B-144748, MAR. 29, 1961

B-144748, MAR. 29, 1961

TO NULOCK SUPPLY CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED JANUARY 3 AND FEBRUARY 14, 1961, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO BID INVITATION NO. 42-600-61-71 DATED OCTOBER 31, 1960, ON THE GROUND THAT YOUR BID WAS NOT RESPONSIVE TO THE INVITATION, AND AWARD OF THE CONTRACT TO A HIGHER BIDDER.

THE PROTEST APPEARS TO BE BASED ON YOUR CONTENTION THAT THE CONTRACTING OFFICER HAD NO RIGHT TO REJECT YOUR BID ON THE BASIS OF YOUR OFFER OF AN ACCEPTANCE PERIOD OF 30 DAYS SINCE THE PERIOD NECESSARY TO MAKE THE AWARD PURSUANT TO THE INVITATION WAS ONLY 16 DAYS RATHER THAN THE STIPULATED 60 DAYS.

BY INVITATION NO. 42-600-61-71 HILL AIR FORCE BASE, UTAH, SOLICITED BIDS FOR FURNISHING TO THE GOVERNMENT CERTAIN ITEMS OF SUPPLIES OF A SPECIFIED BRAND NAME "OR EQUAL" DESCRIPTION, AS INDICATED THEREIN. ON PAGE 2 OF IFB COVER PAGE ACCOMPANYING THE INVITATION NOTE 11 UNDER TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDED, AS FOLLOWS:

"AGGREGATE CLAUSE: AWARD WILL BE MADE TO BIDDER SUBMITTING THE LOWEST AGGREGATE COST ON ALL ITEMS AND COMPLYING WITH ALL THE REQUIREMENTS OF THE INVITATION AND BID.'

ALSO, ON THE FACE OF THE INVITATION THERE APPEARED THE FOLLOWING PROVISION:

"BID ACCEPTANCE PERIOD: BIDS OFFERING LESS THAN 60 DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE SET FOR OPENING OF BIDS WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.'

IT IS AXIOMATIC THAT A BID MAY BE CONSIDERED FOR AWARD ONLY IF IT COMPLIES IN ALL MATERIAL RESPECTS WITH THE TERMS OF THE INVITATION. COMP. GEN. 554. A PROVISION IN AN INVITATION REQUIRING THAT A BID TO BE CONSIDERED FOR AWARD MUST REMAIN AVAILABLE FOR ACCEPTANCE FOR A DESIGNATED PERIOD IS A MATERIAL REQUIREMENT AND FAILURE TO CONFORM THEREWITH RENDERS THE BID NONRESPONSIVE. 39 COMP. GEN. 779.

AS TO WHETHER THE 60-DAY ACCEPTANCE PERIOD STIPULATED IN THE INSTANT INVITATION WAS MORE THAN THAT REASONABLY REQUIRED FOR EVALUATION OF BIDS AND OTHER PREAWARD PROCESSING, THE DEPARTMENT OF THE AIR FORCE REPORTS THAT EXPERIENCE OF CONTRACTING OFFICERS HAS DISCLOSED THAT EVALUATION OF ,OR EQUAL" BIDS SUBMITTED PURSUANT TO AN INVITATION PROVIDING FOR FURNISHING SUPPLIES ON A BRAND NAME "OR EQUAL" BASIS REQUIRES A LONGER TIME THAN 30 DAYS TO DETERMINE WHETHER THE ITEMS OFFERED ON AN "OR EQUAL" BASIS MEET IN ALL MATERIAL RESPECTS PERTINENT PHYSICAL AND MECHANICAL ASPECTS OF THE BRAND NAME ITEMS SPECIFIED. IT HAS BEEN FOUND THAT A 30- DAY PERIOD IS NOT USUALLY SUFFICIENT TO QUALIFY AN UNKNOWN PRODUCT. ADDITION OTHER CONTINGENCIES OCCUR WHICH REQUIRE TIME IN THE PROCESSING OF A PROCUREMENT.

IN THE INSTANT CASE, CONSIDERING THE 20 ITEMS ON WHICH BIDS WERE SOLICITED FROM 23 DIFFERENT SUPPLIERS, IT WAS REASONABLE TO EXPECT THAT THE LOW BIDDERS ON SOME OF THE ITEMS WOULD SUBMIT BIDS ON AN "OR EQUAL"BASIS ON UNKNOWN PRODUCTS. IN FACT, THE RECORD SHOWS THAT THE SUPPLIES OFFERED BY YOU--- ESSEX BRAND FILES--- WERE SUCH PRODUCTS, AND SINCE ESSEX BRAND FILES HAD NOT BEEN PREVIOUSLY USED BY THE COMMAND OF THE PROCURING ACTIVITY AND WOULD HAVE REQUIRED EVALUATION, THE 30 DAYS OFFERED BY YOU WOULD NOT HAVE BEEN SUFFICIENT FOR THE PROCURING ACTIVITY TO ACCOMPLISH THE REQUIRED EVALUATION TO DETERMINE WHETHER THE SUPPLIES WERE EQUAL IN ALL MATERIAL RESPECTS TO THE BRAND NAME ITEMS SPECIFIED.

THE CIRCUMSTANCE THAT THE PERIOD REQUIRED TO MAKE THE AWARD PURSUANT TO THE INVITATION WAS ONLY 16 DAYS RATHER THAN THE CONTEMPLATED 60 DAYS CANNOT BE DEEMED A DECISIVE FACTOR. THE FACT THAT CONTEMPLATED CONTINGENCIES FAILED TO MATERIALIZE DOES NOT AFFECT THE DETERMINATION OF THE CONTRACTING OFFICER MADE ON THE BASIS OF INFORMATION AVAILABLE TO HIM AT THE TIME OF THE ISSUANCE OF THE INVITATION.

CONSEQUENTLY, IT MUST BE CONCLUDED THAT THE INCLUSION BY THE CONTRACTING OFFICER OF A PROVISION IN INVITATION NO. 42-600-61-71 PROVIDING FOR REJECTION OF BIDS OFFERING LESS THAN A MINIMUM ACCEPTANCE PERIOD OF 60 DAYS WAS REASONABLE. SINCE YOUR BID CONTAINED A 30-DAY ACCEPTANCE CLAUSE THE CONTRACTING OFFICER, THEREFORE, PROPERLY REJECTED YOUR BID AS NONRESPONSIVE TO THE INVITATION.