B-140071, SEP. 29, 1959

B-140071, SEP. 29, 1959

TO CARL L. SHIPLEY, ESQUIRE:

IN YOUR LETTER OF JUNE 29, 1959, YOU PROTESTED ON BEHALF OF YOUR CLIENT, BUHL OPTICAL CO., THE AWARD OF A CONTRACT TO ANYONE OTHER THAN YOUR CLIENT UNDER INVITATION FOR BIDS AV-23-207-59-15 OF THE U.S. ARMY SUPPORT CENTER, ST LOUIS, MISSOURI.

THE INVITATION FOR BIDS, ISSUED APRIL 24, 1959, CONTAINED STANDARD PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS, THUS RESERVING THE RIGHT OF THE GOVERNMENT TO REJECT ANY OR ALL BIDS. PARAGRAPH 3 OF THE SPECIAL PROVISIONS PERTAINS TO AWARDS AND PROVIDES AS FOLLOWS:

"THE AWARD OF ANY CONTRACT HEREUNDER SHALL BE MADE ONLY AFTER DUE CONSIDERATION AND EVALUATION OF THE FOLLOWING FACTORS:

"/A) BIDS OFFERING DELIVERY WITHIN THE ACCEPTABLE TIME LIMITS STATED ELSEWHERE IN THIS INVITATION FOR BIDS SHALL BE CONSIDERED RESPONSIVE TO THE DELIVERY REQUIREMENTS OF THE INVITATION AND SHALL BE EVALUATED EQUALLY.

"/B) BIDS OFFERING DELIVERY BEYOND THE ACCEPTABLE TIME LIMITS STATED ELSEWHERE IN THIS INVITATION FOR BIDS SHALL BE REJECTED AS NON RESPONSIVE.'

ALSO, PARAGRAPH 11 OF THE SPECIAL PROVISIONS PROVIDES THAT:

"DELIVERY SHALL BE MADE WITHIN --- CALENDAR DAYS AFTER RECEIPT BY THE CONTRACTOR OF DELIVERY ORDER. FAILURE OF THE BIDDER TO INSERT HEREIN ANY SPECIFIED NUMBER OF CALENDAR DAYS INDICATING DELIVERY TIME SHALL BE CONSTRUED TO MEAN THAT DELIVERY SHALL BE MADE WITHIN SEVENTY TWO (72) HOURS (MAXIMUM) EXCLUDING SATURDAYS, SUNDAYS OR NATIONAL HOLIDAYS, AFTER RECEIPT BY THE CONTRACTOR OF DELIVERY ORDER.'

SIX BIDS WERE RECEIVED. THREE BIDDERS MADE ENTRIES IN THE BLANK SPACE OF PARAGRAPH 11 SPECIFYING DELIVERIES RANGING FROM FIVE DAYS TO TWO MONTHS; THE OTHER THREE BIDDERS, INCLUDING BUHL, MADE NO ENTRY THEREIN. ATLANTIC RESEARCH CORPORATION, WHICH WAS THE LOWEST BIDDER ACCORDING TO PRICE, HAD STIPULATED 15 DAYS DELIVERY TIME. AS THE LOWEST BIDDER ATLANTIC RESEARCH CORPORATION INQUIRED AS TO THE AWARD. UPON BEING ADVISED OF THE GOVERNMENT'S FAILURE TO STATE THE LATEST ACCEPTABLE DELIVERY TIME AND THE RESULTING AMBIGUITY BETWEEN PARAGRAPHS 3 AND 11, ATLANTIC RESEARCH CORPORATION OFFERED TO DELIVER WITHIN FIVE DAYS. NO PROTEST WAS FILED BY ATLANTIC, HOWEVER.

