B-170174 (2), AUG. 14, 1970

B-170174 (2): Aug 14, 1970

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CANCELLATION OF INVITATION BECAUSE OF AMBIGUOUS DELIVERY SCHEDULE IS UPHELD. INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 27. WE ARE ENCLOSING A COPY OF OUR DECISION OF TODAY TO PIONEER PARACHUTE COMPANY. WE ARE ALSO ENCLOSING A COPY OF OUR DECISION B-164749. UPON WHICH OUR DECISION TO PIONEER WAS. CERTAIN ADDITIONAL COMMENTS ARE APPROPRIATE WITH RESPECT TO YOUR CONTENTIONS. CONSTRUES THE IFB IN THE SAME WAY AS YOU HAVE CONSTRUED IT. IN SUPPORT OF HIS ASSERTION ON PAGE 4 THAT WHERE NO REQUIRED DELIVERY DATE IS SPECIFIED. "AWARDS HAVE BEEN PERMITTED ON THE BASIS OF A REASONABLE TIME AFTER THE DESIRED DATE. THE IFB HAD STATED THAT "DELIVERY IS DESIRED AT THE ABOVE DESTINATION WITHIN FORTY-FIVE (45) DAYS AFTER RECEIPT OF PURCHASE ORDER.".

B-170174 (2), AUG. 14, 1970

BID PROTEST -- CANCELLATION AND READVERTISEMENT DENIAL OF PROTEST OF SECOND LOW BIDDER AGAINST CANCELLATION OF INVITATION FOR SPECIAL WEAPONS PARACHUTE SYSTEMS BY SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE. CANCELLATION OF INVITATION BECAUSE OF AMBIGUOUS DELIVERY SCHEDULE IS UPHELD. SEVERAL DECISIONS DISTINGUISHED.

TO M. STEINTHAL & CO., INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 27, 1970, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE CANCELLATION BY THE UNITED STATES AIR FORCE OF INVITATION FOR BIDS (IFB) NO. F41608-70-B-1250, ISSUED BY THE SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS.

WE ARE ENCLOSING A COPY OF OUR DECISION OF TODAY TO PIONEER PARACHUTE COMPANY, INC., WITH RESPECT TO THE QUESTION OF THE PROPRIETY OF THE CANCELLATION. WE ARE ALSO ENCLOSING A COPY OF OUR DECISION B-164749, AUGUST 26, 1969, UPON WHICH OUR DECISION TO PIONEER WAS, IN PART, BASED. FOR THE REASONS STATED IN THE DECISION TO PIONEER, YOUR PROTEST MUST ALSO BE DENIED.

CERTAIN ADDITIONAL COMMENTS ARE APPROPRIATE WITH RESPECT TO YOUR CONTENTIONS. THE CONTRACTING OFFICER'S STATEMENT DATED JULY 8, 1970, CONSTRUES THE IFB IN THE SAME WAY AS YOU HAVE CONSTRUED IT. IN SUPPORT OF HIS ASSERTION ON PAGE 4 THAT WHERE NO REQUIRED DELIVERY DATE IS SPECIFIED, "AWARDS HAVE BEEN PERMITTED ON THE BASIS OF A REASONABLE TIME AFTER THE DESIRED DATE," HE CITED B-155035, NOVEMBER 20, 1964. IN THE CITED CASE, A BIDDER PROTESTED THE REJECTION OF ITS LOW BID. THE BID HAD BEEN REJECTED AS NONRESPONSIVE. THE IFB HAD STATED THAT "DELIVERY IS DESIRED AT THE ABOVE DESTINATION WITHIN FORTY-FIVE (45) DAYS AFTER RECEIPT OF PURCHASE ORDER." THE PROTESTING BIDDER HAD OFFERED 125-DAY DELIVERY. WE HELD:

"SINCE THE DELIVERY TIME WAS NOT MANDATORY BUT ONLY 'DESIRED,' A BID STIPULATING A DELIVERY TIME THAT IS REASONABLE COULD BE DEEMED TO BE RESPONSIVE. *** UNDER THE CIRCUMSTANCES WE THINK THERE IS SOME MERIT TO THE ADMINISTRATIVE VIEW THAT YOUR OFFER TO DELIVER 125 DAYS AFTER RECEIPT OF THE PURCHASE ORDER, WHERE 45 DAYS WAS STATED TO BE THE DESIRED DELIVERY PERIOD, WAS NOT A REASONABLE TIME.

"FOR THESE REASONS, AND SINCE THE CONTRACT AWARDED PURSUANT TO THE INVITATION HAS BEEN COMPLETED, THERE IS NO ACTION WHICH THIS OFFICE MAY PROPERLY TAKE IN THE MATTER."

IT SHOULD BE NOTED THAT THE QUESTION OF THE ADEQUACY OF THE INVITATION WAS NOT RAISED OR DISCUSSED IN B-155035. THE ONLY MATTER THERE FOR OUR DETERMINATION WAS THE RESPONSIVENESS OF THE PROTESTANT'S BID, WHICH, AS THE DECISION TO PIONEER INDICATES, IS AN INQUIRY SEPARATE AND DISTINCT FROM THE ISSUE OF THE ADEQUACY OF THE IFB.

