B-175660, JUN 1, 1972

B-175660, JUN 1, 1972

BID PROTEST - NONRESPONSIVE BID - INCONSISTENT BID PROVISIONS DENIAL OF PROTEST BY STOKVIS MULTITON CORPORATION AGAINST THE REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, PHILADELPHIA, PA; FOR FIVE OVERHEAD TRAVELING CRANES F.O.B. THE ELECTRONIC, WEAPONS, PRECISION, AND ELECTRIC FACILITY, U.S. NAVAL STATION, PHILADELPHIA, PA. SINCE THE BID AS SUBMITTED DID NOT DISCLAIM THE "TERMS AND CONDITIONS OF SALE" PREPRINTED ON THE FORM, THE CONTRACTING OFFICER'S INTERPRETATION OF THE STOKVIS BID AS BEING INCONSISTENT WITH THE IFB WAS NOT UNREASONABLE, NOR DID HE ACT INCORRECTLY IN REJECTING THE BID.

TO STOKVIS MULTITON CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 5, 1972, WITH ENCLOSURES, PROTESTING THE REJECTION OF YOUR BID UNDER IFB N62472-71-C 1477, ISSUED JANUARY 10, 1972, BY THE NAVAL FACILITIES ENGINEERING COMMAND, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION REQUESTED BIDS ON FIVE OVERHEAD TRAVELING CRANES F.O.B. THE ELECTRONIC, WEAPONS, PRECISION, AND ELECTRIC FACILITY, U.S. NAVAL SHIPYARD, PHILADELPHIA, PENNSYLVANIA. THE BID PACKAGE IN ADDITION TO STANDARD FORM 33, SOLICITATION, OFFER AND AWARD, INCLUDED A COPY OF SPECIFICATION 04-71-1477. THIS SPECIFICATION SET FORTH GENERAL PARAGRAPHS CONCERNING THE PROCUREMENT OF THE FIVE OVERHEAD ELECTRIC TRAVELING CRANES AND TECHNICAL PARAGRAPHS INCLUDING SKETCHES.

ON BID OPENING, FEBRUARY 16, 1972, SEVEN BIDS WERE RECEIVED. THE THREE LOWEST BIDS WERE AS FOLLOWS:

SANDERS INDUSTRIES $101,814

STOKVIS MULTITON CORP. 164,850

FRANK M. WEAVER & CO. 182,250

SANDERS ON BEING REQUESTED TO VERIFY ITS BID CLAIMED AN ERROR BUT FAILED TO ESTABLISH ITS INTENDED BID AND WAS ALLOWED TO WITHDRAW.

THE STOKVIS MULTITON CORPORATION BID WAS ACCOMPANIED BY ITS OWN PROPOSAL FORMS 72-107 TO 71-111 WHICH IDENTIFIED THE PARTICULAR EQUIPMENT BEING OFFERED AND TOTALLED THE BID PRICE. HOWEVER, EACH OF THE PROPOSALS, ON THE FACE SHEET, BEARS THE PREPRINTED STATEMENT:

"WE PROPOSE TO FURNISH THE EQUIPMENT DESCRIBED BELOW IN ACCORDANCE WITH OUR GENERAL TERMS AND CONDITIONS OF SALE SHOWN ON REVERSE."

STOKVIS MULTITON'S "GENERAL TERMS AND CONDITIONS OF SALE FOR CRANES AND CRANE EQUIPMENT" ARE SET OUT ON THE REVERSE OF THE FACE SHEETS. HENCE, THE CONTRACTING OFFICER CONSIDERED THAT STOKVIS MULTITON WAS OFFERING EQUIPMENT ACCORDING TO ITS OWN TERMS AND CONDITIONS WHICH WERE INCONSISTENT WITH THE CONDITIONS OF THE INVITATION FOR BIDS. ON THIS BASIS THE CONTRACTING OFFICER HELD THE STOKVIS MULTITON BID TO BE NONRESPONSIVE TO THE INVITATION.

