B-150805, MAY 10, 1963

B-150805, MAY 10, 1963

TO THE EIMCO CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8, 1963, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. FNVM-H -29076-A-11-14-62 ISSUED BY THE FEDERAL SUPPLY SERVICE ON OCTOBER 24, 1962, FOR THE FURNISHING OF TRACTORS.

THE CITED INVITATION SOLICITED BIDS--- TO BE OPENED ON NOVEMBER 30, 1962- -- FOR FURNISHING, AMONG OTHER THINGS, TRACTORS AS DESCRIBED UNDER ITEM 2. WITH REGARD TO TIME OF DELIVERY, PAGE 11 OF THE INVITATION PROVIDED AS FOLLOWS:

"TIME OF DELIVERY: THE GOVERNMENT DESIRES THAT DELIVERY BE MADE AT THE POINT SPECIFIED WITHIN 90 DAYS AFTER NOTICE OF AWARD, UNLESS OTHERWISE STATED UNDER THE ITEM (S).

"BIDDER SHALL INSERT IN THE BLANK BELOW A DEFINITE NUMBER OF DAYS WITHIN WHICH DELIVERY WILL BE MADE. IF THE BIDDER DOES NOT INSERT A DELIVERY TIME, HIS BID SHALL BE DEEMED TO OFFER DELIVERY STATED ABOVE. ALTHOUGH TIME OF DELIVERY WILL NOT BE A FACTOR IN DETERMINING AWARDS, IF THE OTHERWISE LOW RESPONSIVE BID OFFERS A DELIVERY TIME WHICH THE GOVERNMENT CONSIDERS UNREASONABLE, THE GOVERNMENT MAY REJECT ALL BIDS.

"BIDDER'S PROPOSED DELIVERY: -------------------- DAYS AFTER NOTICE OF AWARD.'

THE BID ITSELF WAS SIGNED BY MR. D. M. SCHWARTZ, YOUR VICE PRESIDENT, ON NOVEMBER 9, 1962, AND IN THE BLANK PROVIDED FOR INDICATING THE PROPOSED DELIVERY TIME (IN DAYS) THERE WAS INSERTED THE FIGURE "90.' THE BID WAS ACCOMPANIED BY A LETTER DATED NOVEMBER 6, 1962, SIGNED BY MR. F. W. RUCKER, SALES ENGINEERING, DESCRIBING THE VARIOUS FEATURES OF THE TRACTORS YOU PROPOSED TO FURNISH AND IN THE LAST PARAGRAPH OF THE LETTER IT WAS SPECIFICALLY STATED THAT "WE CAN MAKE SHIPMENT EX-FACTORY ON THE ABOVE UNITS WITHIN 90 DAYS AFTER RECEIPT OF A FIRM ORDER AND A CONFIRMED LETTER OF CREDIT.' BOTH THE EXECUTED BID FORM AND THE LETTER OF NOVEMBER 6, 1962, WERE TRANSMITTED TO THE CONTRACTING OFFICE BY LETTER DATED NOVEMBER 9, 1962, SIGNED BY MR. F. W. RUCKER.

IN YOUR LETTER OF FEBRUARY 8 YOU PROTEST THE REJECTION OF YOUR BID ON ITEM 2 OF THE INVITATION WHICH YOU INDICATE WAS THE LOWEST BID RECEIVED. YOUR PROTEST IS BASED ON THE GROUND THAT YOUR BID WAS FULLY RESPONSIVE AS TO DELIVERY TIME AND PAYMENT FOR THE SUPPLIES IN THAT THERE WAS NOTHING IN YOUR OFFICIALLY SIGNED BID THAT WAS NONRESPONSIVE OR CONTRARY TO THE TERMS OF THE INVITATION. ALSO, YOU STATE THAT THE STATEMENT IN THE LETTER OF NOVEMBER 6, 1962, QUOTED ABOVE, WAS ERRONEOUS IN THAT THERE IS NO LETTER OF CREDIT INVOLVED IN THE INVITATION AND THAT THE BID SIGNED BY MR. SCHWARTZ GOVERNS THE TERMS OF THE BID. FURTHERMORE, YOU CONTEND THAT IF YOUR DELIVERY TIME WAS CONSIDERED UNREASONABLE, THE ONLY RECOURSE OF THE GOVERNMENT WOULD HAVE BEEN TO REJECT ALL BIDS.

THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NOT RESPONSIVE TO THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, PARTICULARLY AS TO PARAGRAPH 5 OF GSA FORM 1246 (SPECIAL PROGRAM BIDDING TERMS AND CONTRACT PROVISIONS) INCORPORATED BY REFERENCE. THIS PARAGRAPH PROVIDES THAT PAYMENT WILL BE MADE UPON RECEIPT OF AN ORIGINAL INVOICE, TO BE SUBMITTED AFTER RECEIPT OF A NOTICE OF INSPECTION INDICATING ACCEPTANCE BY THE GOVERNMENT, AND OF OTHER PERTINENT DOCUMENTS. NO PROVISION WAS MADE FOR PAYMENT BY A "CONFIRMING LETTER OF CREDIT.' THIS REQUIREMENT BY YOU REPRESENTS A MATERIAL DEVIATION FROM THE PROVISIONS OF THE INVITATION AFFECTING PRICE AND IS PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. COMP. GEN. 410; 38 ID. 508.

IN YOUR LETTER OF FEBRUARY 8, 1963, SIGNED BY MR. SCHWARTZ, YOU CONTEND IN EFFECT THAT MR. RUCKER HAD NO AUTHORITY TO MAKE ANY STATEMENTS OR REPRESENTATIONS AFFECTING THE FORMAL BID SIGNED BY MR. SCHWARTZ. THE INVITATION FORM SIGNED BY MR. SCHWARTZ TOOK NO EXCEPTION TO THE INVITATION. HOWEVER, THE LETTER OF NOVEMBER 6, 1962, PREPARED BY MR. RUCKER, CONTAINS SOME INFORMATION AS TO THE EQUIPMENT PROPOSED TO BE FURNISHED WHICH IS NOT OTHERWISE SET OUT ON THE INVITATION FORM. WHAT IS MORE IMPORTANT, HOWEVER, IS THE FACT THAT THE BID PAPERS WERE FORWARDED TO MR. RUCKER FOR TRANSMITTAL TO GENERAL SERVICES ADMINISTRATION RATHER THAN BEING FORWARDED BY MR. SCHWARTZ TO THE GOVERNMENT. THE FACT THAT MR. RUCKER IN HIS LETTER OF TRANSMITTAL OF NOVEMBER 9, 1962, EXPLAINED THE BID ESPECIALLY WITH REGARD TO THE MATTER OF PNEUMATIC TIRES AND THE MERE FACT THAT MR. RUCKER TRANSMITTED YOUR BID LEADS TO THE CLEAR INFERENCE THAT MR. RUCKER HAD AUTHORITY TO MODIFY THE BID AS SIGNED BY MR. SCHWARTZ.

IT IS YOUR CONTENTION THAT YOUR BID WAS RESPONSIVE INSOFAR AS DELIVERY TIME WAS CONCERNED BUT IT IS CONTENDED THAT IF YOU, AS THE OTHERWISE LOW BIDDER, OFFERED A DELIVERY TIME WHICH THE GOVERNMENT CONSIDERED UNREASONABLE IT HAD THE RIGHT UNDER THE TERMS OF THE INVITATION, QUOTED ABOVE, TO REJECT ALL BIDS. THE TIME OF DELIVERY STATED IN YOUR BID WAS NOT CONSIDERED UNREASONABLE AND, HENCE, THE TERMS OF THE INVITATION CONCERNING REJECTION OF ALL BIDS BECAUSE OF AN UNREASONABLE DELIVERY PERIOD OFFERED BY AN OTHERWISE ACCEPTABLE LOW BIDDER ARE NOT FOR APPLICATION. AS ABOVE-INDICATED YOU WERE NOT CONSIDERED A RESPONSIVE BIDDER BECAUSE OF THE PROVISION IN YOUR BID REGARDING A LETTER OF CREDIT.

SINCE YOUR BID WAS NONRESPONSIVE THE ACTION OF THE ADMINISTRATIVE OFFICE IN REJECTING YOUR BID WAS PROPER.