B-172183, JUN 29, 1971

B-172183, JUN 29, 1971

BID PROTEST - BID RESPONSIVENESS - FAILURE TO RETURN ALL DOCUMENTS DENIAL OF PROTEST OF MONUMENT PARKING COMPANY INC., HIGH BIDDER, AGAINST REJECTION OF ITS BID AND CANCELLATION BY GSA OF THE IFB FOR THE LEASING OF A PARKING LOT LOCATED IN WASHINGTON, D.C. PROTESTANT'S BID WAS PROPERLY REJECTED BY THE ADMINISTRATIVE AGENCY AS NONRESPONSIVE AS MOST OF THE SPECIFICATIONS OF THE IFB WERE NOT ENCLOSED WITH THE BID AND, CONTRARY TO THE CONTENTION OF PROTESTANT, THE DEFICIENCY WAS NOT CORRECTED BY THE STATEMENT "SUBJECT TO THE TERMS AND CONDITIONS HEREIN" ON THE ENCLOSED FIRST PAGE OF THE IFB. THE STATEMENT IS AMBIGUOUS BECAUSE IT MAY REASONABLY REFER EITHER SOLELY TO CONDITIONS ON THE FOUR ENCLOSED PAGES OR TO THOSE AND THE OTHER CONDITIONS ON THE TWENTY-FOUR PAGES OMITTED.

TO ALVORD AND ALVORD:

REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 12 AND 23 AND MAY 13, 1971, ON BEHALF OF MONUMENT PARKING COMPANY, INCORPORATED, PROTESTING THE FAILURE OF THE GENERAL SERVICES ADMINISTRATION TO AWARD A CONTRACT TO YOUR CLIENT FOR THE LEASING OF A PARKING LOT UNDER INVITATION FOR BIDS (IFB) NO. GS-PBS-03-B-(OL)9329, ISSUED BY THE SPACE MANAGEMENT DIVISION, OFFICE OF OPERATING PROGRAMS, PUBLIC BUILDING SERVICE.

ON JANUARY 26, 1971, GSA ISSUED THE INVITATION FOR THE LEASING OF A PARKING LOT LOCATED IN WASHINGTON, D.C. THE BIDS WERE PUBLICLY OPENED AND READ AT 1:00 P.M. ON FEBRUARY 16, 1971. ALTHOUGH MONUMENT SUBMITTED THE HIGHEST PRICE, ITS BID WAS DETERMINED TO BE NONRESPONSIVE IN THAT MOST OF THE SPECIFICATIONS OR TERMS AND CONDITIONS OF THE IFB SUCH AS THE ASSIGNMENT OR SUBLETTING PROVISION, THE INSURANCE REQUIREMENTS, THE WARRANTY AND DEFAULT PROVISIONS, THE RESERVE SPACE FOR GOVERNMENT EMPLOYEES CLAUSE AND PAYMENT OF UTILITIES PROVISION, WERE NOT ENCLOSED WITH THE BID. IN FACT, ONLY THE FOLLOWING FOUR PAGES WERE RETURNED WITH THE BID: THE FIRST PAGE (WHICH INCLUDED THE BID PRICE), THE SIGNATURE PAGE (PAGE EIGHT), THE "CERTIFICATE OF CORPORATE BIDDER," AND "CONTRACTOR'S REPRESENTATION REGARDING SMALL BUSINESS AND CONTINGENT FEES." SINCE NO REFERENCE WAS MADE TO THE OMITTED PAGES, THE CONTRACTING OFFICER DETERMINED THAT YOUR CLIENT WAS NOT OFFERING TO PERFORM IN ACCORDANCE WITH THE TERMS OF THE IFB, OR IN THE ALTERNATIVE, THAT THE OFFER WAS TOO UNCERTAIN AND AMBIGUOUS TO BE CONSIDERED. CONSEQUENTLY HE DECLARED YOUR CLIENT'S BID TO BE NONRESPONSIVE. SINCE THE ONLY OTHER BID WAS CONSIDERED TO BE TOO LOW, ALL BIDS WERE REJECTED AND THE DETERMINATION WAS MADE TO READVERTISE THE PROCUREMENT.

THE GENERAL RULE OF RESPONSIVENESS WHEN A BIDDER FAILS TO RETURN WITH HIS BID ALL OF THE DOCUMENTS WHICH WERE PART OF THE INVITATION, IS THAT THE BID MUST BE SUBMITTED IN SUCH FORM THAT ACCEPTANCE WOULD CREATE A VALID AND BINDING CONTRACT REQUIRING THE BIDDER TO PERFORM IN ACCORDANCE WITH ALL THE MATERIAL TERMS AND CONDITIONS OF THE INVITATION. SEE 49 COMP. GEN. 289 (1969) AND 49 COMP. GEN. 538 (1970).

