B-123882, JUN. 20, 1955

B-123882: Jun 20, 1955

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TO UNITED STATES MOTORS CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 5. IT IS STATED IN YOUR LETTER THAT YOU WERE ADVISED BY THE BUREAU OF PUBLIC ROADS THAT A CONTRACT WAS AWARDED TO THE J. IT IS STATED FURTHER THAT THERE WAS NOT ONLY NOTHING IN THE INVITATION TO BID TO INDICATE THAT THE EQUIPMENT WAS URGENTLY NEEDED OTHER THAN THE STATEMENT "DELIVERY TIME SPECIFIED MAY BE CONSIDERED IN MAKING AWARD" BUT THAT THERE WAS NO PENALTY REQUIRED TO BE ASSESSED AGAINST THE SUCCESSFUL BIDDER IN THE EVENT HE DOES NOT MEET THE DELIVERY TIME. YOU STATE THAT THE AWARD OF A CONTRACT TO A BIDDER AT A PRICE APPROXIMATELY 20 PERCENT HIGHER THAN YOUR QUOTED PRICE ON THE BASIS OF A DELIVERY TIME AS TO WHICH NO PENALTY IS TO BE ASSESSED IN THE EVENT OF DELAY IS UNFAIR TO OTHER BIDDERS.

B-123882, JUN. 20, 1955

TO UNITED STATES MOTORS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 5, 1955, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT FOR 20 KW DIESEL ENGINE DRIVEN GENERATOR SETS TO ANOTHER BIDDER PURSUANT TO INVITATION NO. BPR D8-55 ISSUED BY THE BUREAU OF PUBLIC ROADS.

IT IS STATED IN YOUR LETTER THAT YOU WERE ADVISED BY THE BUREAU OF PUBLIC ROADS THAT A CONTRACT WAS AWARDED TO THE J. R. ENRIGHT COMPANY ON THE BASIS OF ITS QUOTED PRICE OF $3,700 PER SET AS AGAINST YOUR LOW PRICE OF $3,268 PER SET, AND ON THE BASIS OF ITS QUOTED DELIVERY TIME OF 45 DAYS AS AGAINST YOUR DELIVERY TIME OF 120 TO 150 DAYS. IT IS STATED FURTHER THAT THERE WAS NOT ONLY NOTHING IN THE INVITATION TO BID TO INDICATE THAT THE EQUIPMENT WAS URGENTLY NEEDED OTHER THAN THE STATEMENT "DELIVERY TIME SPECIFIED MAY BE CONSIDERED IN MAKING AWARD" BUT THAT THERE WAS NO PENALTY REQUIRED TO BE ASSESSED AGAINST THE SUCCESSFUL BIDDER IN THE EVENT HE DOES NOT MEET THE DELIVERY TIME. YOU STATE THAT THE AWARD OF A CONTRACT TO A BIDDER AT A PRICE APPROXIMATELY 20 PERCENT HIGHER THAN YOUR QUOTED PRICE ON THE BASIS OF A DELIVERY TIME AS TO WHICH NO PENALTY IS TO BE ASSESSED IN THE EVENT OF DELAY IS UNFAIR TO OTHER BIDDERS, AND YOU REQUEST THAT THE AWARD EITHER BE MADE TO YOU AS THE LOW BIDDER OR THAT ALL BIDS BE CANCELED AND THE PROCUREMENT READVERTISED WITH A DEFINITE DATE SPECIFIED FOR DELIVERY OF THE EQUIPMENT.