PURSUANT TO PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS ALL BIDS WERE REJECTED AND THE PROCUREMENT WAS READVERTISED. BECAUSE OF THE AMBIGUITY RESULTING FROM THE FAILURE TO SPECIFY THE LATEST ACCEPTABLE DELIVERY TIME, AND IN VIEW OF THE SUBSTANTIAL PRICE DIFFERENTIAL ($2,600) BETWEEN THE LOWEST AND NEXT LOWEST BID, THE DEPARTMENT OF THE ARMY CONCLUDED THAT IT WAS IN THE BEST INTERESTS OF THE GOVERNMENT TO REJECT ALL BIDS. ONLY FOUR BIDS WERE RECEIVED IN RESPONSE TO THE SECOND INVITATION AND ONCE AGAIN ATLANTIC RESEARCH CORPORATION WAS THE LOWEST BIDDER. AN AWARD TO THAT COMPANY WAS MADE.

YOUR PROTEST IS BASED UPON THE PROPOSITION THAT THE INVITATION FOR BIDS MAKES IT PERFECTLY CLEAR THAT ANY DELIVERY TIME INSERTED IN THE BLANK OF PARAGRAPH 11 MUST BE LESS THAN 72 HOURS AND, SINCE ATLANTIC RESEARCH CORPORATION INSERTED 5 (ACTUALLY 15) DAYS, ITS BID MUST BE REJECTED AND THE BID OF BUHL OPTICAL CO. MUST BE ACCEPTED BECAUSE THAT COMPANY IS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER.

WE CANNOT AGREE. PARAGRAPH 11 DOES NOT REQUIRE THE INSERTION OF ANY SPECIFIED NUMBER OF CALENDAR DAYS. THE SECOND SENTENCE OF THAT PARAGRAPH MERELY PROVIDES THAT A BIDDER'S FAILURE TO INSERT ANY SPECIFIED NUMBER OF CALENDAR DAYS SHALL BE CONSTRUED TO MEAN 72 HOURS DELIVERY TIME. THAT REFERENCE TO 72 HOURS IS NOT THE "ACCEPTABLE TIME LIMITS" REFERRED TO IN PARAGRAPH 3. IN SHORT, THE PLAIN FACT IS THAT THE PROCURING AGENCY FAILED TO SET FORTH AT ANY PLACE THE ACCEPTABLE TIME LIMITS. IN OUR VIEW THERE RESULTED A PATENT AMBIGUITY WHICH ALSO IS INDICATED BY THE APPARENT DIVERGENCY OF INTERPRETATION BY THE BIDDERS. TO ALLOW SUCH AMBIGUITY TO STAND WOULD BE INCONSISTENT WITH THE PURPOSES OF THE ADVERTISING STATUTES REQUIRING THE LETTING OF PUBLIC CONTRACTS AFTER ADVERTISING IN ORDER TO SECURE FOR THE GOVERNMENT THE BENEFITS FLOWING FROM FREE AND UNRESTRICTED COMPETITION. UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 461. OBVIOUSLY, FREE AND UNRESTRICTED COMPETITION CANNOT BE OBTAINED UNLESS ALL BIDS ARE MADE ON THE SAME BASIS. UNDER THE CIRCUMSTANCES, WE THINK THE DEPARTMENT HAD NO CHOICE BUT TO REJECT ALL BIDS AND READVERTISE UNDER SPECIFICATIONS WHICH SPELLED OUT THE MISSING INFORMATION. CORRECTIVE ACTION OF THAT NATURE WAS TAKEN IN THE SECOND INVITATION FOR BIDS.

YOU ALSO RELY UPON OUR DECISIONS OF JUNE 30, JULY 31, AND AUGUST 29, 1958, B-136251, AS CONTROLLING, WHAT YOU CONSIDER TO BE, AN IDENTICAL SITUATION. THOSE DECISIONS INVOLVE THE PRINCIPLES OF LAW PERTAINING TO ERRORS IN BIDS AND THE CORRECTION OF BIDS AFTER OPENING. SINCE THE INSTANT CASE TURNS ON DIFFERENT GROUNDS, WE DO NOT CONSIDER THOSE DECISIONS APPLICABLE.

IN ACCORDANCE WITH THE FOREGOING WE SEE NO BASIS UPON WHICH TO QUESTION THE LEGALITY OF THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY IN THE MATTER.