YOU URGE THAT YOUR BID WAS PREPARED IN THE NORMAL MANNER TO CONFORM TO TECHNICAL CHARACTERISTICS OF THE GOVERNMENT SPECIFICATIONS AND ROUTINELY TYPED ONTO YOUR STANDARD PROPOSAL FORMS WHICH CONTAINED THE CONDITIONS OF SALE ON THE BACK; THAT THE SAME PROCEDURES WERE USED IN OTHER BIDS TO THE NAVY WITHOUT OBJECTION ON THE NAVY'S PART; THAT YOU TOOK NO EXCEPTION TO THE GOVERNMENT'S CONDITIONS THUS RENDERING YOUR PRINTED CONDITIONS OF SALE MEANINGLESS; AND FURTHER THAT HAD THE NAVY QUESTIONED YOU AS TO WHETHER YOU INTENDED TO QUALIFY YOUR BID THE REPLY WOULD HAVE BEEN IN THE NEGATIVE.

WE LONG HAVE HELD THAT A CONTRACT MAY BE AWARDED ONLY ON A BID WHICH AS SUBMITTED IS FULLY RESPONSIVE TO THE TERMS OF THE INVITATION AND THAT AFTER BID OPENING A BIDDER MAY NOT BE PERMITTED TO CLARIFY THE MEANING INTENDED WHEN HE IS IN A POSITION TO PREJUDICE OTHER BIDDERS OR TO AFFECT THE RESPONSIVENESS OF HIS BID. 36 COMP. GEN. 705 (1957); 42 COMP. GEN. 96 (1962); B-171154, DECEMBER 2, 1970.

YOUR BID AS SUBMITTED DOES NOT DISCLAIM THE "TERMS AND CONDITIONS OF SALE" IN YOUR PROPOSALS. FOR EXAMPLE, YOUR PARAGRAPH 6, DELIVERY AND F.O.B. POINT, PROVIDES THAT ALL SHIPMENTS MADE BY THE COMPANY ARE F.O.B. COMPANY'S FACTORY AND THE COMPANY DOES NOT MAKE ANY GUARANTEE AS TO DELIVERY AT DESTINATION; ANOTHER EXAMPLE IS THAT ALL SHIPPING DATES ARE APPROXIMATE ONLY. IN CONTRAST, THE GOVERNMENT'S SOLICITATION CALLED FOR BIDS F.O.B. THE ELECTRONICS, WEAPONS, PRECISION AND ELECTRONIC FACILITY, U.S. NAVAL SHIPYARD, PHILADELPHIA, PENNSYLVANIA; ALSO UNDER THE GOVERNMENT'S TERMS THE RISK OF LOSS OR DAMAGE REMAINS ON THE CONTRACTOR UNTIL DELIVERY OF POSSESSION AT THE SPECIFIED DESTINATION. OTHER CONDITIONS IN YOUR OFFER AT VARIANCE WITH THE CONDITIONS OF THE SOLICITATION CONCERN CORRECTION OF DEFECTS, GUARANTEE OF PURCHASED PARTS, AND RESPONSIBILITY FOR SUPERVISION OF CRANE ERECTION.

FOR THE FOREGOING REASONS, WE DO NOT BELIEVE THE CONTRACTING OFFICER'S INTERPRETATION OF THE STOKVIS MULTITON BID IS UNREASONABLE, OR THAT HE ACTED INCORRECTLY IN REJECTING YOUR BID. NOTHING IN YOUR BID COULD BE CONSTRUED AS NOTICE TO THE CONTRACTING OFFICER THAT YOU DID NOT INTEND YOUR "TERMS AND CONDITIONS OF SALE" TO APPLY. AT THE LEAST THE INCLUSION OF THOSE TERMS AND CONDITIONS CREATED AN AMBIGUITY THAT COULD NOT BE CORRECTED AFTER BID OPENING WITHOUT PERMITTING YOU AN OPPORTUNITY NOT AVAILABLE TO OTHER BIDDERS TO AVOW OR DISAVOW THE PROVISIONS INCONSISTENT WITH THE GOVERNMENT'S PROVISIONS. SUCH AN OPTION WOULD BE DETRIMENTAL TO THE INTEGRITY OF THE COMPETITIVE BID SYSTEM.

ACCORDINGLY, YOUR PROTEST IS DENIED.