B-167305, OCTOBER 31, 1969, 49 COMP. GEN. 289

B-167305, OCTOBER 31, 1969, 49 COMP. GEN. 289

CONTRACTS -- SPECIFICATIONS -- FAILURE TO FURNISH SOMETHING REQUIRED -- INFORMATION -- INVITATION TO BID ATTACHMENTS WHEN A BIDDER FAILS TO RETURN WITH HIS BID ALL THE DOCUMENTS ATTACHED TO AN INVITATION, THE BID IF SUBMITTED IN A FORM THAT ACCEPTANCE OF IT CREATES A VALID AND BINDING CONTRACT WILL REQUIRE THE BIDDER TO PERFORM IN ACCORDANCE WITH ALL THE MATERIAL TERMS AND CONDITIONS OF THE INVITATION. THEREFORE, NOTWITHSTANDING THE FAILURE OF THE LOW BIDDER TO RETURN SOME OF THE DOCUMENTS ATTACHED TO AN INVITATION FOR JANITORIAL SERVICES THAT CONCERNED THE WHERE, WHEN, AND IN WHAT MANNER THE SERVICES WERE TO BE PERFORMED, THE LOW BID MAY BE CONSIDERED RESPONSIVE. THE STANDARD FORM 33 ON WHICH THE BID WAS SUBMITTED CONTAINED IN THE "OFFER" PROVISION, THE PHRASE "IN COMPLIANCE WITH THE ABOVE," A PHRASE THAT OPERATED TO INCORPORATE BY REFERENCE ALL THE INVITATION DOCUMENTS AND, THEREFORE, AN AWARD TO THE LOW BIDDER WILL BIND HIM TO PERFORM IN FULL ACCORD WITH THE CONDITIONS OF THE REFERENCED DOCUMENTS. OVERRULES ANY PRIOR INCONSISTENT DECISIONS.

TO THE BUILDING MAINTENANCE CORPORATION, OCTOBER 31, 1969:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 19, 1969, AND SUBSEQUENT CORRESPONDENCE PROTESTING AGAINST AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. DABC21-69-B-0100, ISSUED BY FORT BRAGG, NORTH CAROLINA, ON MAY 26, 1969, FOR THE PROCUREMENT OF CUSTODIAL SERVICES AT THE INSTALLATION FOR THE PERIOD JULY 1, 1969 (OR DATE OF AWARD SUBSEQUENT THERETO) THROUGH JUNE 30, 1970.

THE INVITATION WAS ISSUED ON STANDARD FORM 33 WHICH, IN THE PORTION HEADED "SOLICITATION" ADVISED BIDDERS IN PERTINENT PART AS FOLLOWS:

ALL OFFERS ARE SUBJECT TO THE FOLLOWING:

1. THE ATTACHED SOLICITATION INSTRUCTIONS AND CONDITIONS SF 33A.

2. THE GENERAL PROVISIONS, SF 32 JUN 64 EDITION, WHICH IS ATTACHED OR INCORPORATED HEREIN BY REFERENCE.

3. THE SCHEDULE INCLUDED BELOW AND/OR ATTACHED HERETO.

4. SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED HEREIN BY REFERENCE. (ATTACHMENTS ARE LISTED IN THE SCHEDULE.) PAGE 2 OF THE SCHEDULE CONTINUATION SHEET (STANDARD FORM 36) OF THE SOLICITATION, CARRIED THE FOLLOWING LANGUAGE:

COMPOSITION: THIS SOLICITATION CONSISTS OF THE FOLLOWING: STANDARD FORM 33-SOLICITATION, OFFER AND AWARD; STANDARD FORM 33A---SOLICITATION INSTRUCTIONS AND CONDITIONS (AS AMENDED); NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE; STANDARD FORM 36--CONTINUATION SHEET (6 PAGES); SPECIAL PROVISIONS, PARAGRAPHS 1 THRU 18; TECHNICAL PROVISIONS, PARAGRAPHS 1 THRU 20; CUSTODIAL PERFORMANCE SCHEDULE PART 1; CUSTODIAL PERFORMANCE SCHEDULE PART 2; CUSTODIAL PERFORMANCE SCHEDULE PART 3; CUSTODIAL PERFORMANCE SCHEDULE PART 4 (2 PAGES); CUSTODIAL PERFORMANCE SCHEDULE PART 5; CUSTODIAL PERFORMANCE SCHEDULE PART 6; FB FORM 1470R- PARTNERSHIP AND CORPORATE CERTIFICATE; STANDARD FORM 32--GENERAL PROVISIONS NUMBERED 1 THRU 42 (AS AMENDED); AND WAGE DETERMINATION NUMBER 69-199, DATED 16 MAY 1969.

