B-143367, AUG. 22, 1960

B-143367: Aug 22, 1960

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 29. BIDDERS WERE REQUIRED TO STATE THE NUMBER OF DAYS REQUIRED FOR THE PLACEMENT OF THE STOCK REPAIR PARTS ORDER BUT WERE ADVISED THAT THE GOVERNMENT WOULD REQUIRE AT LEAST 60 DAYS AFTER THE RECEIPT OF AN ACCEPTABLE PROVISIONING LIST TO DEVELOP AND SUBMIT THE STOCK REPAIR PARTS ORDER. REPAIR PARTS LIST AND SUCH EQUIPMENT PARTS AND/OR SUCH STOCK REPAIR PARTS AS MAY BE ORDERED WAS MANDATORY. BIDDERS WERE CAUTIONED THAT THEIR PROPOSED DELIVERY SCHEDULES SHOULD BE COMPUTED ACCORDINGLY AND SHOULD BE PREDICATED ON THE 205-DAY PROVISIONING CYCLE SET FORTH IN SPECIFICATION MIL-M 17993C/MC). SIX BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION.

B-143367, AUG. 22, 1960

TO KECO INDUSTRIES, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 29, 1960, AND LETTER DATED JULY 5, 1960, PROTESTING THE REFUSAL OF THE UNITED STATES MARINE CORPS TO PERMIT A CHANGE IN YOUR BID UNDER INVITATION NO. 161, ISSUED MAY 17, 1960, FOR THE PROCUREMENT OF 17 AIR CONDITIONING UNITS AND RELATED TECHNICAL MANUALS, DRAWINGS, ETC., AND FOR PROCUREMENT AT THE GOVERNMENT'S OPTION OF REPAIR PARTS FOR THE AIR CONDITIONING UNITS.

THE INVITATION PROVIDED FOR THE DELIVERY OF ALL ITEMS ON OR PRIOR TO MARCH 31, 1961, AND THAT, IF AND WHEN THE GOVERNMENT EXERCISED ITS OPTION TO PURCHASE STOCK REPAIR PARTS, PROVISION WOULD BE MADE FOR THE PHASED DELIVERY OF THE REPAIR PARTS CONCURRENTLY WITH DELIVERY OF THE END ITEMS IN ACCORDANCE WITH PARAGRAPH 3.1.29 OF SPECIFICATION MIL-M 17993C/MC). BIDDERS WERE REQUIRED TO STATE THE NUMBER OF DAYS REQUIRED FOR THE PLACEMENT OF THE STOCK REPAIR PARTS ORDER BUT WERE ADVISED THAT THE GOVERNMENT WOULD REQUIRE AT LEAST 60 DAYS AFTER THE RECEIPT OF AN ACCEPTABLE PROVISIONING LIST TO DEVELOP AND SUBMIT THE STOCK REPAIR PARTS ORDER.

THE INVITATION FURTHER PROVIDED THAT CONCURRENT DELIVERY OF THE END ITEMS, TECHNICAL MANUALS, REPAIR PARTS LIST AND SUCH EQUIPMENT PARTS AND/OR SUCH STOCK REPAIR PARTS AS MAY BE ORDERED WAS MANDATORY. IN THAT CONNECTION, BIDDERS WERE CAUTIONED THAT THEIR PROPOSED DELIVERY SCHEDULES SHOULD BE COMPUTED ACCORDINGLY AND SHOULD BE PREDICATED ON THE 205-DAY PROVISIONING CYCLE SET FORTH IN SPECIFICATION MIL-M 17993C/MC), PLUS THE TIME CERTIFIED FOR SUBMITTAL OF AN ACCEPTABLE PROVISIONING LIST.

IN PREPARING YOUR BID YOU INDICATED THAT YOU WOULD ACCEPT A STOCK REPAIR PARTS ORDER IF PLACED WITHIN 60 DAYS AFTER SUBMITTAL AND ACCEPTANCE OF A PROVISIONING LIST IN ACCORDANCE WITH PARAGRAPH 4.1 OF SPECIFICATION MIL-M- 17993C/MC). ALSO, YOU CERTIFIED THAT THE PROVISIONING LIST WOULD BE SUBMITTED WITHIN 120 DAYS AFTER THE DATE OF CONTRACT AWARD. IN ANOTHER PART OF THE BIDDING SCHEDULE YOU INSERTED THE FIGURE "120" AS THE NUMBER OF DAYS WHICH YOU WOULD REQUIRE TO COMPLETE A PRE-PRODUCTION MODEL.

SIX BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, QUOTING PRICES WHICH RANGED FROM $34,500 TO $66,217. YOUR BID WAS THE LOWEST AND THE SECOND LOWEST BID WAS SUBMITTED BY THE AIRFLOW COMPANY IN THE AMOUNT OF $34,975. THE CONTRACT WAS AWARDED TO THAT COMPANY ON JUNE 30, 1960. YOUR BID WAS REJECTED BECAUSE IT DID NOT MEET THE DELIVERY REQUIREMENTS OF THE INVITATION IN THAT THE 120 DAYS SPECIFIED FOR THE SUBMISSION OF AN ACCEPTABLE PROVISIONING LIST WOULD EXTEND THE TIME FOR DELIVERY OF ALL ITEMS UNDER THE CONTRACT BEYOND MARCH 31, 1961.

