B-151984, NOV. 4, 1963

B-151984, NOV. 4, 1963

TO LENKURT ELECTRIC CO., INC:

REFERENCE IS MADE TO YOUR LETTERS DATED AUGUST 7, AUGUST 21 AND SEPTEMBER 5, 1963, CONCERNING YOUR PROTEST OF THE AWARD OF CONTRACT NO. NBY 54803 TO ANOTHER BIDDER.

BIDS TO BE OPENED JUNE 19, 1963, WERE REQUESTED FOR DESIGNING AND FURNISHING A TRANSISTORIZED CABLE CARRIER SYSTEM PROVIDING A MINIMUM OF 96 CHANNELS FOR COMMUNICATION BETWEEN PEARL HARBOR AND CAMP H.M. SMITH. BIDS WERE ALSO TO INCLUDE THE SERVICES OF A SUPERVISING ERECTOR TO OVERSEE THE UNPACKING AND INSTALLATION OF THE CABLE CARRIER EQUIPMENT AND INSTRUCT NAVY PERSONNEL IN ITS OPERATION, MAINTENANCE AND TESTING.

YOUR BID WAS LOW, BUT WAS REJECTED AS NONRESPONSIVE BECAUSE IT WAS SUBMITTED F.O.B. SAN CARLOS, CALIFORNIA. AWARD WAS MADE ON JUNE 24, 1963, TO ITT KELLOGG, AND ON THE SAME DAY YOU SENT A TELEGRAM, WHICH WAS RECEIVED IN THE PURCHASING OFFICE THE FOLLOWING DAY, REFERRING TO THE FACT THAT YOUR QUOTATION WAS BASED ON DELIVERY F.O.B. SAN CARLOS AND STATING IF F.O.B. DESTINATION IS REQUIRED, YOUR BID SHOULD BE INCREASED $201.05.

YOU CONTEND THAT THERE WAS NOT COMPLIANCE WITH THE REQUIREMENTS OF PARAGRAPHS 1-1305 AND 14-203 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), IN THAT NO ACCEPTANCE OR F.O.B. POINT WAS SPECIFIED AND THAT IF F.O.B. DESTINATION BIDS ONLY WERE DESIRED, THE INVITATION SHOULD HAVE STATED THAT BIDS SUBMITTED ON ANY OTHER BASIS WOULD BE REJECTED AS NONRESPONSIVE.

ON PAGE 3 OF THE INVITATION IT IS PROVIDED AS FOLLOWS:

"SHIPPING AND DELIVERY INFORMATION

SHIPMENT SHALL BE MARKED AND SHIPPED AS FOLLOWS:

OFFICER IN CHARGE

CONTRACT NBY 54803

U.S. NAVY PUBLIC WORKS CENTER

PEARL HARBOR, HAWAII

ATTENTION: (ENS J. D. BLACKBURN, CODE L-5)"

ALSO, SUBSECTION 1.5 OF THE SPECIFICATIONS READS IN PART:

"DELIVERY. THE MATERIAL AND EQUIPMENT SHALL BE DELIVERED TO:

OFFICER IN CHARGE OF CONSTRUCTION

CONTRACT NBY 54803

U.S. NAVY PUBLIC WORKS CENTER

PEARL HARBOR, HAWAII * * *"

SUBSECTIONS 3.1 AND 3.2 OF THE SPECIFICATIONS PROVIDE FURTHER THAT AWARD OF THE CONTRACT SHALL BE MADE ON THE BASIS OF BID ITEM 1, AND THAT THE BASIS OF BID FOR ITEM 1 SHALL BE THE ENTIRE WORK, COMPLETE IN ACCORDANCE WITH THE REQUIREMENTS SPECIFIED HEREINBEFORE.

PAGE 1 OF THE INVITATION REQUESTS BIDS FOR FURNISHING THE SUPPLIES OR SERVICES DESCRIBED IN THE ACCOMPANYING SCHEDULE "FOR DELIVERY F.O.B. AS INDICATED.' THE QUOTED PROVISION CLEARLY REFERS TO A DELIVERY POINT TO BE SPECIFIED BY THE GOVERNMENT IN THE INVITATION FOR BIDS AND NOT TO SOME POINT TO BE INSERTED BY THE BIDDER. SINCE THERE IS NO REFERENCE IN THE INVITATION TO THE SUBMISSION OF BIDS FOR DELIVERY F.O.B. ORIGIN. AND THERE ARE TO SPECIFIC REFERENCES TO THE REQUIREMENT FOR DELIVERY TO PEARL HARBOR, A BIDDER WOULD NOT BE JUSTIFIED IN ASSUMING THAT BIDS F.O.B. ORIGIN WERE DESIRED OR PERMISSIBLE. THE ONLY DELIVERY POINT "INDICATED" WAS AT DESTINATION.

THE CITED PROVISIONS OF ASPR REFER SPECIFICALLY TO "SUPPLIES" AND ARE APPLICABLE PRIMARILY TO SUPPLY CONTRACTS. ALSO, AS INDICATED IN PARAGRAPH 14-203, DELIVERIES F.O.B. DESTINATION MUST BE ACCEPTED AT DESTINATION. WAS THE INTENT OF THE INVITATION THAT THE CONTRACTOR BE SOLELY RESPONSIBLE FOR THE SAFE TRANSPORT, DELIVERY AND OPERATION OF THE EQUIPMENT. THIS OBLIGATION TO COMPLETE THE CONTRACT AT DESTINATION WAS EMPHASIZED AND ENLARGED SOMEWHAT BY ADDENDUM NO. 1 TO THE INVITATION, WHICH PROVIDED THAT:

" "B. FOR A PERIOD OF APPROXIMATELY 15 WORKING DAYS, THE SUPERVISING ERECTOR SHALL SUPERVISE AND ASSIST IN, AND SHALL BE RESPONSIBLE FOR, THE UNPACKING, INSTALLATION, AND OPERATING TESTS OF THE EQUIPMENT.'"

IN VIEW OF THE PACKAGE NATURE OF THE PROCUREMENT, STARTING WITH THE ACTUAL DESIGN OF THE EQUIPMENT AND CULMINATING IN ITS INSTALLATION, THERE OBVIOUSLY COULD BE NO ACCEPTANCE UNTIL IT WAS INSTALLED AND OPERATING SATISFACTORILY.

SINCE THE POINT OF DELIVERY AFFECTS PRICE, IT GOES TO THE SUBSTANCE OF THE BID AND FAILURE TO QUOTE ON THE BASIS CONTEMPLATED BY THE INVITATION IS GROUNDS FOR REJECTION OF THE BID AS NONRESPONSIVE. THIS IS A GENERAL RULE AND IS APPLICABLE REGARDLESS OF WHETHER THE INVITATION CONTAINS A SPECIFIC WARNING IN THIS REGARD. ACCORDINGLY, IN VIEW OF THE DELIVERY PROVISIONS OF THE INVITATION AND THE NATURE OF THE PROCUREMENT, WE BELIEVE THAT THE REQUIREMENT FOR BIDS F.O.B. DESTINATION WAS SUFFICIENTLY CLEAR TO JUSTIFY THE ACTION TAKEN BY THE NAVY. YOUR PROTEST MUST THEREFORE BE DENIED.