IN YOUR BRIEF SUBMITTED UNDER COVER LETTER DATED JULY 29, 1970, YOU PLACED HEAVY RELIANCE ON OUR DECISION 46 COMP. GEN. 745 (1967). IT SHOULD BE NOTED THAT WE CONCLUDED IN THAT CASE THAT AWARD UNDER THE IFB WAS IMPROPER BECAUSE THE IFB CONTAINED AMBIGUOUS DELIVERY TERMS. HOWEVER, WE TOOK NO ACTION BECAUSE THE AWARD APPEARED TO HAVE BEEN MADE IN GOOD FAITH AND CANCELLATION DID NOT SEEM TO BE IN THE BEST INTERESTS OF THE GOVERNMENT.

FURTHERMORE, WE MADE THESE REMARKS AT PAGE 748:

"FOR THE FUTURE, IT IS SUGGESTED THAT, IN DRAFTING INVITATIONS TO PROVIDE THAT EARLY DELIVERY IS NOT AN ESSENTIAL FACTOR, LANGUAGE SIMILAR TO THE CLAUSE SET OUT IN FPR 1-1.316-5(C) WHICH PROVIDES BOTH A DESIRED DELIVERY DATE AND A LATER CUT-OFF DATE FOR RESPONSIVE BIDS, SHOULD BE USED.

"ALTHOUGH WE HAVE UPHELD AS LEGALLY SUFFICIENT INVITATIONS SPECIFYING ONLY THE 'DESIRED' DELIVERY DATES, SO THAT THE RESPONSIVENESS OF OFFERED DELIVERY TERMS COULD ONLY BE GOVERNED BY A REASONABLENESS TEST, AS A MATTER OF POLICY WE FEEL SUCH OPEN ENDED DELIVERY TERMS ARE UNWISE IN THAT THEY AFFORD AN OPPORTUNITY FOR THE ARBITRARY INCLUSION OR EXCLUSION OF BIDS. EVEN GRANTING IMPARTIAL CONSIDERATION, THESE UNDEFINED DELIVERY TERMS CAN ONLY RESULT IN UNEVEN AND UNPREDICTABLE TREATMENT OF BIDDERS, BECAUSE REASONABLE MEN WILL DIFFER ON WHAT CONSTITUTES A REASONABLE DELIVERY DATE UNDER ANY GIVEN SET OF CIRCUMSTANCES.

"THEREFORE, IN THE INTEREST OF PROVIDING AS CLEAR A GUIDE TO PROSPECTIVE BIDDERS AS POSSIBLE, WHERE EARLY DELIVERY IS NOT OF THE ESSENCE--SUCH AS IN INVITATIONS STATING A DESIRED DELIVERY SCHEDULE- THE INVITATION SHOULD STATE A FINAL ACCEPTABLE DATE AND CLEARLY ADVISE THAT BIDS OFFERING LATER DELIVERY WILL BE CONSIDERED NONRESPONSIVE."

FINALLY, IN THE PORTION OF 46 COMP. GEN. 745 QUOTED IN YOUR BRIEF, TWO OF OUR PRIOR DECISIONS WERE CITED. ONE WAS B-155035, UPON WHICH WE HAVE PREVIOUSLY COMMENTED. THE SECOND WAS B-155989, FEBRUARY 24, 1965. THAT CASE INVOLVED A CLAIM FOR REFORMATION OF A CONTRACT ON ACCOUNT OF AN ALLEGED MISTAKE IN BID. NEITHER THE PROPRIETY OF THE IFB NOR THE RESPONSIVENESS OF THE BID ON WHICH THE CONTRACT WAS BASED WAS PLACED IN ISSUE. THE FACTS IN THAT CASE SHOW THAT A TELEGRAPHIC IFB CALLED FOR DESIRED DELIVERY WITHIN 20 AND NOT MORE THAN 30 DAYS AFTER RECEIPT OF PURCHASE ORDER. THE LOW BIDDER AND EVENTUAL CONTRACTOR OFFERED 30-DAY DELIVERY. AFTER CONSIDERING THE MATTER, WE DECIDED THAT RELIEF WAS APPROPRIATE. AFTER REACHING THIS CONCLUSION, WE MADE THE FOLLOWING OBSERVATION:

"HOWEVER, WE THINK IT APPROPRIATE TO POINT OUT THAT WE HAVE TAKEN THE POSITION THAT WHERE AN INVITATION SETS OUT A 'DESIRED' DELIVERY SCHEDULE, THERE SHOULD ALSO BE INCLUDED A MAXIMUM ACCEPTABLE DATE TOGETHER WITH A PROVISION TO THE EFFECT THAT BIDS OFFERING DELIVERY LATER THAN THAT DATE WILL BE REJECTED. (CITING CASES.) *** "

AS IS INDICATED ABOVE, THEREFORE, NONE OF THESE THREE DECISIONS IS DISPOSITIVE OF THE MATTER PRESENTED BY YOUR PROTEST AND THAT OF PIONEER. INDEED, TWO OF THE CASES CONTAIN EXPRESSIONS INDICATIVE OF THE RESULT WE HAVE REACHED HERE WITH RESPECT TO THE INSTANT INVITATION.

CONSEQUENTLY, AS STATED ABOVE, YOUR PROTEST IS DENIED.

Nov 22, 2017

Nov 21, 2017

  • A-P-T Research, Inc.
    We deny the protest in part and dismiss the protest in part.
    B-414825,B-414825.2

Nov 20, 2017

Nov 16, 2017

  • HBI-GF, JV
    We deny the protest.
    B-415036
  • Epsilon Systems Solutions, Inc.
    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
    B-414410.4

Nov 15, 2017

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