B-147286, OCT. 16, 1961

B-147286, OCT. 16, 1961

TO JOHN SCALIA-SCHMIEG AND KOTZIAN, INC.:

BY TELEGRAM DATED SEPTEMBER 26, 1961, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT BY THE ARCHITECT OF THE CAPITOL TO A HIGHER BIDDER FOR THE FURNISHING OF WOOD FURNITURE FOR THE EAST CAPITOL FRONT EXTENSION. YOU ADVISED THAT YOUR LOW BID WAS ARBITRARILY REJECTED BECAUSE OF A LETTER APPENDED TO YOUR BID WHEREIN YOU SUGGESTED THAT THE DELIVERY DATES BE EXTENDED.

THE ACT OF AUGUST 5, 1955, 69 STAT. 515, 516, AS AMENDED BY THE ACT OF FEBRUARY 14, 1956, 70 STAT. 14, AUTHORIZED THE ARCHITECT TO ENTER INTO CONTRACTS WITHOUT REGARD TO THE FORMAL ADVERTISING REQUIREMENTS OF SECTION 3709, REVISED STATUTES, 41 U.S.C. 5, FOR NECESSARY EXPENDITURES TO ACCOMPLISH THE EXTENSION OF THE EAST FRONT OF THE CAPITOL. THE ACT OF MARCH 31, 1961, 75 STAT. 30, MADE APPROPRIATIONS FOR THE EXTENSION OF THE CAPITOL AVAILABLE FOR THE PURCHASE OF FURNITURE AND FURNISHINGS. NOTWITHSTANDING THIS STATUTORY EXCEPTION FROM THE USUAL FORMAL ADVERTISING REQUIREMENTS, AN INVITATION FOR BIDS WAS ISSUED ON SEPTEMBER 5, 1961, REQUESTING SEALED COMPETITIVE BIDS FOR FURNISHING THE WOOD FURNITURE.

IN ORDER TO MEET THE NEEDS OF THE CONGRESS, IT WAS DEEMED NECESSARY BY THE ARCHITECT TO INCLUDE IN THE SPECIFICATIONS A RIGID DELIVERY SCHEDULE AND TO PROVIDE FOR THE ASSESSMENT OF LIQUIDATED DAMAGES AT A RATE NOT IN EXCESS OF $500 PER CALENDAR DAY. WITH RESPECT TO THIS REQUIREMENT, THE BID FORM CONTAINED THE FOLLOWING STATEMENT: "THE UNDERSIGNED BIDDER FURTHER AGREES THAT IF AWARDED THE CONTRACT HE WILL COMPLETE DELIVERY WITHIN THE TIME STIPULATED IN ARTICLE 2-05 OF THE SPECIFICATIONS.'

BIDS WERE OPENED IN THE OFFICE OF THE ARCHITECT OF THE CAPITOL ON FRIDAY, SEPTEMBER 22, 1961, AT 3 P.M. ONLY THREE BIDS WERE RECEIVED. THE LOW BID WAS SUBMITTED BY YOUR FIRM IN THE AMOUNT OF $252,217.25. THE SECOND LOW BID WAS SUBMITTED BY IRVING AND CASSON-A. H. DAVENPORT COMPANY, IN THE AMOUNT OF $259,300 AND THE THIRD BID WAS SUBMITTED BY JOHN STUART, INC., IN THE AMOUNT OF $270,750. STUART'S BID WAS DETERMINED TO BE NONRESPONSIVE SINCE A LETTER ACCOMPANYING ITS BID MATERIALLY QUALIFIED THE DELIVERY DATES CALLED FOR IN THE SPECIFICATIONS.

YOUR BID WAS ALSO ACCOMPANIED BY A LETTER MADE A PART OF YOUR BID. UNDER THE STATEMENT ON THE BID FORM,"THE UNDERSIGNED BIDDER FURTHER AGREES THAT IF AWARDED THE CONTRACT HE WILL COMPLETE DELIVERY WITHIN THE TIME STIPULATED IN ARTICLE 2-05 OF THE SPECIFICATIONS," THERE WERE TYPED THE WORDS "SEE ATTACHED LETTER.' THE LETTER, ADDRESSED TO THE ARCHITECT OF THE CAPITOL, READ AS FOLLOWS:

"GENTLEMEN:

"ENCLOSED IN TRIPLICATE IS OUR BID FOR GROUP II WOOD FURNITURE FOR THE ABOVE-MENTIONED PROJECT.

"HOWEVER, WE FEEL THAT REGARDLESS WHO RECEIVES THIS ORDER, THE DELIVERY SCHEDULE DOES NOT ALLOW ENOUGH TIME TO MANUFACTURE THIS FURNITURE.

"WE WOULD SUGGEST:

DELIVERY

ATTIC FLOOR NOVEMBER 6 TO 10

GALLERY FLOOR JANUARY 2 TO 5

PRINCIPAL FLOOR JANUARY 16 TO 19

FIRST FLOOR (

BASEMENT FLOOR) FEBRUARY 5 TO 9

"THANKING YOU FOR THIS OPPORTUNITY, WE REMAIN"

THE SPECIFICATIONS CALLED FOR DELIVERIES, UNDER ARTICLE 2-05 AS FOLLOWS:

ATTIC FLOOR OCTOBER 23 TO 31, 1961

GALLERY FLOOR DECEMBER 11 TO 15, 1961

PRINCIPAL FLOOR DECEMBER 26 TO 29, 1961

FIRST FLOOR JANUARY 8 TO 12, 1962

BASEMENT FLOOR JANUARY 23 TO 26, 1962

IT WAS THE VIEW OF THE ARCHITECT THAT YOUR BID WAS A QUALIFIED BID, NOT CONFORMING TO THE SPECIFICATIONS, AND THAT THE AWARD FOR THE WOOD FURNITURE SHOULD ACCORDINGLY BE MADE TO THE SECOND LOW BIDDER WHO SUBMITTED AN UNQUALIFIED BID.

