B-136303, DEC. 29, 1959

B-136303, DEC. 29, 1959

TO THE SECRETARY OF DEFENSE:

WE HAVE RECEIVED A LETTER DATED DECEMBER 4, 1959, FROM THE ASSISTANT SECRETARY (SUPPLY AND LOGISTICS) WITH RESPECT TO CERTAIN CORRESPONDENCE CARRIED ON LARGELY WITH THE DEPARTMENT OF THE NAVY CONCERNING THE PROPRIETY OF ADVERTISING, AND AWARDING, CONTRACTS INCLUDING A DELIVERY REQUIREMENT STATED IN TERMS OF A PERIOD OR TIME AFTER DATE OF CONTRACT OR AWARD. A COPY OF OUR LETTER OF JUNE 23, 1959, B-136303, TO THE SECRETARY OF THE NAVY WAS FURNISHED TO YOUR OFFICE.

IT HAS BEEN OUR POSITION WITH RESPECT TO THE MATTER THAT GREATER COMPETITION IN THE AWARD OF GOVERNMENT CONTRACTS CAN BE OBTAINED IF THE DELIVERY REQUIREMENT IS EXPRESSED IN THE INVITATION IN SUCH TERMS AS TO PERMIT THE BIDDER TO DETERMINE, IF AWARDED THE CONTRACT, EXACTLY HOW MUCH TIME HE WILL HAVE WITHIN WHICH TO PERFORM. NEVERTHELESS, WE RECOGNIZE, AS NOTED IN THE LETTER OF DECEMBER 4, THAT IN SOME INSTANCES IT IS NOT ADMINISTRATIVELY FEASIBLE TO SPECIFY DELIVERY TIME IN TERMS OF DATE OF RECEIPT OF NOTICE OF AWARD RATHER THAN DATE OF CONTRACT OR AWARD. WHERE THE INVITATION CALLS FOR DELIVERY BASED ON DATE OF CONTRACT OR AWARD, WE BELIEVE THAT THE INCLUSION IN THE ASPR (AS IS PRESENTLY PROPOSED) OR A PROVISION UNDER WHICH BIDS OFFERING DELIVERY BASED ON DATE OF RECEIPT OF AWARD WILL BE REGARDED AS RESPONSIVE PROVIDING THE DELIVERY TIME OFFERED PLUS NORMAL MAIL TIME DOES NOT EXCEED THE REQUIRED DELIVERY SCHEDULE WILL BE MOST SALUTARY. TO BE ACCEPTABLE, HOWEVER, IT IS OUR VIEW THAT BIDDERS SHOULD BE APPRISED BY THE TERMS OF THE INVITATION THAT SUCH BIDS WILL BE REGARDED AS RESPONSIVE AND CONSIDERED FOR AWARD ON THE BASIS SUBMITTED. THE FOLLOWING LANGUAGE, OR LANGUAGE OF SIMILAR EFFECT, IS SUGGESTED FOR INCLUSION IN THE INVITATION:

"BIDDERS MAY OFFER DELIVERY BASED ON TIME OF RECEIPT OF AWARD. IN SUCH CASES, BIDDERS ARE WARNED THAT THEIR BIDS WILL BE EVALUATED BY ADDING TO THEIR OFFERED DELIVERY TIME THE TIME REQUIRED FOR NOTICE OF AWARD TO ARRIVE THROUGH THE ORDINARY MAILS, AS DETERMINED BY THE CONTRACTING OFFICER.'

IT IS FURTHER REPORTED IN THE LETTER OF DECEMBER 4, THAT THE ASPR NOW DIRECTS THAT THE AWARD BE MAILED ON THE DAY IT IS DATED AND THAT THE ASPR IS BEING REVISED TO REQUIRE THAT SUCH POLICY BE STATED IN THE INVITATION. SINCE, ACCORDING TO THE INFORMATION FURNISHED IN THE LETTER, THE POST OFFICE NO LONGER DATE POSTMARKS GOVERNMENT MAIL EXCEPT UPON SPECIAL REQUEST, IT APPEARS THAT THE ONLY EVIDENCE WHICH WOULD BE AVAILABLE WITH RESPECT TO THE DATE OF AWARD IN THE EVENT OF A DISPUTE BETWEEN THE PARTIES WOULD BE THE SELF-SERVING STATEMENT OF THE CONTRACTING AGENCY. WE BELIEVE EFFECTIVE ADMINISTRATIVE PROCEDURES SHOULD BE ESTABLISHED TO INSURE THAT THE INTENT OF THE PROVISION IS CARRIED OUT.

THE FOREGOING SHOULD NOT BE REGARDED AS CONCLUSIVE UPON OUR DETERMINATION WITH RESPECT TO AN ACTUAL INSTANCE WITHIN OUR PURVIEW.