WHEN BIDS WERE OPENED AND EXAMINED ON JUNE 17, 1969, IT WAS NOTED THAT THE TWO LOWEST BIDDERS, ROYAL SERVICES, INC., AND AMCOR, INC., HAD FAILED TO SUBMIT SEVERAL PAGES OF SPECIFICATIONS, INCLUDING THE GENERAL PROVISIONS (STANDARD FORM 32), THE CUSTODIAL PERFORMANCE SCHEDULE, THE TECHNICAL PROVISIONS, AND THE SPECIAL PROVISIONS OF THE IFB, ALL OF WHICH HAD BEEN ATTACHED TO THE SOLICITATION BY THE PROCURING ACTIVITY. THESE PROVISIONS STATED, INTER ALIA, WHERE, WHEN AND IN WHAT MANNER THE JANITORIAL SERVICES WERE TO BE PERFORMED, SO THAT A BID COULD NOT BE CONSIDERED RESPONSIVE IF IT DID NOT EVIDENCE AN INTENT TO BIND THE BIDDER TO THE TERMS OF THESE SPECIFICATIONS. YOU CONTEND THAT BOTH THE LOW BID AND THE SECOND LOWEST BID WERE NONRESPONSIVE BY REASON OF THE FAILURE TO RETURN THESE SPECIFICATIONS AND THEREFORE AN AWARD SHOULD BE MADE TO YOU AS THE THIRD LOWEST BIDDER, SINCE YOU ATTACHED TO YOUR BID ALL THE DOCUMENTS REFERENCED ON PAGE 2 OF THE SCHEDULE CONTINUATION SHEET.

THERE IS NO REQUIREMENT IN THE PROCUREMENT LAWS, IN THE APPLICABLE REGULATIONS, OR IN THE PROVISIONS OF THE STANDARD INVITATION FOR BID FORMS THAT BIDDERS MUST RETURN WITH THEIR BIDS ALL PORTIONS OF, AND ATTACHMENTS TO, THE INVITATION IN ORDER TO BE ELIGIBLE FOR AWARD OF A CONTRACT. THE ABSENCE OF SUCH A REQUIREMENT THIS OFFICE HAS HELD THAT THE QUESTION TO BE DECIDED, WHEN A BIDDER FAILS TO RETURN ALL DOCUMENTS WITH HIS BID WHICH WERE ATTACHED TO THE INVITATION, IS WHETHER THE BIDDER HAS SUBMITTED HIS BID IN SUCH A FORM THAT ACCEPTANCE WOULD CREATE A VALID AND BINDING CONTRACT REQUIRING THE BIDDER TO PERFORM IN ACCORDANCE WITH ALL OF THE MATERIAL TERMS AND CONDITIONS OF THE INVITATION. THUS, WE HAVE HELD THAT BIDS SUBMITTED IN THE FORM OF A LETTER COULD BE ACCEPTED, B-128399, JULY 19, 1956; B-113920, FEBRUARY 27, 1953; THAT A BID CONSISTING ONLY OF THE FACE SHEET OF STANDARD FORM 33 AND THE COMPANY IDENTIFICATION INFORMATION FORM COULD BE ACCEPTED, B 148548, APRIL 17, 1962; AND THAT A BID WHICH FAILED TO RETURN THOSE PAGES OF THE INVITATION CONTAINED THE GENERAL PROVISIONS OF THE CONTRACT COULD BE ACCEPTED SINCE THE BID AS SUBMITTED REFERRED TO THE GENERAL PROVISIONS, AND THUS EVIDENCED AN INTENT TO BE BOUND BY THEIR TERMS. 44 COMP. GEN. 774 (1965). IN THE LATTER CASE WE STATED AS FOLLOWS:

*** MOREOVER, THERE WOULD APPEAR TO BE FOR APPLICATION HERE THE RULE OF LAW THAT WHERE A WRITING REFERS TO ANOTHER DOCUMENT, THAT OTHER DOCUMENT, OR SO MUCH OF IT AS IS REFERRED TO, IS TO BE INTERPRETED AS PART OF THE WRITING. 4 WILLISTON ON CONTRACTS, 3RD EDITION, SECTION 628. IN THE CASE OF RAY V WILLIAM G. EURICE & BROS., 93 A. 2D 272 (1952), THE COURT HELD AT PAGE 279:

THE LOWER COURT SEEMINGLY ATTACHED SIGNIFICANCE TO THE FACT THAT THE PLANS AND SPECIFICATIONS WERE NOT PHYSICALLY FASTENED TO THE CONTRACT DOCUMENT WHICH WAS EXECUTED, ALTHOUGH IT SPECIFICALLY AND EXPLICITLY REFERRED TO BOTH. IN THIS SITUATION PHYSICAL ATTACHMENTS HAS NOT THE SIGNIFICANCE SO ATTRIBUTED TO IT. IT IS SETTLED THAT WHERE A WRITING REFERS TO ANOTHER DOCUMENT THAT OTHER DOCUMENT, OR SO MUCH OF IT AS IS REFERRED TO, IS TO BE INTERPRETED AS PART OF THE WRITING. (NUMEROUS AUTHORITIES CITED.)

