B-168383, MARCH 5, 1970, 49 COMP. GEN 538

B-168383, MARCH 5, 1970, 49 COMP. GEN 538

CONTRACTS -- SPECIFICATIONS -- FAILURE TO FURNISH SOMETHING REQUIRED -- INFORMATION -- INVITATION TO BID ATTACHMENTS THE FIVE OF THE EIGHT BIDS RECEIVED UNDER AN INVITATION FOR BIDS (IFB) TO PERFORM CLEANING SERVICES WHICH WERE NOT ACCOMPANIED BY THE COMPLETE IFB AND DID NOT SPECIFICALLY IDENTIFY AND INCORPORATE ALL OF THE DOCUMENTS COMPRISING THE IFB ARE, NEVERTHELESS, RESPONSIVE BIDS AND THE LOW BID MUST BE CONSIDERED FOR AWARD. THE BIDDERS SIGNED AND RETURNED THE FACESHEET OF THE INVITATION IN WHICH THE PHRASE "IN COMPLIANCE WITH THE ABOVE" HAS REFERENCE TO THE LISTING OF THE DOCUMENTS THAT COMPRISE THE IFB AND OPERATES TO INCORPORATE ALL OF THE INVITATION DOCUMENTS BY REFERENCE INTO THE BIDS AND, THEREFORE, AN AWARD TO THE LOW BIDDER WILL BIND HIM TO PERFORMANCE IN FULL ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE IFB. TO THE EXTENT PRIOR HOLDINGS ARE INCONSISTENT WITH 49 COMP. GEN. 289 AND THIS DECISION, THEY NO LONGER WILL BE FOLLOWED.

TO ALBERT S. C. MILLAR, JR., MARCH 5, 1970:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 14, 1969, WITH ENCLOSURE, ON BEHALF OF ROYAL SERVICES, INC., PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. 4PBE 13, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), PUBLIC BUILDINGS SERVICE, REGION 4, ATLANTA, GEORGIA.

THE INVITATION REQUESTED BIDS OFFERING TO FURNISH THE CLEANING SERVICE REQUIREMENTS AT THE ATLANTA REGIONAL SERVICE CENTER, CHAMBLEE, GEORGIA, FOR THE PERIOD BEGINNING DECEMBER 1, 1969, THROUGH NOVEMBER 30, 1970. THE FACESHEET OF THE INVITATION, GSA FORM 1467, BORE A NOTATION THAT ALL BIDS ARE SUBJECT TO THE FOLLOWING:

1. THE ATTACHED BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS, GSA FORM 1467A.

2. THE GENERAL PROVISIONS, GSA FORM 1468.

3. THE CONTRACT REQUIREMENTS.

4. SUCH OTHER PROVISIONS, TERMS, CONDITIONS, SPECIFICATIONS, SCHEDULES, AND EXHIBITS AS ARE ATTACHED.

A TOTAL OF EIGHT BIDS WAS RECEIVED AND OPENED ON NOVEMBER 12, 1969. THE BID PRICES WERE AS FOLLOWS: JOHN R. CHRISMAN & ASSOCIATES, INC. $150,000.00 AMCOR, INC.

158,296.80 RICE CLEANING SERVICE 164,991.12 EASTERN SERVICE MANAGEMENT CO. 175,716.00 SPACE SERVICES OF GEORGIA, INC. 176,811.36 ROYAL SERVICES, INC.

