B-141353, JAN. 5, 1960

B-141353: Jan 5, 1960

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S. JOHN MASSA: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 30. IT IS YOUR CONTENTION THAT SINCE THE INVITATION DID NOT INDICATE THAT TIME WAS OF THE ESSENCE YOUR BID WAS RESPONSIVE. BECAUSE OF SUCH DEFICIENCY YOU NOW STATED THAT YOU ARE WILLING TO COMPLETE CONSTRUCTION OF THE STRUCTURE WITHIN 220 DAYS FROM ACCEPTANCE. OR LATER DATE ON WHICH THE BUILDING AND IMPROVEMENTS TO BE CONSTRUCTED ON SAID PROPERTY ARE READY FOR OCCUPANCY. YOU QUALIFIED YOUR BID BY STATING THAT THE LEASE WOULD BEGIN "WHEN FINAL PLANS ARE ACCEPTED" OR WHEN THE BUILDING AND IMPROVEMENTS WERE READY FOR OCCUPANCY. THE PURPOSE OF THE PROVISION AS INCLUDED BY THE DEPARTMENT IN THE AGREEMENT WAS TO PROVIDE A DATE BEFORE WHICH THE GOVERNMENT COULD NOT INSIST UPON COMPLETION OR OCCUPANCY.

B-141353, JAN. 5, 1960

TO MR. S. JOHN MASSA:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 30, 1959, AND ENCLOSURES, PROTESTING AGAINST THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION DATED OCTOBER 1, 1959, AS AMENDED, FOR THE CONSTRUCTION AND LEASING OF QUARTERS FOR POSTAL PURPOSES TO THE POST OFFICE DEPARTMENT IN HUDSON, MASSACHUSETTS. IT IS YOUR CONTENTION THAT SINCE THE INVITATION DID NOT INDICATE THAT TIME WAS OF THE ESSENCE YOUR BID WAS RESPONSIVE, NOTWITHSTANDING THE FACT THAT YOU FAILED TO SPECIFY THE MINIMUM AND MAXIMUM TIME WHEN THE BUILDING WOULD BE READY FOR OCCUPANCY AS REQUIRED BY THE TERMS OF THE INVITATION. BECAUSE OF SUCH DEFICIENCY YOU NOW STATED THAT YOU ARE WILLING TO COMPLETE CONSTRUCTION OF THE STRUCTURE WITHIN 220 DAYS FROM ACCEPTANCE, PRESUMABLY OF THE BID.

THE INVITATION REQUIRED EACH BIDDER TO SUBMIT AN AGREEMENT TO LEASE PROPERLY EXECUTED. PARAGRAPH NUMBERED 2 (A) THEREOF PROVIDED THAT THE BIDDER SHALL:

"LEASE SAID PROPERTY AND IMPROVEMENTS THEREON TO THE UNITED STATES OF AMERICA FOR POSTAL PURPOSES FOR A TERM OF YEARS, TOGETHER WITH THE RENEWAL OPTIONS HEREINAFTER PROVIDED, BEGINNING --------, OR LATER DATE ON WHICH THE BUILDING AND IMPROVEMENTS TO BE CONSTRUCTED ON SAID PROPERTY ARE READY FOR OCCUPANCY, BUT SAID LATER DATE SHALL NOT BE LATER THAN ------ CALENDAR DAYS AFTER THE ACCEPTANCE OF THIS AGREEMENT BY THE POST OFFICE DEPARTMENT.'

THE RECORD DISCLOSES THAT THE LEASE FORM YOU SUBMITTED FAILED TO STATE THE EARLIEST DATE THE LEASE WOULD BECOME EFFECTIVE, OR THE MAXIMUM NUMBER OF CALENDAR DAYS, COMPUTED FROM THE DATE OF ACCEPTANCE OF THE AGREEMENT, WHEN THE PROPERTY WOULD BE READY FOR OCCUPANCY. IN LIEU THEREOF, YOU QUALIFIED YOUR BID BY STATING THAT THE LEASE WOULD BEGIN "WHEN FINAL PLANS ARE ACCEPTED" OR WHEN THE BUILDING AND IMPROVEMENTS WERE READY FOR OCCUPANCY, BUT NOT LATER THAN 190 CALENDAR DAYS AFTER ACCEPTANCE OF "SAID FINAL PLANS.'

