A-23703, JULY 31, 1928, 8 COMP. GEN. 52

A-23703: Jul 31, 1928

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ADVERTISING - BIDS - ACCEPTANCE OF OTHER THAN LOWEST - TIME AS AN ELEMENT WHERE TIME OF DELIVERY IS AN IMPORTANT ELEMENT. THERE IS NO AUTHORITY FOR ACCEPTANCE OF OTHER THAN THE LOWEST BID WHERE THE BIDDERS WERE ONLY ADVISED ORALLY THAT TIME OF DELIVERY WAS AN IMPORTANT ELEMENT AND THE HIGHER BIDDER OFFERED TO MAKE DELIVERY AT A MUCH EARLIER DATE THAN DID THE LOW BIDDER. 1928: YOUR ATTENTION IS INVITED TO CONTRACT NO. IT APPEARING THAT AWARD OF THE CONTRACT WAS MADE TO OTHER THAN THE LOWEST BIDDER. THE REASONS FOR ACCEPTANCE OF OTHER THAN THE LOWEST BID ARE SET FORTH ON THE ABSTRACT OF BIDS AS FOLLOWS: AWARD MADE TO BIDDER AS SHOWN. ALSO PIPE WAS NOT THE KIND AS CALLED FOR ON SPECIFICATIONS.

A-23703, JULY 31, 1928, 8 COMP. GEN. 52

ADVERTISING - BIDS - ACCEPTANCE OF OTHER THAN LOWEST - TIME AS AN ELEMENT WHERE TIME OF DELIVERY IS AN IMPORTANT ELEMENT, THAT FACT SHOULD BE CLEARLY STATED IN THE WRITTEN OR PRINTED SPECIFICATIONS, INVITATIONS FOR BIDS, OR INSTRUCTIONS TO BIDDERS, AND THERE IS NO AUTHORITY FOR ACCEPTANCE OF OTHER THAN THE LOWEST BID WHERE THE BIDDERS WERE ONLY ADVISED ORALLY THAT TIME OF DELIVERY WAS AN IMPORTANT ELEMENT AND THE HIGHER BIDDER OFFERED TO MAKE DELIVERY AT A MUCH EARLIER DATE THAN DID THE LOW BIDDER.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JULY 31, 1928:

YOUR ATTENTION IS INVITED TO CONTRACT NO. W-190-QM-51, DATED APRIL 11, 1928, WITH R. D. WOOD AND CO., COVERING THE PURCHASE OF CAST-IRON PIPE, FITTINGS, AND VALVES FOR THE WAR DEPARTMENT, CONSTRUCTING QUARTERMASTER, CARLISLE BARRACKS, PA., IT APPEARING THAT AWARD OF THE CONTRACT WAS MADE TO OTHER THAN THE LOWEST BIDDER.

THE REASONS FOR ACCEPTANCE OF OTHER THAN THE LOWEST BID ARE SET FORTH ON THE ABSTRACT OF BIDS AS FOLLOWS:

AWARD MADE TO BIDDER AS SHOWN. LOW BID NOT ACCEPTED AS DELIVERY COULD NOT BE COMPLETED IN DESIRED TIME; ALSO PIPE WAS NOT THE KIND AS CALLED FOR ON SPECIFICATIONS.

IT APPEARS THAT THE LOW BIDDER PROPOSED TO DELIVER WITHIN 60 DAYS, WHEREAS THE ACCEPTED BIDDER AGREED TO DELIVER WITHIN 21 DAYS.

AN EXAMINATION OF THE SPECIFICATIONS AND INVITATION FOR BIDS DISCLOSES NOTHING TO INDICATE A MAXIMUM TIME LIMIT WITHIN WHICH DELIVERY HAD TO BE MADE, OR THAT THE TIME REQUIRED FOR DELIVERY WOULD BE CONSIDERED IN AWARDING THE CONTRACT. UNDER SUCH CIRCUMSTANCES THERE WAS NO AUTHORITY FOR REJECTING ANY BID MERELY BECAUSE THE TIME IN WHICH DELIVERY WAS PROPOSED WAS GREATER THAN THE TIME SPECIFIED IN SOME OTHER BID. IN THIS CONNECTION ATTENTION IS INVITED TO DECISION OF JANUARY 28, 1926, 5 COMP. GEN. 546, 548, IN WHICH IT WAS SAID:

IF TIME IS TO BE A CONTROLLING ELEMENT IN THE ACCEPTANCE OR REJECTION OF A PARTICULAR BID, IT SHOULD BE SO STATED IN ORDER THAT ALL BIDDERS MAY HAVE EQUAL OPPORTUNITY TO OFFER SUPPLIES, ETC., WITHIN THE TIME SO STATED. IN THE MATTER HERE PRESENTED, THE INSTRUCTIONS TO BIDDERS STATED THAT TIME OF PROPOSED DELIVERY WOULD BE TAKEN INTO ACCOUNT IN MAKING THE AWARD. THEREFORE, IT IF CAN BE SHOWN THAT THE DIFFERENCE IN TIME OF DELIVERY IS OF MORE VALUE TO THE GOVERNMENT THAN THE DIFFERENCE IN PRICE, ACCEPTANCE OF THE HIGHER BID IS AUTHORIZED, OTHERWISE THE AWARD SHOULD BE MADE TO THE LOWEST BIDDER. IN DETERMINING THE VALUE TO THE GOVERNMENT OF THE DIFFERENCE IN TIME OF DELIVERY THERE WOULD BE FOR CONSIDERATION THE RATE OF LIQUIDATED DAMAGES TO BE STIPULATED IN THE CONTRACT FOR DELAY IN DELIVERY.

IN THE PRESENT CASE IT IS STATED THAT EACH OF THE BIDDERS WAS ADVISED ORALLY THAT TIME OF DELIVERY WAS AN IMPORTANT ELEMENT. THE PRACTICE OF GIVING INSTRUCTIONS, EXPLANATIONS, OR INFORMATION TO BIDDERS ORALLY INSTEAD OF IN THE WRITTEN OR PRINTED SPECIFICATIONS, INVITATIONS FOR BIDS, OR INSTRUCTIONS TO BIDDERS, IS OBJECTIONABLE AND SHOULD BE DISCONTINUED.

THE AWARD OF THE CONTRACT IN THIS CASE WILL NOT BE FURTHER QUESTIONED, BUT THE MATTER IS BROUGHT TO YOUR ATTENTION FOR SUCH ADMINISTRATIVE ACTION AS MAY BE NECESSARY TO PREVENT THE RECURRENCE OF SUCH A TRANSACTION.