B-164237, JUNE 24, 1968, 47 COMP. GEN. 769

B-164237, JUNE 24, 1968, 47 COMP. GEN. 769

BIDS - ACCEPTANCE TIME LIMITATION - FAILURE TO COMPLY TWO BID ACCEPTANCE PROVISIONS IN AN INVITATION, ONE STANDARD FORM 33, ENTITLED "SOLICITATION, OFFER AND AWARD," PRESCRIBING THAT A BID WILL BE OPEN FOR 60-CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS SPECIFIED BY THE BIDDER IN THE BLANK SPACE PROVIDED, THE OTHER, STANDARD FORM 33A, ENTITLED "SOLICATATION INSTRUCTIONS AND CONDITIONS," WHICH STATED THAT AN OFFER OF LESS THAN A 90 DAY ACCEPTANCE PERIOD WOULD BE REJECTED ARE NOT INCONSISTENT WHERE THE 90-DAY REFERENCE IN THE INSTRUCTIONS IS NOT INTENDED TO RELIEVE A BIDDER OF THE RESPONSIBILITY OF SELECTING AN ACCEPTANCE PERIOD. THEREFORE, A LOW BID SUBMITTED WITHOUT SPECIFYING A DIFFERENT ACCEPTANCE PERIOD AUTOMATICALLY OFFERED A 60 DAY BID ACCEPTANCE PERIOD, AND THE BID NONRESPONSIVE TO THE 90 DAY ACCEPTANCE PERIOD REQUIREMENT MAY NOT BE CONSIDERED FOR AWARD.

TO THE SECRETARY OF THE ARMY, JUNE 24, 1968:

WE REFER TO A REPORT DATED MAY 23, 1968, FROM THE ACTING DIRECTOR OF PROCUREMENT AND PRODUCTION, U.S. ARMY MATERIEL COMMAND, RELATIVE TO THE PROTEST OF ATLANTIC MAINTENANCE INC., OF MARYLAND, AGAINST AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. DAAA13-68-B-0065, ISSUED ON MARCH 26, 1968, BY THE PROCUREMENT DIVISION, FORT DETRICK, MARYLAND.

THE INVITATION, AS MODIFIED BY AMENDMENT NO. 1 DATED APRIL 9, 1968, REQUESTED BIDS NO LATER THAN APRIL 25, 1968, FOR FURNISHING JANITORIAL SERVICES FOR ITEM 1, COVERING EIGHTEEN (18) BUILDINGS IN WHICH THE SERVICES WERE TO BE PROVIDED DURING EVENING HOURS; AND ITEM 2, COVERING EIGHT (8) BUILDINGS IN WHICH THE SERVICES WERE TO BE PERFORMED DURING DAYTIME WORKING HOURS. THE GOVERNMENT RESERVED THE RIGHT TO MAKE MULTIPLE AWARDS AND BIDDERS WERE PERMITTED TO SUBMIT LUMP-SUM BIDS FOR ALL TWENTY- SIX BUILDINGS. THE INVITATION CONTAINED STANDARD FORM 33A (JULY 1966), ENTITLED "SOLICITATION INSTRUCTIONS AND CONDITIONS," AND STANDARD FORM 33 (JULY 1966), ENTITLED "SOLICITATION, OFFER AND AWARD.' OF RELEVANCE TO OUR CONSIDERATION HERE, THE "OFFER" PORTION OF THE LATTER FORM PROVIDES AS FOLLOWS: IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF THIS OFFER IS ACCEPTED WITHIN -- - CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY THE OFFEROR) FROM THE DATE FOR RECEIPT OF OFFERS SPECIFIED ABOVE, TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED, AT THE PRICE SET OPPOSITE EACH ITEM, DELIVERED AT THE DESIGNATED POINT/S), WITHIN THE TIME SPECIFIED IN THE SCHEDULE. ADDITION TO THE 19 PARAGRAPHS OF INSTRUCTIONS AND CONDITIONS CONTAINED IN STANDARD FORM 33A, THE PROCURING ACTIVITY ISSUED SUPPLEMENTAL INSTRUCTIONS AND CONDITIONS. PARAGRAPH 34 THEREOF IMPOSED THE FOLLOWING CONDITION:

BIDS ACCEPTANCE PERIOD (APRIL 1960)

BIDS OFFERING LESS THAN 90 DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE SET FOR OPENING OF BIDS WILL BE CONSIDERED NON-RESPONSIVE AND WILL BE REJECTED.

