B-150313, DEC. 5, 1962

B-150313, DEC. 5, 1962

TO THE SECRETARY OF THE NAVY:

BY LETTER DATED NOVEMBER 19, 1962, THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, SUBMITTED FOR DECISION THE QUESTION WHETHER THE BID SUBMITTED BY SPENCER-SAFFORD LOADCRAFT, INC., IN RESPONSE TO INVITATION FOR BIDS NO. 383-240-63, ISSUED ON AUGUST 9,1962, BY THE AVIATION SUPPLY OFFICE, MAY BE REGARDED AS RESPONSIVE TO THE INVITATION.

THE INVITATION, AS AMENDED, REQUESTED BIDS FOR 75 POSITIONING TRAILERS, AND AN ADDITIONAL QUANTITY OF 75 TRAILERS WAS SET ASIDE FOR PARTICIPATION BY SMALL BUSINESS CONCERNS ONLY, WITH FIRST PREFERENCE FOR SMALL BUSINESS CONCERNS WHICH WERE ALSO PERSISTENT LABOR SURPLUS AREA CONCERNS. PAGE 30 OF THE INVITATION SPECIFICALLY ADVISED BIDDERS THAT THE TRAILERS "SHALL BE DELIVERED ALL TRANSPORTATION CHARGES PAID BY THE SUPPLIER TO THE DESTINATIONS SPECIFIED HEREIN" AND THAT A BID SUBMITTED "ON A BASIS OTHER THAN F.O.B. DESTINATION WILL BE REJECTED AS NON-RESPONSIVE.'

BIDS WERE OPENED AS SCHEDULED AND SPENCER-SAFFORD LOADCRAFT, INC., SUBMITTED THE LOWEST PRICE FOR THE NONSET-ASIDE PORTION OF THE INVITATION. HOWEVER, THAT BIDDER ATTACHED TO AND MADE A PART OF ITS BID A LETTER READING IN PART AS FOLLOWS:

"ATTACHED PLEASE FIND COMPLETED COPY OF I.F.B.-383-249-62. WE ARE BIDDING THE NON-SET-ASIDE PORTION OF THIS I.F.B. F.O.B. BRADEY, TEXAS, WHICH IS IN MCCULLOCH COUNTY AND IS LISTED IN THE LABOR DEPARTMENT'S "AREA LABOR MARKET TRENDS" AS A SUBSTANTIAL AND PERSISTENT UNEMPLOYMENT AREA. WE ALSO WISH TO PARTICIPATE IN THE SET-ASIDE PORTION TO BE BUILT AT THIS SAME FACILITY.

"WE ARE A SMALL BUSINESS WITH OUR HOME OFFICE IN AUGUSTA, KANSAS AND A PLANT IN BRADY, TEXAS. WE HAVE BEEN PRODUCING WHEELED VEHICLES FOR THE ARMY ORDNANCE CORPS AND THE NAVY FOR THE PAST EIGHT YEARS.'

THE CONTRACTING OFFICER COMMENTED ON THE ABOVE-QUOTED LANGUAGE AS FOLLOWS:

"WHILE THE ABOVE MENTIONED LETTER DOES NOT SPECIFICALLY STATE THAT THE BIDDER IS OFFERING DELIVERY AT BRADY, TEXAS, IT IS SUBJECT TO THE INTERPRETATION THAT DELIVERY IS TO BE MADE AT BRADY, TEXAS, RATHER THAN AT THE DESTINATIONS SPECIFIED IN THE IFB. THE LETTER COULD ALSO BE INTERPRETED TO MEAN THAT THE CONTRACTOR IS IDENTIFYING THE LOCATION OF THE FACILITY AT WHICH WORK WILL BE PERFORMED. CONTRACTOR CLAIMS HE HAS FACILITIES IN AUGUSTA, KANSAS AND BRADY, TEXAS. A POSSIBILITY EXISTS THAT THE CONTRACTOR INADVERTENTLY PREFIXED THE LETTERS "F.O.B.' TO "BRADY, TEXAS" WITH THE INTENTION LIMITED TO IDENTIFYING THE FACILITY OR PLACE OF MANUFACTURE IN THE BELIEF THIS WOULD ENHANCE HIS POSITION AS A BIDDER LOCATED IN A LABOR SURPLUS AREA FOR THE ENTIRE QUANTITIES OF THE BID, INCLUDING THE SET ASIDE PORTION.'

REGARDLESS OF WHAT MAY HAVE BEEN INTENDED BY THE BIDDER, THE LETTER MUST BE REGARDED AS HAVING RENDERED THE BID AT LEAST SUSCEPTIBLE TO AN INTERPRETATION WHICH WOULD HAVE HAD THE EFFECT OF VARYING THE BIDDER'S OBLIGATION FROM THAT CONTEMPLATED BY THE INVITATION WITH RESPECT TO DELIVERY OF THE TRAILERS "ALL TRANSPORTATION CHARGED PAID * * * TO THE DESTINATIONS SPECIFIED.'

IF AN AWARD WERE MADE TO SPENCER-SAFFORD LOADCRAFT, INC., WITHOUT VERIFICATION OF ITS BID PRICES, IT IS APPARENT THAT THE BIDDER COULD HAVE REASONABLY MAINTAINED THAT ITS BID PRICE DID NOT INCLUDE ALL TRANSPORTATION CHARGES AND CLAIMED ADJUSTMENTS IN ITS ACCEPTED BID PRICE. AND, IF A CLARIFICATION OF THE BID IS REQUESTED PRIOR TO AWARD, THE BIDDER MIGHT WELL INSIST THAT IT INTENDED TO BID OTHER THAN ON AN F.O.B. DESTINATION BASIS SO AS TO REQUIRE REJECTION OF ITS BID OR CONTEND THAT IT INTENDED TO BID ON AN F.O.B. DESTINATION BASIS IF IT DESIRED AWARD OF THE CONTRACT. TO PERMIT THE BIDDER SUCH A CHOICE OF INTERPRETATION AFTER BIDS WERE OPENED WOULD HAVE AN ADVERSE EFFECT ON THE RIGHTS OF OTHER BIDDERS WHOSE BIDS APPARENTLY WERE RESPONSIVE TO THE INVITATION. WHETHER AMBIGUOUS OR INCONSISTENT TERMS IN A BID MAYBE CLARIFIED BY A BIDDER AFTER BID OPENING WAS DISCUSSED IN OUR DECISION AT 40 COMP. GEN. 393. THERE WE CONCLUDED (PAGE 397) THAT "WHERE EACH OF TWO POSSIBLE MEANINGS CAN BE REACHED FROM THE TERMS OF A BID, THE BIDDER SHOULD NOT BE ALLOWED TO EXPLAIN HIS MEANING WHEN HE IS IN A POSITION THEREBY TO PREJUDICE OTHER BIDDERS OR TO AFFECT THE RESPONSIVENESS OF HIS BID.'

WE, THEREFORE, ARE OF THE OPINION THAT THE BID OF SPENCER-SAFFORD LOADCRAFT, INC., MUST BE CONSIDERED AS NONRESPONSIVE TO THE INVITATION AND SHOULD BE DISREGARDED IN MAKING AN AWARD UNDER THE INVITATION. SEE 38 COMP. GEN. 532.