BY TELEGRAM OF JUNE 28, 1960, TO THE COMMANDANT OF THE MARINE CORPS, YOU ATTEMPTED TO CHANGE YOUR BID TO SHOW THAT THE PROVISIONING LIST WOULD BE SUBMITTED WITHIN 30 DAYS AFTER DATE OF CONTRACT AWARD. YOU STATED THAT THE AMENDMENT TO YOUR BID SHOULD BE ACCEPTABLE IN THE LIGHT OF THE INCONSISTENCY BETWEEN PARAGRAPHS 2 AND 3 ON PAGE 5 OF THE INVITATION. THE MARINE CORPS CONSIDERED THAT THERE WAS NO INCONSISTENCY IN THE CITED PROVISIONS AND DETERMINED THAT IT WOULD NOT BE PROPER TO PERMIT A CHANGE IN YOUR BID SINCE IT IS AN ESTABLISHED RULE THAT A BID SUBMITTED TO THE GOVERNMENT UNDER FORMAL ADVERTISING PROCEDURES MAY NOT BE CHANGED AFTER OPENING OF BIDS.

YOUR TELEGRAM OF JUNE 29, 1960, TO OUR OFFICE, STATES THAT YOUR BID ON THE SUBJECT INVITATION ,IS BEING DISALLOWED BASED ON ONE INTERPRETATION OF AMBIGUOUS INSTRUCTIONS IN BID DOCUMENT.' IN YOUR LETTER OF JULY 5, 1960, IT IS CONTENDED THAT THE NUMBER OF DAYS REQUIRED TO SUBMIT THE PROVISIONING LIST IS NOT SUBSTANTIVE AND THAT THE PREVIOUSLY CITED PROVISIONS OF THE INVITATION ARE CONFUSING. ON THE FIRST POINT, YOU REFER TO THE FACT THAT YOU USED 120 DAYS AS THE TIME FOR DELIVERY OF THE PROTOTYPE UNIT AND EXPRESS THE VIEW THAT A PROVISIONING LIST SHOULD NOT BE FURNISHED UNTIL THE DESIGN OF THE UNIT IS FROZEN. ON THE SECOND POINT, YOU INDICATE THAT IN ONE PART OF THE INVITATION THE GOVERNMENT STATED THAT IT WOULD REQUIRE 60 DAYS AFTER THE RECEIPT OF AN ACCEPTABLE PROVISIONING LIST TO DEVELOP AND SUBMIT THE REPAIR PARTS ORDER, BUT THAT THE INVITATION OTHERWISE STATED THAT A BIDDER'S PROPOSED DELIVERY SCHEDULE SHOULD BE PREDICATED ON THE 205 DAY PROVISIONING CYCLE SET FORTH IN SPECIFICATION MIL-M-17993C/MC), PLUS THE TIME CERTIFIED FOR SUBMITTAL OF AN ACCEPTABLE PROVISIONING LIST. HOWEVER, YOU REFER TO THE 205-DAY PERIOD AS INDICATING THAT IT WOULD TAKE 205 DAYS TO DEVELOP AN ACCEPTABLE LIST.

UPON CONSIDERATION OF THE TERMS AND CONDITIONS OF THE INVITATION, WHICH REQUIRES THE CONCURRENT DELIVERY OF SPARE PARTS AS ORDERED WITH THE END ITEMS AND WHICH, BY REFERENCE TO A SPECIFICATION, PROVIDES A METHOD BY WHICH SUCH RESULT COULD BE ACCOMPLISHED, WE CANNOT AGREE THAT THERE IS A REASONABLE BASIS FOR ANY CONTENTION THAT A BIDDER'S STATED TIME FOR SUBMISSION OF AN ACCEPTABLE PROVISIONING LIST WOULD NOT FORM A SUBSTANTIVE PART OF HIS BID. IN OUR OPINION, THE INVITATION CLEARLY INDICATED THAT SUCH STATED TIME WOULD BE A DETERMINING FACTOR IN CONSIDERING WHETHER OR NOT A BID CONFORMED WITH THE INVITATION SO FAR AS ITS DELIVERY REQUIREMENTS WERE CONCERNED.

WE EXPRESS NO OPINION AS TO WHETHER OR NOT A BIDDER COULD FURNISH AN ACCEPTABLE PROVISIONING LIST BEFORE PRODUCING A PROTOTYPE MODEL BUT IT IS NOTED THAT YOU OFFERED IN THE PROPOSED MODIFICATION OF YOUR BID TO SUBMIT A PROVISIONING LIST WITHIN 30 DAYS AFTER DATE OF CONTRACT AWARD.

RELATIVE TO THE ALLEGED AMBIGUITY OR INCONSISTENCY IN THE PROVISIONS OF THE INVITATION, IT IS APPARENT THAT THERE IS NO SUBSTANTIAL BASIS FOR ANY MISTAKEN BELIEF THAT ANY PART OF THE 205 DAYS OF THE PROVISIONING CYCLE MIGHT BE USED IN THE DEVELOPMENT OF AN ACCEPTABLE PROVISIONING LIST OF THE TYPE REQUIRED UNDER PARAGRAPH 4.1 OF THE REFERENCED SPECIFICATION. IN OUR OPINION, THE SPECIFICATION, PARTICULARLY THE CHART AT PAGE 10 OF THE SPECIFICATION, WAS SUFFICIENT TO HAVE PLACED BIDDERS ON NOTICE THAT THE PROVISIONING CYCLE WOULD NOT BEGIN TO RUN UNTIL AFTER THE SUBMISSION OF AN ACCEPTABLE PROVISIONING LIST; AND THAT THE 205-DAY PROVISIONING CYCLE WOULD COVER, NOT ONLY THE TIME NECESSARY FOR THE CONSIDERATION OF THE LIST AND ORDERING REPAIR PARTS, BUT ALSO THE TIME NECESSARY FOR THE PREPARATION OF TECHNICAL DATA AND ULTIMATE DELIVERY OF THE REPAIR PARTS FOR WHICH AN ORDER HAD BEEN PLACED, CONCURRENTLY WITH THE DELIVERY OF THE END ITEMS.