS NECESSARY. WE CONSISTENTLY HAVE TAKEN THE VIEW THAT AN AMBIGUOUS BID MAY NOT BE EXPLAINED AFTER BID OPENING SINCE THE BIDDER WOULD.
B-158639, APR. 20, 1966
TO INTERSTATE GENERAL CONTRACTOR:
WE AGAIN REFER TO YOUR TELEGRAM DATED MARCH 2, 1966, PROTESTING ANY AWARD UNDER AIR FORCE INVITATION FOR BIDS NO. 10-603-66-38. THE INVITATION WAS ISSUED ON FEBRUARY 2, 1966, AND SOLICITED BIDS FOR THE CONSTRUCTION AND INSTALLATION OF A BAK-12 AIRCRAFT ARRESTOR IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS AND DRAWINGS. YOUR PROTEST INVOLVES THE AFFECT OF AMENDMENT NO. 1, ISSUED FEBRUARY 18, WHICH CALLED FOR THE DELETION OF PARAGRAPH TP5-07/B) WHICH PROVIDES:
"B. 4-INCH FIBER DUCT SHALL BE INSTALLED WITH A MINIMUM OF 3 INCHES CONCRETE ENCASEMENT. SEE SHEETS 1 AND 3 FOR DETAILS AND LOCATIONS.'
YOUR BID WAS SUBMITTED FEBRUARY 16, 1966, IN THE AMOUNT OF $34,565 FOR THE JOB. AFTER RECEIVING THE AMENDMENT, YOU RETURNED IT WITH THE STATEMENT,"IF THIS AMENDMENT IS TO INDICATE THAT THERE IS NO CONCRETE ENCASED 4 INCH-FIBER DUCT IN THE JOB, YOU MAY DEDUCT THE AMOUNT OF $4000.00 FROM OUR PREVIOUSLY SUBMITTED BID.'
AWARD WAS MADE TO A. G. PROCTOR COMPANY, INC., WHICH HAD BID $33,400, AND IT IS YOUR CONTENTION THAT YOUR DEDUCTION REDUCED YOUR BID TO $30,565, WHICH WAS LOW.
SHEET 1 OF THE FIVE SHEETS OF APPLICABLE DRAWINGS (MH-700-105) PROVIDES FOR THE CONSTRUCTION OF THE 4-INCH DUCTS AND INDICATES THEIR LOCATIONS. SECTION V OF THE SPECIFICATIONS (MTH 69-6) PROVIDES, IN PARAGRAPH TP 5- 02A, THAT THESE DUCTS ARE TO BE CONSTRUCTED PURSUANT TO FEDERAL SPECIFICATIONS W-C-0581A (GSA-FSS). PARAGRAPH TP 5-07B PROVIDED THAT THE DUCTS WERE TO BE ENCASED IN AT LEAST 3 INCHES OF CONCRETE, AND THE DELETION OF THE ENTIRE PARAGRAPH TP 5-07 AFFECTED THE DUCTS ONLY IN THAT IT REMOVED THE REQUIREMENT FOR THE 3 INCHES OF CONCRETE. IT DID NOT OTHERWISE AFFECT THE CONSTRUCTION OF THE DUCTS.
THE LANGUAGE YOU CHOSE IN ACKNOWLEDGING THE AMENDMENT IS AMBIGUOUS IN THAT IT IS NOT CLEAR IF YOU INTENDED TO REDUCE YOUR BID ONLY IF NO DUCT WAS REQUIRED OR MERELY IF NO CONCRETE ENCASEMENT WAS NECESSARY.
WE CONSISTENTLY HAVE TAKEN THE VIEW THAT AN AMBIGUOUS BID MAY NOT BE EXPLAINED AFTER BID OPENING SINCE THE BIDDER WOULD, IN EFFECT, HAVE AN ELECTION AS TO WHETHER OR NOT HE WISHED TO HAVE HIS BID CONSIDERED. OTHER WORDS, WHERE EACH OF TWO POSSIBLE MEANINGS CAN BE REACHED FROM THE TERMS OF A BID, THE BIDDER MAY 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. SEE 40 COMP. GEN. 393. IN VIEW THEREOF, THE REDUCTION OF $4,000 OFFERED BY YOU MAY NOT BE CONSIDERED IN EVALUATING YOUR BID.