YOU CONTEND THAT MONUMENT'S BID SHOULD BE CONSIDERED RESPONSIVE SINCE MONUMENT SUBMITTED ANY AND ALL PAGES ON WHICH ANY ENTRY HAD TO BE MADE. IN ADDITION, YOU ASSERT THAT THE FIRST PAGE OF THE IFB, WHICH WAS RETURNED WITH THE BID, STATED "SUBJECT TO THE TERMS AND CONDITIONS HEREIN, THE UNDERSIGNED OFFERS TO LEASE ... " YOU ALLEGE THAT "SUBJECT TO THE TERMS AND CONDITIONS HEREIN," IS SYNONYMOUS WITH OR AT LEAST TANTAMOUNT TO "HEREBY INCORPORATED BY REFERENCE." THUS, IT IS YOUR POSITION THAT BY RETURNING THE FIRST PAGE THE BIDDER WOULD BECOME OBLIGATED, UPON ACCEPTANCE, TO PERFORM IN ACCORDANCE WITH ALL OF THE MATERIAL TERMS AND CONDITIONS OF THE INVITATION.

IN ALL THE CASES YOU CITE IN WHICH WE FOUND IN FAVOR OF A BIDDER WHO SUBMITTED FEWER PAGES THAN REQUIRED BY THE IFB, IT WAS CLEAR THAT THE OMITTED PROVISIONS WERE MINOR AND THEREFORE WAIVABLE UNDER THE REGULATIONS, OR WERE OTHERWISE SPECIFICALLY INCORPORATED BY REFERENCE IN THE SUBMITTED PAGES, OR IT WAS CLEAR FROM THE DOCUMENTS WHICH WERE SUBMITTED THAT THE BIDDER INTENDED TO BE BOUND BY ALL THE MATERIAL TERMS AND CONDITIONS OF THE IFB. SEE B-170044, OCTOBER 15, 1970. IN SHORT, A BID OF THIS TYPE IS ACCEPTABLE IF THE BIDDER'S INTENTION TO BE BOUND BY ALL SUBSTANTIVE TERMS AND CONDITIONS OF THE SOLICITATION IN ANY RESULTING CONTRACT IS EVIDENT FROM THE TERMS OF THE BID AS SUBMITTED. IN 49 COMP. GEN. 289, A BID OMITTING PORTIONS OF THE SOLICITATION OFFERED TO PERFORM "IN COMPLIANCE WITH THE ABOVE," REFERRING TO THAT PORTION OF THE SOLICITATION WHICH PROVIDED 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." THE BID WAS FOUND TO BE RESPONSIVE ON THE BASIS THAT THE QUOTED LANGUAGE CONSTITUTED AN UNDERTAKING TO COMPLY WITH THE MATERIAL PROVISIONS OF THE SOLICITATION.

IN 49 COMP. GEN. 538, THE LOW BIDDER WHILE OMITTING SOME PAGES, SUBMITTED OTHERS INCLUDING THE PHRASE "IN COMPLIANCE WITH THE ABOVE" WHICH REFERRED TO A LISTING OF THE DOCUMENTS WHICH INCLUDED ALL OF THE MATERIAL PROVISIONS OF THE IFB. WE CONCLUDED THAT ALL OF THE MATERIAL PROVISIONS OF THE SOLICITATION WERE THEREBY INCORPORATED BY REFERENCE.

IN B-170044, ALTHOUGH THE BIDDER FAILED TO SUBMIT CERTAIN SIGNIFICANT PAGES OF THE IFB, HE EXECUTED AND RETURNED THE OFFER PORTION OF THE STANDARD FORM 33 WHICH STATED IN PART:

"ALL OFFERS ARE SUBJECT TO THE FOLLOWING:

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

"2. THE GENERAL PROVISIONS, SF 32 6/64 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.)"

THE FACE PAGE OF THE FORM SPECIFICALLY IDENTIFIED THE SOLICITATION AND INDICATED THAT IT WAS "PAGE 1 OF 28." IN THE CIRCUMSTANCES, WE CONCLUDED THAT ALL 28 PAGES OF THE INVITATION AND THE CLAUSES CONTAINED OR REFERENCED THEREIN WERE INCORPORATED BY SPECIFIC REFERENCE.

THE KEY ISSUE HERE IS THE MEANING OF "SUBJECT TO THE TERMS AND CONDITIONS HEREIN." WE BELIEVE THERE IS A SUBSTANTIAL QUESTION AS TO WHETHER "HEREIN" REFERS TO THE PROVISIONS OF THE SOLICITATION AS ISSUED OR TO THE PROVISIONS RETURNED WITH THE BID. THUS, WE FIND NO CLEAR INDICATION IN THE LANGUAGE OF THE BID THAT MONUMENT INTENDED TO BE BOUND BY ALL OF THE MATERIAL PROVISIONS OF THE SOLICITATION. WHERE A BID IS SUBJECT TO TWO REASONABLE INTERPRETATIONS, UNDER ONE OF WHICH IT WOULD BE RESPONSIVE AND UNDER THE OTHER NONRESPONSIVE, WE HAVE CONSISTENTLY FOLLOWED THE RULE THAT THE BIDDER IS NOT PERMITTED TO EXPLAIN HIS INTENDED MEANING AFTER BID OPENING. RATHER, THE BID IS CONSIDERED NONRESPONSIVE.

ACCORDINGLY, WE MUST DENY YOUR PROTEST.