B-131245, MAY 15, 1957

B-131245: May 15, 1957

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TO THOR POWER TOOL COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 26. THE DELIVERY PROVISIONS OF THE INVITATION WERE CHANGED TO READ: "DELIVERY: THE GOVERNMENT DESIRES DELIVERY OF THE ARTICLES LISTED HEREIN AS FOLLOWS: START WITHIN 60 DAYS AND BE COMPLETE WITH 150 DAYS AFTER DATE OF AWARD AT THE RATE OF 39 EACH WITHIN 60 DAYS AFTER DATE OF AWARD AND 40 EACH PER MONTH UNTIL COMPLETE. "IF BIDDER IS UNABLE TO MEET THE ABOVE DELIVERY SCHEDULE. SET FORTH BELOW THE DELIVERY SCHEDULE HE IS PREPARED TO MEET PROVIDED. "BIDS PROPOSING DELIVERY AFTER THAT PERIOD WILL BE CONSIDERED NONRESPONSIVE TO THE INVITATION AND WILL BE REJECTED. THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE STATED ABOVE WILL APPLY.'.

B-131245, MAY 15, 1957

TO THOR POWER TOOL COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 26, 1957, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER BY THE WARNER ROBINS AIR MATERIEL AREA PURSUANT TO INVITATION FOR BID NO. 09-603-57 336 ISSUED OCTOBER 26, 1956.

BY AMENDMENT NO. 1 DATED NOVEMBER 7, 1956, THE DELIVERY PROVISIONS OF THE INVITATION WERE CHANGED TO READ:

"DELIVERY: THE GOVERNMENT DESIRES DELIVERY OF THE ARTICLES LISTED HEREIN AS FOLLOWS: START WITHIN 60 DAYS AND BE COMPLETE WITH 150 DAYS AFTER DATE OF AWARD AT THE RATE OF 39 EACH WITHIN 60 DAYS AFTER DATE OF AWARD AND 40 EACH PER MONTH UNTIL COMPLETE.

"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 THE MAXIMUM DELIVERY AS FOLLOWS:

"START WITHIN 90 DAYS AND BE COMPLETE WITHIN 210 DAYS AFTER DATE OF AWARD, AT THE RATE OF 31 EACH WITHIN 90 DAYS AFTER DATE OF AWARD AND 32 EACH PER MONTH UNTIL COMPLETE.

"BIDS PROPOSING DELIVERY AFTER THAT PERIOD WILL BE CONSIDERED NONRESPONSIVE TO THE INVITATION AND WILL BE REJECTED. IF BIDDER DOES NOT STATE A DIFFERENT DELIVERY SCHEDULE, THE GOVERNMENT'S DESIRED DELIVERY SCHEDULE STATED ABOVE WILL APPLY.'

YOUR BID WAS LOW. HOWEVER, YOU OFFERED THE FOLLOWING DELIVERY SCHEDULE:

"START WITHIN 90 DAYS AND BE COMPLETE WITHIN 150 DAYS AFTER DATE OF AWARD AT THE RATE OF 20 EACH WITHIN 90 DAYS AFTER DATE OF AWARD AND 65 EACH PER MONTH UNTIL COMPLETE.'

SINCE THE DELIVERY SCHEDULE YOU OFFERED WOULD HAVE RESULTED IN A SHORTAGE OF 9 UNITS WITHIN THE TIME OF 150 DAYS, THE CONTRACTING OFFICER REQUESTED VERIFICATION OF YOUR DELIVERY SCHEDULE. IN REPLY, YOU REQUESTED THAT YOUR PROPOSED DELIVERY BE CHANGED TO READ:

"20 IN 90 DAYS

65 IN 120 DAYS

74 IN 150 DAYS FROM DATE OF AWARD.'

SINCE THE DELIVERY OFFERED DID NOT COMPLY WITH THE REQUIREMENT OF THE INVITATION THAT 31 UNITS BE DELIVERED WITHIN 90 DAYS AFTER DATE OF AWARD, THE CONTRACTING OFFICER REJECTED YOUR BID AS NONRESPONSIVE, AND AWARD WAS MADE TO THE NEXT LOW BIDDER ON JANUARY 31, 1957. YOU PROTEST THE REJECTION OF YOUR BID ON THE BASIS THAT THERE IS NO URGENCY IN CONNECTION WITH THE PROCUREMENT AS INDICATED BY THE REQUIREMENT THAT THE DRILLS BE PACKAGED FOR LONG-TIME STORAGE, AND ALSO BY THE LAPSE OF TIME FROM BID OPENING TO PLACING OF THE CONTRACT. YOU FURTHER PROTEST ON THE BASIS THAT, EVEN ASSUMING THE URGENCY OF THE REQUIREMENT, YOUR BID OFFERS TOTAL DELIVERY IN LESS TIME THAN REQUIRED UNDER THE TERMS OF THE INVITATION.

THE REPORT RECEIVED FROM THE DEPARTMENT OF THE AIR FORCE INDICATES THAT THE DELIVERY REQUIREMENTS HAVE BEEN VERIFIED, IT HAS BEEN DETERMINED THAT THEY ARE URGENT AND THE GOVERNMENT REQUIRES THE DELIVERY OF THE FIRST 31 UNITS AS SPECIFIED. IN REGARD TO YOUR CONTENTION THAT THE METHOD OF PACKAGING REQUIRED INDICATED THAT NO URGENT NEED EXISTED, IT IS REPORTED THAT THE TYPE OF PACKING SPECIFIED IS THAT USUALLY USED FOR SHIPMENT WITHIN THE UNITED STATES. IT IS STATED FURTHER THAT THE PACKING SPECIFIED IS IN NO WAY INDICATIVE OF THE URGENCY OF THE REQUIREMENTS FOR THE EQUIPMENT; AND PACKING INSTRUCTIONS WILL BE RECONSIDERED WHEN THE ACTUAL DESTINATIONS OF THE SUPPLIES UNDER PROCUREMENT ARE DETERMINED AND, IF NECESSARY, AMENDED BY CHANGE ORDER WHICH WILL REFLECT ANY NECESSARY ADJUSTMENT IN PRICE.

REGARDLESS OF THE JUSTIFICATION FOR THE DELIVERY REQUIREMENT, IT IS PRESUMED THAT THE SIGNIFICANT TERMS OF THE INVITATION INCLUDING THE DELIVERY SCHEDULE REPRESENT THE ACTUAL NEEDS OF THE GOVERNMENT. WE HAVE CONSISTENTLY HELD THAT WHERE AN INVITATION REQUIRES DELIVERY BY A STATED TIME AND A RESPONSIVE BID IS RECEIVED, THE CONTRACTING OFFICER HAS NO AUTHORITY TO MAKE AN AWARD TO A LOWER BIDDER WHO DID NOT AGREE IN HIS BID TO MEET THE DELIVERY REQUIREMENTS. SEE, FOR EXAMPLE, 36 COMP. GEN. 181. THE PRINCIPLE IS EQUALLY APPLICABLE WHETHER THE LOW BID IS NOT IN ACCORDANCE WITH THE FINAL DELIVERY DATE OR ONE OR MORE OF THE INTERIM DELIVERY DATES.

THEREFORE, WE PERCEIVE NO LEGAL BASIS UPON WHICH WE MAY OBJECT TO THE ADMINISTRATIVE DETERMINATION TO REJECT YOUR BID.