B-170205, SEP. 9, 1970

B-170205, SEP. 9, 1970

BID PROTEST - REJECTION - NONRESPONSIVE DENIAL OF PROTEST OF HAMILTON HAULING, INC., LOW BIDDER, AGAINST REJECTION OF BID FOR REMOVAL AND DISPOSAL SERVICE BY RICHARDS-GEBAUR AIR FORCE BASE, GRANDVIEW, MISSOURI. CONTRACTING OFFICER, WHO AFTER PRE-AWARD SURVEY AND REVIEW OF ALL BIDS, DETERMINED HAMILTON'S BID NONRESPONSIVE SINCE THE FIRM PLACED A RESTRICTION ON THE QUANTITY OF SERVICE TO BE PERFORMED. THE SUCCESSFUL BIDDER SUBMITTED A MONTHLY AND YEARLY PRICE, LEAVING NO DOUBT AS TO HIS INTENTION TO BID A FIXED UNIT PRICE AND A FIXED ANNUAL PRICE FOR THE HAULING REQUIRED, WHILE HAMILTON SUBMITTED A WEEKLY ESTIMATE AS A MONTHLY QUANTITY, THEREBY INTRODUCING THE AMBIGUITY IN HIS BID WHICH LED TO ITS BEING DECLARED NONRESPONSIVE. THEREFORE, THE BID WAS NOT IN SUCH FORM THAT ITS ACCEPTANCE WOULD RESULT IN A VALID CONTRACT FOR A FIXED PRICE IN ACCORDANCE WITH TERMS OF THE INVITATION AND PROTEST IS DENIED.

TO COTTINGHAM, WILLIAMSON, GIBSON AND LEONARD:

WE REFER TO YOUR LETTER OF JUNE 25, 1970, PROTESTING ON BEHALF OF HAMILTON HAULING, INC., THE REJECTION OF ITS BID AS NONRESPONSIVE UNDER IFB NO. F23608-70-B-0416, ISSUED BY RICHARDS-GEBAUR AIR FORCE BASE, GRANDVIEW, MISSOURI.

THE INVITATION FOR BIDS WAS ISSUED ON MARCH 30, 1970, AND CALLED FOR BIDS AS FOLLOWS:

(FORM OMITTED)

THE ATTACHED TECHNICAL PROVISIONS LISTED THE EQUIPMENT REQUIRED, THE COLLECTIONS POINTS, THE NUMBER AND SIZE OF CONTAINERS, THE ESTIMATED TIMES DUMPED PER WEEK, AN ESTIMATED TOTAL OF APPROXIMATELY 1682 CUBIC YARDS PER WEEK.

BIDS WERE OPENED ON MAY 14, 1970, AND HAMILTON'S BID WAS AS FOLLOWS:

(FORM OMITTED)

HAMILTON WAS THE APPARENT LOW BIDDER ON THE BASIS OF THE TOTAL PRICE, AND THE NEXT LOW BID WAS FROM DOEPKE DISPOSAL SERVICE AS FOLLOWS:

(FORM OMITTED)

THE CONTRACTING OFFICER REQUESTED A PRE-AWARD SURVEY OF HAMILTON AS THE APPARENT LOW BIDDER. HOWEVER, DURING THE FINAL REVIEW AND EVALUATION OF ALL BIDS, THE CONTRACTING OFFICER DETERMINED THAT HAMILTON'S BID MUST BE VIEWED AS AN OFFER TO REMOVE NO MORE THAN A QUANTITY OF 1682 CUBIC YARDS PER MONTH, WHEREAS THE INVITATION HAD FURNISHED BIDDERS WITH AN ESTIMATE OF 1682 CUBIC YARDS PER WEEK ONLY AS A BASIS FOR COMPUTING UNIT BID PRICES ON A MONTHLY BASIS TO REMOVE ALL REFUSE WHICH MIGHT ACCUMULATE DURING EACH MONTH. THE CONTRACTING OFFICER THEREFORE CONCLUDED THAT HAMILTON'S BID PLACED A RESTRICTION ON THE QUANTITY OF SERVICES TO BE PERFORMED EACH MONTH, AND HE REJECTED THE BID AS NONRESPONSIVE AND ADVISED HAMILTON OF HIS ACTION BY LETTER DATED MAY 28, 1970.

YOUR LETTER OF JUNE 1, 1970, TO THE CONTRACTING OFFICER PROTESTED AGAINST REJECTION OF HAMILTON'S BID. YOU ASSERTED THAT HAMILTON TOOK THE AIR FORCE'S ESTIMATE AND INSERTED IT IN THE BID AS AN AVERAGE TO SHOW HOW HE ARRIVED AT THE TOTAL FIGURE. YOU CONTENDED THAT HAMILTON'S BID WAS CLEAR AND RESPONSIVE FOR A TOTAL OF $33,236.32 AND THE QUANTITY WAS NOT RESTRICTED IN ANY WAY. YOUR PROTEST TO THE CONTRACTING OFFICER WAS DENIED AND ON JUNE 25, 1970, AWARD WAS MADE TO DEOPKE DISPOSAL SERVICE FOR $35,520.