177,465.00 CROWN MAINTENANCE COMPANY 183,627.00 HUGHES BROS. CLEANING & JANITORIAL SERVICE 377,230.44

THE BID OF HUGHES BROS. WAS DETERMINED BY THE CONTRACTING OFFICER TO BE NONRESPONSIVE SINCE THE BID WAS NOT ACCOMPANIED BY A BID GUARANTEE AS REQUIRED BY PARAGRAPH 5 OF THE SPECIAL PROVISIONS OF THE IFB. THE IFB CONTAINED A COVER SHEET BEARING THE NOTATION "THIS INVITATION FOR BID 4PBE -13 CONSISTS OF THE FOLLOWING," AND THEREAFTER IDENTIFIED THE DOCUMENTS INCLUDED IN THE INVITATION. WE ARE ADVISED THAT SPACE SERVICES SUBMITTED THE COMPLETE IFB WITH ITS BID, AND THAT YOUR COMPANY SUBMITTED AN ATTACHMENT INCORPORATING BY REFERENCE EACH OF THE DOCUMENTS LISTED ON THE COVER SHEET. AMCOR, RICE CLEANING SERVICE, EASTERN SERVICE MANAGEMENT, AND CROWN MAINTENANCE SUBMITTED BIDS WHICH INCLUDED ONLY GSA FORM 1467 (INVITATION, BID, AND AWARD), THE SCHEDULE, COST EVALUATION SHEET, AND THE BID BOND. THE CONTRACTING OFFICER ADVISES THAT THE BID OF JOHN R. CHRISMAN & ASSOCIATES WAS DISASSEMBLED SOMETIME AFTER BID OPENING; THAT THE AWARD SECTION OF GSA FORM 1467 WAS COMPLETED; AND THAT A COMPLETE CONTRACT DOCUMENT WAS PREPARED BY ATTACHING THE SPECIFICATIONS AND SPECIAL AND GENERAL CONDITIONS. THIS WAS DONE PRIOR TO THE SUBMISSION OF YOUR PROTEST IN ANTICIPATION OF AN AWARD TO THAT FIRM. THE CONTRACTING OFFICER, RELYING ON MEMORY AND CUSTOMARY PRACTICES OF BIDDERS IN THE REGION, BELIEVES THAT THE CHRISMAN BID ONLY INCLUDED FORMS NECESSARY TO CONVEY THE BID AMOUNT, THE BID BOND, AND THE REQUESTED STATEMENT OF FINANCIAL CONDITION AND EXPERIENCE (NOT REQUIRED TO BE SUBMITTED WITH THE IFB). AT A MINIMUM, FROM AN EXAMINATION OF THE RECORD, IT APPEARS THAT THE BID OF CHRISMAN INCLUDED AN EXECUTED GSA FORM 1467, THE PAGE ENTITLED "REPRESENTATIONS AND CERTIFICATIONS," AND PAGES 1 AND 2 OF THE SCHEDULE WHICH INCLUDES ITS MONTHLY BID PRICE OF $11,500. PAGE 1 OF THE SCHEDULE CONTAINS THE FOLLOWING LANGUAGE:

THE SERVICES TO BE FURNISHED, THE SPECIFICATIONS, THE TIME AND PLACE OF PERFORMANCE AND ANY OTHER SPECIAL TERMS AND CONDITIONS APPLICABLE TO THE INVITATION FOR BID, ARE SET FORTH BELOW, AND IN THE ATTACHED SPECIFICATIONS, GENERAL PROVISIONS AND SPECIAL PROVISIONS.

THE CONTRACTOR WILL BE RESPONSIBLE FOR MANAGING AND PERFORMING EFFICIENT PROGRAMS FOR CLEANING AT THE ATLANTA REGIONAL SERVICE CENTER, 4800 BUFORD HIGHWAY, CHAMBLEE, GEORGIA, AS ITEMIZED IN THE ATTACHED SPECIFICATIONS, GENERAL PROVISIONS AND SPECIAL PROVISIONS.

YOU CONTEND THAT NONE OF THE LOW BIDDERS INCLUDED A RETURN OF THE FULL SET OF SPECIFICATIONS, WHICH YOU STATE ARE REQUIRED TO BE RETURNED WITH THE BIDS. THEREFORE, YOU CONTEND THAT THE LOW BID OF CHRISMAN, AS WELL AS THE BIDS OF THE OTHER APPARENT LOW BIDDERS, MUST BE CONSIDERED NONRESPONSIVE AND THAT AWARD MUST BE MADE TO ROYAL SERVICES AS THE LOWEST RESPONSIVE BIDDER.

