B-144126, NOV. 10, 1960

B-144126, NOV. 10, 1960

TO MR. JOHN S. WADSWORTH, PRESIDENT:

IN RESPONSE TO LETTERS OF SEPTEMBER 30 AND OCTOBER 31, 1960, FROM YOU AND YOUR ATTORNEY, RESPECTIVELY, AND A LENGTHY INFORMAL MEETING BETWEEN YOU AND YOUR LOCAL REPRESENTATIVE AND MEMBERS OF OUR OFFICE ON OCTOBER 27, THE CONTENTIONS MADE IN CONNECTION WITH YOUR PROTEST AGAINST THE REJECTION OF YOUR BID FOR CERTAIN BITUMINOUS DISTRIBUTORS UNDER DEPARTMENT OF THE ARMY INVITATION DA-ENG-11-184-61-B-20-JD HAVE BEEN REVIEWED.

YOUR ATTORNEY IN LETTER OF OCTOBER 31 INDICATES THAT HE WOULD LIKE AN OPPORTUNITY TO FURTHER CONFER WITH US ABOUT THIS CASE. WHILE WE WOULD BE GLAD TO DISCUSS THE MATTER WITH HIM AT ANY TIME, WE BELIEVE THAT THE RECORD AND PRINCIPLES APPLICABLE THERETO ARE SUFFICIENTLY CLEAR TO PERMIT DISPOSITION OF THIS MATTER WITHOUT FURTHER DELAY TO THE PROCUREMENT NEEDS OF THE GOVERNMENT. THEREFORE, WE WILL PROCEED TO DISPOSE OF YOUR PROTEST HEREWITH.

THE SUBJECT INVITATION SOLICITED BIDS FOR 50 UNITS OF A PARTICULAR BITUMINOUS DISTRIBUTOR: 48 UNITS TO BE FURNISHED UNDER ITEM 1, A PREPRODUCTION UNIT TO BE FURNISHED UNDER ITEM 1A, AND AN ADDITIONAL PREPRODUCTION UNIT TO BE FURNISHED UNDER ITEM 1B. IN THE DESCRIPTION OF ITEM 1A THERE IS A PARENTHETICAL STATEMENT,"THIS IS THE LAST DISTRIBUTOR TO BE SHIPPED.'

YOUR PROTEST IS DIRECTED ONLY TO THE MANNER IN WHICH THE DELIVERY SCHEDULE FOR ITEMS 1 AND 1A WAS SET OUT IN THE INVITATION. IN THIS CONNECTION, PARAGRAPH 5 OF THE "SPECIAL TERMS AND CONDITIONS" SPECIFIED:

"A. DELIVERY SCHEDULE FOR CONTRACT ITEM:

"DELIVERY OF THE ITEMS LISTED HEREIN IS REQUIRED ON OR BEFORE EXPIRATION OF THE TIME SPECIFIED IMMEDIATELY BELOW:

"/APPLICABLE TO ITEMS 1 AND 1A)

10 EACH - 240 DAYS AFTER DATE OF AWARD.

10 EACH - 270 DAYS AFTER DATE OF AWARD.

10 EACH - 300 DAYS AFTER DATE OF AWARD.

10 EACH - 330 DAYS AFTER DATE OF AWARD.

9 EACH - 360 DAYS AFTER DATE OF AWARD.

BIDDERS ARE CAUTIONED TO CONSIDER CAREFULLY THE GOVERNMENT'S REQUIRED DELIVERY, AS BIDS SPECIFYING DELIVERY AFTER THE TIME SPECIFIED ABOVE WILL BE CONSIDERED NON-RESPONSIVE.

"EARLIER DELIVERIES ARE SOLICITED. IN MAKING AWARD HEREUNDER, NO WEIGHT WILL BE GIVEN TO BIDS OFFERING EARLIER DELIVERIES.'

"BIDDERS PROPOSED DELIVERY SCHEDULE

"/APPLICABLE TO ITEMS 1 AND 1A)

-------- EACH -------- DAYS AFTER DATE OF AWARD.

-------- EACH -------- DAYS AFTER DATE OF AWARD.

-------- EACH -------- DAYS AFTER DATE OF AWARD.

-------- EACH -------- DAYS AFTER DATE OF AWARD.

-------- EACH -------- DAYS AFTER DATE OF AWARD.

"IF BIDDER DOES NOT STATE A DIFFERENT DELIVERY SCHEDULE, THE GOVERNMENT'S REQUIRED DELIVERY SCHEDULE, STATED ABOVE WILL APPLY.

"B. SCHEDULE FOR PREPRODUCTION OR PRODUCTION MODEL TEST -

"/A) THE GOVERNMENT DESIRES THAT THE PREPRODUCTION OR PRODUCTION MODEL OF THE ITEM REQUIRED TO BE FURNISHED UNDER THIS CONTRACT, BE COMPLETED, READY FOR TEST AND THAT THE TESTING THEREOF AS REQUIRED BY COMMENCED WITHIN 120 DAYS AFTER AWARD OF THIS CONTRACT.

