B-124381, SEP. 16, 1955

B-124381: Sep 16, 1955

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TO THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO LETTER OF THE DEPUTY FOR PROCUREMENT AND PRODUCTION DATED AUGUST 23. THE ROOMS WERE TO BE IN ACCORDANCE WITH SPECIFICATION MIL-S-4957. "IF BIDDER IS UNABLE TO MEET THE ABOVE DELIVERY SCHEDULE. SET FORTH BELOW THE DELIVERY SCHEDULE HE IS PREPARED TO MEET. AS BIDS PROPOSING DELIVERY AFTER THAT PERIOD WILL BE CONSIDERED NON-RESPONSIVE TO THE INVITATION AND WILL BE REJECTED. "NOTE TO BIDDERS: SPECIAL ATTENTION IS INVITED TO THE GOVERNMENT'S DESIRED DELIVERY OF ARTICLES AS SET FORTH ABOVE. WILL APPLY.'. TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE SECOND BID WAS FROM SHIELDING. ITS BID WAS DECLARED NONRESPONSIVE TO THE INVITATION AND WAS REJECTED.

B-124381, SEP. 16, 1955

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER OF THE DEPUTY FOR PROCUREMENT AND PRODUCTION DATED AUGUST 23, 1955, WITH ENCLOSURES, FURNISHING THE REPORT RELATIVE TO THE PROTEST OF SHIELDING, INC., RIVERSIDE, NEW JERSEY, AGAINST THE AWARD MADE BY ROME AIR FORCE DEPOT, GRIFFISS AIR FORCE BASE, ROME, NEW YORK, UNDER INVITATION FOR BIDS NO. 30-635-55 146.

THE INVITATION REQUESTED BIDS TO BE OPENED ON MAY 27, 1955, FOR FURNISHING 16 ELECTROMAGNETIC-SHIELDING ENCLOSURES OR ROOMS, DEMOUNTABLE AND PREFABRICATED, FOR USE IN TESTING AND ALIGNMENT OF ELECTRONICS EQUIPMENT AND OTHER RELATED PURPOSES. THE ROOMS WERE TO BE IN ACCORDANCE WITH SPECIFICATION MIL-S-4957, WHICH HAS BEEN SUPERSEDED BY SPECIFICATION MIL-E-4957/ASG). THE INVITATION ALSO CALLED FOR BIDS ON A QUANTITY OF POWER LINE FILTERS FOR USE IN CONNECTION WITH THE SCREEN ROOMS.

THE INVITATION FOR BIDS PROVIDED THE FOLLOWING WITH RESPECT TO DELIVERY:

"THE GOVERNMENT DESIRES DELIVERY OF THE ARTICLES LISTED HEREIN AS FOLLOWS:

7 DAYS AFTER DATE OF AWARD.

"IF BIDDER IS UNABLE TO MEET THE ABOVE DELIVERY SCHEDULE, HE MAY, WITHOUT PREJUDICE TO EVALUATION OF HIS BID, SET FORTH BELOW THE DELIVERY SCHEDULE HE IS PREPARED TO MEET, PROVIDED, IN NO EVENT, SHALL THE BIDDER'S DELIVERY SCHEDULE EXTEND BEYOND 21 DAYS AFTER DATE OF AWARD, AS BIDS PROPOSING DELIVERY AFTER THAT PERIOD WILL BE CONSIDERED NON-RESPONSIVE TO THE INVITATION AND WILL BE REJECTED.

"NOTE TO BIDDERS: SPECIAL ATTENTION IS INVITED TO THE GOVERNMENT'S DESIRED DELIVERY OF ARTICLES AS SET FORTH ABOVE.

"IF BIDDER DOES NOT STATE A DIFFERENT DELIVERY SCHEDULE, AS REQUESTED, THE GOVERNMENT'S DESIRED DELIVERY, STATED ABOVE, WILL APPLY.'

PARAGRAPH 1 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDES, IN PART:

"* * * AN AWARD MAILED (OR OTHERWISE FURNISHED) TO THE SUCCESSFUL BIDDER WITHIN THE TIME FOR ACCEPTANCE SPECIFIED IN THE BID RESULTS IN A BINDING CONTRACT WITHOUT FURTHER ACTION BY EITHER PARTY.'

TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE ACE ENGINEERING COMPANY, PHILADELPHIA, PENNSYLVANIA, QUOTED A TOTAL PRICE OF $36,422.98 NET AND, BY NOT INDICATING ANY DELIVERY SCHEDULE IN ITS BID, ADOPTED THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE OF 7 DAYS AFTER DATE OF AWARD. THE SECOND BID WAS FROM SHIELDING, INC., RIVERSIDE, NEW JERSEY, QUOTING A TOTAL PRICE OF $36,138, LESS A DISCOUNT OF ONE PERCENT FOR PAYMENT WITHIN 20 DAYS. THIS BID PROVIDED:

"DELIVERY WITHIN 20 DAYS AFTER RECEIPT OF CONTRACT.'