ELEVEN BIDS WERE RECEIVED, AND THE BID OF THE NASH JANITORIAL SERVICE IN THE AMOUNT OF $37,224 WAS RECORDED AS LOW OVERALL. ATLANTIC MAINTENANCE, INC., OF MARYLAND'S BID IN THE AMOUNT OF $40,920 WAS SECOND LOW OVERALL. OF THE ELEVEN BIDS RECEIVED, NINE BIDDERS, INCLUDING NASH JANITORIAL SERVICE, FAILED TO COMPLETE THE BID ACCEPTANCE SPACE. WE HAVE BEEN INFORMALLY ADVISED THAT THE SAME BID ACCEPTANCE PERIOD PROVISIONS WERE PROVIDED IN LAST YEAR'S PROCUREMENT OF THESE SERVICES, AND THAT ONLY TWO OF FIVE BIDDERS PARTICIPATING COMPLETED THE BID ACCEPTANCE SPACE.

BY LETTER DATED MAY 3, 1968, ATLANTIC MAINTENANCE, INC., OF MARYLAND, CONTENDS THAT IN ACCORDANCE WITH PARAGRAPH 34 OF THE SUPPLEMENTAL CONDITIONS THE BID OF THE NASH JANITORIAL SERVICE IS NONRESPONSIVE SINCE THAT FIRM FAILED TO INSERT THE FIGURE "90" IN THE BID ACCEPTANCE PERIOD SPACE. THE CONTRACTING OFFICER TAKES EXCEPTION TO THIS VIEW ON THE GROUND THAT UNDER THE INVITATION AS PREPARED BY THE PROCURING ACTIVITY SUCH ACTION WAS UNNECESSARY. ACCORDINGLY, THE CONTRACTING OFFICER PROPOSES THAT AWARD BE MADE TO NASH JANITORIAL SERVICE. THIS RECOMMENDATION IS CONCURRED IN BY HEADQUARTERS, U.S. ARMY MUNITIONS COMMAND AND HEADQUARTERS, U.S. ARMY MATERIEL COMMAND.

CONSIDERING THE CONSTRUCTION OF THE INVITATION ADVANCED IN SUPPORT OF THE PROPOSED AWARD TO NASH JANITORIAL SERVICE, PRIMARY RELIANCE IS PLACED ON PARAGRAPH 19 "ORDER OF PRECEDENCE" OF STANDARD FORM 33A, WHICH PROVIDES THAT:

19. IN THE EVENT OF AN INCONSISTENCY BETWEEN PROVISIONS OF THIS SOLICITATION, THE INCONSISTENCY SHALL BE RESOLVED BY GIVING PRECEDENCE IN THE FOLLOWING ORDER: (A) THE SCHEDULE; (B) SOLICITATION INSTRUCTIONS AND CONDITIONS; (C) GENERAL PROVISIONS; (D) OTHER PROVISIONS OF THE CONTRACT, WHETHER INCORPORATED BY REFERENCE OR OTHERWISE; AND (E) THE SPECIFICATIONS.

AS EXPRESSED IN A MEMORANDUM OF LAW DATED MAY 15, 1968, FROM COUNSEL FOR THE CONTRACTING OFFICER; IT URGED THAT:

THE NINETY (90) DAY ACCEPTANCE PERIOD REQUIREMENTS TAKES PRECEDENCE OVER THE PRINTED PARAGRAPH CONCERNING ACCEPTANCE PERIOD WHICH APPEARS ON THE FRONT OF STANDARD FORM 33 * * *, SINCE THE FORMER COMES WITHIN CATEGORY (B) MAINTAINED IN SAID CONDITION NO. 19, WHEREAS THE LATTER COMES WITHIN CATEGORY (D) OF SAID CONDITION NO. 19. SAID CONDITION NO. 19 * * * IS THE CONTROLLING CONDITION FOR THE PURPOSE OF RESOLVING THIS PROTEST * * *.

FURTHER, EMPHASIS IS PLACED ON THE FACT THAT NINE BIDDERS DID NOT FILL IN THE ACCEPTANCE PERIOD SPACE ON STANDARD FORM 33 AND IT IS SUGGESTED THAT SUCH ACTION IS INDICATIVE OF THE REASONABLENESS OF THE PROCURING ACTIVITY'S INTERPRETATION. THIS POINT IS AMPLIFIED IN A LETTER DATED MAY 10, 1968, FROM THE ASSISTANT CHIEF, COUNSEL, U.S. ARMY MUNITIONS COMMAND TO HEADQUARTERS, U.S. ARMY MATERIEL COMMAND, AS FOLLOWS:

