B-142968, JUL. 29, 1960

B-142968, JUL. 29, 1960

TO JOY MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 20, 1960, WITH ENCLOSURES, PROTESTING THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY IN AWARDING A CONTRACT TO THE DAVEY COMPRESSOR COMPANY UNDER INVITATION NO. DA-ENG-11-184-60-B-296.

IN RESPONSE TO THE INVITATION, WHICH WAS ISSUED ON NOVEMBER 19, 1959, BY THE ARMY ENGINEER PROCUREMENT OFFICE, CORPS OF ENGINEERS, CHICAGO, THE DAVEY COMPRESSOR COMPANY SUBMITTED A BID OFFERING TO FURNISH 250 COMPRESSORS; ROTARY, POWER DRIVEN, ETC., FOR WHAT APPEARS TO HAVE BEEN A TOTAL AMOUNT OF $1,005,357. AFTER CONSIDERATION OF THE COMPANY'S BID, WHICH WAS THE LOWEST OF SIX BIDS RECEIVED, AND OF CERTAIN PROTESTS ADVANCED THERETO BY YOU, AS THE APPARENT SECOND LOW BIDDER, THE CORPS OF ENGINEERS AWARDED A CONTRACT TO THE DAVEY COMPRESSOR COMPANY AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER. BY LETTER DATED MAY 20, 1960, YOU REQUESTED OUR REVIEW OF THE ADMINISTRATIVE ACTION TAKEN IN MAKING THE AWARD. YOUR CONTENTION IS THAT THE DAVEY COMPRESSOR COMPANY SUBMITTED A QUALIFIED BID ON A MATERIAL ASPECT OF THE INVITATION, WHICH REQUIRED REJECTION OF ITS BID, BY REASON OF THE STATEMENT MADE BY THAT COMPANY IN ITS LETTER DATED JANUARY 22, 1960, TO THE CHICAGO CORPS OF ENGINEERS, IN PERTINENT PART, AS FOLLOWS:

"YOU WILL FIND ATTACHED OUR QUOTATION COVERING AIR COMPRESSORS AS REQUIRED BY THE SUBJECT IFB. WE WISH TO STATE THAT WE ARE QUOTING IN COMPLETE ACCORDANCE WITH THE SUBJECT IFB AND ALL APPLICABLE SPECIFICATIONS.

"WE RESERVE THE RIGHT TO SHIP SOONER THAN THE DESIRED DELIVERY SCHEDULE IF OUR RATE OF PRODUCTION ENABLES US TO DO SO.'

THERE CAN BE NO DOUBT THAT THE COMPANY PROPOSED THAT IT MAKE EARLIER SHIPMENTS, IF ABLE TO DO SO, THAN THOSE REQUIRED BY THE INVITATION DELIVERY SCHEDULE. HOWEVER, THE BASIC QUESTION IS WHETHER ITS PROPOSAL CONSTITUTED A DEVIATION FROM THE TERMS OF THE INVITATION SO AS TO RENDER THE BID UNACCEPTABLE. WE THINK NOT FOR THE FOLLOWING REASONS.

IT SHOULD BE OBSERVED THAT PARAGRAPH 3 OF THE SPECIAL TERMS AND CONDITIONS OF THE INVITATION, AS AMENDED, SPECIFICALLY PROVIDES AS FOLLOWS:

"IF BIDDER IS UNABLE TO MEET THE ABOVE DELIVERY SCHEDULE, HE MAY, WITHOUT PREJUDICE TO EVALUATION OF HIS BID, SET FORTH BELOW THE DELIVERY SCHEDULE HE IS PREPARED TO MEET, PROVIDED, IN NO EVENT SHALL THE BIDDERS' DELIVERY SCHEDULE EXTEND THE DELIVERY PERIOD MORE THAN SIXTY (60) DAYS BEYOND THE TIME FOR DELIVERY OF THE QUANTITIES AS CALLED FOR IN ANY DELIVERY PERIOD OF THE FOREGOING GOVERNMENT DESIRED DELIVERY SCHEDULE.'

IN OUR OPINION, IT IS OBVIOUS THAT BY THE DELIVERY SCHEDULE SPECIFIED THERE WAS ESTABLISHED A LIMITATION ONLY UPON THE MAXIMUM AMOUNT OF TIME THAT WOULD BE PERMITTED TO MAKE DELIVERIES UNDER THE CONTRACT. MOREOVER, THE RIGHT ACCORDED TO A BIDDER TO PROPOSE A DIFFERENT DELIVERY SCHEDULE (DELIVERIES NOT TO EXTEND MORE THAN 60 DAYS BEYOND THE TIME SPECIFIED) "WITHOUT PREJUDICE TO EVALUATION OF HIS BID," WOULD APPEAR TO INCLUDE THE RIGHT TO PROPOSE DELIVERIES EARLIER THAN THOSE SPECIFIED.

ADDITIONAL SUPPORT FOR THIS VIEW WE THINK IS FOUND IN THE EXPRESS LANGUAGE SET FORTH ON THE FACE OF THE INVITATION AND BID--- A FORM PREPARED BY THE GOVERNMENT CONTAINING ITS OWN CHOICE OF LANGUAGE WHICH, UNDER ESTABLISHED LAW, MUST BE CONSTRUED STRICTLY AGAINST THE GOVERNMENT AND IN FAVOR OF THE BIDDER. BY THIS LANGUAGE THE BIDDER AGREED TO DELIVER THE ITEMS AT THE DESIGNATED POINTS "WITHIN THE TIME SPECIFIED IN THE ATTACHED SCHEDULE.' CERTAINLY DELIVERY "WITHIN" THE TIME MEANS SOME TIME PRIOR TO THE DATES SPECIFIED, AND NOT DELIVERY ON THOSE PRECISE DATES ONLY.

IN VIEW OF THE FOREGOING, WE CANNOT CONCLUDE THAT THE BID OF THE DAVEY COMPRESSOR COMPANY WAS NONRESPONSIVE OR THAT THE ACTION TAKEN BY THE CHICAGO CORPS OF ENGINEERS IN AWARDING THE CONTRACT TO THAT COMPANY IS SUBJECT TO LEGAL OBJECTION.