B-170287, AUG. 18, 1970

B-170287, AUG. 18, 1970

BID PROTEST -- DEVIATIONS DECISION TO SECY. OF NAVY SUSTAINING PROTEST OF EDWARD A. LYNCH MACHINERY CO., INC., AGAINST PROPOSED AWARD TO PANDJIRIS WELDMENT CO, UNDER 100-PER CENT SMALL BUSINESS SET-ASIDE PROCUREMENT FOR WELDING POWERED TURNING ROLLS. UNDER AN INVITATION SPECIFYING DESIRED DELIVERY WITHIN 120 DAYS AFTER AWARD BUT REQUIRING DELIVERY WITHIN 150 DAYS, A LOW BIDDER WHO OFFERED DELIVERY APPROXIMATELY 120 DAYS AS REQUESTED FAILED TO STATE A DEFINITE DELIVERY TIME CONTRARY TO THE DELIVERY TERMS OF THE INVITATION AND THEREFORE SUCH A BID IS NONRESPONSIVE AND SHOULD BE REJECTED.

TO MR. SECRETARY:

REFERENCE IS MADE TO A REPORT DATED JULY 8, 1970, FROM THE DEPUTY COMMANDER, PURCHASING, NAVAL SUPPLY SYSTEMS COMMAND, RESPONDING TO THE PROTEST OF EDWARD A. LYNCH MACHINERY CO., INC. (LYNCH), AGAINST THE PROPOSED AWARD OF A CONTRACT TO THE PANDJIRIS WELDMENT CO. (PANDJIRIS).

INVITATION FOR BIDS (IFB) NO. N00600-70-B-0386, PROVIDING FOR A 100 PERCENT SMALL BUSINESS SET-ASIDE, WAS ISSUED ON MARCH 23, 1970, FOR THE PROCUREMENT OF WELDING POWERED TURNING ROLLS AND ASSOCIATED DATA. OF THE FOUR BIDS TIMELY SUBMITTED TWO, INCLUDING THE LOW BID, WERE DETERMINED TO BE INELIGIBLE FOR AWARD FOR FAILURE TO COMPLY WITH THE SET-ASIDE REQUIREMENTS OF THE IFB. THE REMAINING TWO SMALL BUSINESS BIDDERS, PANDJIRIS AND LYNCH, SUBMITTED BIDS OF $6,015 AND $8,670, RESPECTIVELY.

ATTACHED TO THE PANDJIRIS BID WAS A LETTER AND AN UNSOLICITED BROCHURE WHICH DESCRIBED THE COMPANY'S LINE OF PRODUCTS, SOME OF WHICH DID AND SOME OF WHICH DID NOT MEET THE SPECIFICATIONS OF THE IFB. THE LETTER, HOWEVER, MADE SPECIFIC REFERENCE TO THOSE MODELS LISTED IN THE BROCHURE WHICH WERE BEING OFFERED IN COMPLIANCE WITH THE SPECIFICATIONS. THE LETTER ALSO MADE THE FOLLOWING PERTINENT STATEMENTS:

"IN ACCORDANCE WITH THE REFERENCE SOLICITATION AND SPECIFICATIONS SET FORTH THEREIN, WE ARE PLEASED TO OFFER OUR PROPOSAL FOR OUR STANDARD TURNING ROLLS AS FOLLOWS:

"DELIVERY: APPROXIMATELY 120 DAYS (AS REQUESTED)."

LYNCH CONTENDS THAT THE PANDJIRIS STATEMENT AS TO DELIVERY TIME IS NOT A FIRM COMMITMENT ON DELIVERY AS REQUIRED BY THE IFB, AND THAT THE INCLUSION OF THE UNSOLICITED BROCHURE MODIFIES THE PANDJIRIS BID AND MAKES IT NONRESPONSIVE.

THE IFB STATES THAT DELIVERY IS DESIRED WITHIN 120 DAYS AFTER THE DATE OF THE CONTRACT BUT REQUIRED WITHIN 150 DAYS AFTER THE DATE OF THE CONTRACT. BIDDERS ARE ADVISED THAT THEY MAY PROPOSE A DELIVERY DATE DIFFERENT FROM THE DESIRED DATE WITHOUT PREJUDICE TO THE EVALUATION OF THEIR BIDS, BUT ARE WARNED THAT THE DATE SPECIFIED CANNOT EXTEND IN ANY CASE BEYOND THE REQUIRED DATE. THEY ARE ALSO CAUTIONED THAT BIDS OFFERING DELIVERY TIMES WHICH WILL NOT CLEARLY FALL WITHIN THE REQUIRED DELIVERY TIME WILL BE NONRESPONSIVE; THAT BIDS OFFERING AN INDEFINITE TIME WILL NOT BE CONSIDERED; AND THAT IF NO ALTERNATE DELIVERY TIME IS PROPOSED, THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE OF 120 DAYS WILL APPLY.

WE INTERPRET THESE PROVISIONS TO MEAN THAT A BIDDER MAY STATE A DELIVERY DATE OF HIS CHOOSING FOR ANY TIME BETWEEN 120 AND 150 DAYS, BUT THAT THE DATE SO CHOSEN MUST BE INDICATED IN CLEAR AND UNEQUIVOCAL LANGUAGE AND, FURTHER, THE FAILURE TO EXERCISE SUCH AN OPTION CONVERTS THE DESIRED DELIVERY DATE INTO THE REQUIRED 150-DAY DELIVERY DATE.

IF PANDJIRIS INTENDED TO BE BOUND BY THE 120-DAY LIMITATION, IT COULD HAVE EXPRESSED THAT INTENT BY EITHER REMAINING SILENT OR BY CLEARLY STATING THAT DELIVERY WOULD BE MADE WITHIN A TIME CERTAIN AND NO LATER THAN THE 120-DAY PERIOD. SINCE WE INTERPRET "(AS REQUESTED)" TO INDICATE MERELY THE RECOGNITION OF THE GOVERNMENT'S DESIRE FOR DELIVERY WITHIN 120 DAYS AND "APPROXIMATELY" AS DENOTING A TIME FRAME OF UNCERTAIN DURATION BEFORE AND AFTER A CERTAIN FIXED TIME (IN THIS CASE, 120 DAYS), WE CONCLUDE THAT PANDJIRIS NOT ONLY TOOK EXCEPTION TO THE DESIRED DELIVERY SCHEDULE BUT FAILED TO STATE A DEFINITE DELIVERY TIME CONTRARY TO THE SPECIFIC TERMS OF THE DELIVERY SPECIFICATION. ITS BID IS THEREFORE NONRESPONSIVE AND SHOULD BE REJECTED. THE BID'S SHORTCOMING IN THIS RESPECT CANNOT BE CURED BY A GENERAL OFFER TO COMPLY WITH THE SPECIFICATIONS OF THE IFB. SEE B-166284, APRIL 14, 1969, AND DECISIONS CITED THEREIN.

IN VIEW OF OUR HOLDING THAT PANDJIRIS' BID IS NONRESPONSIVE AND INELIGIBLE FOR AWARD, DISCUSSION CONCERNING THE EFFECT OF THE UNSOLICITED BROCHURE SUBMITTED BY PANDJIRIS WITH ITS BID IS UNNECESSARY.