B-142492, JUN. 7, 1960

B-142492, JUN. 7, 1960

TO L. J. VAN SICKLE COMPANY:

FURTHER REFERENCE IS MADE TO THE MATTER OF YOUR PROTEST AGAINST THE PURCHASE FROM ANOTHER SOURCE OF THE THREE ITEMS OF MATERIAL COVERED BY INVITATION FOR BIDS NO. IDP-X-ORD-01-021-60-10241, ISSUED FEBRUARY 8, 1960, BY THE U.S. ARMY ORDNANCE MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA.

THE INVITATION REQUESTED BIDS FOR FURNISHING THREE ITEMS OF TUBE ASSEMBLIES MEETING THE SPECIFICATIONS SET FORTH IN THE INVITATION, FOR DELIVERY TO THE DESIGNATED DESTINATIONS, AND IN THE QUANTITIES AND AT THE TIMES SET FORTH IN THE SCHEDULE OF DELIVERY (PAGE 6 OF THE INVITATION), AS FOLLOWS:

TABLE

120 DAS 150 DAS 180 DAS

ITEM NO. 1 202 EA 260 EA 320 EA

ITEM NO. 2 202 EA 260 EA 320 EA

ITEM NO. 3 202 EA 260 EA 320 EA

IN THE BID SUBMITTED BY YOU IN RESPONSE TO THE INVITATION YOU INSERTED A TYPEWRITTEN QUALIFYING STATEMENT WHICH WAS A COUNTEROFFER AS TO THE COMPLETION DATE OF DELIVERY OF THE MATERIAL TO BE FURNISHED. THE STATEMENT CONTAINED AN ILLEGIBLE STRIKEOVER AS TO THE NUMBER OF DAYS PROPOSED FOR COMPLETION AFTER AWARD OF THE CONTRACT, AND THE COUNTEROFFER WAS ALSO INDEFINITE AS TO WHEN THE FIRST DELIVERY WAS TO BE MADE. THE RECORD INDICATES THAT YOUR BID WAS REJECTED BECAUSE OF THIS INDEFINITENESS.

YOU APPARENTLY BASE YOUR PROTEST ON THE FACT THAT YOU WERE NOT GIVEN AN OPPORTUNITY TO EXPLAIN THE STRIKEOVER IN YOUR COUNTEROFFER OR TO OTHERWISE VERIFY YOUR BID.

UNDER 10 U.S.C. 2305 (B) CONTRACTS ARE REQUIRED TO BE AWARDED TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.

SPECIFICATIONS FOR THE PROCUREMENT OF GOVERNMENT SUPPLIES AND EQUIPMENT,INCLUDING DELIVERY SCHEDULES, ARE DRAWN TO REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT. OUR DECISIONS HAVE POINTED OUT THAT DELIVERY SCHEDULES ARE A MATERIAL PART OF A CONTRACT AND THAT VARIANCES THEREWITH IN OFFERS, OR OFFERS WHICH ARE INDEFINITE AS TO WHAT IS INTENDED, ARE NOT SUCH INFORMALITIES AS MAY BE DISREGARDED OR AS MAY BE CURED SUBSEQUENT TO BID OPENING. 17 COMP. GEN. 554, 558 559; 30 ID. 179; 34 ID. 364.

FROM A REVIEW OF THE OFFICIAL RECORD, INCLUDING YOUR LETTER DATED APRIL 1, 1960, TO THE COMMANDER, ARGMA, U.S. ARMY ORDNANCE MISSILE COMMAND, REDSTONE ARSENAL, IT IS APPARENT THAT YOUR COUNTEROFFER WAS INDEFINITE AS TO COMPLIANCE WITH THE DELIVERY DATE OF THE FIRST INCREMENT SPECIFIED IN THE INVITATION. FOR THAT REASON, IT IS CONCLUDED THAT YOUR BID WAS NONRESPONSIVE TO THE INVITATION. TO AWARD A CONTRACT TO A BIDDER WHO IS NOT BOUND TO MEET THE FIRST DELIVERY DATE OF THE BID INVITATION SCHEDULE GIVES SUCH A BIDDER AN UNFAIR ADVANTAGE OVER HIS COMPETITORS. IN VIEW THEREOF, VERIFICATION BY THE GOVERNMENT AS TO YOUR INTENDED COMPLETION DATE WOULD HAVE SERVED NO USEFUL PURPOSE. THEREFORE, THE REJECTION OF YOUR BID AS NONRESPONSIVE WAS PROPER. FURTHERMORE, EVEN IF YOU OFFERED TO MEET THE DELIVERY SCHEDULE INCLUDED IN THE INVITATION IT WOULD NOT HAVE BEEN PROPER TO CONSIDER SUCH OFFER SINCE, AS STATED ABOVE, A MATERIAL AMENDMENT OF A BID AFTER OPENING IS NEVER PERMISSIBLE.

ACCORDINGLY, THIS OFFICE FINDS NO LEGAL BASIS FOR QUESTIONING THE AWARDS AS MADE.