B-137954, DEC. 29, 1959

B-137954: Dec 29, 1959

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THE SECTION FURTHER PROVIDES THAT WHERE TYPE 2 OR A VERSION OF TYPE 3 IS EMPLOYED. THE INVITATION SHALL (AND THE REQUEST FOR PROPOSALS MAY) CONTAIN AN APPROPRIATE CLAUSE ADVISING PROSPECTIVE CONTRACTORS THAT THE DATE OF THE CONTRACT IS THE DATE ON WHICH WRITTEN NOTICE OF AWARD IS MAILED OR OTHERWISE FURNISHED THE CONTRACTOR AND. EXACTLY HOW MUCH TIME HE WILL HAVE WITHIN WHICH TO PERFORM. WE HAVE PREVIOUSLY STATED THIS VIEW IN 38 COMP. WHERE COMPETITION IS REDUCED IT MAY REASONABLY BE ASSUMED THAT THE COST INCREASES. IS NOT ADMINISTRATIVELY FEASIBLE. WILL NOT EXCEED THE MAXIMUM PERMISSIBLE DELIVERY TIME AFTER DATE OF CONTRACT. 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.

B-137954, DEC. 29, 1959

TO THE HONORABLE FRANKLIN FLOETE:

WE REFER TO A MEMORANDUM OF DECEMBER 2, 1959, FROM THE ASSISTANT COMMISSIONER, OFFICE OF PROCUREMENT POLICY, REQUESTING OUR REVIEW OF PROPOSED FPR SECTION 1-1.316, COVERING POLICY AND PROCEDURES ON THE USE OF TIME OF DELIVERY OR PERFORMANCE REQUIREMENTS IN CONTRACTING FOR SUPPLIES AND SERVICES.

SUBSECTION 1-1.316-6 PROVIDES THAT TIME FOR DELIVERY OR PERFORMANCE MAY BE EXPRESSED IN TERMS OF (1) SPECIFIED PERIODS FROM DATE OF RECEIPT BY THE CONTRACTOR OF NOTICE OF AWARD OR NOTICE TO PROCEED, (2) SPECIFIED PERIODS FROM DATE OF CONTRACT OR (3) SPECIFIED CALENDAR DATES. THE SECTION FURTHER PROVIDES THAT WHERE TYPE 2 OR A VERSION OF TYPE 3 IS EMPLOYED, THE INVITATION SHALL (AND THE REQUEST FOR PROPOSALS MAY) CONTAIN AN APPROPRIATE CLAUSE ADVISING PROSPECTIVE CONTRACTORS THAT THE DATE OF THE CONTRACT IS THE DATE ON WHICH WRITTEN NOTICE OF AWARD IS MAILED OR OTHERWISE FURNISHED THE CONTRACTOR AND, THEREFORE, THAT IN COMPUTING THE TIME AVAILABLE FOR PERFORMANCE, THE BIDDER SHOULD CONSIDER THE TIME REQUIRED FOR NOTICE TO ARRIVE THROUGH THE ORDINARY MAILS.

IT APPEARS DESIRABLE FROM THE VIEWPOINT OF OBTAINING THE GREATEST AMOUNT OF COMPETITION TO EXPRESS THE DELIVERY REQUIREMENT IN THE INVITATION (OR THE REQUEST FOR PROPOSALS) 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. WE HAVE PREVIOUSLY STATED THIS VIEW IN 38 COMP. GEN. 98; B-136303, JUNE 23, 1959; AND B-124381, SEPTEMBER 16, 1955. ALSO BELIEVE, AS INDICATED IN THE CITED CASES, THAT THE FIXING OF DELIVERY REQUIREMENTS BY REFERENCE TO DATE OF AWARD, RATHER THAN TO DATE OF RECEIPT OF NOTICE BY THE CONTRACTOR, COULD TEND TO DETER RESPONSIBLE BUT CAUTIOUS SUPPLIERS FROM BIDDING, THUS REDUCING COMPETITION. WHERE COMPETITION IS REDUCED IT MAY REASONABLY BE ASSUMED THAT THE COST INCREASES.

WE RECOGNIZE THAT IN SOME INSTANCES THE SPECIFICATION OF DELIVERY TIME IN TERMS OF DATE OF RECEIPT OF NOTICE OF AWARD RATHER THAN DATE OF CONTRACT OR AWARD, IS NOT ADMINISTRATIVELY FEASIBLE. IN SUCH INSTANCES, WE BELIEVE THE REGULATIONS SHOULD PROVIDE FOR THE INCLUSION IN THE INVITATION OF A CLAUSE ADVISING BIDDERS THAT BIDS OFFERING DELIVERY WITHIN A TIME AFTER RECEIPT OF NOTICE OF AWARD WHICH, WHEN ADDED TO THE NORMAL MAIL TIME BETWEEN THE CONTRACTING OFFICE AND THE BIDDER'S LOCATION, WILL NOT EXCEED THE MAXIMUM PERMISSIBLE DELIVERY TIME AFTER DATE OF CONTRACT, SHALL BE REGARDED AS RESPONSIVE AND CONSIDERED FOR AWARD ON THE BASIS OF THE BID. WE SUGGEST THE USE OF LANGUAGE ALONG THE FOLLOWING LINES:

"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.'

FURTHER, CLAUSES PROPOSED IN SUBSECTIONS 1-1.316-8 AND 1-1.316-9 (A) WOULD PROVIDE THAT THE CONTRACT DATE IS THE DATE ON WHICH THE AWARD IS MAILED OR OTHERWISE FURNISHED. WE HAVE BEEN ADVISED THAT THE POST OFFICE DEPARTMENT NO LONGER DATE POSTMARKS GOVERNMENT MAIL EXCEPT UPON SPECIAL REQUEST. UNDER THE PROPOSED SECTION CERTIFIED MAIL, RETURN RECEIPT REQUESTED, WOULD BE USED ONLY WHEN THE DELIVERY DATE IS BASED ON TIME OF RECEIPT OF NOTICE OF AWARD. WHILE SUBSECTION 1-1.316-10 WOULD REQUIRE THAT THE NOTICE OF AWARD (OR NOTICE TO PROCEED) BEAR THE DATE ON WHICH IT IS MAILED OR OTHERWISE FURNISHED, THE ONLY EVIDENCE AVAILABLE WITH RESPECT TO THE DATE OF AWARD, AND THE DATE FROM WHICH THE DELIVERY PERIOD BEGINS TO RUN, WOULD BE THE SELF-SERVING STATEMENT OF THE CONTRACTING AGENCY. BELIEVE EFFECTIVE ADMINISTRATIVE PROCEDURES SHOULD BE ESTABLISHED TO INSURE THAT THE INTENT OF SUBSECTION 1-1.316-10 IS CARRIED OUT.

THE FOREGOING SHOULD NOT BE REGARDED AS CONCLUSIVE UPON OUR DETERMINATION WITH RESPECT TO AN ACTUAL INSTANCE WITHOUT OUR PURVIEW.