B-163161, APR. 19, 1968
Highlights
THAT INVITATION WAS ISSUED ON SEPTEMBER 22. IN RESPONSE TO THE SOLICITATION BIDS ACCOMPANIED BY COVER LETTERS WERE RECEIVED FROM WAYNE MANUFACTURING COMPANY IN THE AMOUNT OF $2. ON THE SAME DATE THE OFFER SUBMITTED BY WAYNE MANUFACTURING COMPANY WAS ACCEPTED. AWARD WAS MADE TO WAYNE UNDER CONTRACT NO. THE FEDERAL AVIATION ADMINISTRATION REVIEWED THE PROPRIETY OF THE CONTRACTING OFFICER'S ACTION AND CONCLUDED THAT YOUR BID SHOULD HAVE BEEN FOUND RESPONSIVE SINCE NO EXCEPTION WAS TAKEN TO THE INVITATION ITSELF. FA68AL-5567 HAS BEEN COMPLETED BY WAYNE AND THE SWEEPER IS PRESENTLY IN USE IT WOULD NOT NOW BE IN THE GOVERNMENT'S BEST INTEREST TO CANCEL THE CONTRACT. WE ARE BRINGING TO THE ATTENTION OF THE FEDERAL AVIATION ADMINISTRATION THE FACT THAT THE PRESENT DIFFICULTY WAS PREDICATED TO SOME DEGREE BY THE FAILURE TO SYNCHRONIZE THE TIME WITHIN WHICH OFFERS MUST BE ACCEPTED WITH THE DELIVERY DATES SET FORTH IN THE INVITATION.
B-163161, APR. 19, 1968
TO G. H. TENNANT COMPANY:
WE REFER TO YOUR LETTER DATED DECEMBER 20, 1967, PROTESTING THE ACTION OF THE CONTRACTING OFFICER OF THE FEDERAL AVIATION ADMINISTRATION (FAA) HOLDING YOUR COMPANY NONRESPONSIVE UNDER INVITATION FOR BIDS NO. AL 42-8- 3, ISSUED AT ANCHORAGE, ALASKA. THAT INVITATION WAS ISSUED ON SEPTEMBER 22, 1967, FOR ONE SELF-PROPELLED, RIDER-OPERATED, POWER SWEEPER FOR DELIVERY ON/OR BEFORE DECEMBER 4, 1967. IN RESPONSE TO THE SOLICITATION BIDS ACCOMPANIED BY COVER LETTERS WERE RECEIVED FROM WAYNE MANUFACTURING COMPANY IN THE AMOUNT OF $2,987, AND FROM YOUR COMPANY IN THE AMOUNT OF $2,974.
THE COVER LETTER ACCOMPANYING YOUR BID PROVIDED IN PART:
"AT THE PRESENT TIME WE CAN MAKE SHIPMENT OF THE TENNANT 86 WITHIN THE REQUIRED DELIVERY SCHEDULE.' BECAUSE OF THAT LANGUAGE THE CONTRACTING OFFICER, ON ADVICE OF REGIONAL COUNSEL FOR FAA, ON OCTOBER 27, 1967, HELD YOUR BID NONRESPONSIVE FOR FAILURE TO CONFORM TO THE DELIVERY REQUIREMENTS OF THE SPECIFICATIONS. ON THE SAME DATE THE OFFER SUBMITTED BY WAYNE MANUFACTURING COMPANY WAS ACCEPTED. AWARD WAS MADE TO WAYNE UNDER CONTRACT NO. FA68AL-5567 AND THE SWEEPER HAS BEEN DELIVERED AND PUT INTO USE.
FOLLOWING YOUR PROTEST OF DECEMBER 20, 1967, THE FEDERAL AVIATION ADMINISTRATION REVIEWED THE PROPRIETY OF THE CONTRACTING OFFICER'S ACTION AND CONCLUDED THAT YOUR BID SHOULD HAVE BEEN FOUND RESPONSIVE SINCE NO EXCEPTION WAS TAKEN TO THE INVITATION ITSELF, INCLUDING THE DELIVERY REQUIREMENTS, AND IN ADDITION YOUR BID CONTAINED AN UNCONDITIONAL OBLIGATION TO MEET THE GOVERNMENT'S DELIVERY SCHEDULE.
THIS OFFICE CONCURS IN THAT CONCLUSION. WE AGREE WITH THE POSITION NOW TAKEN BY FAA THAT THE STATEMENT IN YOUR COVER LETTER AS TO PRESENT ABILITY TO PERFORM DOES NOT CONSTITUTE A DECLARATION OF INTENTION NOT TO BE BOUND BY YOUR SIGNED BID FORM. NOTWITHSTANDING, IN VIEW OF THE ELEMENT OF DOUBT AS TO YOUR INTENT PLACED IN ISSUE BY THE STATEMENT CONTAINED IN THE COVER LETTER, WE CANNOT AGREE THAT THE CONTRACTING OFFICER ACTED UNREASONABLY IN REJECTING YOUR BID DUE TO THE AMBIGUITY.
IN VIEW OF THE FACT THAT CONTRACT NO. FA68AL-5567 HAS BEEN COMPLETED BY WAYNE AND THE SWEEPER IS PRESENTLY IN USE IT WOULD NOT NOW BE IN THE GOVERNMENT'S BEST INTEREST TO CANCEL THE CONTRACT. HOWEVER, WE ARE BRINGING TO THE ATTENTION OF THE FEDERAL AVIATION ADMINISTRATION THE FACT THAT THE PRESENT DIFFICULTY WAS PREDICATED TO SOME DEGREE BY THE FAILURE TO SYNCHRONIZE THE TIME WITHIN WHICH OFFERS MUST BE ACCEPTED WITH THE DELIVERY DATES SET FORTH IN THE INVITATION.