B-120412, JULY 16, 1954, 34 COMP. GEN. 24

B-120412: Jul 16, 1954

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1954: REFERENCE IS MADE TO A LETTER DATED JUNE 14. WAS ISSUED ON APRIL 30. THE DELIVERY REQUIREMENTS OF THE INVITATION WERE AS FOLLOWS: DELIVERY:F. 610 EACH PER MONTH THEREAFTER UNTIL COMPLETION OF CONTRACT. " THIS IS A MANDATORY DELIVERY" NOTE: PILOT LOT: AN ACCEPTABLE PILOT LOT OF FIFTEEN (15) EACH. INSPECTION AND ACCEPTANCE SHALL BE AT CONTRACTOR'S PLANT BY THE ORDNANCE DISTRICT IN WHICH CONTRACTOR'S PLANT IS LOCATED. PILOT LOT WILL BE INSPECTED AND ACCEPTED AT FRANKFORD ARSENAL BY ARSENAL PERSONNEL. " DELIVERY". IF SHIPMENT IS TO BE ROUTED BY RAIL FREIGHT THE PENNSYLVANIA RAILROAD SHOULD BE INDICATED AS THE DELIVERING CARRIER. IMMEDIATELY FOLLOWING THE WORDS " THIS IS A MANDATORY DELIVERY.

B-120412, JULY 16, 1954, 34 COMP. GEN. 24

BIDS - DEVIATION FROM ADVERTISED SPECIFICATIONS - QUALIFYING STIPULATIONS - WITHDRAWAL AFTER BID OPENING UNDER INVITATION TO BID FOR FURNISHING CATAPULTS, WHICH CONTAINED MANDATORY REQUIREMENTS FOR DELIVERY OF PILOT LOT AT ARSENAL IN PHILADELPHIA, PENNSYLVANIA, ON OR BEFORE AUGUST 15, 1954, A BID WHICH PROVIDED FOR DELIVERY OF PILOT LOT TO COMMON CARRIER, DETROIT, MICHIGAN, ON OR BEFORE AUGUST 12, 1954, HAD THE EFFECT OF VARYING THE BIDDER'S DELIVERY OBLIGATION FROM THAT CONTEMPLATED BY THE INVITATIONS AND SHOULD BE REJECTED AS UNRESPONSIVE TO THE INVITATION.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE ARMY, JULY 16, 1954:

REFERENCE IS MADE TO A LETTER DATED JUNE 14, 1954, FROM THE UNDER SECRETARY OF THE ARMY, TRANSMITTING A FILE RELATIVE TO THE BID SUBMITTED BY STEPHENSON INDUSTRIES, INC., DETROIT, MICHIGAN, IN RESPONSE TO INVITATION FOR BIDS NO. ORD-36-038-54-1157, AND REQUESTING A DECISION AS TO WHETHER THAT BID MAY BE ACCEPTED IN VIEW OF THE STIPULATIONS CONTAINED THEREIN.

THE INVITATION, CALLING FOR THE DELIVERY OF 2,104 CATAPULTS AIRCRAFT PERSONNEL, M5, WAS ISSUED ON APRIL 30, 1954, WITH THE OPENING DATE OF BIDS ON MAY 20, 1954. THE DELIVERY REQUIREMENTS OF THE INVITATION WERE AS FOLLOWS:

DELIVERY:F. O. B. FRANKFORD ARSENAL, RECEIVING DOCK, PHILADELPHIA, PA. PILOT LOT ON OR BEFORE 15 AUGUST 1954 AND 610 EACH THIRTY (30) DAYS AFTER APPROVAL OF PILOT LOT, AND 610 EACH PER MONTH THEREAFTER UNTIL COMPLETION OF CONTRACT. " THIS IS A MANDATORY DELIVERY"

NOTE: PILOT LOT: AN ACCEPTABLE PILOT LOT OF FIFTEEN (15) EACH. CATAPULT, M5 SHALL BE SUBMITTED TO FRANKFORD ARSENAL ON OR BEFORE 15 AUGUST 1954. PILOT LOT SHALL CONSIST OF: FIVE (5) ASSEMBLED AND TEN (1) COMPLETE, BUT UNASSEMBLED CATAPULT, M5. THE GOVERNMENT SHALL GIVE NOTICE OF APPROVAL OF PILOT LOT WITHIN FIFTEEN (15) DAYS AFTER RECEIPT OF PILOT LOT.