IN RESPONSE TO A REQUEST OF THIS OFFICE FOR A REPORT IN THE MATTER,THE DEPARTMENT OF COMMERCE HAS REPORTED AS FOLLOWS*

"THIS INVITATION CALLED FOR BIDS TO FURNISH ONE DIESEL ELECTRIC GENERATING SET FOR DELIVERY TO VANCOUVER, WASHINGTON. THE UNITED STATES MOTORS CORPORATION CLAIMED THAT AWARD WAS NOT MADE TO THE LOW RESPONSIVE BIDDER. THE CLAIMANT CONTENDS THAT THE CLAUSE "DELIVERY TIME SPECIFIED MAY BE CONSIDERED IN MAKING AWARD" WAS NOT, IN ITS LANGUAGE, SUFFICIENT TO JUSTIFY MAKING AWARD ON A TIME-OF-DELIVERY BASIS. AS EVIDENCED BY OUR INVITATION, TIME OF DELIVERY WAS AN IMPORTANT ELEMENT AND IN EVALUATING THE BIDS RECEIVED, WE ACCORDINGLY GAVE WEIGHT TO THE DELIVERY TIME STATED BY THE SEVERAL BIDDERS. HAD IT NOT BEEN OUR INTENTION TO USE THE EQUIPMENT DURING THE CURRENT CONSTRUCTION SEASON, THERE WOULD HAVE BEEN NO NEED TO HAVE STIPULATED THAT THE TIME OF DELIVERY WOULD BE CONSIDERED IN MAKING THE AWARD. IF THE AWARD IN THIS CASE HAD BEEN MADE ON A COST BASIS ONLY, WE WOULD NOT HAVE HAD ANY USE OF THE EQUIPMENT DURING THE 1955 CONSTRUCTION SEASON. THE WORK FOR WHICH THIS ITEM WAS ORDERED IS IMPORTANT, THEREFORE, THE ONLY ALTERNATIVE WAS TO PLACE THE ORDER WITH THE BIDDER WHO GAVE US ASSURANCE OF DELIVERY IN TIME TO PERFORM THE WORK CONTEMPLATED.'

THE PURPOSE OF STATUTES REQUIRING CERTAIN PUBLIC CONTRACTS TO BE LET TO THE LOWEST RESPONSIBLE BIDDER AFTER ADVERTISING IS TO GIVE ALL PERSONS EQUAL RIGHT TO COMPETE FOR GOVERNMENT CONTRACTS, TO PREVENT UNJUST FAVORITISM, OR COLLUSION, OR FRAUD IN AWARDING GOVERNMENT CONTRACTS, AND TO SECURE FOR THE GOVERNMENT THE BENEFITS WHICH FLOW FROM FREE AND UNRESTRICTED COMPETITION. UNITED STATES V. BROOKRIDGE FARM, INC., 111 F.2D 461, AFFIRMING 27 F.SUPP. 909. IT HAS BEEN HELD THAT IN ORDER FOR BIDDERS TO COMPETE ON EQUAL TERMS WHEN SUBMITTING BIDS IN RESPONSE TO AN ADVERTISEMENT FOR BIDS FOR PUBLIC WORK, THE SPECIFICATIONS AND INVITATION TO BID MUST BE SUFFICIENTLY DEFINITE TO PERMIT THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS.

IN THE PRESENT MATTER IT WAS ADMINISTRATIVELY DETERMINED THAT TIME FOR PERFORMANCE WAS A FACTOR FOR CONSIDERATION IN THE ACCEPTANCE OR REJECTION OF BIDS, AND ON THE BASIS OF THE REASONS STATED IN THE ABOVE REPORT, SUCH DETERMINATION DOES NOT APPEAR TO HAVE BEEN ARBITRARY OR CAPRICIOUS IN ANY WAY. THE CONTRACT WAS AWARDED TO THE J. R. ENRIGHT COMPANY ON THE BASIS OF A DELIVERY TIME OF 45 DAYS IN ACCORDANCE WITH THE RIGHT EXPRESSLY RESERVED TO THE GOVERNMENT IN THE INVITATION TO BID. THE PROCEDURE FOLLOWED IN MAKING THE AWARD APPEARS TO HAVE BEEN REASONABLE AND WITHIN THE AUTHORITY OF THE DEPARTMENT OF COMMERCE TO DETERMINE THE GOVERNMENT'S NEEDS AND TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITION PROPOSED CONTRACTS TO SUPPLY THOSE NEEDS.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR OBJECTING TO THE ACTION OF THE ADMINISTRATIVE OFFICE IN MAKING THE AWARD.