DUE TO THE PROPOSED DELIVERY SCHEDULE OFFERED BY SHIELDING, INC., ITS BID WAS DECLARED NONRESPONSIVE TO THE INVITATION AND WAS REJECTED. THE CONTRACTING OFFICER ACCEPTED THE BID OF ACE ENGINEERING COMPANY ON JUNE 14, 1955; THE CONTRACT WAS APPROVED BY THE DULY AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF THE AIR FORCE ON JUNE 16, 1955, AND WAS RECEIVED BY THE CONTRACTOR ON JUNE 20, 1955. A STOP-WORK ORDER WAS ISSUED TO ACE ENGINEERING ON JUNE 23, 1955, SOON AFTER THE RECEIPT OF THE PROTEST FROM SHIELDING, INC. HOWEVER, ONE OF THE SMALLER ROOMS HAD BEEN SHIPPED PRIOR TO THE RECEIPT OF THE STOP-WORK ORDER AND HAS BEEN DELIVERED.

SHIELDING, INC., HAS PROTESTED THE AWARD ON THE BASIS (1) THAT THE REJECTION OF ITS BID BECAUSE OF THE MINOR DEVIATION IN THE DELIVERY SCHEDULE WAS NOT JUSTIFIED, AND (2) THAT THE PROCUREMENT WAS NOT MADE ECONOMICALLY OR IN THE BEST INTEREST OF THE GOVERNMENT.

THE BASIS FOR THE REJECTION OF SHIELDING'S BID WAS THAT, UNDER THE TERMS OF THE INVITATION, AN AWARD WAS ACCOMPLISHED WHEN THE ACCEPTANCE OF THE BID WAS DEPOSITED IN THE MAILS AT ROME, NEW YORK, AND THAT CONSIDERING THE DISTANCE BETWEEN ROME, NEW YORK, AND RIVERSIDE, NEW JERSEY, RECEIPT OF THE AWARD BY SHIELDING IN TIME TO REQUIRE DELIVERY WITHIN 21 DAYS AFTER DATE OF AWARD, AS REQUIRED BY THE INVITATION, WAS BY NO MEANS CERTAIN. IT WAS CONSIDERED THAT THE EFFECT OF SHIELDING'S BID WAS TO ALLOW THE GOVERNMENT ONLY ONE DAY TO GET NOTICE OF ACCEPTANCE INTO THE HANDS OF THE FIRM, AND THAT IF IN THE COURSE OF MAIL DELIVERY FROM ROME, NEW YORK, TO RIVERSIDE, NEW JERSEY, THE AWARD DID NOT ARRIVE THE DAY AFTER MAILING, SHIELDING WOULD HAVE HAD A LONGER DELIVERY SCHEDULE THAN WAS OFFERED TO OTHER BIDDERS.

WE AGREE WITH THE STATEMENT IN THE LETTER OF AUGUST 23, 1955, THAT THE REJECTION OF SHIELDING'S BID ON SUCH TECHNICAL GROUNDS WAS NOT THE BEST COURSE OF ACTION OPEN TO THE GOVERNMENT, ALTHOUGH IT IS FELT THAT A LEGALLY BINDING CONTRACT NEVERTHELESS WAS MADE. IT MAY BE OBSERVED THAT IF THERE WAS DOUBT THAT THE AWARD, IF MAILED, WOULD HAVE BEEN RECEIVED BY SHIELDING IN ONE DAY, THE AWARD COULD HAVE BEEN MADE BY TELEGRAM. FURTHERMORE, IT IS NOT BELIEVED THAT THE DELIVERY REQUIREMENT SHOULD BE TIED UP WITH "DATE OF AWARD," BUT RATHER SHOULD BE BASED UPON RECEIPT OF NOTICE OF AWARD. CERTAINLY, A BIDDER CANNOT DELIVER UNTIL HE KNOWS THAT HE IS REQUIRED TO DELIVER. IT WOULD APPEAR THAT A BIDDER IN COMPUTING THE TIME REQUIRED TO EFFECT DELIVERY NORMALLY WOULD NOT TAKE INTO CONSIDERATION THE TIME REQUIRED FOR AN AWARD TO BE DELIVERED TO HIM AND HE WOULD NOT KNOW WHETHER THE AWARD WOULD BE MADE BY ORDINARY MAIL, AIR MAIL OR TELEGRAPH.

WITH RESPECT TO THE SECOND BASIS OF SHIELDING'S PROTEST, IT IS REPORTED BY YOUR DEPARTMENT THAT SINCE A REVIEW OF THE PROCUREMENT DISCLOSES THAT THE REQUIREMENTS WERE IMPROPERLY COMPUTED, ITIS PROPOSED TO TERMINATE THE CONTRACT WITH ACE ENGINEERING FOR THE CONVENIENCE OF THE GOVERNMENT, RECOMPUTE THE REQUIREMENTS, AND INITIATE A NEW PROCUREMENT ACTION.

UNDER THE CIRCUMSTANCES, AND SINCE IT APPEARS THAT TECHNICALLY THE AWARD MADE TO ACE ENGINEERING COMPANY WAS LEGALLY PROPER, WE WILL NOT OBJECT TO THE CANCELLATION OF THE CONTRACT FOR THE CONVENIENCE OF THE GOVERNMENT.