INSPECTION AND ACCEPTANCE SHALL BE AT CONTRACTOR'S PLANT BY THE ORDNANCE DISTRICT IN WHICH CONTRACTOR'S PLANT IS LOCATED.

PILOT LOT WILL BE INSPECTED AND ACCEPTED AT FRANKFORD ARSENAL BY ARSENAL PERSONNEL.

" DELIVERY"--- WITHIN THE MEANING OF THE DISCOUNT PROVISION INDICATED IN PARAGRAPH 3B OF THE PRINTED TERMS AND CONDITIONS AND AS SET OUT ON PAGE 2 OF THE INVITATION FOR BID INCLUDES ACCEPTANCE BY THE GOVERNMENT.

IF SHIPMENT IS TO BE ROUTED BY RAIL FREIGHT THE PENNSYLVANIA RAILROAD SHOULD BE INDICATED AS THE DELIVERING CARRIER.

IMMEDIATELY FOLLOWING THE WORDS " THIS IS A MANDATORY DELIVERY," THE BIDDER INSERTED THE FOLLOWING STATEMENT: "*SEE BIDDER'S PROVISIONS RESPECTING PILOT LOT AND DELIVERY SCHEDULE ON PAGE 7.' ON PAGE 7 OF THE INVITATION THE BIDDER ADDED THE FOLLOWING LANGUAGE:

2. DELIVERY OF PILOT LOT SAMPLES TO COMMON CARRIER, DETROIT, MICHIGAN ON OR BEFORE 12 AUGUST 1954 SHALL CONSTITUTE COMPLIANCE WITH MANDATORY DELIVERY SCHEDULE PROVISION.

SUBSEQUENT TO THE OPENING OF THE BIDS, THE LOW BIDDER, STEPHENSON INDUSTRIES, INC., REQUESTED THAT IT BE PERMITTED TO WITHDRAW THE STIPULATION, CONTENDING THAT IT WAS DESCRIPTIVE AND RELATED MERELY TO THE METHOD OF DELIVERY AND IN NOWISE WAS INTENDED TO ALTER OR VARY THE INVITATION DELIVERY PROVISIONS. THE REQUEST COVERED TWO OTHER STIPULATIONS AS WELL, BUT IN VIEW OF THE CONCLUSIONS REACHED HEREIN, CONSIDERATION MAY BE CONFINED TO THE ONE STIPULATION DESCRIBED ABOVE.

IN 30 COMP. GEN. 179, 181, IT WAS STATED THAT---

THE QUESTION AS TO WHETHER DEVIATIONS FROM THE REQUIREMENTS OF ADVERTISED SPECIFICATIONS MIGHT BE WAIVED AFTER THE OPENING DATE HAS BEEN BEFORE THIS OFFICE MANY TIMES; AND IT HAS BEEN CONSISTENTLY HELD THAT SUCH DEVIATIONS MAY BE WAIVED PROVIDED THEY DO NOT GO TO THE SUBSTANCE OF THE BID OR WORK AN INJUSTICE TO OTHER BIDDERS. IN OTHER WORDS, THE PRIMARY QUESTION FOR DETERMINATION IN THIS AND SIMILAR CASES IS WHETHER THE DEVIATION PROPOSED TO BE WAIVED GOES TO THE SUBSTANCE OF THE BID SO AS TO AFFECT EITHER THE PRICE, QUANTITY, OR QUALITY OF THE ARTICLES OFFERED AND THEREFORE IS PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS OR IS MERELY A MATTER OF FORM OR SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE SPECIFICATIONS SUCH AS WOULD NOT AFFECT EITHER THE PRICE, QUALITY, OR QUANTITY OF THE ARTICLES OFFERED.

