B-133977, OCT. 30, 1957

B-133977, OCT. 30, 1957

TO LINCOLN ELECTRIC PRODUCTS COMPANY, INCORPORATED:

REFERENCE IS MADE TO LETTERS OF OCTOBER 2 AND 7, 1957, WRITTEN ON YOUR BEHALF BY AMRAM, HAHN AND SUNDLUN, PROTESTING A CONTEMPLATED AWARD OF A CONTRACT TO ANOTHER BIDDER PURSUANT TO INVITATION FOR BIDS NO. IFB-171-23- 58, COVERING THREE UNIT SUB-STATION LOAD CENTERS, ISSUED BY THE SUPPLY DEPARTMENT, UNITED STATES NAVAL GUN FACTORY. THE SUBSTANCE OF SUCH PROTEST IS THAT THE BID OF CONTINENTAL ELECTRIC EQUIPMENT COMPANY WAS NOT RECEIVED ON OR BEFORE THE TIME FIXED BY THE INVITATION FOR OPENING, AND THEREFORE WAS NOT PROPERLY ENTITLED TO CONSIDERATION. ALSO, IT IS CONTENDED THAT THE DELIVERY PROVISIONS OF THE INVITATION ARE AMBIGUOUS, AND THAT THE BID SUBMITTED BY CONTINENTAL ELECTRIC EQUIPMENT COMPANY IS EQUALLY AS INDEFINITE AS YOUR OFFER, AND THAT ALL BIDS SHOULD THEREFORE BE REJECTED AND THE PROPOSED PURCHASE READVERTISED.

WITH RESPECT TO THE FIRST ELEMENT OF YOUR PROTEST, DOUBT IS EXPRESSED AS TO WHETHER LATE DELIVERY OF THE BID OF CONTINENTAL ELECTRIC EQUIPMENT COMPANY WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE, RENDERING IT ELIGIBLE FOR CONSIDERATION UNDER THE PROVISIONS OF PARAGRAPH 4 OF THE INVITATION. AN INVESTIGATION OF THE MATTER CONDUCTED BY ADMINISTRATIVE OFFICE PERSONNEL DISCLOSED THAT THE BID WAS POSTED AS FIRST CLASS MAIL, UPON WHICH PROPER POSTAGE WAS PAID, AT THE CATONSVILLE, MARYLAND, POST OFFICE ON SEPTEMBER 12, 1957; THAT, IN THE OPINION OF THE SUPERINTENDENT OF MAILS IN BALTIMORE, MARYLAND, THE ENVELOPE WAS ERRONEOUSLY HANDLED AS THIRD CLASS MAIL, AND WOULD NORMALLY HAVE BEEN DELIVERED TO THE ADDRESSEE BEFORE THE TIME FIXED FOR OPENING IF PROPERLY HANDLED. TWO AGENTS OF THE BIDDER HAVE EXECUTED AFFIDAVITS TO THE EFFECT THAT THE ENVELOPE INVOLVED WAS MAILED AS STATED ABOVE BETWEEN THE HOURS OF 2:00 AND :00 P.M., ON SEPTEMBER 12, 1957. THE EVIDENCE OF RECORD APPEARS SUFFICIENT TO ESTABLISH THAT THE BID WAS TIMELY MAILED AND WE CONCUR WITH THE CONCLUSION OF THE ADMINISTRATIVE OFFICE THAT IT IS PROPERLY FOR CONSIDERATION. SEE, GENERALLY 36 COMP. GEN. 370.

THE SECOND CONTENTION MADE IN YOUR PROTEST IS THAT THE DELIVERY REQUIREMENTS OF THE INVITATION WERE VAGUE AND MISLEADING; THAT BOTH YOUR BID AND THAT OF CONTINENTAL ELECTRIC EQUIPMENT COMPANY OFFERED ONLY ALTERNATE DELIVERY DATES, WHICH WOULD JUSTIFY READVERTISING; AND, THAT AS A TECHNICAL MATTER, IT CAN BE SHOWN THAT THE EQUIPMENT CANNOT BE PRODUCED WITHIN THE 70 DAY DELIVERY PERIOD OFFERED BY THE LATTER BIDDER.

WE DO NOT AGREE THAT THE DELIVERY TERMS OF THE INVITATION WERE VAGUE OR MISLEADING. BIDDERS WERE PUT ON NOTICE THAT TIME OF DELIVERY WAS IMPORTANT; THAT THE EQUIPMENT WAS DESIRED BY DECEMBER 1, 1957; AND, THAT IF DELIVERY BY THAT DATE WAS NOT POSSIBLE, BIDDERS WERE REQUIRED TO SHOW THE NUMBER OF DAYS AFTER THE DATE OF THE CONTRACT IN WHICH PERFORMANCE WOULD BE COMPLETED AND SPECIFICALLY ADVISED THAT AWARD MIGHT BE MADE ON THE BASIS OF EARLIER DELIVERY. THE BID OF CONTINENTAL ELECTRIC EQUIPMENT COMPANY COMPLIED WITH THE DIRECTIVE OF THE INVITATION BY STATING A DEFINITE NUMBER OF DAYS AFTER THE CONTRACT DATE WITHIN WHICH DELIVERY WOULD BE MADE.

HOWEVER, YOUR BID FIXED NO DEFINITE DATE AS TO WHEN THE EQUIPMENT WOULD BE DELIVERED. TIME FOR PERFORMANCE WAS MADE CONTINGENT UPON THE APPROVAL OF DRAWINGS, WHICH WERE NOT CALLED FOR IN THE INVITATION AND WHICH THE CONTRACTING OFFICER STATES ARE NOT CONSIDERED NECESSARY, AND MOREOVER THERE WAS NO STIPULATION AS TO WHEN THE DRAWINGS WOULD BE SUBMITTED. CLEARLY SUCH OFFER IS INDEFINITE AND SHOULD NOT BE CONSIDERED.

THE BASIS UPON WHICH YOU CONTEND THAT CONTINENTAL ELECTRIC EQUIPMENT COMPANY WILL NOT BE ABLE TO COMPLETE THE CONTRACT WITHIN THE 70 DAY PERFORMANCE PERIOD STIPULATED IS NOT UNDERSTOOD. WHILE SUCH CONTENTION APPEARS FRIVOLOUS IT MAY BE STATED THAT A REPORT BY A REGIONAL NAVY INSPECTOR DISCLOSES THAT THE SUBJECT CONCERN PRODUCED 10 SIMILAR UNITS WITHIN 71 DAYS UNDER A RECENT CONTRACT WITH THE DEPARTMENT OF THE NAVY, AND THAT, IN THE OPINION OF THAT INSPECTOR, THE CONTRACTOR POSSESSES THE PHYSICAL AND FINANCIAL ABILITY TO COMPLY WITH THE TERMS OF ITS OFFER.

FOR THE REASONS ABOVE STATED, IT IS OUR CONCLUSION THAT THE REJECTION OF ALL BIDS IS NOT JUSTIFIED OR REQUIRED; THAT YOUR BID WAS NOT RESPONSIVE AND THEREFORE PROPERLY DISREGARDED; AND THAT THERE IS NO LEGAL BASIS FOR OBJECTION BY OUR OFFICE TO THE PROPOSED AWARD TO THE CONTINENTAL ELECTRIC EQUIPMENT COMPANY.