"IF THE BIDDER IS UNABLE TO COMPLY WITH THIS REQUIREMENT, HE MAY, WITHOUT PREJUDICE TO THE EVALUATION OF HIS BID, SET FORTH THE NUMBER OF DAYS WITHIN WHICH HE WILL HAVE COMPLETE, READY FOR TEST AND COMMENCE TESTING THE REQUIRED TEST MODEL, PROVIDED THAT IN NO EVENT SHALL THE TIME SO SPECIFIED BY BIDDER BE NO MORE THAN 15 DAYS BEYOND THE GOVERNMENT'S HEREINBEFORE SET FORTH DESIRED TIME.

"BIDDERS PROPOSED DATE WHEN MODEL REQUIRED FOR TESTING WILL BE COMPLETED, READY FOR TEST AND TESTING THEREOF COMMENCED -

"---------- DAYS AFTER DATE OF AWARD OF CONTRACT HEREUNDER.

"IF BIDDER DOES NOT SET FORTH A DIFFERENT TIME AS PERMITTED ABOVE, THE GOVERNMENT'S DESIRED TIME ABOVE SET FORTH WILL APPLY. BIDS SUBMITTED SETTING FORTH A TIME LONGER THAN 15 DAYS BEYOND THE GOVERNMENT'S HEREINABOVE SET FORTH DESIRED TIME WILL BE CONSIDERED NON RESPONSIVE.'

SIX BIDS WERE RECEIVED UNDER THE INVITATION. THE LOWEST BID SUBMITTED WAS REJECTED BECAUSE THE PROCUREMENT WAS SET ASIDE FOR SMALL BUSINESS AND THE SMALL BUSINESS ADMINISTRATION DETERMINED THAT THE BIDDER DID NOT QUALIFY. THE SECOND LOW BID WAS SUBMITTED BY YOUR COMPANY, BUT IT WAS REJECTED AS NONRESPONSIVE TO THE DELIVERY REQUIREMENTS OF THE INVITATION BECAUSE IT PROPOSED DELIVERY AS FOLLOWS:

"10 EACH 255 DAYS AFTER DATE OF AWARD.

10 EACH 285 DAYS AFTER DATE OF AWARD.

10 EACH 315 DAYS AFTER DATE OF AWARD.

10 EACH 345 DAYS AFTER DATE OF AWARD.

9 EACH 375 DAYS AFTER DATE OF AWARD.'

THE CONTRACTING OFFICER THEREFORE PROPOSES TO MAKE AWARD TO THE THIRD LOW BIDDER.

THE FIRST CONTENTION MADE IN YOUR LETTER OF SEPTEMBER 30 IS THAT SINCE PARAGRAPH 5B PERMITS AN ADDITIONAL 15 DAYS BEYOND THE 120-DAY REQUIREMENT FOR HAVING ITEM 1A, THE PREPRODUCTION UNIT, READY FOR TESTING, THE 15-DAY PERMISSIVE EXTENSION APPLIES TO THE DELIVERY SCHEDULE SET OUT IN PARAGRAPH 5A AS WELL. HOWEVER, SUCH A CONCLUSION IS BASED ON AN ASSUMPTION UNSUPPORTED BY THE SPECIFIC TERMS AND CONDITION OF PARAGRAPH 5. SECTION A OF THE PARAGRAPH DEALS ONLY WITH THE ULTIMATE DELIVERY OF ALL THE CONTRACT ITEMS WHEREAS SECTION B DEALS ONLY WITH THE READINESS FOR TESTING OF A SINGLE ITEM, THE PREPRODUCTION UNIT REQUIRED BY ITEM 1A. AS TO THE DELIVERY OF ALL THE ITEMS, SECTION A PROVIDES A SPECIFIC DELIVERY SCHEDULE AND ADMONISHES BIDDERS THAT BIDS INDICATING LATER PERFORMANCE "WILL BE CONSIDERED NON RESPONSIVE.' THIS DELIVERY PROVISION CONTEMPLATES THAT 49 UNITS ARE TO BE DELIVERED UNDER ITEMS 1 AND 1A AND PROVIDES THE TIMES AT WHICH THEY ARE TO BE FURNISHED. ALTHOUGH LEEWAY IS PROVIDED IN SECTION A FOR EARLIER DELIVERY, THE CONSEQUENCES OF AN OPPOSITE ACTION ARE CLEARLY SPELLED OUT. THERE IS NOTHING IN SECTION B WHICH CAN REASONABLY BE CONSTRUED AS AN EXTENSION OR LIMITATION ON SECTION A. THE PLAIN MEANING OF SECTION B IS THAT THE GOVERNMENT WILL ALLOW UP TO 135 DAYS TO HAVE A SINGLE PREPRODUCTION MODEL READY FOR TESTING. SO THE OVER ALL EFFECT OF PARAGRAPH 5 IS TO INDICATE TO BIDDERS THAT ALTHOUGH THEY WOULD BE ALLOWED AN ADDITIONAL 15 DAYS TO READY A TEST MODEL, THEY WOULD STILL BE REQUIRED TO FURNISH ALL THE CONTRACT ITEMS IN QUESTION WITHIN THE DELIVERY TIME SPECIFIED IN THE INVITATION. AND IT SHOULD BE NOTED THAT HAVING THE TEST MODEL READY FOR TESTING WOULD NOT BE CONSIDERED DELIVERY, SINCE THE STATEMENT UNDER THE DESCRIPTION OF ITEM 1A INDICATES THAT THIS ITEM IS NOT TO BE SHIPPED TO THE GOVERNMENT UNTIL THE OTHERS HAVE BEEN SHIPPED. THE PROVISION IN PARAGRAPH 5A COVERING THE DELIVERY OF ITEM 1A, AS WELL AS ITEM 1, MAKES IT CLEAR THEREFORE THAT ALTHOUGH THE PREPRODUCTION MODEL IS TO BE THE LAST ITEM SHIPPED, IT IS TO ARRIVE NO LATER THAN 360 DAYS AFTER DATE OF AWARD.

