B-127221, APR. 4, 1956

B-127221: Apr 4, 1956

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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 5. IT WAS PROVIDED. AN ADDITIONAL QUANTITY OF THE ITEMS COVERED BY THIS INVITATION HAS BEEN "SET-ASIDE" FOR SUBSEQUENT NEGOTIATION EXCLUSIVELY WITH FIRMS WHO (1) ARE LOCATED IN DESIGNATED DISASTER AREAS. (2) WILL PERFORM NOT LESS THAN 60 PERCENT OF THE DOLLAR VALUE OF ANY RESULTING CONTRACT IN DESIGNATED DISASTER AREA. (3) HAVE SUBMITTED A BID UPON THE ITEMS COVERED BY THIS INVITATION AT A UNIT PRICE WITHIN 120 PERCENT OF THE HIGHEST AWARD MADE WITH RESPECT TO THE ITEMS COVERED BY THIS INVITATION.'. BIDS WERE OPENED ON NOVEMBER 14. AWARD OF THE NON-SET ASIDE PORTION OF THE PROCUREMENT WAS MADE TO THE AMERICAN TENT AND AWNING COMPANY AT A NET PRICE OF $141.83 EACH.

B-127221, APR. 4, 1956

TO DOHERTY MANUFACTURING COMPANY, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 5, 1956, PROTESTING THE ACTION OF THE DEPARTMENT OF THE AIR FORCE IN FAILING TO ACCEPT YOUR BID SUBMITTED PURSUANT TO INVITATION FOR BIDS NO. 42-600-56 55, HILL AIR FORCE BASE, UTAH.

THE SUBJECT INVITATION, ISSUED SEPTEMBER 14, 1955, PROVIDED FOR THE FURNISHING OF A QUANTITY OF TOW TARGETS. BY AMENDMENT NO. 1, DATED SEPTEMBER 30, 1955, IT WAS PROVIDED, IN PERTINENT PART THAT---

"PURSUANT TO DEFENSE MOBILIZATION ORDER VII-7, AN ADDITIONAL QUANTITY OF THE ITEMS COVERED BY THIS INVITATION HAS BEEN "SET-ASIDE" FOR SUBSEQUENT NEGOTIATION EXCLUSIVELY WITH FIRMS WHO (1) ARE LOCATED IN DESIGNATED DISASTER AREAS, (2) WILL PERFORM NOT LESS THAN 60 PERCENT OF THE DOLLAR VALUE OF ANY RESULTING CONTRACT IN DESIGNATED DISASTER AREA, AND (3) HAVE SUBMITTED A BID UPON THE ITEMS COVERED BY THIS INVITATION AT A UNIT PRICE WITHIN 120 PERCENT OF THE HIGHEST AWARD MADE WITH RESPECT TO THE ITEMS COVERED BY THIS INVITATION.'

BIDS WERE OPENED ON NOVEMBER 14, 1955, AND AWARD OF THE NON-SET ASIDE PORTION OF THE PROCUREMENT WAS MADE TO THE AMERICAN TENT AND AWNING COMPANY AT A NET PRICE OF $141.83 EACH. IT WAS THEN ADMINISTRATIVELY DETERMINED THAT ONLY TWO BIDDERS--- YOUR FIRM AND PLAIKINS, INC., OF PATERSON, NEW JERSEY--- QUALIFIED AS "DISASTER AREA FIRMS" ELIGIBLE FOR ADDITIONAL NEGOTIATION OF THE SET-ASIDE QUANTITY AS CONTEMPLATED BY AMENDMENT NO. 1, SUPRA. SINCE YOUR ORIGINAL BID WAS LOWER THAN THAT OF PLAIKINS, INC., YOU WERE REQUESTED TO MEET THE COMPETITIVE BID PRICE OF $141.83 OR TO SUBMIT YOUR BEST POSSIBLE PRICE ON OR BEFORE JANUARY 18, 1956. ON THE DEADLINE DATE YOU SUBMITTED A TELEGRAPHIC QUOTATION OF A NET UNIT PRICE OF $150.93. THEREUPON, SINCE YOU HAD FAILED TO MEET THE COMPETITIVE PRICE, PLAIKINS, INC., WAS REQUESTED TO MEET IT OR TO SUBMIT ITS BEST POSSIBLE PRICE BY FEBRUARY 8, 1956 (LATER EXTENDED TO FEBRUARY 11).

ON FEBRUARY 9, 1956, YOU WIRED A SECOND QUOTATION WHICH REDUCED YOUR NET UNIT PRICE TO $141.83. CONSIDERATION OF THIS REVISED BID WAS HELD IN ABEYANCE BY THE CONTRACTING AGENCY PENDING THE RECEIPT OF THE QUOTATION OF PLAIKINS, INC., WHICH WAS RECEIVED ON FEBRUARY 10 STIPULATED A NET UNIT PRICE OF $141.82, LESS A DISCOUNT OF 1/20TH OF ONE PERCENT FOR PAYMENT WITHIN 10 DAYS. AWARD TO PLAIKINS, INC., WAS THEN DECIDED UPON BY THE CONTRACTING OFFICER, ON THE FOLLOWING GROUNDS:

"A. DOHERTY MANUFACTURING COMPANY WAS GIVEN THE FIRST OPPORTUNITY TO MEET THE NON-SET-ASIDE PRICE BUT FAILED TO DO SO WITHIN THE TIME ALLOWED.