A TELEGRAM, DATED SEPTEMBER 22, 1961, 7:04 P.M., WAS RECEIVED BY THE ARCHITECT ON SATURDAY, SEPTEMBER 23, 1961, FROM YOUR ADVISING: "WE WILL MEET YOUR DELIVERY DATES, FOR FURNITURE FOR THE EXTENSION OF THE CAPITOL PROJECT.'

THE MATTER OF THE RESPONSIVENESS OF YOUR BID WAS INFORMALLY BROUGHT TO OUR ATTENTION BY A REPRESENTATIVE OF THE ARCHITECT'S OFFICE AND IT WAS OUR OPINION THAT YOUR BID, AS SUBMITTED, WAS NONRESPONSIVE TO THE ADVERTISED SPECIFICATIONS. ACCORDINGLY, AND WITH THE APPROVAL OF THE SPEAKER OF THE HOUSE OF REPRESENTATIVES WHO IS CHAIRMAN OF THE COMMISSION FOR THE EXTENSION OF THE UNITED STATES CAPITOL, THE ARCHITECT AWARDED THE CONTRACT TO IRVING AND CASSON-A. H. DAVENPORT COMPANY AS THE LOWEST RESPONSIVE BIDDER ON SEPTEMBER 28, 1961.

WE HAVE REPEATEDLY HELD THAT DEVIATIONS IN A BID FROM THE ADVERTISED SPECIFICATIONS RELATIVE TO DELIVERY, AS WELL AS OTHER FACTORS AFFECTING PRICE, QUANTITY OR QUALITY, GO TO THE SUBSTANCE OF THE BID SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS AND THEREFORE MAY NOT BE WAIVED AS MERE INFORMALITIES. MOREOVER, A BIDDER MAY NOT CHANGE A PROVISION IN A BID SUBSEQUENT TO ITS OPENING IF IT LIMITS THE BIDDER'S LIABILITY FOR DELAYS, SINCE SUCH QUALIFICATION WOULD BE A MATERIAL DEVIATION. 30 COMP. GEN. 179; 36 ID. 181; 38 ID. 98; ID. 612; ID. 876.

IT IS CLEAR THAT YOUR BID, AS QUALIFIED BY THE ACCOMPANYING LETTER, TOOK EXCEPTION TO THE ADVERTISED DELIVERY SCHEDULE AND PROPOSED AN ALTERNATE DELIVERY SCHEDULE. WHILE THE ALTERNATE DELIVERY SCHEDULE WAS SUGGESTED BY YOU, THE CLEAR IMPORT OF YOUR LETTER WAS TO DEVIATE FROM THE ADVERTISED DELIVERY SCHEDULE BY STATING, IN EFFECT, THAT YOU COULD NOT MEET THAT SCHEDULE BUT THAT YOU COULD MEET THE SUGGESTED ALTERNATE SCHEDULE. CONSIDERING THAT ARTICLE 2-06 OF THE ADVERTISED SPECIFICATIONS PROVIDED FOR THE ASSESSMENT OF LIQUIDATED DAMAGES NOT IN EXCESS OF $500 PER CALENDAR DAY FOR DELAY IN DELIVERY OF ALL FURNITURE WITHIN THE TIME SPECIFIED IN ARTICLE 2-05, THE LEGAL EFFECT OF YOUR LETTER WAS TO RELIEVE YOU OF LIABILITY FOR LIQUIDATED DAMAGES FOR FAILURE TO DELIVER WITHIN THE ADVERTISED DELIVERY SCHEDULE. UNDER THE LANGUAGE EMPLOYED IN YOUR LETTER, YOU WOULD HAVE HAD ADDITIONAL TIME TO DELIVER WITHOUT LIABILITY FOR LIQUIDATED DAMAGES. THE DIFFERENCE BETWEEN YOUR LIABILITY FOR LIQUIDATED DAMAGES AND THAT IMPOSED ON A BIDDER WHO TOOK NO EXCEPTION TO THE TERMS OF THE ADVERTISEMENT IS PATENTLY MATERIAL.

NEITHER MAY ANY EFFECT BE GIVEN TO YOUR OFFER TENDERED AFTER BIDS WERE OPENED TO MEET THE ADVERTISED DELIVERY SCHEDULE. SINCE YOUR BID AS SUBMITTED WAS NONRESPONSIVE, YOU MAY NOT BE PERMITTED TO MAKE YOUR BID RESPONSIVE BY CHANGING A MATERIAL PART THEREOF AFTER OPENING TO THE PREJUDICE OF THE RESPONSIVE BIDDER. TO PERMIT SUCH ACTION WOULD BE TANTAMOUNT TO ALLOWING YOU TO SUBMIT A NEW BID CONTRARY TO THE ESTABLISHED RULES REGARDING COMPETITIVE BIDDING. SEE 38 COMP. GEN. 819.

ACCORDINGLY, THE ACTION TAKEN BY THE ARCHITECT OF THE CAPITOL IN REJECTING YOUR BID AS NONRESPONSIVE WAS PROPER.