IT IS SUBMITTED THAT IN THE FACE OF THE CAVEAT SET FORTH IN THE INVITATION, TO ATTRIBUTE TO THE BIDDER (AND OTHERS WHO DID NOT FILL IN THE BLANK SPACE) ANY INTENTION OTHER THAN TO SUBMIT A RESPONSIVE BID WOULD BE UNCONSCIONABLE. THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRES STRICT CONSTRUCTION OF BIDS SUBMITTED BUT THAT REQUIREMENT INCLUDES ALSO THE NECESSITY FOR FAIRNESS TO ALL BIDDERS AND TO THE INTERESTS OF THE GOVERNMENT. * * *

AS THE CONTRACTING OFFICER'S REPORT DATED MAY 10, 1968, POINTS OUT, THE USE OF STANDARD FORM 33 WAS REQUIRED UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 16-101.1 (I). THE "OFFER" PORTION OF THAT FORM IS DESIGNED TO CONSTITUTE, IN THE CASE OF FORMALLY ADVERTISED PROCUREMENTS, THE BIDDER'S ASSENT TO ALL PROVISIONS OF THE INVITATION. WITH PARTICULAR REGARD TO BID ACCEPTANCE TERMS, THE LANGUAGE AND STRUCTURE OF THE "OFFER" PORTION CLEARLY AFFORD THE BIDDER AN OPTION AS TO THE DURATION OF THE GOVERNMENT'S RIGHT TO ACCEPT. THE PARENTHETICAL PHRASE THAT A BID WILL REMAIN OPEN FOR "60 CALENDAR DAYS" IF NO OTHER TIME IS SPECIFIED BY THE BIDDER SIMILARLY PRESENTS AN OPTION, AND ALSO REFLECTS A NORMAL PERIOD FOR EVALUATION OF THE BIDS BY THE GOVERNMENT. IT IS APPARENT THAT NOTHING IN THE "OFFER" PORTION OF STANDARD FORM 33 PREVENTS A BIDDER FROM PROVIDING AN ACCEPTANCE PERIOD GREATER OR LESS THAN 60 DAYS. FURTHER, WHILE THE BIDDER MAY AFFIRMATIVELY SELECT AN ACCEPTANCE PERIOD, IT IS EQUALLY EVIDENT THAT IN LEGAL EFFECT, NONCOMPLETION OF THE ACCEPTANCE PERIOD SPACE AFFORDS THE GOVERNMENT 60 CALENDAR DAYS FROM DATE OF BID OPENING TO ACCEPT THE BID.

OF COURSE, THE BIDDER'S OPTIONS WITH RESPECT TO ACCEPTANCE PERIODS MAY BE LIMITED BY THE REQUIREMENTS OF THE GOVERNMENT. WE HAVE RECOGNIZED THAT THE PROCURING ACTIVITIES MAY PROPERLY PROVIDE FOR A MINIMUM ACCEPTANCE PERIOD. IN THIS CONNECTION PARAGRAPH 34 OF THE SUBJECT INVITATION WAS ADDED PURSUANT TO ASPR 2-201 (XV) WHICH PROVIDES IN PART THAT:

WHEN CONSIDERED NECESSARY BY THE CONTRACTING OFFICER, A REQUIREMENT THAT ALL BIDS MUST ALLOW A PERIOD FOR ACCEPTANCE BY THE GOVERNMENT OF NOT LESS THAN A MINIMUM PERIOD STIPULATED IN THE INVITATION FOR BIDS, AND THAT BIDS OFFERING LESS THAN THE MINIMUM STIPULATED ACCEPTANCE PERIOD WILL BE REJECTED. THE MINIMUM PERIOD SO STIPULATED SHOULD BE NO MORE THAN REASONABLY REQUIRED FOR EVALUATION OF BIDS AND OTHER PRE AWARD PROCESSING. * * *

BY LETTERS DATED JUNE 5, AND JUNE 12, 1968, THE ATTORNEY FOR ATLANTIC HAS CORRECTLY OBSERVED THAT WHEN AN INVITATION PROVISION REQUIRES A BID TO REMAIN OPEN FOR ACCEPTANCE FOR A SPECIFIED PERIOD TO BE CONSIDERED FOR AWARD, OUR OFFICE HAS TAKEN THE POSITION THAT SUCH PROVISION IS MATERIAL AND NONCOMPLIANCE THEREWITH RENDERS THE BID NONRESPONSIVE. SEE 46 COMP. GEN. 418; 39 COMP. GEN. 779, AND CASES CITED THEREIN. WE NOTE ALSO THAT THE PROCURING ACTIVITY HAS NOT QUESTIONED THE MATERIALITY OF PARAGRAPH 34 OF THE SUPPLEMENTAL CONDITIONS.