IT IS CONTENDED NEXT THAT THE DELIVERY TERMS IN THE SUBJECT INVITATION WERE DIFFERENT THAN THE TERMS SPECIFIED IN 17 PREVIOUS INVITATIONS. HOWEVER, IT MUST BE RECOGNIZED THAT THE GOVERNMENT'S NEEDS CAN CHANGE AND THAT EACH INVITATION IS PREPARED IN ACCORDANCE WITH THE GOVERNMENT'S NEEDS AT THE TIME. THEREFORE, TO PROPERLY ASCERTAIN THE GOVERNMENT'S REQUIREMENTS UNDER ANY PARTICULAR INVITATION, A BIDDER CANNOT RELY UPON PAST INVITATIONS, BUT MUST STUDY THE REQUIREMENTS OF THE PARTICULAR INVITATION UNDER WHICH THE BID IS TO BE PRESENTED.

FURTHER IT IS CONTENDED THAT THE STATEMENT,"THE UNITS WE PROPOSE TO FURNISH WILL MEET YOUR SPECIFICATIONS 100 PERCENT WITHOUT EXCEPTION," IN THE LETTER ACCOMPANYING YOUR BID INDICATES AN INTENTION TO COMPLY WITH THE INVITATION IN EVERY RESPECT. HOWEVER, THIS STATEMENT, IN OUR OPINION, RELATES ONLY TO THE CONSTRUCTION OF THE BITUMINOUS DISTRIBUTOR AND DOES NOT ENCOMPASS THE DELIVERY SCHEDULE. WITH RESPECT TO THE SUGGESTION THAT PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION, AUTHORIZING WAIVER OF INFORMALITIES OR MINOR IRREGULARITIES IN BIDS, IS AUTHORITY TO WAIVE THE ADDITIONAL 15 DAYS ATTACHED TO THE DELIVERY TIMES, WE HAVE HELD IN 34 COMP. GEN. 24 THAT THE FAILURE OF A BID TO CONFORM TO THE REQUIRED DELIVERY SCHEDULE MUST BE REGARDED AS A MATERIAL DEVIATION WHICH CANNOT BE WAIVED AND WHICH REQUIRES REJECTION OF THE BID.

IT IS ALSO ALLEGED THAT THE ADDITION OF 15 DAYS TO THE DELIVERY SCHEDULE TERMS SHOULD BE TREATED AS AN ERROR IN BID SUBJECT TO CORRECTION UNDER THE RULES GOVERNING MISTAKES IN BID SET OUT IN ASPR 2 406.3. A SIMILAR CONTENTION WAS CONSIDERED IN 38 COMP. GEN. 876. IN DISPOSING OF THE ISSUE, IT WAS STATED AT PAGE 878:

"* * * ERRORS IN BID WHICH MAY BE CORRECTED AFTER OPENING ARE THOSE WHICH DO NOT AFFECT THE RESPONSIVENESS OF THE BID. B-139132, MAY 14, 1959. SINCE YOUR BID, AS INDICATED ABOVE, IS NOT RESPONSIVE IN THE FORM SUBMITTED, IT MAY NOT BE CONSIDERED FOR CORRECTION.'

IT IS ALSO STATED THAT ACCEPTANCE OF YOUR BID WILL RESULT IN A SAVINGS TO THE GOVERNMENT OF APPROXIMATELY $10,000. IN 37 COMP. GEN. 110, AT PAGE 112, WE STATED:

"* * * INFORMALITIES WHICH PROPERLY MAY BE WAIVED ARE THOSE THAT DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS, BUT MATERIAL CONDITIONS IMPOSED BY A BIDDER MAY NOT BE WAIVED AS AN INFORMALITY OR MINOR IRREGULARITY. SEE 20 COMP. GEN. 4. PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS, OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED, WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. CF. UNITED STATES V. BROOKRIDGE, 111 F.2D 461, 464, AND THE OPINION OF THE SUPREME COURT OF ILLINOIS IN CITY OF CHICAGO V. MOHR, 74 N.E. 1056.'

IN THE CIRCUMSTANCES WE WILL NOT OBJECT TO THE PROPOSED REJECTION OF YOUR BID.