YOUR PROTEST OF JUNE 25, 1970, TO OUR OFFICE REPEATED THE BASIS FOR YOUR PROTEST TO THE CONTRACTING OFFICER AND ADDED THAT ANY ERROR IN HAMILTON'S BID WAS INDUCED BY THE TYPE OF FORM USED. YOU CONTENDED AGAIN THAT THE QUANTITY FIGURE USED BY HAMILTON WAS THE ESTIMATED FIGURE THAT THE AIR FORCE HAD GIVEN HIM AND ITS USE WAS NOT INTENDED TO RESTRICT THE QUANTITY TO BE HAULED EACH MONTH.

THE QUESTION OF WHETHER A BID IS RESPONSIVE TO THE INVITATION MUST BE DETERMINED ON THE BASIS OF THE BID AS SUBMITTED. IN ORDER TO BE RESPONSIVE THE BID MUST BE IN SUCH FORM THAT ITS ACCEPTANCE WOULD RESULT IN A VALID CONTRACT FOR A FIXED PRICE IN ACCORDANCE WITH THE TERMS OF THE INVITATION. THE BID SUBMITTED BY HAMILTON HAS "1682 PER MO." TYPED IN THE QUANTITY COLUMN ABOVE THE FIGURE "12" WHICH WAS PRINTED THERE AND "CU YD" TYPED IN THE UNIT COLUMN ABOVE THE ABBREVIATION "MOS" WHICH WAS A PART OF THE BID FORM. THE FIGURE "$0.38" WAS TYPED IN THE UNIT PRICE COLUMN. AN EXTENSION OF THE FIGURES TYPED IN BY HAMILTON (1682 X $0.38) YIELDS A MONTHLY PRICE OF $637.16 AND A YEARLY PRICE OF $7,669.92 RATHER THAN THE FIGURE $33,236.32 WHICH HAMILTON TYPED IN THE AMOUNT COLUMN. IN THESE CIRCUMSTANCES, WE CANNOT AGREE WITH YOUR CONTENTIONS THAT HAMILTON'S BID WAS CLEAR AND RESPONSIVE, OR THAT IT IS CLEAR THE ESTIMATE WAS INSERTED ONLY TO SHOW THE COMPUTATION OF THE TOTAL FIGURE. IN OUR OPINION, THE AMBIGUITY IN THE BID IS PATENT, AND IT CANNOT BE SAID THAT ACCEPTING HAMILTON'S BID WOULD RESULT IN A FIRM FIXED PRICE CONTRACT IN ACCORD WITH THE TERMS OF THE INVITATION.

WITH RESPECT TO YOUR CONTENTION THAT ANY ERROR WAS INDUCED BY THE TYPE OF FORM USED, THE BID FORM HAD "12" PRINTED IN THE QUANTITY COLUMN AND "MOS" PRINTED IN THE UNIT COLUMN, LEAVING BLANK ONLY THE COLUMNS FOR UNIT PRICE AND AMOUNT. THE SUCCESSFUL BIDDER FILLED IN ONLY THE BLANK COLUMNS WITH A MONTHLY AND YEARLY PRICE, LEAVING NO DOUBT AS TO HIS INTENTION TO BID A FIXED UNIT PRICE AND A FIXED ANNUAL PRICE FOR THE HAULING REQUIRED. HAMILTON, ON THE OTHER HAND, CHOSE A METHOD OF BIDDING WHICH IGNORED THE FACT THAT THE FIRST TWO COLUMNS WERE ALREADY FILLED IN AND ELECTED TO INSERT THE WEEKLY ESTIMATE AS A MONTHLY QUANTITY, THEREBY INTRODUCING THE AMBIGUITY IN HIS BID WHICH LED TO ITS BEING DECLARED NONRESPONSIVE.

IN ADHERING TO THE RULE THAT AN AMBIGUOUS BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, OUR OFFICE HAS LONG HELD THAT TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PART OF THE BID ON THE BASIS OF AN EXPLANATION FURNISHED AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. B-169480, MAY 26, 1970; 38 COMP. GEN. 819 (1959); AND 30 ID. 179 (1950). IN THE INSTANT CASE, HAMILTON'S BID COULD BE MADE UNAMBIGUOUS AND RESPONSIVE ONLY BY DELETING THOSE MATERIAL PARTS OF HIS BID RELATING TO QUANTITY, UNIT AND UNIT PRICE, AND BY ADDING A MONTHLY PRICE.

FOR THE REASONS STATED, WE MUST AGREE THAT REJECTION OF HAMILTON'S BID WAS PROPER, AND YOUR PROTEST MUST THEREFORE BE DENIED.