B-136528, AUG. 6, 1958

B-136528: Aug 6, 1958

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TO MULT-A-FRAME DIVISION: REFERENCE IS MADE TO YOUR LETTER DATED JULY 23. CONTAINED AS PARAGRAPH 19 OF THE SPECIAL PROVISIONS THE FOLLOWING CONDITION: "* * * BIDS OFFERING LESS THAN SIXTY (60) DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE OF OPENING WILL BE CONSIDERED NON RESPONSIVE AND WILL BE REJECTED.'. CONSEQUENTLY YOUR BID WAS CONSIDERED BY THE PROCUREMENT AGENCY AS NON-RESPONSIVE TO THE INVITATION AND WAS REJECTED. YOU STATE THAT "A CLOSER EXAMINATION OF OUR PAPERS INDICATES THAT THERE WAS NO REFERENCE MADE TO A TIME LIMIT INSOFAR AS ACCEPTANCE OF THIS BID WAS CONCERNED.'. "WE CAN FIND NO REFERENCE ON OUR PAPERS WHERE ANY SPECIFIED ACCEPTANCE DATE WAS MENTIONED.'. IS A PHOTOSTATIC COPY OF YOUR BID UNDER THE INVITATION INVOLVED.

B-136528, AUG. 6, 1958

TO MULT-A-FRAME DIVISION:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 23, 1958, AND PREVIOUS CORRESPONDENCE, PROTESTING THE ACTION OF THE DISTRICT OF COLUMBIA NATIONAL GUARD IN REFUSING TO MAKE AN AWARD OF A CONTRACT TO YOU UNDER INVITATION NO. 49-089-N6-58-12.

ACCORDING TO A REPORT IN THE MATTER RECEIVED FROM THE U.S. PROPERTY AND FISCAL OFFICER FOR THE DISTRICT OF COLUMBIA, NATIONAL GUARD BUREAU, INVITATION 49-089-N6-58-12, REQUESTING BIDS FOR THE FURNISHING OF STORAGE RACKS FOR DELIVERY F.O.B. VARIOUS DESTINATIONS, CONTAINED AS PARAGRAPH 19 OF THE SPECIAL PROVISIONS THE FOLLOWING CONDITION:

"* * * BIDS OFFERING LESS THAN SIXTY (60) DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE OF OPENING WILL BE CONSIDERED NON RESPONSIVE AND WILL BE REJECTED.'

YOUR BID SUBMITTED UNDER THE INVITATION OFFERED ONLY 30 DAYS FOR ACCEPTANCE. CONSEQUENTLY YOUR BID WAS CONSIDERED BY THE PROCUREMENT AGENCY AS NON-RESPONSIVE TO THE INVITATION AND WAS REJECTED.

IN YOUR LETTER OF JUNE 23, 1958, TO THE U.S. PROPERTY AND FISCAL OFFICER- -- D.C., PROTESTING THE AWARD OF A CONTRACT UNDER THE INVITATION INVOLVED TO ANOTHER BIDDER, YOU STATE THAT "A CLOSER EXAMINATION OF OUR PAPERS INDICATES THAT THERE WAS NO REFERENCE MADE TO A TIME LIMIT INSOFAR AS ACCEPTANCE OF THIS BID WAS CONCERNED.' ALSO, IN CONNECTION WITH YOUR PROTEST, YOU STATED IN YOUR TELEGRAM OF JUNE 27, 1958, TO SENATOR POTTER,"WE CAN FIND NO REFERENCE ON OUR PAPERS WHERE ANY SPECIFIED ACCEPTANCE DATE WAS MENTIONED.'

WITH THE PAPERS SUBMITTED HERE BY THE PROCUREMENT AGENCY, IS A PHOTOSTATIC COPY OF YOUR BID UNDER THE INVITATION INVOLVED, SIGNED BY W. D. WALTON, CHIEF ENGINEER. IN THE SPACE PROVIDED ON THE FACE OF THE BID FOR THE PERIOD OF ACCEPTANCE IS THE FIGURE "30.' IN VIEW OF THE PROVISION IN THE INVITATION THAT BIDS OFFERING LESS THAN 60 DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE OF OPENING WOULD BE CONSIDERED NON- RESPONSIVE, THE ACTION TAKEN BY THE ADMINISTRATIVE OFFICE IN REJECTING YOUR BID APPEARS TO HAVE BEEN PROPER.

THE ADMINISTRATIVE OFFICE ALSO REPORTS THAT THE REQUIREMENT OF 60 DAYS FOR ACCEPTANCE IS CONSIDERED MINIMUM TO ALLOW FOR ENGINEERING EVALUATION OF POSSIBLE SUBSTITUTE OFFERINGS AND FOR FACILITY CAPABILITY REPORTS ON THE BIDDERS. SUCH REPORTS MAY BE REQUESTED ON ONLY ONE BIDDER AT A TIME AND REPORTS MAY BE REQUIRED ON SEVERAL BIDDERS BEFORE RECEIVING AN ACCEPTABLE REPORT. THUS, THE PROCUREMENT AGENCY APPEARS JUSTIFIED IN INCLUDING PARAGRAPH 10 IN THE INVITATION.

YOU STATE IN YOUR LETTER OF JULY 2, 1958, TO OUR OFFICE, THAT THE 30 DAYS ACCEPTANCE WAS MERELY A "TYPOGRAPHICAL" ERROR. THE 30 DAY ACCEPTANCE PERIOD ENTERED ON THE BID IS PLAINLY AND CLEARLY HANDWRITTEN, APPARENTLY BY THE PERSON WHO SIGNED THE BID, NAMELY W. D. WALTON, CHIEF ENGINEER. THE FACE OF THE BID THERE APPEARS NO REASON FOR THE CONTRACTING OFFICER TO SUSPECT ANY ERROR.

WITH REFERENCE TO YOUR LETTER IN WHICH YOU OFFERED TO WAIVE THIS TECHNICALITY WITH RESPECT TO THE ACCEPTANCE PERIOD AND TO FURNISH THE RACKS IN ACCORDANCE WITH THE SPECIFICATIONS, SUCH OFFER, HAVING BEEN RECEIVED AFTER THE OPENING OF BIDS, CANNOT PROPERLY BE GIVEN ANY CONSIDERATION. IN NUMEROUS DECISIONS OUR OFFICE HAS HELD THAT TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. IN SUPPORT OF THIS POSITION, ATTENTION IS INVITED TO THE CASE OF CITY OF CHICAGO V. MOHR, 216 I11. 320; 74 N. E. 1056, WHEREIN THE COURT STATED AS FOLLOWS:

"* * * WHERE A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--- A DIRECT VIOLATION OF LAW--- AND CANNOT BE TOO STRONGLY CONDEMNED.'

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHED NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BID WAS ILLEGAL OR IMPROPER.