B-141413, JAN. 20, 1960

B-141413: Jan 20, 1960

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TO LEJOHN MANUFACTURING COMPANY: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5. IT IS YOUR CONTENTION THAT WHILE . " AND THEREFORE YOU WERE ENTITLED TO THE CONTRACT SINCE YOUR BID WAS THE LOWEST OFFER RECEIVED. 000 STOOLS A MONTH WAS TO BEGIN THE SECOND MONTH AFTER AWARD AND CONTINUE AT THE RATE OF1. YOU QUALIFIED YOUR OFFER BY STATING THAT "OUR DELIVERY AS SPECIFIED IN THE SUBJECT INVITATION IS PREDICATED ON AVAILABILITY OF STEEL AT THE TIME OF AWARD.'. IT IS POINTED OUT THAT THE SCHEDULE IN THE INVITATION REQUIRED DELIVERIES TO START APPROXIMATELY THREE MONTHS BEFORE YOU INTENDED TO COMMENCE FABRICATING THE STOOLS. FOR THAT REASON THE PRESCRIBED DELIVERY SCHEDULE BEGINNING THE SECOND MONTH AFTER AWARD WAS NECESSARY WITHOUT REGARD TO THE COMPLETION DATE.

B-141413, JAN. 20, 1960

TO LEJOHN MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5, 1959, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE ARMSTRONG PRODUCTS CORPORATION UNDER INVITATION FOR BIDS NO. 1617, COVERING THE PURCHASE OF 5,000 PLATFORM STOOLS BY THE POST OFFICE DEPARTMENT. IT IS YOUR CONTENTION THAT WHILE ,WE CORROLATED THE 180 DAY DELIVERY AFTER RECEIPT OF ORDER, TO THE AVAILABILITY OF STEEL," WE HAD NO "INTENTION TO MODIFY ANY OF THE DELIVERY ASPECTS OF THE CONTRACT," AND THEREFORE YOU WERE ENTITLED TO THE CONTRACT SINCE YOUR BID WAS THE LOWEST OFFER RECEIVED.

THE SAID INVITATION STIPULATED THAT BIDS WOULD BE OPENED ON NOVEMBER 4, 1959; THAT A PILOT MODEL MUST BE SUBMITTED WITHIN 30 DAYS AFTER NOTIFICATION OF AWARD; AND CONTAINED THE FOLLOWING PERFORMANCE PROVISION:

"PRODUCTION TO START IMMEDIATELY AFTER APPROVAL OF PILOT MODEL AND SHALL BE PRODUCED AT THE RATE OF 1000 A MONTH. CONTRACT SHALL BE COMPLETED WITHIN 180 DAYS FROM DATE OF ORDER.'

IN OTHER WORDS, DELIVERY AT THE RATE OF 1,000 STOOLS A MONTH WAS TO BEGIN THE SECOND MONTH AFTER AWARD AND CONTINUE AT THE RATE OF1,000 PER MONTH FOR FIVE MONTHS. IN LETTER DATED SEPTEMBER 2, 1959, WHICH ACCOMPANIED YOUR BID, YOU QUALIFIED YOUR OFFER BY STATING THAT "OUR DELIVERY AS SPECIFIED IN THE SUBJECT INVITATION IS PREDICATED ON AVAILABILITY OF STEEL AT THE TIME OF AWARD.' YOUR BID FURTHER ALTERED THE ADVERTISED PRODUCTION SCHEDULE BY CHANGING THE MONTHLY RATE OF 1,000 UNITS TO A RATE OF 2,500 STOOLS PER MONTH, AND ON PAGE 1 THEREOF YOU ADDED THE FOLLOWING STIPULATION: "DELIVERY TO BEGIN WITHIN 120 DAYS AFTER RECEIPT OF ORDER AND TO BE AT THE RATE OF 2500 UNITS PER MONTH UNTIL COMPLETION.'

IN ORDER THAT THOROUGH CONSIDERATION SHOULD BE ACCORDED THE MATTER OF YOUR PROTEST WE REQUESTED THE POSTMASTER GENERAL TO FURNISH US WITH A REPORT OF THE FACTS RELATING TO THE PROCUREMENT. IN SUCH REPORT DATED JANUARY 6, 1960, IT IS POINTED OUT THAT THE SCHEDULE IN THE INVITATION REQUIRED DELIVERIES TO START APPROXIMATELY THREE MONTHS BEFORE YOU INTENDED TO COMMENCE FABRICATING THE STOOLS, WITH A CONTEMPLATED DELIVERY OF 3,000 UNITS ACCOMPLISHED DURING THAT PERIOD. THE REPORT FURTHER STATES THAT ON NOVEMBER 23, 1959, THERE EXISTED IN THE DEPARTMENT A NEED FOR 1,100 STOOLS, AND FOR THAT REASON THE PRESCRIBED DELIVERY SCHEDULE BEGINNING THE SECOND MONTH AFTER AWARD WAS NECESSARY WITHOUT REGARD TO THE COMPLETION DATE.

THE DRAFTING OF CONDITIONS UNDER WHICH ARTICLES ARE PURCHASED FOR GOVERNMENT USE IS THE RESPONSIBILITY OF THE ADMINISTRATIVE AGENCIES AND THEIR DETERMINATIONS IN THAT REGARD WILL NOT ORDINARILY BE QUESTIONED UNLESS OBVIOUSLY ARBITRARY OR UNREASONABLE. IT HAS LONG BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT THE UNITED STATES IS NOT REQUIRED TO PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT THE LOWEST PRICE WHEN, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, THE ACTUAL NEEDS OF THE GOVERNMENT WOULD NOT BE SERVED THEREBY. AS TO THIS PROCUREMENT, THE OTHER BIDDERS SUBMITTED PROPOSALS WITHOUT QUALIFICATION AS TO THE DELIVERY SCHEDULE AND WE FIND NO ADEQUATE BASIS FOR HOLDING THAT THE DELIVERY REQUIREMENTS STATED WERE NOT BASED UPON A BONA FIDE DETERMINATION OF THE NEEDS OF THE GOVERNMENT.

IT HAS ALSO BEEN HELD REPEATEDLY BY THE ACCOUNTING OFFICERS AND THE COURTS THAT THE CONTRACT AWARDED TO A SUCCESSFUL BIDDER MUST BE 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 THE QUALIFICATIONS OF YOUR PROPOSAL ARE MATERIAL DEVIATIONS FROM THE ADVERTISED CONDITIONS OF THE INVITATION AS TO DELIVERY, WHICH RENDER YOUR OFFER NONRESPONSIVE. SEE 34 COMP. GEN. 24; 38 ID. 98. SUCH QUALIFICATIONS MAY NOT BE ALTERED AFTER OPENING OF ALL BIDS SUBMITTED AND, OF COURSE, ANY WORK UNDERTAKEN IN CONTEMPLATION OF THE CONTRACT, PRIOR TO AWARD, IS IN NO WAY THE RESPONSIBILITY OF THE GOVERNMENT.

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