THE COURT FURTHER STATED:

*** IN NEW ENGLAND IRON CO. V GILBERT ELEVATED R. CO., 91 N.Y. 153, THE CONTRACT REQUIRED THAT THE WORK TO BE DONE SHOULD CONFORM "IN ALL PARTICULARS TO THE PLANS AND SPECIFICATIONS APPROVED BY (E.H.T.) AND (H.A.S.) A COPY OF WHICH SPECIFICATIONS IS DECLARED TO BE ANNEXED TO AND TO FORM A PART OF THE CONTRACT." IN ANSWER TO THE ARGUMENT THAT THE SPECIFICATIONS HAD NOT BEEN ATTACHED AND SO HAD NO FORCE, THE COURT SAID: THE ANNEXATION OF THE COPY (OF THE) SPECIFICATIONS WAS NOT A CONDITION ON WHICH THE VALIDITY OF THE AGREEMENT DEPENDED. IF ANNEXED THE IDENTIFICATION MIGHT HAVE BEEN MORE SATISFACTORY, BUT WITHOUT THAT, THE CONTENTS OF THE PLANS AND SPECIFICATIONS, SO FAR AS REFERRED TO IN THE AGREEMENT EXECUTED, BECAME CONSTRUCTIVELY A PART OF IT, AND IN THAT RESPECT MADE ONE INSTRUMENT.

SEE ALSO, UNITED STATES FIDELITY & GUARANTY COMPANY V LONG, 214 F. SUPP. 307 (1963).

IN THE PRESENT CASE, THE BID WAS SUBMITTED ON STANDARD FORM 33 IN THE FOLLOWING FORM: OFFER (NOTE: REVERSE MUST ALSO BE FULLY COMPLETED BY OFFEROR)

IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF THIS OFFER IS ACCEPTED WITHIN ---- CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE OFFEROR) FROM THE DATE FOR RECEIPT OF OFFERS SPECIFIED ABOVE, TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED, AT THE PRICE SET OPPOSITE EACH ITEM, DELIVERED AT THE DESIGNATED POINTS, WITHIN THE TIME SPECIFIED IN THE SCHEDULE.

THE PHRASE, "IN COMPLIANCE WITH THE ABOVE" IN THIS FORM OF OFFER REFERS TO THAT PORTION OF THE SOLICITATION QUOTED ABOVE WHICH PROVIDES THAT ALL OFFERS SHALL BE SUBJECT TO THE SOLICITATION INSTRUCTIONS AND CONDITIONS, THE GENERAL PROVISIONS, THE SCHEDULE, AND SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND SPECIFICATIONS AS ARE INCORPORATED BY REFERENCE OR LISTED IN THE SCHEDULE AS ATTACHMENTS. SINCE THAT PORTION OF THE SCHEDULE WHICH WAS TITLED "COMPOSITION" WAS SUBMITTED WITH THE LOW BID IN THE INSTANT CASE, AND IT IDENTIFIED IN DETAIL ALL OF THE VARIOUS CONDITIONS, PROVISIONS, SCHEDULES, CERTIFICATES AND OTHER DOCUMENTS COMPRISING THE TERMS OF THE CONTRACT TO BE AWARDED, IT IS OUR OPINION THAT SUCH REFERENCES IN THE BID SUBMITTED BY THE LOW BIDDER CLEARLY OPERATED TO INCORPORATE ALL OF THE INVITATION DOCUMENTS INTO THE BID, AND THAT AN AWARD TO THE LOW BIDDER WILL THEREFORE BIND HIM TO PERFORMANCE IN FULL ACCORD WITH THE CONDITIONS SET OUT IN THE REFERENCED DOCUMENTS. IN THIS CONNECTION, IT SHOULD BE NOTED THAT THIS CASE IS READILY DISTINGUISHABLE FROM 42 COMP. GEN. 502 (1963), IN WHICH THE BID FORM (AS DISTINGUISHED FROM THE INVITATION FOR BIDS) ADVISED THAT " *** SUBJECT TO THE SCHEDULE AND THE SPECIAL PROVISIONS WHICH ARE ATTACHED HERETO, *** THE UNDERSIGNED OFFERS AND AGREES TO FURNISH *** ."

WE ARE THEREFORE ADVISING THE SECRETARY OF THE ARMY THAT THE BID MUST BE CONSIDERED RESPONSIVE TO THE INVITATION, AND THAT PRIOR DECISIONS OF THIS OFFICE WHICH MAY BE INCONSISTENT WITH THE FOREGOING SHOULD NO LONGER BE FOLLOWED. CF. B-167248, AUGUST 22, 1969.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.