IN OUR DECISION DATED OCTOBER 31, 1969, 49 COMP. GEN. 289, OUR OFFICE STATED THE FOLLOWING GENERAL RULE GOVERNING THE RESPONSIVENESS OF BIDDERS WHO FAIL TO RETURN ALL PORTIONS OF THE IFB:

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. *** ALSO, SEE LOWRY & CO. V S. S. LE MOYNE D'IBERVILLE, 253 F. SUPP. 396, 398 (1966), WHERE THE COURT HELD: "IT IS NOT NECESSARY, IN ORDER TO INCORPORATE BY REFERENCE TERMS OF ANOTHER DOCUMENT, THAT SUCH PURPOSE BE STATED IN HAEC VERBA OR THAT ANY PARTICULAR LANGUAGE BE USED."

IN THE PRESENT CASE, FIVE BIDS WERE NOT ACCOMPANIED BY THE COMPLETE IFB AND DID NOT SPECIFICALLY IDENTIFY AND INCORPORATE ALL OF THE DOCUMENTS COMPRISING THE IFB. GSA FORM 1467, SIGNED BY THE BIDDERS, CONTAINS THE FOLLOWING:

IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED AGREES THAT, IF THIS BID IS ACCEPTED WITHIN

DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE BIDDER) FROM THE DATE OF OPENING, HE WILL WITHIN 15 CALENDAR DAYS (UNLESS A LONGER PERIOD IS ALLOWED) AFTER RECEIPT OF ACCEPTANCE BY THE GOVERNMENT FURNISH PERFORMANCE BOND AND INSURANCE IF REQUIRED AND, UPON RECEIPT OF NOTICE FROM THE GOVERNMENT TO PROCEED, THEREAFTER PROVIDE THE SERVICES DESCRIBED IN THE CONTRACT REQUIREMENTS, IN STRICT ACCORDANCE WITH ALL PROVISIONS OF THE INVITATION AS SET FORTH BELOW.

THE PHRASE "IN COMPLIANCE WITH THE ABOVE" REFERS TO THE PORTION OF THE BID FORM WHICH APPEARED IMMEDIATELY ABOVE THE QUOTED PARAGRAPH AND PROVIDED THAT ALL BIDS WERE SUBJECT TO "(1) THE ATTACHED BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS, GSA FORM 1647A; (2) THE GENERAL (4) SUCH OTHER PROVISIONS, TERMS, CONDITIONS, SPECIFICATIONS, SCHEDULES, AND EXHIBITS AS ARE ATTACHED." SEE, IN THIS REGARD, THE ABOVE-QUOTED LANGUAGE APPEARING ON PAGE 1 OF THE SCHEDULE AND THE FOLLOWING LANGUAGE FROM 49 COMP. GEN. 289, SUPRA:

*** 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. ***

SINCE CHRISMAN SUBMITTED AT LEAST TWO PAGES OF THE SCHEDULE WITH ITS BID, WHICH PAGES MAKE REFERENCE TO THE MATERIAL PROVISIONS OF THE IFB, IT IS OUR OPINION THAT SUCH REFERENCES IN THE BID SUBMITTED BY CHRISMAN OPERATED TO INCORPORATE THE ESSENTIAL INVITATION DOCUMENTS INTO THE BID. THEREFORE CONCLUDE THAT AN AWARD TO CHRISMAN WILL BIND HIM TO PERFORMANCE IN FULL ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE IFB.

WE ARE THEREFORE ADVISING THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION THAT THE LOW BID OF CHRISMAN MUST BE CONSIDERED FOR AWARD IF PROPER IN OTHER RESPECTS. THE HOLDINGS IN B-167248, AUGUST 22, 1969, AND 48 COMP. GEN. 171 (1968), CITED BY YOU, TO THE EXTENT THEY ARE INCONSISTENT WITH 49 COMP. GEN. 289, SUPRA, WILL NO LONGER BE FOLLOWED BY OUR OFFICE.

ACCORDINGLY, YOUR PROTEST IS DENIED.