"B. PLAIKINS, INC. MET THE NON-SET-ASIDE PRICE WITHIN THE TIME LIMIT SPECIFIED.

"C. THE PLAIKINS, INC. UNIT PRICE WAS LOWER THAN THE NON-SET-ASIDE PRICE AND IT WAS DETERMINED THAT AN ADDITIONAL SAVING OF $293.30 IN TRANSPORTATION COSTS WOULD RESULT.'

IN PROTESTING THE CONTEMPLATED AWARD, YOU STATE THAT YOURS WAS THE ONLY BID THAT QUALIFIED WITHIN DEFENSE MOBILIZATION ORDER VII-7 IN EVERY RESPECT AS OUTLINED IN AMENDMENT NO. 1, QUOTED ABOVE; THAT YOU WERE THE ONLY BIDDER ON THE SET-ASIDE PORTION THAT INDICATED COMPLIANCE WITH PARAGRAPH 6 OF AMENDMENT NO. 3; AND THAT YOU OPENED NEGOTIATIONS ON JANUARY 12, 1956, AT THE REQUEST OF HILL AIR FORCE BASE AND THAT YOU CONTINUED SUCH NEGOTIATIONS UNTIL INFORMED OF THE PROPOSED AWARD TO PLAIKINS, INC.

OBVIOUSLY, YOUR FIRST CONTENTION HAS NO MERIT SINCE THE RECORD CLEARLY SHOWS THAT THE PLANT OF PLAIKINS, INC., IS LOCATED IN WHAT HAS BEEN DESIGNATED AS A DISASTER AREA; THAT IT HAS AGREED TO MANUFACTURE THE ENTIRE QUANTITY OF TOW TARGETS AT SUCH LOCATION; AND THAT ITS ORIGINAL BID WAS FOR A UNIT PRICE WHICH WAS WITHIN 120 PERCENT OF THE PRICE ACCEPTED FOR THE NON-SET-ASIDE PORTION OF THE INVITATION--- ALL IS REQUIRED BY AMENDMENT NO. 1.

PARAGRAPH 6 OF AMENDMENT NO. 3 TO THE INVITATION PROVIDES THAT BIDS INDICATING LESS THAN 60 DAYS ACCEPTANCE MAY BE CONSIDERED NON RESPONSIVE TO THE INVITATION. WHILE IT APPEARS THAT THE BID OF PLAIKINS, INC., STIPULATED ACCEPTANCE WITHIN 10 DAYS, THE GOVERNMENT WAS NOT THEREFORE, REQUIRED TO REJECT THE BID AS NOT BEING RESPONSIVE. THE WORD "MAY" IS USUALLY ONLY PERMISSIVE OR DISCRETIONARY AND NOT MANDATORY. IT IS DEFINED AS AN AUXILIARY VERB BY EXPRESSING ABILITY, CONTINGENCY, OR LIABILITY, OR POSSIBILITY OR PROBABILITY. SEE U.S. V. LEXINGTON MILL AND ELEVATOR CO., 232 U.S. 399; NATIONAL CONTRACTING CO. V. COMMONWEALTH, 66 N.E. 639.

AS INDICATED ABOVE, YOUR FIRM AND PLAIKINS, INC., CLEARLY QUALIFIED FOR FURTHER NEGOTIATIONS LOOKING TOWARD AN AWARD OF THE SET-ASIDE PORTION OF THE PROCUREMENT. UPON YOUR FAILURE TO MEET THE LOWEST RESPONSIBLE BIDDER'S PRICE AS TO THE NON-SET-ASIDE PORTION, THE CONTRACTING AGENCY, UNDER APPLICABLE STATUTORY NEGOTIATION AUTHORITY AND PROCUREMENT PROCEDURES, PROPERLY SOLICITED A FURTHER OFFER FROM PLAIKINS, INC. IN ADDITION TO MEETING THE COMPETITIVE LOW BID, LESS DISCOUNT, THE OFFER OF PLAIKINS, INC., HAS BEEN ADMINISTRATIVELY FOUND TO OFFER A SAVING TO THE GOVERNMENT IN TRANSPORTATION COSTS AMOUNTING TO $293.30.

IN THE CIRCUMSTANCES, AND SINCE THERE IS NO EVIDENCE TO SHOW THAT THE NEGOTIATING AUTHORITY OF THE DEPARTMENT OF THE AIR FORCE WAS EXCEEDED OR ABUSED, OUR OFFICE WOULD NOT BE JUSTIFIED IN INTERPOSING ANY OBJECTION TO THE PROPOSED AWARD TO PLAIKINS, INC. ..END :