CONSIDERING NOW THE EFFECT OF PARAGRAPH 34 ON THE "OFFER" PORTION OF STANDARD FORM 33, WE ACKNOWLEDGE AT THE OUTSET THAT THE CLAUSE IS A "CAVEAT," BUT WE DO NOT BELIEVE IT TO BE MORE THAN THAT. THE LANGUAGE OF THE CLAUSE, WHICH IS PRESCRIBED BY ASPR 2-201 (XV), IS CONFINED TO AN APPRAISAL OF THE SUBSTANTIVE RESULTS OF A FAILURE TO AFFORD THE GOVERNMENT THE SPECIFIED ACCEPTANCE PERIOD. WE CANNOT AGREE THAT THE CLAUSE IS DESIGNED TO RELIEVE A BIDDER OF THE RESPONSIBILITY IN PREPARING ITS BID OF SELECTING AN ACCEPTANCE PERIOD. WE HAVE RECOGNIZED IN PREVIOUS DECISIONS THAT THE TERMS OF MINIMUM BID ACCEPTANCE PROVISIONS MAY VARY, AND IT IS THE BIDDER'S RESPONSIBILITY TO CONSIDER SUCH TERMS IN THE PREPARATION OF ITS BID AND RESPOND ACCORDINGLY. SEE R-160224, JANUARY 25, 1967; B- 161628, JULY 20, 1967.

ADMITTEDLY, ANY QUESTIONS OF RESPONSIVENESS ARISING OUT OF THE INSTANT INVITATION COULD HAVE BEEN AVOIDED IF THE PROCURING ACTIVITY HAD STRUCK OUT THE PARENTHETICAL "60 CALENDAR DAYS" IN THE ,OFFER" PORTION OF STANDARD FORM 33 AND INSERTED IN LIEU THEREOF THE "90" DAY MINIMUM ACCEPTANCE PERIOD SPECIFIED IN PARAGRAPH 34, OR OTHER APPROPRIATE ACTION. FURTHER, WHEN A MINIMUM ACCEPTANCE PERIOD IS SPECIFIED, WE ACKNOWLEDGE THAT IT IS UNLIKELY THAT A BIDDER WILL INTENTIONALLY OFFER LESS THAN FULL COMPLIANCE THEREWITH. BY LETTER DATED MAY 15, 1968, NASH JANITORIAL SERVICE HAS CONFIRMED THIS FACT IN THE ADVICE THAT IT HAS "ALWAYS LEFT THE BID ACCEPTANCE SPACE BLANK AS WE ALWAYS ACCEPT WHATEVER CALENDAR DAYS ARE SPECIFIED IN THE SCHEDULE.' WHILE THE PROCURING ACTIVITY'S INACTION HAS PERPETUATED A SITUATION WHICH PLACES A PREMIUM ON ATTENTIVENESS, SUCH CIRCUMSTANCE IS NOT IN OUR OPINION A PROPER BASIS FOR FINDING AN "INCONSISTENCY" TO ALTER THEREBY THE OPERATIVE EFFECT OF A FAILURE TO INSERT "90" CALENDAR DAYS IN THE BID ACCEPTANCE SPACE.

ACCORDINGLY, WE MUST AGREE WITH THE POSITION ADVANCED BY THE ATTORNEY FOR ATLANTIC THAT:

SINCE "A DIFFERENT PERIOD" WAS NOT INSERTED BY NASH JANITORIAL, ITS BID ACCEPTANCE PERIOD AUTOMATICALLY IS CONSIDERED TO BE 60 DAYS BY VIRTUE OF THE SPECIFIC LANGUAGE IN THE BID ACCEPTANCE PORTION OF THE OFFER.

MOREOVER, IT MUST BE STRESSED THAT THE TERMS OF THE INVITATION, THUS CONSTRUED, ARE THE CONTROLLING MANIFESTATION OF THE BIDDER'S INTENT EVEN THOUGH IT IS RECOGNIZED THAT THE NONRESPONSIVENESS RESULTS FROM INADVERTENCE OR MISTAKE. SEE 46 COMP. GEN. 418, 422. ALSO, SEE B 150611, FEBRUARY 25, 1963, AND B-141169, NOVEMBER 12, 1959.

ALTHOUGH WE HAVE BEEN INFORMALLY ADVISED THAT APPROPRIATE STEPS HAVE BEEN TAKEN TO AVOID A RECURRENCE OF THE FOREGOING CIRCUMSTANCES, WE MUST CONCLUDE THAT THE BID OF THE NASH JANITORIAL SERVICE IS NONRESPONSIVE, AND SHOULD NOT BE CONSIDERED FOR AWARD.