THE PURPOSE OF THE PROVISION AS INCLUDED BY THE DEPARTMENT IN THE AGREEMENT WAS TO PROVIDE A DATE BEFORE WHICH THE GOVERNMENT COULD NOT INSIST UPON COMPLETION OR OCCUPANCY, FOR THE PROTECTION OF THE CONTRACTOR. ALSO, IT WOULD PROVIDE A FIXED PERIOD DURING WHICH THE CONTRACT WORK WOULD BE COMPLETED SO THAT THE GOVERNMENT COULD TERMINATE ANY EXISTING OCCUPANCIES AND PROCURE AND INSTALL NECESSARY EQUIPMENT IN THE NEW QUARTERS. FURTHERMORE, IT WOULD ESTABLISH A FIXED PERFORMANCE DATE WHICH, OBVIOUSLY, WOULD BE IMPORTANT IN THE EVENT IT SHOULD BECOME NECESSARY TO PROCEED AGAINST THE SURETY IN CASE OF DEFAULT UNDER THE CONTRACT. THE FIVE OTHER BIDDERS COMPLETED THEIR RESPECTIVE LEASE AGREEMENTS BY SHOWING THE DATE AND NUMBER OF DAYS REQUIRED TO BE INSERTED TO COMPLETE THE FORMAL DOCUMENT.

UNDER THE TERMS OF A FORM EXECUTED AS THE POST OFFICE DEPARTMENT INTENDED, THE BURDEN OF TIMELY SUBMITTING ACCEPTABLE PLANS AND SPECIFICATIONS, AND COMPLETING CONSTRUCTION WITHIN A STATED MAXIMUM PERIOD, WOULD BE PLACED UPON THE SUCCESSFUL BIDDER. THE MAXIMUM COMPLETION TIME SO SPECIFIED WOULD INCLUDE THE PERIOD OF TIME TAKEN BY THE POST OFFICE TO APPROVE PLANS SUBMITTED BY THE SUCCESSFUL BIDDER, AND IT IS YOUR POSITION THAT SINCE YOU HAVE NO CONTROL OVER THE LENGTH OF SUCH APPROVAL PERIOD YOU SHOULD NOT BE REQUIRED TO ASSUME THE RISK OF FAILURE TO COMPLETE ON TIME DUE TO DELAY IN APPROVAL BY THE GOVERNMENT. WHILE WE CAN APPRECIATE YOUR POSITION IN THE MATTER, IT IS OBVIOUS THAT ALL BIDDERS WERE SUBJECT TO THE SAME RISK WHILE YOU AVOIDED IT BY THE TERMS OF YOUR BID.

WE ARE OF THE OPINION THAT YOU WOULD BE OBLIGATED UNDER YOUR BID TO SUBMIT ACCEPTABLE PLANS WITHIN A REASONABLE TIME. HOWEVER, IT IS JUST AS TRUE THAT THE POST OFFICE DEPARTMENT WOULD BE REQUIRED UNDER THE OTHER BIDS SUBMITTED TO APPROVE ACCEPTABLE PLANS WITHIN A REASONABLE PERIOD OF TIME. THE DIFFERENCE BETWEEN THE TWO SITUATIONS APPEARS TO BE WHETHER THE BURDEN OF PROVING UNREASONABLE DELAY IS ON THE POST OFFICE, AS IT WOULD BE IF YOUR BID WERE ACCEPTED, OR ON THE CONTRACTOR, AS IT WOULD BE UNDER THE OTHER BIDS. YOUR BID, THEREFORE, IS ON A BASIS DIFFERENT FROM THAT STATED IN THE INVITATION AND THAT OF THE OTHER BIDDERS. IN THE CIRCUMSTANCES WE BELIEVE THE DIFFERENCE IS MATERIAL.

IT HAS BEEN HELD REPEATEDLY BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT THE CONTRACT AWARDED TO A SUCCESSFUL BIDDER MUST BE OF THE SAME OFFERED IN THE INVITATION SO THAT ALL PERSONS SEEKING GOVERNMENT BUSINESS ARE AFFORDED AN EQUAL OPPORTUNITY; THUS PREVENTING FAVORITISM, COLLUSION, OR FRAUD IN PROCUREMENT MATTERS. IN THE INSTANT CASE WE ARE OF THE OPINION THAT THE QUALIFICATIONS OF YOUR PROPOSAL ARE MATERIAL DEVIATIONS FROM THE ADVERTISED CONDITIONS OF THE INVITATION, WHICH RENDER YOUR OFFER NONRESPONSIVE. SUCH QUALIFICATIONS, OF COURSE, MAY NOT BE ALTERED AFTER OPENING OF ALL BIDS SUBMITTED.

IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ACTION TAKEN BY THE POST OFFICE DEPARTMENT IN THE REJECTION OF YOUR BID.