THE WITHDRAWAL OR WAIVER BY A BIDDER OF MATERIAL DEVIATIONS FROM ADVERTISED SPECIFICATIONS, AFTER THE OPENING OF BIDS, DOES NOT RESULT IN PLACING HIM ON THE SAME LEVEL WITH OTHER BIDDERS. THE BIDDER WHO HAS CONDITIONED OR QUALIFIED HIS BID IN A MATERIAL RESPECT IS IN AN ADVANTAGEOUS POSITION OVER ALL OTHER BIDDERS. KNOWLEDGE OF HIS COMPETITORS' BIDS UPON BID OPENING GIVES HIM AN EXCELLENT IDEA OF WHETHER HE HAS MADE A PRUDENT BID. HE THEN CAN INSIST UPON THE MATERIAL DEVIATIONS CONTAINED IN HIS BID, REQUIRING ITS REJECTION, OR HE CAN WITHDRAW THE DEVIATIONS, IF HE WANTS THE CONTRACT. FOR THESE REASONS, A DEVIATION FROM ADVERTISED SPECIFICATIONS MAY NOT BE WAIVED AFTER OPENING UNLESS IT BE CONCLUDED THAT THE DEVIATION GAVE THE BIDDER NO MATERIAL ADVANTAGE TO WHICH HE WAS NOT ENTITLED UNDER THE TERMS OF THE INVITATION. THE REQUEST BY STEPHENSON INDUSTRIES, INC., FOR WITHDRAWAL OF ITS STIPULATIONS MUST BE CONSIDERED IN THE LIGHT OF THESE PRINCIPLES.

REGARDLESS OF WHAT THE BIDDER MAY HAVE INTENDED, THE INSERTION IN ITS BID OF THE STIPULATION HERE IN QUESTION OBVIOUSLY WOULD HAVE THE EFFECT OF VARYING THE BIDDER'S OBLIGATION FROM THE CONTEMPLATED BY THE INVITATION WITH RESPECT TO DELIVERY OF THE PILOT LOT TO THE ARSENAL. ONCE THE STEPHENSON BID WAS ACCEPTED, AS THUS QUALIFIED, THE BIDDER COULD SATISFY THE DELIVERY REQUIREMENT BY GIVING THE ARTICLES ON AUGUST 12, 1954, TO A COMMON CARRIER IN DETROIT. THE SPECIFICATIONS, ON THE OTHER HAND, REQUIRED THE SUCCESSFUL BIDDER TO DELIVER AN ACCEPTABLE PILOT LOT OF CATAPULTS TO THE ARSENAL BY AUGUST 15, 1954. THUS, UNDER THE TERMS OFFERED IN THE INVITATION, A DELAY EN ROUTE RESULTING IN LATE DELIVERY--- EXCEPT POSSIBLY IN THE EVENT OF SHIPMENT BY THE PENNSYLVANIA RAILROAD--- MIGHT RELIEVE THE BIDDER FROM LIABILITY FOR EXCESS COSTS BUT WOULD NOT AFFECT THE RIGHT OF THE GOVERNMENT TO REJECT THE PILOT LOT. SO HERE STEPHENSON ATTEMPTED BY THE STIPULATION TO MAKE A BETTER DEAL FOR ITSELF THAN WAS OFFERED GENERALLY TO ALL BIDDERS.

ACCORDINGLY, THE BID OF STEPHENSON INDUSTRIES, INC., SHOULD BE REJECTED AND AWARD MADE TO AN OTHERWISE QUALIFIED AND RESPONSIVE LOW BIDDER.